Tribunal Criminal Tribunal for the Former Yugoslavia

Page 14590

 1                           Tuesday, 8 February 2011

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 10.16 a.m.

 5             JUDGE MOLOTO:  Good morning to everybody in and around the

 6     courtroom.  Let's hope that the technology will not disappoint us.

 7             Mr. Registrar, will you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

 9     everyone in and around the courtroom.

10             This is case IT-04-81-T, the Prosecutor versus Momcilo Perisic.

11     Thank you.

12             JUDGE MOLOTO:  Thank you so much.

13             Could we have the appearances for the day, starting with the

14     Prosecution, please.

15             MR. HARMON:  Good morning, Your Honours, counsel, everyone in the

16     courtroom.  Mark Harmon, Barney Thomas, April Carter, and Carmela Javier

17     for the Prosecution.

18             JUDGE MOLOTO:  Thank you.

19             For the Defence.

20             MR. LUKIC: [Interpretation] Good morning, Your Honours.  Good

21     morning to everyone participating in the proceedings.  Mr. Perisic today

22     is represented by Mr. Gregor Guy-Smith and Mr. Novak Lukic.  We have

23     Deirdre Montgomery and Chad Mair, our assistants, with us today.

24             JUDGE MOLOTO:  Thank you so much, Mr. Lukic.

25             May the record show that the Chamber is sitting pursuant to

Page 14591

 1     Rule 15 bis today in Judge David's absence.

 2             Let me just welcome you back all.  We haven't seen one another

 3     for a long time.  I hope you are all okay and ready for about what you

 4     are to do.

 5             The Present hearing was really scheduled to solve all remaining

 6     outstanding issues before formally closing the trial or before, I guess,

 7     the Defence formally rests, more formal than the last time you did.

 8             And I will now move to the attempts on the agenda.  I believe you

 9     all have a copy of the agenda.  The first item that we really need to

10     talk about are the MFI documents.  On the 7th of February, 2011, the

11     Trial Chamber, which was yesterday, issued an decision on the two pending

12     Defence motions related to MFI documents, including the reconsideration

13     motions, and the Trial Chamber was informed that there are still several

14     documents in the trial record which still have an MFI status.  The

15     Chamber would like to know what the position of the parties is in this

16     respect.

17             Mr. Harmon, I think you have something to tell us on this point.

18             MR. HARMON:  Yes, Your Honour.  We will divide our submissions in

19     respect of each of these agenda items.  Ms. Carter will address that

20     particular issue.

21             JUDGE MOLOTO:  Madam Carter.

22             MS. CARTER:  Thank you, Your Honour.  In relation to the

23     MFI documents, we have 48 outstanding Prosecution documents.  We have

24     been in continuous negotiations with the Defence to make sure we can cure

25     some of the translation efforts.  That has actually been completed as of

Page 14592

 1     yesterday.  We will be filing a motion this afternoon.  What that motion

 2     will entail will be 20 documents that we will seek to just remove the

 3     MFI.  There will be 28 documents that we need to regulate the

 4     translations and upon that regulation we will seek to remove the MFI.

 5     There's also a third category --

 6             JUDGE MOLOTO:  Let me understand.  You said there's going to be a

 7     motion filed this afternoon.  And of the 28 documents which you seek to

 8     regulate, are you still going to regulate after this motion or will they

 9     have been regulated by the time the motion is filed this afternoon?

10             MS. CARTER:  We have already uploaded all the appropriate

11     documents into e-court, and we have listed the document IDs in our

12     motion.  And so once the Chamber orders the replacement of those document

13     IDs, then we can actually have the MFI removed.  So everything is ready

14     and available upon the Court's discretion.

15             JUDGE MOLOTO:  Thank you so much, Madam Carter.  Yes.

16             MS. CARTER:  There's a third series of documents, of

17     24 documents, those are documents that have actually already been

18     admitted into evidence; however, there has been a problem either due to a

19     translation, missing pages, something is wrong actually with the document

20     itself; we are seeking to regulate those documents as well.  All 24 of

21     those documents and their cures have been uploaded into e-court and are

22     listed in detail in the motion that will be submitted today.

23             And there's a final two documents --

24             JUDGE MOLOTO:  Just before we go to the two documents.  Is it my

25     understanding that the 24 documents were admitted into evidence

Page 14593

 1     notwithstanding those deficiencies?

 2             MS. CARTER:  Correct.  They were already admitted into evidence.

 3     The -- what has been happening, as the Defence and the Prosecution have

 4     been drafting their final trial brief and going into detail in some of

 5     these documents, we're noticing some deficiency.  And so both the

 6     Prosecution has identified some, the Defence has identified some, the

 7     Prosecution has subsequently submitted them all back to CLSS for revise,

 8     which has happened, and so we're asking just to change out those

 9     translations where needed.

10             JUDGE MOLOTO:  Okay.

11             MS. CARTER:  Okay.  And then the final two documents are ones

12     where they have been admitted; however, they contain extraneous pages

13     that we'll just be seeking to remove from the trial record; they don't

14     actually apply to the original document themselves.

15             So in total we will have 74 documents that will be regulated

16     through the Prosecution motion to be filed today.

17             JUDGE MOLOTO:  Thank you very much, Madam Carter.

18             What does this mean?  We really can't then formally say we have

19     rested until this motion is decided, these motions are decided?

20             MR. HARMON:  Yes, and when we get to other business, there's some

21     other matters that need to be discussed.

22             JUDGE MOLOTO:  Really.

23             MR. HARMON:  Yes.

24             JUDGE MOLOTO:  Are you saying that these motions are not really

25     holding us back -- they are not the only ones holding us back?

