Tribunal Criminal Tribunal for the Former Yugoslavia

Page 33719

 1                           Friday, 29 May 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.06 a.m.

 5             JUDGE AGIUS:  So good morning, Mr. Registrar.  Good morning,

 6     everybody.  Could you call the case, please.

 7             THE REGISTRAR:  Thank you, and good morning, Your Honours.  This

 8     is case number IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.

 9             JUDGE AGIUS:  Thank you.  For the record, all the accused are

10     present.  Prosecution is Mr. McCloskey and Mr. Mitchell.  Defence teams,

11     I notice the absence of Mr. Ostojic, Mr. Bourgon, Mr. Lazarevic,

12     Mr. Krgovic, and I also notice the presence in the courtroom of -- I take

13     it is Mr. Simon Davis.

14             MR. HAYNES:  Yes.  As you know, Mr. President, it's not generally

15     my practice to introduce everybody who works for the team to the Court,

16     but I'm proud and privileged to introduce Mr. Simon Davis, who may of

17     course at some stage have to talk to you, so I ought to introduce him.

18             JUDGE AGIUS:  Okay.  Thank you.  Yes.  Thank you, Mr. Haynes.

19     For those of you who are not aware, Mr. Haynes for the Pandurevic Defence

20     team filed a document on the 25th of May in which he requests the Trial

21     Chamber to grant Mr. Davis full right of audience, including the right to

22     examine witnesses and make submissions pending his official appointment

23     as co-counsel.  Permission is granted.  Mr. Haynes and Mr. Davis,

24     subject, of course, to review -- immediate review, should your official

25     appointment as co-counsel be not forthcoming or takes longer than

Page 33720

 1     expected, then we will need to discuss this matter further.

 2             We will have in the course of the day various matters to discuss

 3     and various matters to decide.  Most of them are going to be decided

 4     orally, but we have two particular decisions that we need to start with.

 5     We are going to decide them orally now with reasons -- with reasons to

 6     follow shortly, most probably in the course of today.

 7             First is the Gvero motion seeking certification to appeal the

 8     decision on the Prosecution's second motion to reopen its case.  This was

 9     filed on the 15th of May, 2009.  The Trial Chamber decides on the motion

10     as follows:

11             First, it lifts the confidentiality of the motion, the Pandurevic

12     response and the Prosecution response, and proceeds to deny the motion in

13     all other respects.  As I said, written reasons will follow shortly.

14             The second motion we are going to dispose of orally now before we

15     proceed with this sitting is the Popovic request for certification to

16     appeal the decision on the Prosecution's second motion to reopen its

17     case.  This, too, was filed on the 15th of May, 2009.  As with the

18     previous motion, as with the Gvero motion, first we order the lifting of

19     the confidentiality of the motion, the Pandurevic response and the

20     Prosecution response, and proceed to deny the motion in all its

21     respects -- all other respects.

22             All right.  Our plan is to proceed now with the viewing of the

23     videos.  That includes the ones you have indicated, Ms. Fauveau, or the

24     excerpts therefrom, after which there will be plenty of other issues that

25     we need to discuss and determine here.

Page 33721

 1             Which one would you like to start with?  Mr. Gosnell, yes.  Good

 2     morning to you.

 3             MR. GOSNELL:  Good morning, Mr. President.  As you recall,

 4     Mr. President, we did not oppose the introduction of the Potocari video

 5     and -- but what we did do in the course of our submissions in response to

 6     that motion is reserve the right to object in the event that there are

 7     translation or transcription errors, and we have identified a certain

 8     number of errors, and the Prosecution has, in fact, corrected some of

 9     those errors, but there are others that are outstanding.

10             Now, in the interests of facilitating the proceedings, and I know

11     that the videos are going to be played with a -- subtitles of the video,

12     we are not going to object to the showing of the videos with those

13     subtitles, even though there are a certain number of errors.  But what we

14     would ask, and I'm not sure if the Prosecution is going to agree to this

15     because they haven't agreed up until now, is that the disputed portions

16     be submitted to CLSS for an independent review as to the correctness of

17     the translations.

