Tribunal Criminal Tribunal for the Former Yugoslavia

Page 20052

 1                           Thursday, 28 November 2013

 2                           [Open session]

 3                           [The accused not present]

 4                           --- Upon commencing at 9.37 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                           [Trial Chamber confers]

11             JUDGE ORIE:  First of all, I'd like to put on the record that

12     Mr. Mladic is not in court.  He explicitly waived his right which was

13     confirmed by counsel yesterday to be present when we would deal with

14     administrative matters primarily today.

15             I have two matters on my agenda.  First, is to deliver a

16     relatively short oral decision, and then to hear further submissions in

17     relation to the authenticity of intercepts in relation to Witness RM507.

18             Is there anything else?

19             MR. SHIN:  Good morning, Mr. President, Your Honours, and

20     counsel.

21             There is one brief matter.  This -- this regards an e-mail that

22     the Prosecution sent yesterday afternoon that the Prosecution would just

23     seek to put on the record; namely in compliance with the Trial Chamber's

24     oral decision regarding the Prosecution's resubmission of the transcript

25     evidence of Tarik Zunic, RM179, pursuant to Rule 92 bis.  The Prosecution


Page 20053

 1     has uploaded into e-court this material now under 65 ter number 30511.

 2             JUDGE ORIE:  Yes.  It being uploaded, I think no number had yet

 3     been assigned to the previous version, the longer version, of the

 4     evidence of Mr. Zunic.

 5             MR. SHIN:  That's correct, Mr. President.

 6             JUDGE ORIE:  Then, Madam Registrar, the number would be ...

 7             THE REGISTRAR:  Document 30511 receives number P2980,

 8     Your Honours.

 9             JUDGE ORIE:  P2980 is admitted into evidence under Rule 92 bis.

10             Then I'll move to my first item, which is a decision of the

11     Chamber on the tendering of a proposed exhibit with Rule

12     65 ter number 25116A.

13             On the 2nd of May of this year, the Prosecution tendered Rule

14     65 ter 25116A in court with Witness Nicolai.  This can be found at

15     transcript page 10589.  The Chamber will herein after refer to it as the

16     proposed exhibit.

17             On the same day, the Chamber delivered its decision on

18     Prosecution's bar table motion for the admission of intercepts:

19     Srebrenica segment, in which the Chamber did not take judicial notice of

20     the authenticity of the proposed exhibit, and did not admit it at that

21     time.  The Chamber's view, given the tendering of the proposed exhibit in

22     court with Witness Nicolai, is that the issue of its admission is still

23     pending before the Chamber.

24             At the outset, the Chamber emphasises that the clear distinction

25     that exists between taking judicial notice of the authenticity of, for

Page 20054

 1     example, an intercept, and the requirements for admission when this same

 2     intercept is tendered in court with a witness who states that he or she

 3     was a participant in the intercepted conversation.  The former requires

 4     that the Prosecution demonstrates that the authenticity of the document

 5     has been established in a previous trial.  The latter requires, pursuant

 6     to Rule 89(C) of the Rules, that the document is relevant to the charges

 7     in the indictment and of probative value.

 8             The Prosecution submits that the proposed exhibit is an audio

 9     version of an intercepted conversation which has already been admitted

10     into evidence as P1186.  Upon review, the Chamber is satisfied that,

11     while the transcription of the audio and the text of P1186 differ in

12     terms of length and detail, they both relate to the same conversation.

13     The proposed exhibit appears to be a conversation regarding the

14     evacuation of a UN DutchBat soldier who had been shot and killed.

15     Witness Nicolai testified that he was a participant in this conversation

16     when shown P1186 in court.  Given that the proposed exhibit appears to be

17     a more comprehensive version of P1186, the Chamber is satisfied that it

18     is sufficiently relevant and of probative value for admission into

19     evidence.

20             The Chamber therefore admits into evidence Rule

21     65 ter number 25116A and requests the Registry to assign this document an

22     exhibit number.

23             Madam Registrar.

24             THE REGISTRAR:  Document 25116A receives number P2981,

25     Your Honours.


Page 20055

 1             JUDGE ORIE:  P2981 is admitted into evidence.

 2             What now remains on the agenda is to hear submissions by the

 3     Prosecution on the issue of authenticity and of -- intercepts, especially

 4     intercepts which were introduced through Witness 507.

