Tribunal Criminal Tribunal for the Former Yugoslavia

Page 2502

 1                           Tuesday, 18 September 2012

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.34 a.m.

 5             JUDGE ORIE:  Good morning to everyone.

 6             Madam Registrar, would you please call the case.

 7             THE REGISTRAR:  Good morning, Your Honours.

 8             This is the case IT-09-92-T, The Prosecutor versus Ratko Mladic.

 9             JUDGE ORIE:  Thank you, Madam Registrar.

10             If there are no preliminaries, the Chamber received a

11     submission -- at least a courtesy copy of a submission the Defence makes

12     in relation to the associated exhibits we discussed yesterday.  We'll pay

13     proper attention to that.

14             If there are no other preliminaries, then we will continue to

15     hear the evidence of the present witness, but we'll do that in closed

16     session.  And just to inform those who are in the public gallery, we'll

17     remain -- we expect to remain in closed session for the whole or almost

18     the whole of this day.

19             We turn into closed session.

20                           [Closed session]

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22                           [Open session]

23             THE REGISTRAR:  We're in open session, Your Honours.

24             JUDGE ORIE:  Thank you, Madam Registrar.

25             Mr. Lukic, it seems practical to me that we first give an

Page 2560

 1     opportunity to the Prosecution to make submissions in response to the

 2     written submissions, of which we received a courtesy copy.  By the way,

 3     are they filed meanwhile?

 4             MR. GROOME:  Our information is that they have been filed,

 5     Your Honour.

 6             JUDGE ORIE:  Then we can proceed on that basis.

 7             Mr. Lukic, let's first listen to Mr. Groome and then you have an

 8     opportunity to respond.  And we are talking about, I think, P186, P188,

 9     P189, P190, P192, and P193.  Oh, no, 193 has been admitted, meanwhile,

10     into evidence, yes.

11             Please proceed.

12             MR. GROOME:  Your Honours, it's -- I've made observations or

13     submissions with respect to those exhibits yesterday, and it is not my

14     intention to repeat them here.  I simply want to address, in summary way,

15     the examples cited by the Defence in paragraph 11.  Six examples that

16     they contend support their position.

17             We first note that apart from the final example in 11F, none of

18     the instances cited by the Defence in this paragraph concerns a decision

19     by the Trial Chamber on the admission into evidence of tendered exhibits.

20             Second in the way of a general observation, the notice does not

21     set out the Defence position concerning the authenticity of any of the

22     documents to which they objected yesterday.  If that's conceded, there's

23     nothing for me to make submissions on, if the authenticity is conceded.

24     If there is a challenge to their authenticity, then I would request an

25     opportunity to investigate the provenance of the individual documents and

Page 2561

 1     make further submissions in that regard.

 2             And as I believe the Chamber is well aware, the notice or the

 3     submission by the Defence as it concerns P193 is now moot.  So if I can

 4     begin with paragraph 11A, and this dealt with 65 ter 1027, the Chamber

 5     did not rule against the admission of this document.  This was an ECMM

 6     report, the organisation for which the Witness Colm Doyle worked.  The

 7     Chamber simply asked the Prosecution attorney on that -- dealing with

 8     that particular witness:

 9             "Would you like to keep it until a bar table motion?"

10             And the Prosecution accepted the advice or accepted the

11     suggestion by the Chamber and did not pursue tendering the document any

12     further.

13             With respect to the document in paragraph 11B, that's 65 ter

14     1D172, the Defence did not even propose to tender this document.  It was

15     a book published in 1969 about Islam, and Defence counsel in relation to

16     this exhibit stated:

17             "I will not be seeking to tender this because I do not believe

18     the witness can -- the witness to introduce this type of book into

19     evidence."

20             With respect to the submission in paragraph 11C regarding 65 ter

21     1D137, it was the Defence that withdrew its proposal to tender this

22     document.  The Trial Chamber has stated:

23             "Sure, but you can tender it through a witness who has knowledge

24     about its provenance and veracity.  The witness knows nothing about this

25     document."

Page 2562

 1             But again it was the Defence counsel who withdrew its tendering

 2     of the document.