18             JUDGE AGIUS:  Yes.  Thank you, Mr. Gosnell.  That's fair enough.

19     This is something that was in my mind; I mean the problem, not

20     necessarily the solution that you are suggesting.  Let's hear

21     Mr. McCloskey first.

22             MR. McCLOSKEY:  Yes.  Good morning, Mr. President, Your Honours,

23     everyone.

24             We have no problem with -- that's normal practice if there's a

25     dispute.  We don't think there are any errors.  We spent a tremendous

Page 33722

 1     amount of time looking at this material, but be that as it may, that's

 2     what we have CLSS for, and I think they can sort this out.  So no problem

 3     there.

 4             JUDGE AGIUS:  Thank you, Mr. McCloskey.  What I suggest, because

 5     there are eight of you here, is that as we go along and as you identify

 6     significant errors, I don't -- wouldn't like you to take any of the

 7     Court's -- of the Court's time to indicate silly, stupid, insignificant

 8     errors or grammatical errors which have no actual bearing on what we are

 9     really concerned with.  But if there is anything in particular which is

10     significant that you understand would eventually probably need

11     translation, you just indicate it, you ask for the video to stop,

12     indicate it so that at least we will have a -- a record of it.

13             MR. GOSNELL:  Well, Mr. President, thank you for that suggestion.

14     I can just -- I can just indicate to you that our plan is not to pop up

15     and down --

16             JUDGE AGIUS:  All right.  Okay.  Fair enough.

17             MR. GOSNELL:  -- in respect of the objections, we don't think --

18     and we have complete faith that when a corrigendum, if a corrigendum is

19     in fact issued, that you'll take it into account and you'll be able to

20     judge it accordingly.

21             JUDGE AGIUS:  Okay.  Thank you.  Have you chosen which one you

22     would like to start with, please, Mr. McCloskey?

23             MR. McCLOSKEY:  Mr. President, I think we might as well try to go

24     chronologically starting with Potocari and then the Vlasenica footage and

25     then the Boksanica footage.  And just so you have the Exhibit numbers for

Page 33723

 1     the record, Potocari is P04536, the Vlasenica is P04535, and Boksanica is

 2     P04537.

 3             And for the material that Ms. Fauveau has submitted, we have

 4     agreed with her on the -- the transcript and the translation, so that --

 5     you shouldn't find any problem with those.  Those -- there wasn't time to

 6     put them on the subtitling, so I believe we have transcripts or

 7     Ms. Fauveau is dealing with that and has transcripts for you.

 8             And if -- could I put one more item on your -- on your review

 9     agenda for today, very briefly.  You may have received word on the e-mail

10     I sent yesterday to all Defence counsel, and that is a request for you to

11     consider extending the closing argument date one week, August 31st.  It's

12     basically Mr. Thayer and Mr. Vanderpuye, and I will be doing the bulk of

13     the closing arguments, and Mr. Thayer had to schedule this surgery for

14     his 3-year-old many months ago, and if he could get that extra week it

15     would really enable him to be fully on board for his closing argument.

16     I've got a family wedding that I haven't seen some relatives for many

17     years in California.  It would enable me to go to that on August 22nd.

18             The Defence have -- I'm aware of no objections from the Defence.

19     In fact, many Defence counsel have told me that they would appreciate a

20     little extra time, and all I'm sure would be working very hard through

21     that -- that period to get ready for their closing arguments, and we

22     fully, you know, support any -- any requests they have to join us, of

23     course.  So if you could take that into consideration, I would appreciate

24     it.  Thank you.

25             JUDGE AGIUS:  Okay.  We'll come to that later on.  Yes,

Page 33724

 1     Mr. Josse.

 2             MR. JOSSE:  Yes.  Just if the Chamber could reserve ten minutes

 3     for a procedural application that our team wish to make at some juncture

 4     later on.

 5             JUDGE AGIUS:  Okay.  Thank you.

 6             Let's start with the Potocari one.

 7                           [Video-clip played]

 8             JUDGE AGIUS:  Okay.  Mr. McCloskey.

 9             MR. McCLOSKEY:  Just for your knowledge, Your Honour, the next

10     segment is 36 minutes, and the final segment is 35 minutes.