Page 14594

 1             MR. HARMON:  There's one, but I'll discuss it when we get to the

 2     appropriate time.  This matter should be resolved by today.

 3             JUDGE MOLOTO:  Thank you so much, Mr. Harmon.

 4             Mr. Lukic, do you have anything to say on what Madam Carter has

 5     been telling us?

 6             MR. LUKIC: [Interpretation] No, Your Honour.  We have a full

 7     correspondence with the Prosecution, and towards the end of that process

 8     we will have all the results as reported to you by the Prosecution

 9     concerning the removal of the MFI designations.  There is nothing further

10     to say on our part.

11             JUDGE MOLOTO:  Thank you very much, Mr. Lukic.  Okay.

12             Then the next item relates to the audio/video material related to

13     transcripts for which the confidentiality has been lifted.  Throughout

14     the trial, the Trial Chamber has issued several decisions on the lifting

15     of confidentiality of transcripts of testimony.  The Registry informed

16     the Trial Chamber that it is unclear whether the lifting of

17     confidentiality should also be extended to audio/video material

18     associated with those transcripts.

19             Just before we answer the Registry, we would like to hear what

20     the parties have to say on this point.  I can guess what you are going to

21     say.

22             MR. HARMON:  Your Honour, if the confidentiality has been lifted

23     from the transcripts, it's from our point of view understandable that the

24     confidentiality should also be lifted from the video material.

25             JUDGE MOLOTO:  And you would confirm that, I see, Mr. Guy-Smith?

Page 14595

 1             MR. GUY-SMITH:  Yes, we concur with that position.

 2             JUDGE MOLOTO:  Thank you very much.  We'll advise the Registry

 3     accordingly.  Thank you so much.

 4             The next item is Exhibit D666, a UN report on the Markale 1

 5     incident, and it's in relation with the Sarajevo adjudicated facts from

 6     the Galic trial judgement.

 7             The Trial Chamber notes that in its decision of the

 8     1st December 2010 it admitted into evidence, as Exhibit D666, the

 9     United Nations report related to the Markale 1 incident.  In its bar

10     table motion of the 5th of November, 2010, the Defence has indicated that

11     the purpose for having this document admitted into evidence is to rebut

12     the adjudicated facts related to that incident which were taken from the

13     Galic case in the decision on the Prosecution's motion for judicial

14     notice of adjudicated facts of Sarajevo dated the 26th of June, 2008.

15             On the impact of the UN report on that adjudicated facts, the

16     Trial Chamber deems it important to raise the following issues with the

17     parties:  The adjudicated facts concerning Sarajevo, in particular

18     Fact 248, reflect the conclusion of the Galic Trial Chamber about the

19     origin of fire in the Markale 1 incident.  The Chamber notes that in the

20     Galic judgement, such conclusion is preceded by an extensive discussion

21     on the issue of the origin of the fire based on all the evidence of that

22     case, which also includes the very UN report which is now in this case.

23     Therefore, the Trial Chamber is of the view that the UN report cannot

24     rebut the conclusion of the Galic judgement, as that conclusion was

25     reached only after analysing the UN report and other evidence in that

Page 14596

 1     case.  Therefore, to avoid any ambiguity in the trial record, the

 2     Trial Chamber is ready to -- well, first of all, the Trial Chamber would

 3     like to hear the parties on this issue as to how they propose the

 4     Trial Chamber should proceed.

 5             And I think on this point I would like to ask the Defence to

 6     start.

 7             MR. GUY-SMITH:  Yes, it's the Defence position that this exhibit

 8     is an exhibit which is important for the Chamber's consideration.  It's

 9     important for the consideration for two reasons:  One is that it deals

10     specifically with a report that has a factual finding which is, as you

11     have pointed out, Your Honour, distinct from that which was found in the

12     Galic judgement.  However, be that as it may, this Chamber has the

13     independent ability to make a determination of whether or not that

14     particular fact has any import with regard to the decision that you are

15     to make.

16             JUDGE MOLOTO:  Mr. Guy-Smith, before -- we don't have control of

17     the screen, and before this what you have said disappears, I would like

18     to stop you and ask you a question.  You say:

19             "One is that it deals specifically with the report that has a

20     factual finding which is, as you have pointed out, Your Honour, distinct

21     from that which was found in the Galic judgement."

22             Not quite sure I understand what you are saying.

23             MR. GUY-SMITH:  Well, the report in D666 indicates in a number of

24     different places that the origin of fire is impossible to determine.

25     This is a statement that is made by a number of the different reporters

Page 14597

 1     within that particular report.  And since the origin of fire obviously is

 2     an issue of some import with regard to that incident, we submit that the

 3     report -- when I'm saying distinct, is the report has information in it

 4     that is different from that which is contained in the Galic judgement.

 5     That's what I meant by distinct.

 6             JUDGE MOLOTO:  Yeah, okay.  But that much we understand,

 7     Mr. Guy-Smith.  But the point is, before adjudicating this fact, the

 8     Galic Trial Chamber was presented with a variety of evidence, amongst

 9     others this report.  In considering the totality of that evidence as

10     regards the origin of fire, the Galic Trial Chamber, by majority, came to

11     the conclusion that it could make a determination about the origin of

12     fire.  What I'm saying is, it did consider this report amongst other

13     evidence.

14             Now, having the adjudicated fact from the Galic judgement and

15     part of the evidence that the Galic Trial Chamber considered, challenging

16     the adjudicated fact, it presents this Trial Chamber with a situation

17     which has caused us to come back to you and say:  What do you want us to

18     do?

