Tribunal Criminal Tribunal for the Former Yugoslavia

Page 4301

1 Tuesday, 23 May 2006

2 [Closed session]

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11 Pages 4302-4363 redacted. Closed session.















Page 4364

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6 [Open session]

7 JUDGE MOLOTO: Thank you very much. Just before we go for the

8 next witness, the Trial Chamber has one or two housekeeping matters to

9 address in relation to three exhibits, each of which consists of a very

10 lengthy document or a book.

11 On the 30th of January and on the 3rd of March, and on the 4th of

12 May, 2006, three books were admitted into evidence as Exhibits 24, 238,

13 and 476 respectively. The Trial Chamber notes that there is a significant

14 discrepancy between the very few portions put by the parties to the

15 witnesses in court and the English and B/C/S portions respectively which

16 form part of the trial record. The Trial Chamber is of the view that it

17 is essential for a fair and expeditious trial to preserve a coherent and

18 clean trial record.

19 The Trial Chamber therefore orders as follows:

20 That each party shall indicate which pages of the three books it

21 wishes to tender into evidence by Friday, the 26th of May, 2006, based

22 upon the examination-in-chief, cross-examination, or re-examination as

23 applicable, which it carried out in relation to the books.

24 2: Each party shall properly scan only the portions sought to be

25 admitted and resubmit them to the Registrar in English and B/C/S by Friday

Page 4365

1 the 26th of May, 2006.

2 And 3: The Registrar shall correct the trial record and assign

3 any new exhibit numbers necessary out of court.

4 MR. WHITING: Your Honour, just for clarity for this project, am I

5 to understand from -- I'm sorry, from the first point, that the parties

6 are limited in tendering only those portions of the books which were

7 actually discussed during examination, cross-examination or

8 re-examination? Because it had been my intention, based on the Court's

9 decision of the 19th of May, 2006, which also addresses this issue, to do

10 precisely this exercise but I was not intending to limit it to -- in that

11 way. I was going to, rather, select the portions which I thought might be

12 of relevance to the issues in the trial, and I was going to go by that

13 guideline rather than the guideline which is -- unless -- which has

14 perhaps just been suggested by the Trial Chamber. Or maybe I

15 misunderstood what the Trial Chamber is saying.

16 JUDGE MOLOTO: No. You don't seem to have misunderstood. This

17 guideline, this latest one that we have just read now is inspired by a

18 belief that, from the point of view of the parties, that which was of

19 interest to them in those documents was that which was canvassed in court.

20 It was not anticipated that there were other materials in the same

21 documents beyond what was canvassed in court that was seen to be as

22 relevant.

23 MR. WHITING: Well, I can say I know -- I know that one of the

24 books - and I think it's the last one, from the 4th of May, Exhibit 476 -

25 I believe, if my recollection is correct, that this is the book of

Page 4366

1 Borislav Jovic and it is a very lengthy book and there are lots of

2 portions which are not of relevance to the Trial Chamber. However, I put

3 that into evidence through a witness, through Mr. Kerkkanen, who really

4 was, as we know, kind of an authenticating witness and just for relevance,

5 to show that at least the document was relevant to the trial, and to some

6 degree I did highlight two or so passages, maybe more, maybe three

7 passages of the book that were relevant. However, I didn't -- I did not

8 go through the exercise of going through every passage in the book which

9 might be of relevance. Which does not equal the entire book.

10 So what I would like to be able to do, if the Trial Chamber is

11 agreeable, is to -- for purposes of this exercise, is to identify the

12 portions of the book which I think might be relevant to the Trial Chamber,

13 to the issues, and of assistance to the Trial Chamber which -- but which

14 may not necessarily have been discussed in court.

15 Frankly, if -- I could have gone through page after page after

16 page of the book with the witness. All he could have said is that -- is

17 what's on the book. He couldn't have really added much more comment than

18 that and it would have taken an enormous amount of time. I'm not sure it

19 would have been of any assistance or added any value to go through that

20 exercise. Now that we have the book available, I would like, if the Court

21 is agreeable, to identify only the relevant portions.

22 JUDGE MOLOTO: Let me understand. You asked the witness about the

23 contents of that book to show the relevance of the book to the issues of

24 this matter, in this matter.

25 MR. WHITING: Well, to show the relevance of at least parts of the

Page 4367

1 book, in order to satisfy our burden of showing, before we admit -- seek

2 admission into evidence of a document, that it's relevant to the trial.


4 MR. WHITING: So I did that with respect to -- I picked three

5 excerpts from the book but I didn't pick every excerpt.

6 JUDGE MOLOTO: But do those three excerpts, did they not

7 accomplish your mission, to show its relevance?