 3             With respect to paragraph 11D, this related to 65 ter 17833, the

 4     Defence was not prevented from tendering this document.  The Trial

 5     Chamber stated:

 6             "If there's no objection in itself against the list to be

 7     admitted into evidence, then perhaps the parties could sit together and

 8     see under what Rule they could have this admitted into evidence.  But the

 9     witness says he had not seen a list, although he heard about it, and that

10     he seems not to be a very good basis for admission.  But this is not an

11     attempt to bar anything from becoming into evidence."

12             Defence counsel then withdrew his request to tender the document

13     and said that he would use it with another witness.

14             With respect to paragraph 11E, this is 65 ter 1D182, the Defence

15     did not tender this document.  The Prosecution objected to the use of

16     this document.  And if Your Honours will recall, this was commentary

17     taken from the Internet of a former US fire-fighter talking about other

18     fire-fighters being armed and it was not directly related to the

19     situation that was being in our position with respect to the situation

20     discussed with the witness.  So the -- the Defence itself did not

21     ultimately tender that document, so the Chamber never had the opportunity

22     to rule on it.

23             And then with respect to paragraph 11F, this was 65 ter 1D190.

24     This document was marked for identification because the witness could

25     only comment on a small part of this 13-page document.  According do the

Page 2563

 1     Defence notice which states:

 2             "The Chamber directed the Defence to only upload the portion of

 3     the document on which the witness had knowledge."

 4             It's our submission that this is not correct.  That there was no

 5     issue concerning uploading any portion of the document.  It was simply

 6     marked for identification at the time that it was used.

 7             And, Your Honour, that's the totality of the submissions I want

 8     to make in response to the written notice filed today.

 9             Thank you.

10             JUDGE ORIE:  Thank you, Mr. Groome.

11             Mr. Lukic, two matters.  First, challenges to authenticity; and,

12     second, any further comments on what Mr. Groome presented to us in the

13     last couple of minutes.

14             You have an opportunity to do it now.  I can imagine that

15     although you must have looked at A to F in paragraph 11 before.  I leave

16     it to you how you would prefer at this moment to proceed.

17             MR. LUKIC:  Thank you.

18             First, regarding the authenticity issue, we will accept, since we

19     cannot prove the authenticity, we can accept the offer by the Prosecution

20     to prove the authenticity of those documents.

21             JUDGE ORIE:  Let me see.

22             MR. LUKIC:  We cannot do that, of course.

23             JUDGE ORIE:  No.  The question is whether you challenge the

24     authenticity.  Because the Rules say that the Chamber may require proof

25     of authenticity, but, unless in many common-law traditions there are ways

Page 2564

 1     of having admitted into evidence documents even if no specific proof on

 2     their authenticity has been provided.  If you challenge the authenticity,

 3     of course the Chamber would like to know on what basis so that the

 4     Chamber can consider whether or not it will require the Prosecution to

 5     present proof of authenticity.

 6             That, as far as the authenticity is concerned.  I did not

 7     understand that the Prosecution offered to prove the authenticity but

 8     that they would respond, and, of course, that may consist of an offer to

 9     prove, but that they would respond to any challenge to authenticity.

10             If I understood you well, Mr. Groome.

11             MR. GROOME:  That's correct, Your Honour.  In particular, one of

12     the documents is authored by the accused so it may that they, in their

13     discussions with the accused, may have already formed a view about

14     whether they wish to challenge the authenticity or not, but the

15     Prosecution certainly would be prepared to provide information and then

16     proof if necessary about the authenticity.

17             JUDGE ORIE:  Yes.  That, as far as authenticity is concerned.

18             Would you like to add anything to that, Mr. Lukic?

19             MR. LUKIC:  Only that this witness was not good source to -- to

20     confirm the authenticity of any of these documents.

21             JUDGE ORIE:  No questions were asked about -- from him.  So it

22     seems that although some of the documents -- I don't know exactly.

23     Sometimes he was asked about whether he had known documents --

24             MR. LUKIC:  Yes.

25             JUDGE ORIE:  -- and when he had seen them for the first time.

Page 2565

 1     That's clear.  We have to look at that very precisely.

 2             Any further matters.

 3             MR. LUKIC:  On authenticity or anything else?

 4             JUDGE ORIE:  Well, we started with authenticity.  So if you want

 5     to add anything to that, please do so.  And then we'll move on to the six

 6     examples you relied.