11             JUDGE AGIUS:  All right.  What my suggestion is is that we see

12     the next segment and we have a break after that, and then we see the

13     other segment after the break.  All right?  Thank you.

14             MR. McCLOSKEY:  And so this Exhibit is P04535.

15                           [Video-clip played]

16             JUDGE AGIUS:  So as stated earlier, we'll have a 25-minute break

17     now, and soon after we'll resume with the next video.  Thank you.

18                           --- Recess taken at 10.32 a.m.

19                           --- On resuming at 11.02 a.m.

20             JUDGE AGIUS:  Welcome back.  What's going to happen now is we're

21     going to see the next Prosecution video.  I understand that there are

22     some technical problems that have to be solved before we can see the

23     other videos, and some time will be needed for that.  Our idea is that in

24     the interim, after the next video, and while we are ready to start with

25     the subsequent ones, we receive your submission, Mr. Josse.

Page 33725

 1             MR. JOSSE:  That would suit me very well, Your Honour.

 2             JUDGE AGIUS:  Okay.  Thank you.

 3             Yes, Mr. McCloskey.

 4             MR. McCLOSKEY:  Ms. Stewart is hoping that she may be able to

 5     play Ms. Fauveau's videos.  She's trying to download them as we speak.

 6     We were seeing if it would be possible to play Ms. Fauveau's Boksanica

 7     footage because chronologically it's the 19th, and ours is later, on the

 8     26th.  Let me just check to see where we are, and that was Ms. Fauveau's

 9     wish as well.

10             Ms. Stewart was able to download Ms. Fauveau's video, and I think

11     she's ready to play it.  I don't know where the -- if you've got the

12     transcripts.

13             JUDGE AGIUS:  Yes, Ms. Fauveau.

14             MS. FAUVEAU: [Interpretation] I would like to say that this is

15     document 5D1439, and I have just handed out the latest version of the

16     transcript of that video sequence.  There were a few corrections last

17     night and this morning.  This version will be put on the e-court as soon

18     as possible.

19             JUDGE AGIUS:  [Interpretation] Thank you.  [In English] Yes.

20     Just to make sure, this is Madam Fauveau's video, and it purports to show

21     us events which happened on the 19th of July.  Is that correct?

22             MS. FAUVEAU: [Interpretation] Yes, absolutely.

23             JUDGE AGIUS:  Thank you.

24             MR. McCLOSKEY:  At the Boksanica check-point, I believe.

25             JUDGE AGIUS:  Thank you.

Page 33726

 1                           [Video-clip played]

 2             THE INTERPRETER: [Voiceover]

 3             "RM:  We agreed that in this situation, the best way to resolve

 4     the question of Zepa is for the entire population to leave the Zepa zone

 5     safely and securely.

 6             "So I don't want to expose you to further suffering.  Second, we

 7     will enable, according to the free choice of the population, their safe

 8     passage through our territory in the following order.  I don't want to

 9     use terms that would bother you.

10             "No, nothing.  I wish to be fair.  Just use the UNPROFOR

11     communication to communicate our own links.

12             "RM:  The following order.  Do you have wounded?

13             "HT:  We do.

14             "RM:  How many?

15             "BK:  Well, approximately now somewhere around 30.

16             "RM:  All men?

17             "BK:  There are some women and children as well.

18             "RM:  First the wounded.

19             "BK:  Regardless of the ...

20             "RM:  The wounded.  And don't trick us because we're going to

21     control it.  Don't try to pull a fast one on me because we're going to

22     check, all the wounded, under B, the women and small children, under C,

23     the elderly, and under D, the rest of the population.  I am prepared to

24     enable your transfer by transportation means to Republika Srpska, buses

25     and trucks, escorted each time by two UNPROFOR vehicles at the front and

Page 33727

 1     at the rear.  The first convoy is to set off tomorrow at 10.00.  Along

 2     the route ...

 3             "HT:  I apologise, but I did not manage to write this down.