 5             Mr. Shin.

 6             MR. SHIN:  Thank you, Mr. President.  And I would request that we

 7     now move into private session, given the protective measures for the

 8     witness and the fact that some of the documents I'll be addressing are

 9     under seal.

10             JUDGE ORIE:  Yes.  You keep a close eye on when we can return

11     into open session.

12             MR. SHIN:  Yes, of course, Mr. President.

13             JUDGE ORIE:  Yes.

14             Then we turn into private session.

15                           [Private session]

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 20056











11 Pages 20056-20077 redacted. Private session.
















Page 20078

 1   (redacted)

 2                           [Open session]

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

 4             JUDGE ORIE:  Thank you, Madam Registrar.

 5             Mr. Shin.

 6             MR. SHIN:  Yes, then if I  -- thank you, Mr. President.

 7             If I may continue with 65 ter 13530.

 8             JUDGE ORIE:  Yes.  Official Gazette SFRY confidential paper, year

 9     X number 18, 27th of July, 1990, receives, Madam Registrar, number.

10             THE REGISTRAR:  Document 13530 receives number P2996,

11     Your Honours.

12             JUDGE ORIE:  Admitted into evidence.

13             Next one, Mr. Shin.

14             MR. SHIN:  Is 65 ter 13531.

15             JUDGE ORIE:  Yes.  Revised text of Article 39 of the Law on

16     Internal Affairs, receives number.

17             THE REGISTRAR:  Number P2997, Your Honours.

18             JUDGE ORIE:  Admitted.

19             Next one, Mr. Shin.

20             MR. SHIN:  65 ter 13532.

21             JUDGE ORIE:  Described as letter from the Secretariat of

22     The Presidency of Bosnia and Herzegovina to the ICTY, receives number.

23             THE REGISTRAR:  P2998, Your Honours.

24             JUDGE ORIE:  Admitted.

25             Next one, Mr. Shin.


Page 20079

 1             MR. SHIN:  65 ter 13533.

 2             JUDGE ORIE:  Rules of procedure of the Presidency of the

 3     Socialist Republic of Bosnia-Herzegovina, receives number.

 4             THE REGISTRAR:  P2999, Your Honours.

 5             JUDGE ORIE:  Admitted.

 6             MR. SHIN:  And finally 65 ter 13534.

 7             JUDGE ORIE:  Amendment 69 to the 1990 constitution of the

 8     Socialist Republic of Bosnia and Herzegovina, receives number.

 9             THE REGISTRAR:  P3000, Your Honours.

10                           [Trial Chamber confers]

11             JUDGE ORIE:  Mr. Shin.

12             MR. SHIN:  Thank you, Mr. President.

13             With that, I would propose now to address the underlying

14     intercepts themselves, and turning now to the notification that -- I'm

15     sorry, the notice and the chart, the relevance and probative value chart

16     that the Prosecution had filed.  I will be discussing that chart and the

17     153 intercepts listed there.

18             JUDGE ORIE:  Please proceed.

19             MR. SHIN:  In short, the Prosecution has, as we've discussed, set

20     out the relevant -- its position on the relevance and probative value of

21     these intercepts.  And regarding these 153 intercepts the Prosecution

22     would now tendered them into evidence.

23             I'm sorry, Mr. President.  One note, in accordance with the

24     Chamber's direction the Registry had reserved P numbers for these

25     intercepts, and there is a typo on -- regarding one of those items.  And

Page 20080

 1     I would just flag that right now.

 2             Referencing the 11th November Registry memo on page 3, the last

 3     item there, is listed as 65 ter number 20570.  That should actually be

 4     27570.  And I refer to the relevance/probative value chart, item 115, as

 5     the reference for that correction.

 6                           [Trial Chamber confers]

 7             JUDGE ORIE:  That is hereby corrected.

 8             Mr. Lukic, the intercepts are now tendered into evidence, 153.

 9             MR. LUKIC:  What I could see and can see now from this motion

10     filed by the Prosecution is that there is a lot of intercepts that are

11     outside the scope of the indictment.  If you see, it's huge number.  Like

12     up to page -- page 31 of 49 pages of this document -- proposed list is

13     outside the scope of the indictment.  That's year 1991 or before --

14             JUDGE ORIE:  Let me see --

15             MR. LUKIC:  -- May 1992.

16             JUDGE ORIE:  Could you give me the 1991 so that we could have a

17     look at -- because I see it's --

18             MR. LUKIC:  Page 1.

19             JUDGE ORIE:  Page 1.

20             MR. LUKIC:  Yes.  21st May, 1991.

21             And 1991 --

22             JUDGE ORIE:  But --

23             MR. LUKIC:  -- goes all the way to page 17.  First 17 pages are

24     from 1991.