8 MR. WHITING: It -- I think it accomplishes the mission to show

9 the relevance to get the document into evidence, but I think it would be

10 unfortunate if the Trial Chamber were then limited in its examination to

11 just those three excerpts and did not have available to it other portions

12 of the book which would be relevant to the issues of the trial.

13 JUDGE MOLOTO: I would imagine --

14 MR. WHITING: And I think it would -- I understand the Court

15 doesn't want the record to be burdened with documentation that is not

16 relevant to the trial, and that is excessive, and I'll keep that in mind

17 and try to be extremely selective and only select portions which would be

18 of relevance to the issues before the Trial Chamber, and I think it would

19 -- it won't be -- it will be far from the whole book. It's only going to

20 be a portion.

21 JUDGE MOLOTO: But if it's 50 per cent of the book and that 50 per

22 cent of the book only demonstrates the relevance and relevance can be

23 demonstrated by the three excerpts that you have referred to in your

24 examination, the question is how -- what does the rest of the portion that

25 you want to put in, what does it achieve?

Page 4368

1 MR. WHITING: Well, they are relevant to other issues because the

2 book, as you'll recall, is the diary of Borislav Jovic, who was the

3 Serbian representative on the Presidency of the SFRY and himself the

4 president of the Presidency for an important period of time, and a very

5 close ally of Slobodan Milosevic. And he writes about the events that

6 occur -- he writes to some extent about events occurring in the Krajina in

7 Croatia, and I picked out I think it's three entries, but there are

8 several other entries which are relevant to events. And my guess is that

9 the Defence will also have the same view of this, that they will find

10 entries in that same book which they might think will be of relevance.

11 JUDGE MOLOTO: Let's hear what the Defence has got to say.

12 Mr. Milovancevic, do you have any response to make?

13 MR. MILOVANCEVIC: [Interpretation] Your Honour, the Defence agrees

14 with what the Prosecutor has said. We feel that this is a situation which

15 might be limiting both for the Prosecution and the Defence, if we were to

16 strictly adhere to Your Honour's instruction, not just with respect to

17 these three books but perhaps with respect to other documents also. A

18 number of other issues might arise which have not yet been touched on,

19 either in the work of the Prosecution or the work of the Defence. That is

20 why I share my learned friend's opinion that perhaps this kind of

21 guideline from the Trial Chamber would limit both the Defence and the

22 Prosecution in their work.

23 And another issue arises here, Your Honour. The opposite side

24 could always object that something has been taken out of context if

25 something were extracted, and this should be borne in mind, perhaps. But

Page 4369

1 I do support what my learned friend has said.

2 JUDGE NOSWORTHY: Sorry, wouldn't you have had your opportunity in

3 cross-examination, when the book was being put to the witness, to give

4 evidence concerning it, and through whom it was tendered, essentially?

5 Wouldn't that have been your opportunity in respect of anything that was

6 in the book that was contrary to what the witness said? And if the book

7 is in fact ever-present and you need it in the future, either the

8 Prosecution or the Defence, through a witness, are you not still able to

9 use the book to do effectively what you want to do? I'm asking

10 Mr. Milovancevic firstly but I'd also like to hear Mr. Whiting.

11 MR. MILOVANCEVIC: [Interpretation] Your Honour, if it is the

12 position of the Trial Chamber that the book can be used to introduce

13 certain facts through other witnesses and raise other relevant issues,

14 then the Defence would be satisfied at present, but listening to my

15 learned friend, I was concerned that we might arrive at a situation where

16 a certain book was marked as an exhibit and relevant topics extracted and

17 we would then be deprived of the opportunity of using parts of the book

18 further in the proceedings.

19 JUDGE MOLOTO: Let me understand you clearly, Mr. Milovancevic. I

20 hear you say you support your learned friend. However, what you say in

21 support of that seems -- comes across as slightly different. Your learned

22 friend's position is he's agreeable to reducing the entire book, but not

23 limiting it to just what was discussed in court. He would like to be able

24 to include a few more pages or a few more parts of the book that were not

25 necessarily discussed. Now, is that what you are supporting?

Page 4370

1 MR. MILOVANCEVIC: [Interpretation] Yes, precisely so, Your Honour.

2 Thank you for putting it so precisely. That is just what I wanted to say

3 and what I think my learned friend has said.

4 JUDGE MOLOTO: Okay. Thank you very much. In the interests of

5 expediency, we will lift this order for now. We will not put it into

6 operation, and we will discuss it and we'll come back at the next session

7 with a reasoned answer. Thank you very much.