 4             "NN:  No, of Republika Srpska with an UNPROFOR escort --

 5             "NN:  Two UN vehicles.

 6             "RM:  -- one at the front, one vehicle at the rear.  We will also

 7     give you fuel for that and everything ... We will cover all the costs.

 8     The people may take whatever they want with them.

 9             "HT:  When is the first convoy?

10             "RM:  The first convoy, tomorrow at 10.00.  We will agree on

11     where it suits you ... Are your wounded in Zepa?

12             "HT:  Yes.

13             "RM:  Then we will come with trucks.  We will take these from the

14     UN and several of our own trucks for the wounded to go first.  Where is

15     the best place for you for the people to gather?

16             "BK:  I don't know.  If it's not a problem for you, perhaps it

17     would be best in Zepa.

18             "RM:  Where are the people now?  Are they up on the mountain?

19             "BK:  No.

20             "RM:  Where are they?

21             "BK:  The people, believe me, I mean...

22             "HT:  In the villages.

23             "BK:  In the villages, believe me there is no reason ...

24             "RM:  Do you want them to gather in Zepa?

25             "BK:  That would be the best solution for us that you ... but now

Page 33728

 1     it depends... you are dictating the place.

 2             "RM:  To Zepa.  Like this, to Zepa, so that all the people who

 3     want to go out gather in Zepa, and on the way out of Zepa, we will meet

 4     them here at the check-point, up there at that first ...

 5             "BK:  At Brezova Ravan?

 6             "RM:  At the Brezova Ravan, wherever it suits you.

 7             "BK:  Well, all right.

 8             "RM:  Down there, they will organise for you...

 9             "Down there, just a minute, for the sake of security, because

10     they have not even been disarmed, I don't want to bring either them or

11     their people or us into a situation ... there must be no mistakes here.

12     I have evacuated all the civilians who wanted to, very safely in

13     Potocari, and everyone who came here, got through safely.

14             "Everyone got through safely.  Outside the area that I say, there

15     is no safety, outside there is no life, only there one can survive, just

16     so you understand that.  That means, it needs to be organised, you will

17     organise, 2nd lieutenant, with Lieutenant-Colonel Dudnjik for the

18     civilian population to be received down there at Brezova Ravan, but first

19     that the convoy of vehicles go tomorrow, you will send the Major.

20     Dudnjik, this... What's your major's name, Kalesnjik, to go down there

21     with my drivers, that they safely ... that you guarantee the safety of

22     the drivers and that you give me the wounded.  In the first round, you

23     will give me Private Mrdjan, Mrdja, Private Mrdja.

24             "NN:  Velimir Mrdjan.

25             "RM:  You will give him to me in the first round.  That will make

Page 33729

 1     it easier here so that no one touches you.  Is he alive and well?  Do you

 2     have any other prisoners?

 3             "BK:  No.  Trust me, there aren't.

 4             "RM:  All right.  That means when Mrdja comes at the helm, it

 5     will be equal to my giving you my word.  That means a lot for you.  So, a

 6     check-point will be organised down there.  We will give you the vehicles

 7     tomorrow.  How many vehicles will be enough for those wounded?  Are they

 8     seriously wounded?

 9             "NN:  There are also those who are seriously wounded.

10             "RM:  As a doctor, in your estimate, how many vehicles are

11     needed?

12             "BK:  I don't know.  It depends on which vehicle, type of vehicle

13     is involved.

14             "RM:  Like this.  I will give you a vehicle like this one and

15     around two of the TAM 110 lorries and however many are necessary.

16             "BK:  And later we will ...

17             "RM:  And you go too ... and I propose like this, that you go out

18     with the wounded, that you escort the wounded.  Can you give UNPROFOR

19     vehicles for the wounded to go directly to Kladanj?

20             "DUDNJIK:  "Vehicles?

21             "RM:  Your vehicles, all the way from down there, that they are

22     loaded in to the UNPROFOR vehicles, that you come with my Private Mrdjan

23     and escort your convoy with the wounded to Kladanj, and from there come

24     ...  I guarantee you, if necessary, I will transport you with my

25     helicopter there.  You will be here the whole time, and he will be on the

Page 33730

 1     other side, so we can lead the entire operation so that there are no

 2     problems.  Do you trust this?