25             JUDGE ORIE:  Now that -- that is the date.  Perhaps, Mr. Shin,

Page 20081

 1     would you please respond --

 2             MR. SHIN:  Yes --

 3             JUDGE ORIE:  -- to this objection.

 4             MR. SHIN:  Yes.  Mr. President, of course, the fact that a

 5     particular piece of evidence is outside of the specific time-frame of the

 6     indictment is not a reason not for admission so long as it is relevant to

 7     the matters in the case.  These intercepts are relevant to members --

 8     first of all, to the members of the alleged JCE and they also relate to

 9     contextualising events that do arise within the indictment period.

10             JUDGE ORIE:  Mr. Lukic, apart from the date.

11             MR. LUKIC:  Covers --

12             JUDGE ORIE:  One second.

13             MR. LUKIC:  Mm-hm.  Sorry.

14             JUDGE ORIE:  Mr. Shin, or at least the Prosecution, explained

15     what it considered to be the relevance and not everything that is outside

16     the strict time-frame of the crimes committed would necessarily be

17     irrelevant for the Prosecution's case.  So apart from the date, is there

18     any specific entry where you say, Look, they claim irrelevance which

19     is -- we object because it is totally irrelevant for the case.

20             MR. LUKIC:  Next objection is, at that time, all these intercepts

21     cover territory on which General Mladic was not present.  So these are

22     intercepts from Bosnia and, at that time, he was in Croatia.  And he had

23     nothing to do with any dealings of these persons in Bosnia.  He was not

24     in connection with them, and he has nothing to do with any of these

25     conversations.  He has -- nothing affects him.

Page 20082

 1             JUDGE ORIE:  Mr. Shin.

 2             MR. SHIN:  Just very briefly Mr. President.

 3             I -- that -- that doesn't change the position, of course, of the

 4     Prosecution as set out momentarily and -- I'm sorry, as set out a moment

 5     ago, and furthermore the intercepts do relate to, again, the alleged

 6     members of the JCE and relate also to the institutions that are relevant

 7     to the background and context in which Mr. Mladic then does arrive in

 8     Bosnia.

 9             JUDGE ORIE:  Mr. Lukic, any further objections or comments on the

10     tendered 153 --

11             MR. LUKIC:  Can there be drawn any connection in between those

12     institutions and General Mladic in the time-frame before May 9th, 1992?

13             JUDGE ORIE:  Mr. Shin.

14             MR. SHIN:  In the absence of any particularised objections, but

15     speaking globally, the Prosecution position would be that, yes, it can,

16     for the -- for the reasons that we have already identified.  If the -- if

17     the Defence wish to make particularised objections and raise specific

18     arguments, of course, we may then respond further.

19             JUDGE ORIE:  Any specifics?  That's what Mr. Shin is asking for.

20             MR. LUKIC:  I can go one by one.

21             JUDGE ORIE:  [Overlapping speakers] ... well, if you take -- if

22     you take.

23             MR. LUKIC:  [Overlapping speakers] ... my learned friend wishes.

24             JUDGE ORIE:  Well, if you take the strongest example of where you

25     think that the Prosecution is claiming relevance where it isn't there,

Page 20083

 1     then we could, perhaps, on the basis of one, two, or three of those

 2     example, give Mr. Shin an opportunity to respond to those and then get a

 3     better understanding of the objection you have raised in a rather

 4     general -- in rather general terms.

 5             MR. LUKIC:  I can start from the beginning.  Number 1,

 6     65 ter number 20063, from 21st May, 1992.

 7             JUDGE FLUEGGE:  1991.

 8             MR. LUKIC:  1991.  Thank you,

 9     Your Honour. [Overlapping speakers] ...

10             JUDGE FLUEGGE:  It was a Freudian slip of the tongue.

11             JUDGE ORIE:  You shoot again your own foot, Mr. Lukic.

12             MR. LUKIC:  Thank you.  Mr. Karadzic instructs B and H deputy

13     minister of internal affairs, Zepinic, to keep Tomislav Kovac in Ilidza.