8 I don't know whether I say Ms. Richterova or I should address

9 Mr. Whiting.

10 MR. WHITING: Your Honour, I'll be handling the next witness. If

11 I may just -- if it's of assistance, because I know the Court is going to

12 be considering it, Judge Nosworthy invited -- I've been waiting for the

13 opportunity to pronounce the name correctly and I've just had it.

14 JUDGE NOSWORTHY: Thank you, Mr. Whiting. Finally.

15 MR. WHITING: And I apologise again for previous

16 mispronunciations.

17 JUDGE NOSWORTHY: Not at all.

18 MR. WHITING: Just to respond to Your Honour's question, I'm not

19 sure that we have future witnesses who will be able to -- because we are

20 coming kind of to the end of our Prosecution case and hadn't anticipated

21 this issue, so that's another reason why we would ask to be allowed to put

22 in other portions of the document.

23 JUDGE MOLOTO: We will consider that.

24 MR. WHITING: Thank you, Your Honour. Our next witness is MM-078.

25 I think Ms. Richterova would like to be excused, if she may.

Page 4371

1 JUDGE MOLOTO: I'm sure Ms. Richterova is going to speak for

2 herself.

3 MS. RICHTEROVA: Thank you. The senior trial attorney likes

4 talking on my behalf.

5 JUDGE MOLOTO: He doesn't want you in court when he's doing his

6 job.

7 MS. RICHTEROVA: So may I be excused, please?

8 JUDGE MOLOTO: You're quite excused, Ms. Richterova. Thank you

9 very much.

10 MM-078, you said. Thank you.

11 [The witness entered court]

12 JUDGE MOLOTO: May the witness please make the declaration.

13 THE WITNESS: [Interpretation] I solemnly declare that I will speak

14 the truth, the whole truth, and nothing but the truth.


16 [Witness answered through interpreter]

17 JUDGE MOLOTO: Thank you very much. I notice the curtain is down.

18 There was a distortion of the face. Is this a protected witness? Do we

19 need to be in any kind of closed or private session?

20 MR. WHITING: Not at the moment, Your Honour. I believe the booth

21 is aware that this witness has protective measures and so face distortion

22 has been accomplished, and this stays down and there are -- nobody is

23 allowed in there.

24 JUDGE MOLOTO: Thank you very much. You may proceed. And may the

25 witness please be seated.

Page 4372

1 Examination by Mr. Whiting:

2 Q. Sir, you may sit down. Good afternoon, sir. First of all, can

3 you hear me and understand me in a language that you can understand?

4 A. I can hear you very well and I can follow what you're saying in a

5 language that I can understand.

6 Q. Sir, if at any time you cannot hear me or you cannot understand me

7 or anybody else in the courtroom, please let us know. Do you understand?

8 A. I do.

9 Q. I first want to apologise for the long time that you've been

10 waiting. We had expected to start your testimony earlier today and there

11 was a delay this morning and so I know that this has resulted in you

12 waiting a long time and I apologise for that.

13 A. I accept your apology.

14 Q. Thank you.

15 MR. WHITING: Could I first, with the assistance of the usher,

16 show the witness the pseudonym sheet, please.

17 Q. Sir, without saying the name, can you look at that name and tell

18 us if that is your name on that sheet with the number MM-078?

19 A. Yes. This is my name.

20 Q. Thank you.

21 A. Your Honour, this is my name.

22 Q. Thank you, sir.

23 MR. WHITING: Could that please be shown to the Defence and then

24 to the Trial Chamber. And could that be made an exhibit, under seal,

25 please, Your Honour?

Page 4373

1 JUDGE MOLOTO: May this document please be made an exhibit. May

2 it please be given an exhibit number.

3 THE REGISTRAR: Yes, Your Honour. Exhibit number will be 720,

4 under seal.

5 JUDGE MOLOTO: Thank you very much.


7 Q. Now, Witness, as you know, you have been granted certain

8 protective measures for your testimony here during this trial, and I just

9 want to go over them with you. The first is that you will be referred to

10 by pseudonym, and the pseudonym is MM-078, though often we will just call

11 you "Witness." You will -- your image also will not be broadcast as part

12 of this proceeding, and in addition, if we discuss any details or

13 information that might identify you, that will be done in private session

14 and there will be no broadcast of that testimony. Do you understand all

15 those measures?

16 A. I do, and I thank you.

17 Q. And I'll remind you that you have a glass of water there, and if

18 at any time you need to have a drink, please do.

19 A. I thank you.

20 MR. WHITING: Could we go into private session, please, Your

21 Honour?

22 JUDGE MOLOTO: May the Chamber please move into private session.

23 [Private session]

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13 --- Whereupon the hearing adjourned at 1.48 p.m.,

14 to be reconvened on Wednesday, the 24th day of May,

15 2006, at 9.00 a.m.