 3             "BK:  I personally do.

 4             "RM:  Excellent.  Accordingly, you, Lieutenant-Colonel, you will

 5     give your vehicles down there, that they load the wounded at 10.00

 6     tomorrow, and the doctor will come with the wounded, and you will hand

 7     them over here to my lieutenant-colonel our prisoner, this young Mrdja,

 8     and you will continue with my officers, with the gentlemen, to Kladanj.

 9     And you will ... Don't you go to Kladanj, to their territory, you go

10     straight to Kladanj and hand over the wounded.  From Kladanj, the convoy

11     will return.  You, Mr. Heljic, will prepare --

12             "HT:  Hamdija, Hamdija.

13             "BK:  Hamdija Torlak, Torlak.

14             "RM:  Hamdija, you will prepare the people.  Let them gather in

15     Zepa and establish where would be the easiest down there for you, up to

16     the front line.

17             "BK:  We can do that tomorrow, tomorrow when the wounded set off.

18     We can tell you that ...

19             "RM:  Don't you worry about anything.  I will order the buses

20     come immediately ...

21             "BK:  No, no, but maybe we misunderstood each other ... that I

22     tell you the place where it would be best for civilian population who are

23     category B to gather, and that I tell you that row when we set off with

24     the wounded.

25             "RM:  Whatever you wish.  I have halted operations.  There must

Page 33731

 1     not ..."

 2             MR. McCLOSKEY:  Now we have Prosecution 4537.  This should be

 3     Boksanica, July 26th.

 4                           [Video-clip played]

 5             JUDGE AGIUS:  Yes, Madam Fauveau.

 6             MS. FAUVEAU: [Interpretation] I have just been informed that the

 7     problem has been solved, but since we're talking about a video that

 8     comprises three parts, there might be a break of about ten seconds

 9     between each portion.

10             JUDGE AGIUS:  That's not a problem, Madam Fauveau.  Let's proceed

11     if we can.  If not, we will hear oral submissions from Mr. Josse.

12             MS. FAUVEAU: [Interpretation] This is Exhibit 5D1441.  This is a

13     speech made by General Mladic on the 1st of January.  I don't know

14     whether it was the 1st or 13th of January, 1996.

15             JUDGE AGIUS:  Thank you.  Before we start, I mean, just a

16     question.  Why would it be either the 1st or the 13th?  Is there an

17     explanation for that?

18             MS. FAUVEAU: [Interpretation] Yes, I do.  It's a celebration of

19     the new year.  I don't know whether it's the traditional new year or

20     whether it's the Orthodox new year.  So if it was the Orthodox new year,

21     that would have been the 13th of January.

22             JUDGE AGIUS:  That's what I thought, too, but I prefer to have

23     off it on record.  Thank you.

24             Let's proceed.

25                           [Video-clip played]

Page 33732

 1             JUDGE AGIUS:  I don't think we have a transcript of this,

 2     Ms. Fauveau.  We had of the previous one, which we were following, but I

 3     don't think we have of this one.

 4             MS. FAUVEAU: [Interpretation] It may not have been handed out,

 5     but it certainly does exist and is on the e-court.  Perhaps I can help

 6     you.  I have two paper versions, but I know it is on the e-court as well.

 7             JUDGE AGIUS:  All right.  Yes, let's have it on the e-court,

 8     please.

 9                           [Trial Chamber and register confer]

10             MS. FAUVEAU: [Interpretation] 5D1441.

11                           [Video-clip played]

12             THE INTERPRETER:  "[Voiceover] I think that the credit for what

13     we have today goes to the Serbian people as a whole and particularly to

14     the Serbian people of the West of the Drina River.  Sure, I have also

15     made a small and modest contribution to it.  If, God forbid, it were to

16     happen again, I would not make some of the mistakes that I have made.