14     Karadzic comments on the Serbian Democratic Party, SDS, leadership's role

15     in such matters.  Mr. Mladic at that time had no dealings with

16     Mr. Zepinic nor Karadzic, nor Kovac nor was in Bosnia nor was member of

17     SDS.  I'm sure he had no idea what's going on at that time with these

18     matters.

19             JUDGE ORIE:  No.  The Prosecution in the third column explains

20     what it considers to be the relevance.  Could you --

21             MR. LUKIC:  Third column?  [Overlapping speakers] ...

22             JUDGE ORIE:  The fifth -- the sixth column, as a matter of fact.

23     There the relevance is explained.  Could you please tell us ...

24             MR. LUKIC:  That Mr. Karadzic was able to influence something.

25     Has nothing to do with General Mladic, especially not in 1991.  There is

Page 20084

 1     no mention of General Mladic --

 2             JUDGE ORIE:  Well, it says that it is also relevant to Karadzic's

 3     preparation for the establishment of an ethnically Serb MUP and to his

 4     long-standing relationship with Tomo Kovac.  Which I understand to be

 5     that preparation for the establishment of an ethnically Serb MUP, that

 6     that is an element in -- if I could say it very briefly, the alleged

 7     establishing Serb rule in major parts of Bosnia; that the role of

 8     Mr. Karadzic being rather influential in government circles; and that

 9     Mr. Kovac, I think who is mentioned as one of the JCE members but I don't

10     know exactly, that that is all relevant as precursors of what happened

11     later.

12             That's how I understand, at least, the relevance as you explain

13     it -- as the Prosecution explains it.

14             MR. SHIN:  Yes, Mr. President.  That's correct.  This -- this

15     relates to JCE members and allegations regarding the JCE.  And I may just

16     remind my learned colleague that at this stage we are dealing with the

17     admissibility of evidence.  We are not dealing with any final findings of

18     fact.  We are not really at the point of that by quite a wide margin.

19             JUDGE ORIE:  Yes.  But in order to have probative value it should

20     be relevant and relevance certainly is a matter which plays a role at the

21     admission stage, unless you would disagree with that, Mr. --

22             MR. SHIN:  I would absolutely agree, Mr. President.  And for that

23     reason, we have articulated the relevance and the articulation is

24     relevant to our indictment.

25             JUDGE ORIE:  Yes.  This is a different argument than the one you

Page 20085

 1     used a second ago.

 2                           [Trial Chamber confers]

 3                           [Prosecution counsel confer]

 4             JUDGE ORIE:  Mr. Lukic, I summarised, which I'll not do any

 5     further, what I understand to be the explained relevance.  We leave it to

 6     Mr. Shin to explain that in further detail.

 7             But I asked you to choose the three strongest examples of where

 8     you challenged the relevance as explained by the Prosecution.  You've

 9     chosen the first one.  Could you, in view of these submissions made by

10     Mr. Shin, tell us why he is wrong in considering this to be relevant.

11             MR. LUKIC:  Everything is interconnected, of course, especially

12     in a small country as Bosnia.

13             Then, if we go by that logic, everything is relevant.  We are

14     telling and claiming that Mr. Mladic had no dealings whatsoever before

15     May, probably 9th, and for sure 12th, with anybody in Bosnia-Herzegovina.

16     His chain of command was coming from federal state, from Belgrade, and he

17     was in Croatia.  He had nothing to do with any authority in Bosnia,

18     nothing whatsoever, before he came to Bosnia.  He could not know what's

19     going on there, since he was emerged in -- he was in the middle of the

20     war in Croatia.  He had much better -- much more serious concerns with

21     his direct surrounding, with his troops under attack, inside barracks all

22     over Croatia; actually in Croatian Krajisnik.  So I'm sure that he did

23     not follow the news from Bosnia because he had no time nor was he

24     interested in what's going on in Bosnia-Herzegovina at that time.  And

25     claiming that he has anything to do with this while he was in the middle

Page 20086

 1     of the war in another part of then-federal state is -- is not true.

 2             JUDGE ORIE:  Yes.

 3             MR. LUKIC:  Thank you.

 4             JUDGE ORIE:  Positions of the parties seem to be clear.

 5             I invited you to take the two or three of your strongest

 6     examples, or would you want to leave it to this more general observation?