19             MR. GUY-SMITH:  What we want you to do in light of the totality

20     of the evidence that exists with regard to this particular issue is to

21     make an independent determination as to whether or not, after

22     consideration of all the evidence at this point in time, those reports

23     would impact your decision with regard to that issue.  Understanding,

24     understanding, of course, what you've said.  I understand what you've

25     said, but that's what we would like you to do.

Page 14598

 1             JUDGE MOLOTO:  Thank you.

 2             MR. GUY-SMITH:  In addition, it also is germane to the issue of

 3     notice at the time whether or not, whether or not, our client could

 4     reasonably conclude based upon the information that was available at the

 5     time whether or not there was any conclusion with regard to the issue of

 6     the responsibles.  So it has -- it has -- it also has --

 7             JUDGE MOLOTO:  You are flying far above me now.

 8             MR. GUY-SMITH:  Well, I certainly don't mean to be flying

 9     anywhere but with you, Your Honour.  I know it's been a long time --

10             JUDGE MOLOTO:  Please -- please take me along.

11             MR. GUY-SMITH:  It's been a long time since we've seen each

12     other, but that's -- I want to be with you; we want to be on the same jet

13     stream with you.

14             JUDGE MOLOTO:  On this issue of notice, just ...

15                           [Defence counsel confer]

16             JUDGE MOLOTO:  Just explain what do you mean by notice here; who

17     is supposed to have got notice and at what?

18             MR. GUY-SMITH:  There's -- there's this underlying question that

19     exists throughout the case as to what information -- what information may

20     have been available to or was available to General Perisic and with that,

21     how he would respond to that information obviously is one of the issues

22     that the Chamber is going to have to be confronted with and have to deal

23     with.  So if you have conflicting reports with regard to a particular

24     incident or if you have a report that says, for example, it was possible,

25     and another one says it wasn't possible, impossible to make a

Page 14599

 1     determination, and if there's a connection between that particular

 2     information and our client, then obviously that would be something that

 3     would be germane for your consideration.

 4             JUDGE MOLOTO:  I still don't understand notice.

 5             MR. GUY-SMITH:  Well, fine.  Then let's --

 6             JUDGE MOLOTO:  Let's leave it like that.

 7             MR. GUY-SMITH:  Let me leave it alone.  Let me leave it alone.

 8             JUDGE MOLOTO:  Yeah, leave it alone.

 9             MR. GUY-SMITH:  The other thing is -- the other thing is - and

10     I'm reminded by my colleagues - that what we have indicated is, this is a

11     collection of documents produced by UN officers following the shelling

12     incident known as Markale 1 on 5 February 1994, which is schedule

13     incident A3, and the documents repeatedly conclude that based on the

14     information available it's not possible to determine who was responsible

15     for firing the shell.

16             JUDGE MOLOTO:  Thank you.

17             Mr. Harmon, any response?

18             Madam Carter.

19             MS. CARTER:  Your Honour, the Defence rightfully points out that

20     based on adjudicated facts it has the opportunity to lead rebuttal

21     evidence, and we take no issue with that.  However, in this particular

22     instance, we would like to remind the Court of the statements of the

23     Defence in relation to the scheduled incidents at the status hearing of

24     September 2nd of 2008, and it's those statements that the Prosecution has

25     seemingly detrimentally relied upon.

Page 14600

 1             When Mr. Lukic was discussing the adjudicated facts at page 281,

 2     beginning at line 10 and going through line 18, he indicated:

 3             "The Defence understands fully the need to expedite proceedings.

 4     We also understand the need to focus on what is essential to us in this

 5     trial, and that, as we heard awhile ago, is what the Prosecution is

 6     trying to prove.  The Defence then, as now, has the following position:

 7     We do not want crime based evidence led before the Trial Chamber as long

 8     as any such crime based evidence can be seen to be a part of adjudicated

 9     facts.  Our position is that in relation to all three kind of crimes, in

10     cases where this is not led before the Trial Chamber, this has to be

11     based on adjudicated facts."

12             And it was with that understanding the Prosecution has led its

13     case on many of the incidents, including Markale 3.  And so while Defence

14     is correct in law in relation to what can happen with relation to

15     adjudicated facts, we would just like to remind the Chamber of their

16     initial promises before this Court.

17             JUDGE MOLOTO:  Thank you very much, Madam Carter.

18             Any reply?  I guess, Mr. Lukic, you are going to be the one

19     rising this time.

20             MR. LUKIC: [Interpretation] Yes.  I was quoted now.  I don't want

21     to justify myself in any way, but that was 15 days after I was appointed

22     as lead counsel in this trial, as you know, so it was in the process of

23     the transition in the case.  You know how we had to act during the trial,

24     you know that certain issues were debated, and I think that this

25     quotation of my words indicates, and it is a fact that what we indicated

Page 14601

 1     in the request, that this document be submitted as a bar table document,

 2     shows our intention which Mr. Guy-Smith mentioned in connection with

 3     certain facts which have been contested in this case and have to do with

 4     the awareness of Mr. Perisic of certain events which is an issue in this

 5     trial and which has been contested from the very beginning.

 6             JUDGE MOLOTO:  What is this Trial Chamber supposed to do with

 7     your words, "I don't want to justify myself in any way, but that was

 8     15 days after I was appointed as lead counsel in this trial, as you know,

 9     so it was in the process of the transition ..."?  Surely you are not

10     suggesting you're retracting what you promised in the beginning, what you

11     say a minute after you've been appointed is what you say.