17     Very complex and very difficult decisions had to be made within a very

18     short period of time, sometimes even several decisions in one day.  I was

19     able to do so only thanks to all of you respective of when each of you

20     joined the Main Staff and thanks to the exceptional fighting spirit of

21     our people and our army.  Those who helped me most were definitely my

22     closest associates, and now I can tell you only a part of it as a part of

23     it cannot be told about yet.

24             "The most important decisions were taken by a group of five

25     people.  This was the inner core of the Main Staff which in addition to

Page 33733

 1     myself included General Milovanovic, my deputy and the Chief of Staff,

 2     and Generals Djukic, Gvero, and Tolimir.  This was the inner corps.  The

 3     other generals also participated in a very difficult, very often in all

 4     decision-making, General Jovo Maric, and General Tomic, and General

 5     Grubor at that time, and General Skrbic.  Important decisions which could

 6     have been reached in a certain period of time that could wait were made

 7     at the commander's expanded collegiums, which were attended by corps

 8     commanders.  My associates and I were very often consulted and -- by many

 9     people both within and outside the army.

10             The most complex decisions were taken by me and the Chief of

11     Staff with one of my assistants and after consultations.  The most

12     difficult ones when lives were put at risk were often made by me alone.

13     I made most of them sitting on the stump next to that bridge.  The Chief

14     of Staff knew.  He knew that I must not be disturbed when I was on my

15     own, when I was there because he knew that something big was gestating in

16     me at that moment.  The same happened when I stood up and walked around

17     my office.  And now when you see me walk like this, I will also say this

18     now, when you see me walk I'm not walking because of the stone which I

19     fortunately seems have discharged.  It's because I'm in the grip of

20     ideas.  There were very difficult moments when Mane visited me and I did

21     not know what to do.  I just went away.  I said I'm sorry, but I had to

22     take a shower.  We might come up with something in the meantime.  This

23     happened when we listened to the news that one or several Serbian

24     villages had been torched."

25                           [Video-clip played]

Page 33734

 1             THE INTERPRETER:  "[Voiceover] Once again, a special thank you to

 2     you, General Milovanovic, my right hand, who very successfully stood in

 3     for me at all difficult moments and helped enormously.  I think we were

 4     good pair, complementing each other.  I also want to thank the rest of my

 5     assistants and associates:  General Djukic, General Gvero,

 6     General Tolimir, General Maric, General Skrbic, and all my colleagues,

 7     all the way down to the ordinary soldier.

 8             Let me say one more thing.  I do not think that the highest rank

 9     is the one that I am wearing.  The highest rank is that of the honest

10     Serbian soldier.  All glory and gratitude be to him and to all of us with

11     him.  Long live the Serbian army."

12             MS. FAUVEAU: [Interpretation] It is finished now.

13             JUDGE AGIUS:  Okay.  No more videos?  No.  All right.

14             Yes.  Mr. Josse.

15             MR. JOSSE:  Your Honours, this in effect is an application

16     seeking reconsideration or a variation to paragraph (B) of the Trial

17     Chamber's order of the 27th of May.  That paragraph, in effect, ordered

18     the Defence to file any motions responding to the evidence that we've

19     just seen, in fact, by the 3rd of June of this year.

20             Your Honours, there are really two ways that I could put this.  I

21     have prepared a submission, which will take a few minutes, and perhaps

22     I'll go through in a moment's time, but I'm really going to go to my

23     second approach first of all, and my second approach is to say to you, we

24     simply can't manage it by that date.  There is no prospect of the

25     Gvero Defence filing that motion by that day.  We are in the process of

Page 33735

 1     carrying out various investigations, we are contemplating what we're

 2     going to do, and we simply can't do it by that date.

 3             Your Honours, we are in effect imploring the Court to vary that

 4     particular order.  We believe that we can file the relevant motion by the

 5     12th of June.  That is Friday -- today, two weeks, in fact, about ten

 6     days after the date that's already been set.

 7             I'm also aware that circumstances to some extent may perhaps have

 8     helped us by what Mr. McCloskey said earlier, and I simply ask you to

 9     bear what he said so far as time-tabling is concerned in mind because

10     that may be of assistance in pushing things back by a week or so, but

11     that's really a side issue because as far as we're concerned, the date

12     that we're concerned about is the 3rd of June.