 7             MR. LUKIC:  I'll -- for example, general because we really can go

 8     one by one --

 9             JUDGE ORIE:  No.  I asked you to present the two or three

10     strongest as further illustration of the objections which you've raised

11     in rather general terms.  You have an opportunity to do so.  I'm not

12     inviting you to go through --

13             MR. LUKIC:  Yeah.  For example, number one -- number 8.

14             JUDGE ORIE:  Yes.  Number 8.

15             MR. LUKIC:  It's page 4.  65 ter 20136.  Milosevic inquires

16     whether Serbian population was responding to the JNA's call-up.  Karadzic

17     confirms that the mobilisation was proceeding well.  If there is any

18     dealing of General Mladic with army, even JNA inside Bosnia, Karadzic --

19     Milosevic would inquire with him, not with Karadzic, let alone that any

20     SDS members talking to each other have nothing to do with General Mladic,

21     who was never member of SDS, and, as you could see during this trial, had

22     really belligerent relationship with SDS.

23             Then you have number 12 on the next page.  Again, Karadzic and

24     General Blagoje Adzic, the JNA's Chief of Staff, are talking.

25             JUDGE ORIE:  Perhaps it's the better order if you have chosen 12

Page 20087

 1     that we give an opportunity to Mr. Shin to say whether the relevance as

 2     explained here is complete or whether you'd like to add anything.

 3             We take it that you have explained the relevance here so that

 4     Mr. Lukic can --

 5             MR. SHIN:  Yes, Mr. President.  I'm sorry, I hadn't realised that

 6     the -- yeah.  Basically the Prosecution reiterates its position as to the

 7     relevance, which is set out here, and Mr. Lukic has not addressed the

 8     arguments.

 9             JUDGE ORIE:  Okay.  Okay.  Well, then, let's give an opportunity

10     for Mr. Lukic to deal with number 12.

11             MR. LUKIC:  Number 12, it says the relevance is that this

12     intercept is relevant to showing the JNA's transformation to a

13     Serb-dominated army dedicated to protecting the interests of the Serb

14     people.  This intercept is also relevant to showing Karadzic's

15     co-operation with Slobodan Milosevic and the JNA leadership on military

16     matters.

17             At that time, what does have -- what does it have to do with

18     General Mladic?  And we all see -- we're able to see over this time why,

19     at the end of 1991, JNA was transforming, and getting closer to Serbian

20     people.  Because they were -- that was the only people that did not

21     attack JNA.  Not that -- because of something General Mladic did to

22     transform that army.

23             JUDGE ORIE:  At this moment you're commenting on content rather

24     on relevance.

25             Any --

Page 20088

 1             MR. LUKIC:  It cannot show the position of General Mladic in

 2     1991, at all.  Neither what he thought nor what he did.  And, again, we

 3     reiterate it has nothing do with him.  Nothing.

 4             JUDGE ORIE:  If that's it, then we'll --

 5                           [Trial Chamber confers]

 6             JUDGE ORIE:  Judge Moloto has a question.

 7             JUDGE MOLOTO:  Mr. Lukic, is it the position of the Defence that

 8     in a case like this one, where JCE is also alleged, that the Prosecution

 9     is precluded from showing the conduct of the so-called JCE members, even

10     if, at the time -- the time-frame has nothing to do with the indictment

11     but it shows the context within which the indictment acts were committed?

12             MR. LUKIC:  Your Honour, of course, that we don't -- do not claim

13     that they cannot show context and that they cannot show what alleged

14     co-perpetrators in JCE are doing, but they have to show what role

15     General Mladic has in -- in this context as well.  Yeah.

16             JUDGE MOLOTO:  Thank you.

17             MR. LUKIC:  And just maybe to add - I'm sorry - General Mladic

18     was sent to Bosnia by federal institution.  He was sent there, and he was

19     in Bosnia in -- in the beginning of May, and he just found the situation

20     as it was.  So -- then if we want to show his dealings or his

21     relationship with the situation that was created before that, there has

22     to be some relationship shown, some context, in which you can find him.

23             Thank you.

24             JUDGE ORIE:  Mr. Lukic, we've heard your submissions now, in

25     relation to the time of the intercepts.  You said everything which is

Page 20089

 1     before May 1992 that you have emphasised the locations, where the

 2     interlocutors were acting and where Mr. Mladic was at that period of

 3     time.