12             MR. LUKIC: [Interpretation] I want to say that you can understand

13     that in that sense I do retract the statement which I gave at that point

14     in time because it was a product of the fact that I had just been

15     appointed lead counsel and I was faced at the moment with a series of

16     issues that had to do with the further trial.  We were faced with a

17     series of issues that had to do with adjudicated facts and also with

18     agreed facts.  You are very well aware of this and you know that we had

19     been conducting long negotiations about this with the Prosecutor's

20     Office, and my intention was probably at the moment something that had to

21     do with the course of the trial and what our expectations were.  It was

22     at the very beginning of the trial and probably it had to do with the

23     pre-trial conferences at the very beginning and our wish to focus during

24     the trial on what is essential.

25             If at the moment I stated that adjudicated facts would not be a

Page 14602

 1     subject in this trial, we mostly stuck to that during most of the

 2     proceedings; but what is the issue that is being discussed right now and

 3     what we believe is important has do with something that is being

 4     contested in this case.

 5             MR. GUY-SMITH:  Excuse me.  If I might, Your Honour, I'm going

 6     back to the Halcyon days of yesteryear, specifically the parts of the

 7     transcript that are being alluded to, and those words say exactly what

 8     they say but they are unfortunately taken out of context.  The context in

 9     which this particular discussion was being had dealt with the fact that

10     there had been a document filed in which the Defence and the Prosecution,

11     without the permission or involvement of the accused, had reached an

12     agreement.  And it was within the context of agreed facts that this

13     particular issue arose.

14             And I'm looking at page 280 of the self-same transcript in which

15     the matter is discussed.  And as I'm sure the Chamber recalls, the issue

16     of the agreed facts that concerned this particular matter was something

17     that went on for quite some time and was an extremely sensitive issue

18     that took considerable time to work out as between the Prosecution and

19     the Defence.

20             So I think that it would probably be fair to say that although

21     the statement is being made, and I don't resolve from the words Mr. Lukic

22     uttered nor do I think that he does, I think that they are being

23     misinterpreted and being used in a global sense as opposed to being

24     interpreted and analysed within the context in which that conversation

25     had arose.

Page 14603

 1             JUDGE MOLOTO:  Now, I'm getting very worried.  The more I hear

 2     what you guys are saying, the more I get worried.  You are telling me now

 3     that you went and discussed and were -- and got into an agreement with

 4     the opposition without the involvement and permission of your client.

 5     That is a worrying position.  But of course it is your responsibility.

 6     Number one.

 7             Number 2, I'm not quite sure -- because this is the context in

 8     which you say this took place, I'm not quite sure whether you are now

 9     saying you cannot be bound simply because you had not -- you did not have

10     the permission of your client.  And if that is what you are saying, my

11     question would be:  Did you tell your opposing number that in fact you

12     don't have instructions that whatever agreement you are getting into is

13     subject to approval by your client?

14             MR. GUY-SMITH:  If I might, and I don't want to -- I don't want

15     to take you down a road which we really don't need to go down.

16             JUDGE MOLOTO: [Microphone not activated] -- we don't need to go

17     down.

18             MR. GUY-SMITH:  We absolutely don't need to go down this road.

19     But I think I can --

20             JUDGE MOLOTO:  You either had --

21             MR. GUY-SMITH:  I think I can --

22             JUDGE MOLOTO:  You either had --

23             MR. GUY-SMITH:  I think I can resolve the issue.

24             JUDGE MOLOTO:  Yeah.

25             MR. GUY-SMITH:  Okay.  If you go to page 280 of the transcript,


Page 14604

 1     it is very clear --

 2             JUDGE MOLOTO:  I'm technologically challenged, Mr. --

 3             MR. GUY-SMITH:  I'm sorry, well, on September 2nd -- and I guess

 4     we'll have to go into private session because we were in private

 5     session --

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

 7                           [Private session]

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 14605











11 Page 14605 redacted. Private session.















Page 14606

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18                           [Open session]

19             THE REGISTRAR:  We are back in open session, Your Honours.

20             JUDGE MOLOTO:  Thank you so much.

21             MR. GUY-SMITH:  I ...

22             JUDGE MOLOTO:  Just a second.

23                           [Trial Chamber confers]

24             JUDGE MOLOTO:  Okay.  The Chamber will decide this matter.  You

25     still wanted to say something on this matter?


Page 14607

 1             MR. GUY-SMITH:  Yeah, I just want to make sure that our point is

 2     clear, which is that, independent of what is said here, no promises were

 3     made by the Defence and there was never an assertion made by the Defence

 4     that we would not be challenging, in the normal process that one does,

 5     adjudicated facts.  And I think that that interpretation of this

 6     statement is a bit stretched.

 7             JUDGE MOLOTO:  Thank you, Mr. Guy-Smith.

 8                           [Trial Chamber and Legal Officer confer]

 9             JUDGE MOLOTO:  Okay.  Thank you very much, Mr. Guy-Smith.

10             The next item was document ET 0469-3121 -- or 0469-3126,

11     Exhibit 303, in the Martic trial judgement.  This Exhibit 303 in the

12     Martic judgement contains a list of victims for the Zagreb shelling and

13     it is not in this -- in evidence in this case.  And the Trial Chamber

14     wanted to raise with the parties, just for the sake of completeness as to

15     the number of victims that were -- may have been involved in the Zagreb

16     shelling, whether the parties would have any comment about whether or not

17     this document would be admitted into evidence.

18             I'll start with the Prosecution.

19             MS. CARTER:  Your Honour, as a court exhibit, the Prosecution

20     would have no objection.  Obviously the Court is able to take into

21     evidence whatever it seeks to, and the Prosecution has no objection to

22     that.  However, in transparency, we would like to note for the Court that

23     the Prosecution actually sought to add this document to its exhibit list,

24     to its 65 ter exhibit list, in a filing that was done on 30 June 2008 in

25     front of the Pre-Trial Chamber.  However, the Pre-Trial Chamber denied

Page 14608

 1     its addition to our 65 ter list.  So we just want to make certain that

 2     the Court understands that the Prosecution did seek but was denied the

 3     same document in pre-trial.