 7             What is it valid for discussions between accused and counsel is

 8     valid for members of the team and counsel as well.

 9             Please proceed, Mr. Lukic.

10             MR. LUKIC:  And regarding the -- the -- the objections that we

11     withdraw some documents after your warning to us that it shouldn't be

12     introduced through a certain witness, yes, we did that.  If you want us

13     to be persistent and not to listen to your warnings and then we can do

14     that, but we think that we actually acted, at that time, fairly.  But,

15     first, we were warned that that's not good document to introduce through

16     a certain witness.  Now we objected, actually, on the same grounds for

17     these documents and the witness who testified today and yesterday.

18             So we think that the ground is not moot if we withdrew our

19     proposal to -- to have one document introduced into evidence.

20             JUDGE ORIE:  Mr. Lukic, I would like to invite you, if you say

21     "we were warned," well, you were given -- certainly sometimes you were

22     given guidance.

23             MR. LUKIC:  Guidance.

24             JUDGE ORIE:  And sometimes, as you indicate yourself, it was not

25     whether this Chamber considered the document inadmissible.  But, for

Page 2566

 1     example, to bar table it now or later, which is guidance, which certainly

 2     does not go in the direction of non-admission.  Therefore, I think it

 3     would be good for the Chamber to know where you say, This should not be

 4     admitted, or it should not be admitted in the way the Prosecution

 5     tendered it.

 6             MR. LUKIC:  It shouldn't be admitted in the way the Prosecution

 7     tendered it, Your Honour.

 8             JUDGE ORIE:  But there are no substantive objections against

 9     admission, as far as matters stand now?

10             MR. LUKIC:  That's true.

11             JUDGE ORIE:  Then --

12             MR. LUKIC:  Excuse me.

13                           [Defence counsel confer]

14             MR. LUKIC:  Actually, I was just warned that we do have some

15     objections.  For example, for the document that says and bears my

16     client's name at the end.  If it's bar tabled, we would have objections

17     that go with the bar table documents.

18             JUDGE ORIE:  That is a document MFI'd under what number?

19             MR. LUKIC:  I will give you the number.  It's MFI 189.

20             JUDGE ORIE:  189.

21             MR. LUKIC:  Yes.

22             JUDGE ORIE:  Described as the VRS Main Staff order, signed by

23     Ratko Mladic.

24             MR. LUKIC:  Yes.

25             JUDGE ORIE:  Yes.  That is hereby on the record.

Page 2567

 1             Do we also understand that you would not oppose against the other

 2     documents to be bar tabled, apart from whether it would be best done now

 3     or at any later stage?

 4                           [Defence counsel confer]

 5             MR. LUKIC:  I'm afraid that we have to stand on our prior

 6     submissions at this moment, Your Honour.  I cannot go in any -- any --

 7     anything else.  But I'll -- aside we have in our motion.

 8             JUDGE ORIE:  Yes.  At the same time, you say I was just warned

 9     that we do have some objections and then you gave one example.  So

10     therefore, apparently, you are aware of other objections you may have,

11     but let's not deal with the matter at this moment.

12             You say you stand with your submissions and there's no wish to

13     add anything to that?

14             MR. LUKIC:  No.

15             JUDGE ORIE:  Then the Chamber will consider the matter and we'll

16     decide on it.

17             Is there any other matter at this moment?

18             MR. LUKIC:  Not on our side, Your Honour.

19             MR. GROOME:  Not from the Prosecution, Your Honour.

20             JUDGE ORIE:  No.

21             Mr. Groome, apart from that, we have only 12 or 13 minutes left,

22     the next witness is not yet available but will be available tomorrow

23     morning at 9.30?

24             MR. GROOME:  That's correct, Your Honour.

25             JUDGE ORIE:  Then we will adjourn for the day, and we resume

Page 2568

 1     tomorrow, Wednesday, the 19th of September, at 9.30 in the morning, in

 2     this same courtroom, I.

 3                           --- Whereupon the hearing adjourned at 1.04 p.m.,

 4                           to be reconvened on Wednesday, the 19th day of

 5                           September, 2012, at 9.30 a.m.