 4             Do you want to make any further submissions on the intercepts

 5     which start in May 1992, where Mr. Mladic is present in

 6     Bosnia-Herzegovina?

 7             MR. LUKIC:  After May 1992, we think that also for admission it

 8     has to be shown that any intercept has something to do with our case at

 9     least, if not with General Mladic.  It cannot be just brought the whole

10     bulk of intercepts without any connection with this case.  And we think

11     that we -- you can find such intercepts, even in the later period of

12     time.

13             JUDGE ORIE:  If you want to draw our attention to, again, the

14     one, two, or three most striking examples which support your submissions,

15     you're free to do so.

16             MR. LUKIC:  Give me one second.

17                           [Defence counsel confer]

18                           [Trial Chamber confers]

19             JUDGE ORIE:  Mr. Shin, could you also keep a close eye on

20     potential confidential exhibits where we are in open session at this

21     moment.  Mr. Lukic, may not always be fully aware of the possibility that

22     he touches upon confidential exhibits.

23             MR. SHIN:  Yes, of course, Mr. President.  I think we're okay

24     with the intercepts, but we will keep a close eye on this.

25             JUDGE ORIE:  Yes.

Page 20090

 1             Meanwhile, I -- while Mr. Lukic is still thinking, I put on the

 2     record that to the extent, page 27, line 25, it is unclear whether P3000

 3     was admitted into evidence, I hereby clarify that it was admitted.

 4                           [Trial Chamber confers]

 5                           [Prosecution counsel confer]

 6             MR. LUKIC:  It's very hard for me now to address any specific

 7     intercepts from the period after 12th of May, 1992.

 8             JUDGE ORIE:  But you have expressed your objections in general

 9     terms.  I just gave you an opportunity -- you're not under an obligation

10     to do that.  But to make your objections more concrete, I thought it wise

11     to invite you to do that.  But if you say it's difficult, then we'll move

12     on.

13             MR. LUKIC:  Thank you, Your Honour.

14             JUDGE ORIE:  Mr. Shin.

15             MR. SHIN:  Yes, Mr. President.  In addition to the Prosecution's

16     submissions on probative value and relevance as set out in this chart and

17     in addition to the -- the -- the arguments I've made earlier, I would

18     just note going specifically to intercept number 12 that the issue of the

19     JNA's transformation is something that, as Mr. Lukic himself said, in

20     referencing late 1991 he said that is something that we've seen and it's

21     an issue, which further suggests that this is relevant to the issues in

22     this case.

23             Furthermore, I would recall that as set out in our indictment,

24     paragraph 5, the alleged JCE is starting to -- is alleged to have started

25     no later than October of 1991 and here we're dealing with, for example,

Page 20091

 1     this number 12, is from just before that period, and this theme of the

 2     JNA's transformation is picked up.  If we look again, and this is just

 3     one example, at number 44, we referred to the use of the JNA to defend

 4     Serb interests as articulation of the relevance there.

 5             So these are clearly themes that run into the JCE alleged period

 6     as well as the specific indictment period of the -- I'm sorry, specific

 7     period of the indictment and clearly they are relevant to this case.

 8             JUDGE ORIE:  Mr. Lukic, I understood your objection to be that it

 9     should both be within the temporal scope of the indictment and when

10     Mr. Mladic was present in Bosnia.

11             Is that well understood?

12             MR. LUKIC:  Yes, Your Honour, it is.

13             JUDGE ORIE:  Yes.  Thank you.

14                           [Trial Chamber confers]

15             JUDGE ORIE:  The Chamber will decide in due course on the

16     intercepts tendered, once we have carefully considered all the details of

17     the parties' submissions.

18             Mr. Shin, any further submissions to make at this moment?

19             MR. SHIN:  Yes.  Just on two -- I'm sorry, may I have just one

20     moment, Mr.  President.

21                           [Prosecution counsel confer]

22             MR. SHIN:  Mr. President, actually, just one final area then.

23             As Your Honours are aware, there was, in response to an informal

24     request from the Trial Chamber, a further articulation of the

25     authentication of a certain five intercepts in fact.

Page 20092

 1             Your Honours have that material in front of them, so I won't

 2     reiterate that.  I'll just respond or rather perhaps reply briefly to a

 3     couple of points made by the -- by the Defence.

 4             In particular -- I'm sorry, may I have just one moment, please.

 5             JUDGE ORIE:  Could we take them one by one.  I think the numbers

 6     to start with is P232.