 4             JUDGE MOLOTO:  Thank you, Madam Carter.

 5             Yes, Mr. Lukic.

 6             MR. LUKIC: [Interpretation] Defence does not object to the

 7     admission.  However, we want to state that according to the number checks

 8     we carried out, the numbers do not tally with those provided in the

 9     indictment concerning the Zagreb incident.  That's the only thing we

10     wanted to say.

11             JUDGE MOLOTO:  Okay.  What is the difference, Mr. Lukic?  What

12     are the numbers?

13             MR. LUKIC: [Interpretation] Bear with me.  We checked that

14     yesterday.  In relation to incident -- the incident of the 2nd of May, in

15     this document it is stated that four people were killed and there were

16     146 people injured.  In Schedule C, under 1, you see that the figures are

17     different.  As for the adjudicated facts in relation to Zagreb, we have

18     the fact number 38 where the figures do not compare.

19             JUDGE MOLOTO:  What does fact 38 say?

20             MR. LUKIC: [Interpretation] It is from the Martic judgement,

21     Adjudicated Fact 38:  Five people were killed, they are stated by their

22     first and last name, and that there were at least 160 injured.

23             I believe the same situation concerns the incident of the

24     3rd of May.

25             JUDGE MOLOTO:  Are you saying the incident of the 3rd of May also

Page 14609

 1     the figures don't tally?

 2             MR. LUKIC: [Interpretation] Precisely.

 3             JUDGE MOLOTO:  Okay.  I guess obviously the Chamber will have to

 4     go back on that and look at it again.

 5                           [Trial Chamber and Legal Officer confer]

 6             JUDGE MOLOTO:  The Trial Chamber will revisit this problem and

 7     see what the problems are, and we'll advise the parties accordingly.

 8             Item 7 relates to documents P2197 and 65 ter 7680,

 9     page 0622-0429.  At page 14491 of the transcript, during the

10     cross-examination of Mr. Ivan Djokic, the Prosecution quoted from Exhibit

11     P2197, pages 0618-7722 and 0618-7723.  While this entire exhibit has been

12     admitted, the pages that the Prosecution cited have not been translated

13     and uploaded into e-court.  I don't know whether this was a deliberate

14     intention on the part of the Prosecution.

15             I see, Mr. Thomas, you are standing.

16             MR. THOMAS:  Yes, sir, I can deal with this matter.

17             JUDGE MOLOTO:  Thank you.

18             MR. THOMAS:  The translation -- it has been translated.  There is

19     an English translation of that page.  It wasn't uploaded in e-court at

20     the time that Mr. Djokic was cross-examined.  It is available and

21     uploaded into e-court but it's not connected to the exhibit, and that,

22     presumably, Your Honour, is because at the time P2197 was tendered, only

23     certain portions were -- English portions were tendered with the complete

24     B/C/S copy.

25             This is a matter that we've discussed with our learned friends

Page 14610

 1     and there's agreement, as I understand it, between the parties that

 2     there's no problem with that English translation being available and

 3     uploaded into e-court and attached to the exhibit as it's presently

 4     tendered.

 5             JUDGE MOLOTO:  I see Mr. Guy-Smith.

 6             MR. GUY-SMITH:  Yes, with regard to the exhibit as it stands,

 7     it's 2197, there are no difficulties with that occurring.

 8             JUDGE MOLOTO:  Thank you so much.  Then the Trial Chamber will

 9     ask the Registry to have the translation of these pages uploaded into

10     e-court and attached to the exhibit.  Thank you so much.

11             Further, at page 14493 of the transcript, the Prosecution quoted

12     from a document that has not been admitted, namely, 65 ter 7680,

13     page 0622-0429.  The document concerns another statement from Mr. Perisic

14     regarding Mr. Djokic.

15             What is the position of the parties?

16             MR. THOMAS:  Well, sir, by way of explanation, this was a

17     document which Mr. Djokic could not lay the appropriate foundation for.

18     So at the time that Mr. Djokic was being cross-examined, the Prosecution

19     was not in a position to be able to tender that document through him and

20     so the document remains untendered.  The Prosecution, therefore, didn't

21     at that point feel that it had the ability to apply itself to tender that

22     document as an exhibit.

23             JUDGE MOLOTO:  Thank you so much, Mr. Thomas. [Microphone not

24     activated] -- I am sure -- sorry, I was speaking without my mike on.  My

25     apologies to the stenographer.

Page 14611

 1             I was saying I believe that brings the matter to a rest.  I don't

 2     know whether you have anything to raise, Mr. Guy-Smith.

 3             MR. GUY-SMITH:  I would agree with Your Honour.

 4             JUDGE MOLOTO:  Thank you so much.

 5             Before we come to this last point, let me raise an issue which is

 6     not on the agenda and my apologies for it.  It was brought to my

 7     attention this morning by Mr. Registrar.  Mr. Registrar has brought to

 8     the attention of the Chamber the fact that in the decision on

 9     Ivan Djokic's expert report supporting materials admitted on, I think,

10     the 3rd of February, 2011, a document, 65 ter number 07017D, which is

11     Exhibit D805, document ID 140944, is part of the documents tendered.  And

12     Mr. Registrar notes that that document has a stipulation that all rights

13     are reserved.  And he says that once it goes into the database of the

14     Tribunal it's available to all in sundry.  And we wanted to just check

15     with the parties whether the author's permission to publish had been

16     obtained.  This is a concern from the Registry.