 7             MR. SHIN:  Yes.  And if I may -- I'll try to do this without

 8     referring to any documents that are under seal.

 9             P323 MFI, we, in our e-mail, had set out the -- the general

10     position on authentication.  And, again to be clear, the -- we have heard

11     authentication generally as to how these intercepts were -- were done.

12     And there's also some specific authentication evidence that we've heard.

13     Or, rather, that has been presented to Your Honours.  And it may be

14     easier if I just globally note that for all of these five intercepts in

15     question, there is -- there is in fact an audio.  The Defence may have

16     been unable to access that from the CD-ROMs, although we confirmed on the

17     record that the CD-ROMs do function, and I'm happy to assist my

18     colleagues if there are any issues, if I can, in that regard.  The only

19     one of these five for which there is no audio is P330 MFI.  And, again, I

20     won't maybe detail this in open session but there is specific

21     authentication evidence with regard to that intercept, as well as the

22     general authentication evidence that is before Your Honours.

23             And, finally, just with regards to -- I think I do need to go

24     into private session very briefly for this last one, Mr. President.

25             JUDGE ORIE:  We move into private session.


Page 20093

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Page 20094











11 Pages 20094-20098 redacted. Private session.
















Page 20099

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4                           [Open session]

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

 6             JUDGE ORIE:  Thank you, Madam Registrar.

 7             Mr. Shin, the Chamber wondered for P2566 whether it was not the

 8     Prosecution's duty to strike whatever they do not rely upon.  That's one.

 9             Second, is that 2566 relates to many, many intercepts, which were

10     not tendered.  Why do we, nevertheless, have to look at all kind of

11     comments on intercepts that were not tendered?  Because we're talking

12     about in the 600, I think, whereas the tendered documents are limited to

13     153, and are found in P2567.

14             MR. SHIN:  Yes, Mr. President, if I may respond by taking the

15     second matter first.

16             The -- as we had explained in the 92 ter motion for this witness

17     the intercepts do go -- in the intercept authentication chart do go

18     beyond the intercepts that the Prosecution ultimately has tendered into

19     evidence.  However, the -- as explained, and I can get the specific

20     references - maybe not at my fingertips right now - we had sought to --

21     to be -- to indicate that the value of doing this would be that if the

22     parties, including the Chamber at some point down the -- further in the

23     proceedings, wish to tender further intercepts from this collection the

24     witness would not need to be recalled.  There would not need be to

25     further authentication, that we would already have the foundation


Page 20100

 1     authentication for the intercepts there.  In this regard, we had

 2     specifically noted that the Defence had used one intercept from this

 3     collection with a witness, and that was in open session, Witness

 4     John Wilson, and we had invited the -- the Defence to indicate any other

 5     intercepts that they had wished to authentic or, in fact, tender at this

 6     stage.  But that was the rationale behind that.

 7             JUDGE ORIE:  Yes, the -- of course, the question arises whether

 8     that rationale still applies.  We are close to the end of the

 9     Prosecution's case, so, therefore, whatever intercepts the Prosecution

10     would like to -- to present is -- should be known by now, more or less.

11     And then, if the Defence, during the Defence case, or the Prosecution,

12     during the Defence case, if there will be a Defence case, wants to rely

13     on any of the others, we could, so to say, re-open that box if we would

14     close all the irrelevant boxes at this very moment which means striking

15     any comments which are not relative to authenticity or redacting anything

16     which is not related to any tendered document.  That document still is

17     there in its unredacted format and could be used in the future, if need

18     be, but then just for that relevant portion.  The problem is that if the

19     Chamber has 600 comments on intercepts before it, the Chamber is always

20     inclined to carefully verify what that evidence is about, whether it's

21     accurate, what it brings us, and for 75 per cent, it would be totally

22     wasted time to work on that.

23             That's the reason why the Chamber, at this moment, is considering

24     to invite the Prosecution to redact everything which has not yet become

25     relevant.  Not to say that the chart still exists and can be re-called,

Page 20101

 1     if we could say so, at any later stage, if need be, for any intercept

 2     which would come up in the future.

 3             And -- but before the Chamber does so I'd like to hear your

 4     observations on what I just brought to your attention.

 5             MR. SHIN:  May I just have one moment, Mr. President.

 6             JUDGE ORIE:  Yes.

 7                           [Prosecution counsel confer]

 8             JUDGE ORIE:  Mr. Lukic, if you have developed any thoughts on

 9     that, of course, you are free to express them as well.

10             MR. SHIN:  If I may, Mr. President.

11             You have, indeed, articulated the -- the -- the Prosecution did

12     have in mind not only the Prosecution case, of course, but the Defence

13     case and -- if any, and any other stage of the proceedings.  One thing

14     that we would propose is that this process of -- if I may make two

15     points.  One is that the chart of the 153 intercepts do not duplicate, to

16     avoid duplication, do not list intercepts that are currently otherwise

17     pending before other bar table motions or through other pending 92 bis or

18     92 quater witnesses.  So to that extent there would be some

19     authentication irrelevant there.

20             But with that, we would propose that it may also be possible to

21     present this process of redaction at the end of the case, if that would

22     be acceptable to Your Honours.

23             JUDGE ORIE:  At the end of the Prosecution's case?

24             MR. SHIN:  At the end of the case when the parties have -- at the

25     end of the case as a whole, in fact.

Page 20102

 1             JUDGE ORIE:  But then at least it would be necessary to know at

 2     this stage what has gained relevance already and what is there, still, if

 3     I could say so, on reserve not to be relied on, to be skipped, if not at

 4     a later stage it would have revived.

 5             MR. SHIN:  Yes, if I may briefly, Mr. President.  We had sought

 6     to address this issue of specificity regarding individual intercepts by

 7     providing in the -- in original filing but also in the CD-ROM a

 8     correlation chart, of course, to show exactly which RM65 ter number would

 9     relate to which intercept on that large chart.  We had sought to address

10     this through that so that the attention of the parties and of the Chamber

11     may be drawn to the specific -- specific intercept on that chart and

12     that -- perhaps that addresses the concern that Your Honours have.

13             JUDGE ORIE:  Well, it partly does; partly it does not.  It is, if

14     you say, We've drawn your attention to certain specific intercepts, then

15     that doesn't mean that the others are not any further in evidence.  I

16     mean, you seem to ignore, more or less, that what is in evidence, the

17     Chamber should consider that.  And, therefore, we are seeking to end up

18     in a situation where only material which turned out to have been relevant

19     is in evidence is before this Chamber.

20             Now, I can imagine that the parties would sit together, and with

21     the guidance of the Chamber at this moment, find a technical solution so

22     as that everything which has not been shown to be relevant up till this

23     moment is off the table.  At the same time, that the information of all

24     that material which is now in reserve lying on the ground next to the

25     table that that still can be reactivated, if need be, and to find a

Page 20103

 1     technical solution for that.  Not to say, We've drawn your attention to

 2     this and this and this and therefore focus on that.  The Chamber wants to

 3     be fed with material and should receive in evidence material that has

 4     been shown to be relevant.

 5             May I invite the parties to -- of course, the most important

 6     would be to look at 2566 again; 2567 is different because that's all

 7     about intercepts that are tendered.

 8             MR. SHIN:  Yes.  On that second point, that's correct

 9     Mr. President.

10             And, yes, we will attempt again to -- to discuss these matters

11     with the Defence.

12             JUDGE ORIE:  Perhaps the issue is now slightly different for your

13     discussions.  That is, that the Chamber wants to get -- don't -- doesn't

14     want to have in evidence any material just because, in future, it may

15     gain some relevance.  That's something the Chamber does not accept at

16     this moment and then to find a technical solution as where to store

17     the -- the columns and the rows in reserve.

18             MR. SHIN:  Okay.  Mr. President.  Thank you.

19             JUDGE ORIE:  Is there any other matter to be raised?

20             If not, we will adjourn for the day, and we will resume Monday,

21     the -- and let's see what Monday is.  I think it's the 1st of December.

22     We start at --

23                           [Trial Chamber and Registrar confer]

24             JUDGE ORIE:  The 2nd of December.  Yes.  I should have known that

25     because Thursday, the 5th, is Sint Nicolaas.  You should keep that in

Page 20104

 1     mind as well.  2nd of December we freshly start again being at P

 2     exhibits, 3000.  And we will resume in Courtroom II at 9.30 in the

 3     morning.

 4                            --- Whereupon the hearing adjourned at 12.04 p.m.,

 5                           to be reconvened on Monday, the 2nd of December,

 6                           2013, at 9.30 a.m.