17             I can show you the hard copy for ease of -- and then you can also

18     show the Prosecution, if they have not found it yet, in their -- in the

19     electronic system.  You'll see the highlighted portion of the document;

20     it was highlighted by the Registry.

21                           [Trial Chamber and Registrar confer]

22             MR. GUY-SMITH:  Thank you for that.  And the answer is, no, it

23     was not.  I will make inquiry and report back to the Chamber within --

24     safely within -- by Friday, as to whether or not we can obtain such

25     permission or not.

Page 14612

 1             JUDGE MOLOTO:  And what shall we do with this in the meantime?

 2     We don't want it to go to all in sundry before you come back to us.

 3             MR. GUY-SMITH:  Right.  Under seal.

 4             JUDGE MOLOTO:  Okay.  It will be under seal in the meantime.

 5             Now, the Register advised that he saw this quite by chance.

 6     There hasn't been a concerted effort to check each and every document to

 7     see whether it does not fall under the same restrictions.  Not only

 8     yours, everybody's.  And the question is:  Are we happy that our

 9     documents are okay in that respect?

10             MR. GUY-SMITH:  I commend the Registrar for his eagle eyes, but I

11     would hazard a guess that there are probably quite a few documents like

12     this.  And not only in our case but at the Tribunal.  I'm not really sure

13     how best to proceed, but I think we probably -- I think it would be fair

14     to say we are happy.  I think we should be relatively content that the

15     situation that we've been, in the manner in which we've tendered

16     documents and accepted documents, is appropriate.

17             JUDGE MOLOTO:  Okay.

18             Mr. Harmon?

19             MR. HARMON:  I'm in the same position.  I haven't gone back and

20     reviewed all my documents, but I'm content to proceed, Your Honour.

21             JUDGE MOLOTO:  Okay.  Thank you so much.

22             Finally -- not finally.  Penultimate.  The Trial Chamber would

23     like to hear the parties before scheduling the submission of the final

24     brief and the hearings of the closing argument what the parties want to

25     suggest.  We would like to have those final briefs, like, yesterday.

Page 14613

 1             Mr. Harmon.

 2             MR. HARMON:  Your Honour, the parties have met and discussed

 3     these issues.  We have reached agreement on all of these issues with one

 4     exception.  I was advised by Mr. Lukic that there's a slight deviation

 5     from the first.  We had agreed to propose to the the Court that closing

 6     briefs be due at the end of February.  I know Mr. Lukic approached me

 7     before court and said he would like to change that proposal from the

 8     Defence's point of view to the --

 9             JUDGE MOLOTO: -- 15th of February.

10             MR. HARMON:  Slightly the other direction, Your Honour.  To the

11     4th of March.  So there's a difference in view between the two parties.

12             In respect of the closing oral submissions, the parties agreed to

13     propose to the Court that those be at the end of March.  And there was a

14     discussion in respect of the word limitation and the parties suggested

15     to -- would like to suggest to the Court that there be a 100.000 word

16     limit to each of the briefs.  Those were the agreements and the

17     discussions.

18             JUDGE MOLOTO:  And 100.000 would be what?  Something like ... a

19     lot of pages.

20             MR. HARMON:  It would be a lot of pages, Your Honour.  There's no

21     question about that.  But this is a document-rich case.  And I think

22     because there are so many documents we were of the view that it merited

23     an expansion.

24             So those are the proposals that we have for the Chamber.

25             JUDGE MOLOTO:  And, Mr. Lukic, you confirm that you have moved

Page 14614

 1     now from end of February to 4th of March?

 2             MR. LUKIC: [Interpretation] Yes.

 3             JUDGE MOLOTO:  Okay.

 4             MR. LUKIC: [Interpretation] Yes, Your Honour.  Just a few words,

 5     if I may.

 6             JUDGE MOLOTO:  You may.

 7             MR. LUKIC: [Interpretation] Because I wanted to put our arguments

 8     to you.

 9             When we discussed the limit of 100.000 words, both sides were

10     faced with the fact that we have been working on these briefs for quite

11     some time and it is for this reason that we are aware of the amount of

12     documents and topics we both need to cover.  As Mr. Harmon said, this is

13     first and foremost a paper document trial, and many of them have barely

14     been mentioned during the proceedings.  This is our only opportunity to

15     comment on such a great amount of documents which are in evidence.  This

16     is our first and most important document -- argument, for asking for

17     100.000 words.

18             What we agreed on, as our joint wish, was to submit them by the

19     28th of February, which is a Monday, and we are now asking for a mere

20     four days extra, that is to say, the 4th of March, because in the

21     technical sense of editing the entire document, those four days would

22     mean a lot to us.

23             Another to bear in mind is that we are drafting a document in

24     parallel in two languages because we keep informing Mr. Perisic

25     constantly, which requires considerable effort and resources of the

Page 14615

 1     Defence.  The same applies to our closing arguments.  It is our wish, and

 2     I believe we are in agreement with the Prosecution, that after the briefs

 3     had been submitted, four weeks should be granted for the close of --

 4     closing arguments, and we also need that time to translate for

 5     Mr. Perisic their entire brief, which will be as sizeable as ours, and we

 6     need that time to prepare ourselves for the final arguments -- closing

 7     arguments.

 8             I believe both sides also agree that one day each is sufficient

 9     for both parties to present their closing arguments.  Those are our

10     requests.  And should you need any further information, we are at your

11     disposal.

12             JUDGE MOLOTO:  Mr. Harmon had convinced me on your behalf

13     actually already, so I was going to grant all those requests.  But thank

14     you for the arguments.  Thank you so much.

15             4th of March then it will be.  And 28th to 31st of March it will

16     be, closing arguments.  Okay.  It is then so ordered that the parties

17     will file their closing briefs by no later than the 4th of March, 2011,

18     and that closing arguments will be scheduled for hearing on the

19     28th to the 31st of March.  Parties are granted 100.000 word limit each

20     and are granted a day each to present their argument.  Thank you so much.

21             Is there any other item that any of the parties would like to

22     raise which was not on the agenda?  Or which was on the agenda but you

23     are not satisfied with.

24             MR. HARMON:  Your Honour, I have two items to raise.  The first

25     is -- in agreement with the Defence as well, Ms. Carter mentioned it

Page 14616

 1     initially, as we go through these documents and prepare these briefs, we

 2     note occasionally that there are translations that are incorrect,

 3     inaccurate.  And we want to reserve the right to upload corrected

 4     versions.  We think it's important that the Chamber have the corrected

 5     translations; we think it's important that the parties have corrected

 6     translations and that we operate off as accurate a record as we can.  So

 7     the first item is:  We would request the opportunity to substitute

 8     documents with accurate translations should we find some documents that

 9     need to be modified and retranslated.  That's the first request we have.

10             And we propose to proceed in the manner in which we have worked

11     previously, that is, if the Defence finds a document or if the

12     Prosecution finds a document, that we'd identify an error in the

13     translation, we would discuss it with the other side, we'd reach an

14     agreement, and then we would request the Trial Chamber's permission to

15     upload that accurate translation into the trial record.

16             JUDGE MOLOTO:  And this accurate translation is by an agreement

17     between the parties without the involvement of CLSS?

18             MR. HARMON:  Yes, we would submit them to CLSS for revisions, and

19     then once we got that we would discuss it amongst the parties.  And once

20     we reach the agreement, we would seek to upload the accurate translation.

21             JUDGE MOLOTO:  Okay.

22             MR. LUKIC: [Interpretation] Yes, I agree fully and I support what

23     Mr. Harmon just said.  And there's something that we already established

24     in practice, and I wanted to ask for a change in the files already:

25     Exhibit P191 is the Law on the Army of the Republic of --

Page 14617

 1             JUDGE MOLOTO:  Have you moved away from correcting translations?

 2     Are you now on a different issue?  Okay.  The Law on the Army exhibit,

 3     P191 ...

 4             MR. LUKIC: [Interpretation] P191, the Law on the Army of

 5     Republika Srpska.  While working on the brief, we noticed that Article 4

 6     of the law is problematic and that the English translation does not match

 7     the Serbian original.  We asked for official translation from CLSS, we

 8     discussed this with our colleagues from the Prosecution --

 9             JUDGE MOLOTO:  Slow down.  Go ahead.

10             MR. LUKIC: [Interpretation] They agree that Article 4 as it is

11     should be substituted by a new translation.  We have uploaded it into

12     e-court with 1D21-0221; that is the new number.  And we would just ask

13     for the existing new translation to be substituted only in terms of

14     Article 4.  So Article 4 should be substituted from the previous

15     translation with the new one.

16             JUDGE MOLOTO:  Any comment, Madam Carter?

17             MS. CARTER:  No, Your Honour.  I agreed with the Defence this

18     morning on that specific exhibit.

19             JUDGE MOLOTO:  Thank you so much .

20             Mr. Harmon, you had mentioned the first of two items you wanted

21     to raise.

22             MR. HARMON:  I have two items.  I should be more robust in my

23     description.  Mr. Thomas has one item and Ms. Carter has one item.  But

24     let me -- I need to go into private session to discuss my second item.

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


Page 14618

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 6   (redacted)

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14   (redacted)

15   (redacted)

16   (redacted)

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Page 14619











11 Pages 14619-14621 redacted. Private session.
















Page 14622

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 6   (redacted)

 7   (redacted)

 8   (redacted)

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10   (redacted)

11   (redacted)

12   (redacted)

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14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20                           [Open session]

21             THE REGISTRAR:  We are back in open session, Your Honours.

22             JUDGE MOLOTO:  Thank you.

23             Madam Carter, I guess this is going to be your turn.

24             MS. CARTER:  Yes, Your Honour.  On 7 February 2011, the Chamber

25     issued its decision on Mr. Perisic's second and third motions regarding


Page 14623

 1     MFI documents.  At that time it reserved its ruling in relation to D510

 2     because the Prosecution had noted that it anticipated a stipulation.  I

 3     believe the stipulation has now been agreed upon, and I'd like to read it

 4     into the record.

 5             The stipulation in regards to D510 is that the parties stipulate

 6     that the initials noted after the first handwritten note in the top-right

 7     corner of Exhibit D510 are "MP" which corresponds to Momcilo Perisic.

 8             With the agreement of the Defence, if that stipulation has been

 9     reached, the Prosecution no longer has any objection to D510 and would be

10     happy for the MFI document -- or MFI designation to be removed.

11             JUDGE MOLOTO:  Yes, Mr. Lukic.

12             MR. LUKIC: [Interpretation] Yes, we have agreed to this

13     stipulation, Your Honours.

14             JUDGE MOLOTO:  Thank you very much.

15             Mr. Registrar, may the MFI status of the document please be

16     removed and be given an exhibit number.  I guess the exhibit number would

17     be D510.

18             THE REGISTRAR:  Your Honours, this document becomes Exhibit D510.

19     Thank you.

20             JUDGE MOLOTO:  Thank you so much, Mr. Registrar.

21             Is that all?  Any outstanding --

22             MR. HARMON:  Yes, Your Honour.

23             JUDGE MOLOTO:  Any outstanding -- thank you very much,

24     Mr. Harmon.

25             -- outstanding items on your side, Mr. Lukic?

Page 14624

 1             MR. LUKIC: [Interpretation] Two more items, Your Honour.

 2             In P1196 there's something that should be added.  We need to add

 3     the English translation to it, which is why in transcript T-13073/5 it

 4     was decided to wait until translation is submitted, so we propose that

 5     the doc ID be 1D21-0220.  During the testimony of Witness Novakovic, it

 6     was requested that an official translation be submitted.  It is

 7     Article 36 of the Law on Defence of the Republic of Serbian Krajina.

 8     Article 34.  Article 34 is what I said.

 9             JUDGE MOLOTO:  Now -- sorry about that.  Do we have the

10     translation now?  Thank you so much.  And now all you want is the

11     translation to be added?  That's all.

12             MR. LUKIC: [Interpretation] Yes, that is all.

13             JUDGE MOLOTO:  Okay.

14             I guess there's no objection from the opposite side?

15             MR. HARMON:  There is no objection, Your Honour.

16             JUDGE MOLOTO:  Thank you so much.  The translation may be added.

17             MR. LUKIC: [Interpretation] And another issue that the Defence

18     would propose.  We have discussed it with our colleagues from the

19     Prosecution.  The Law on the Serbian Army of Krajina, as opposed to the

20     Law on Army of Republika Srpska and the Law on the Army of Yugoslavia,

21     which have been admitted in entirety both in B/C/S and in English, this

22     Law on the Serbian Army of Krajina has only been admitted in terms of

23     several paragraphs during the testimony of a witness.  And while working

24     on the final brief, we propose that as D170 includes the entire law in

25     B/C/S, it's already uploaded, that what could be added to the English

Page 14625

 1     translation would be certain articles from the law.  Not the whole law,

 2     because the law has around 300 articles and is not essential for this

 3     trial, but roughly around 60 or 70 articles which we believe are relevant

 4     in various ways for this trial is what we have received in translation

 5     officially through CLSS.  We have of informed the Trial Chamber about

 6     this, and we would like to add this translation to the existing

 7     Exhibit D170 because we wish, during our final brief and final arguments,

 8     use certain elements from this law.  We believe that it's very relevant

 9     because as you can see the other two laws have been admitted in their

10     entirety because of relevance.

11             Therefore, we have uploaded this in e-court, and it's ready to be

12     included as one of the exhibits.  I mean all of the English translation

13     that we have now.

14             Let me just also note, without confusing matters, Exhibit D1 --

15     D85 and D90 are specific articles of this same law.  We believe - and I

16     think we have discussed this with the Registrar - that the entire Law of

17     the Serbian Army of Krajina, just like the Law on Army of

18     Republika Srpska and the Law on the Army of Yugoslavia, should be given

19     one single number and we suggested it should be D170.  And then it would

20     include both the B/C/S and English translation of all the articles which

21     would then be matching and all included in one document.

22             JUDGE MOLOTO:  Any comment from the Prosecution?

23             MS. CARTER:  Your Honour, at this time the Prosecution is in

24     agreement with the Defence that that is the appropriate course of action;

25     however, it's been unable to have the opportunity to actually look at the

Page 14626

 1     three exhibits to ensure that the final exhibit, D170, does in fact

 2     contain all of the specific articles.

 3             JUDGE MOLOTO:  Articles D85, D90.

 4             MS. CARTER:  Exactly.  So in principal we are in agreement.

 5     However, we would like the opportunity to have a look after court to make

 6     sure that we do have a complete document.

 7             JUDGE MOLOTO:  Have you seen the English translation of the

 8     articles that the Defence proposed to upload?

 9             MS. CARTER:  It was sent to me last night.

10             JUDGE MOLOTO:  And you are happy with that, that they haven't

11     left anything that you would have wanted to translate?

12             MS. CARTER:  No, it's simply a matter of that there are a number

13     of different documents that are outstanding and then they wanted to merge

14     all into one single document, and I just want to make sure, again, that

15     we have actually picked up all the appropriate laws.

16             JUDGE MOLOTO:  Can I suggest that when you have picked up all the

17     appropriate laws you give a note to the Registrar so that the Registrar

18     can do the necessary.

19             MS. CARTER:  Absolutely, Your Honour.

20             JUDGE MOLOTO:  Thank you so much.

21             Mr. Registrar.

22                           [Trial Chamber and Registrar confer]

23             JUDGE MOLOTO:  Mr. Registrar is asking what then do we do with

24     D85 and D90.  I would imagine that once we have a consolidated exhibit we

25     can withdraw those two.

Page 14627

 1             MR. LUKIC: [Interpretation] I think that would be the best thing

 2     to do.  On the other hand, however, once you go back to the transcript,

 3     where, for example, reference is made to those exhibits, what conclusions

 4     you would eventually draw?  I don't think it would be any hindrance to

 5     leave the previous two in addition to the consolidated one.  Perhaps just

 6     retain the exhibit numbers.

 7                           [Trial Chamber and Registrar confer]

 8             JUDGE MOLOTO:  Thank you so much.  Mr. Registrar will deal with

 9     that.

10             Is that all, Mr. Lukic?

11             MR. LUKIC: [Interpretation] Yes, I believe so.

12             JUDGE MOLOTO:  And that's all also from the Prosecution side.

13             Okay.  Thank you very much.  And at this stage that brings us to

14     the conclusion of our session today.  And Chamber stands adjourned sine

15     die.

16                           --- Whereupon the hearing adjourned at 11.35 a.m.

17                           sine die.