13             Now, Your Honour, I will develop it a little more, if I may,

14     because in many respects this is a difficult application to make because

15     the order of the 27th of May recites the submissions of the parties sop

16     far as this particular issue is concerned, but it doesn't give any

17     reasons as to why the Trial Chamber have chosen the date of the

18     3rd of June.

19             The order, if I may respectfully say, gives the distinct

20     impression that the overriding concern of the Trial Chamber, perhaps

21     understandably, is the schedule, the schedule in the sense of the final

22     brief, the closing arguments, and the closing of this trial.  So far as

23     the Gvero team is concerned and our need to file this motion by the

24     3rd of June, that, we strongly submit, is a totally erroneous and unfair

25     approach.  The only question the Trial Chamber should be asking itself is

Page 33736

 1     have we given the Defence enough time to respond to the new evidence,

 2     evidence which the Prosecution certainly contend is significant and

 3     important, and evidence which the Trial Chamber have thought significant

 4     and important enough to allow the Prosecution the -- to reopen its case

 5     and, indeed, in effect extend this case almost inevitably.  And not to

 6     put too fine a point on it, if I could almost end where I began, we do

 7     contend that what we're being asked to do by the 3rd of June is both

 8     absurd and totally unreasonable, and I repeat what I said when I started:

 9     We simply cannot manage it.  There is no prospect of it happening by that

10     particular date.

11             Now, Your Honours, I'm glad that I've had an opportunity to raise

12     this matter now because we obviously need an urgent answer to the

13     application that I'm just making because consequentially to the decision

14     the Chamber makes, either to extend the time or not to extend it, we need

15     to make urgent logistical arrangements within our team to respond

16     accordingly.  But I do repeat that we simply cannot meet that particular

17     date, and we would urge you to move the deadline to the 12th of June when

18     we are confident we will be able to file something.

19             JUDGE AGIUS:  Thank you, Mr. Josse.

20             Mr. McCloskey.

21             MR. McCLOSKEY:  Yes, Mr. President.  I won't comment on his

22     conclusion about any orders being absurd.  I don't know why counsel felt

23     a need to go there.  I don't see any of the orders meeting that category.

24     However, having just stood before you and made a similar request, I

25     understand his -- his situation, but I can also offer him, perhaps we can

Page 33737

 1     help.  Basically his motion is to request the Court to put on more

 2     evidence.  I may very well have no objections to that.  If he would like

 3     to -- and I won't have an objection to the extension, certainly not if he

 4     can outline for us what evidence he intends to put on, and then his

 5     arguments developing it, he may need a little more time for.  But, for

 6     example, if he wants to call certain witnesses, we may not object at all,

 7     and we can get on with it.  Instead of filing a motion, we can hear from

 8     the witness.  So if he would like to tell us what he has in mind, we may

 9     not have reason to file any motion, or we can argue right now.

10             JUDGE AGIUS:  Thank you, Mr. McCloskey.  Anyone else wishes to

11     comment?

12             Mr. Josse.

13             MR. JOSSE:  Well, if only it were that easy, Your Honour.  Part

14     of it is investigation, which I can assure the Court is now ongoing,

15     ongoing at this very moment, but part of it is important tactical and

16     strategic decisions once those investigations are concluded as to who we

17     do wish to apply to have recalled and who we wish to call ourselves.

18             Now, Your Honour, I'm prepared to go some way to what

19     Mr. McCloskey is suggesting, and it may be possible that at the point

20     that we're going to file the motion we can tell him and -- or shortly

21     before filing the motion say we've definitely decided to do X, Y, and Z,

22     and then he can respond accordingly in a very short period of time.  So

23     shortening the -- shortening the matter at the other end, i.e., after the

24     motion has been filed, is a distinct possibility and something we would

25     welcome.  But at this particular juncture, I simply can't get up and

Page 33738

 1     respond to the question he's asking.  With all due respect to him, and I

 2     mean this, I don't think that's reasonable bearing in mind what we're

 3     asking for at this particular juncture.  We're still considering the

 4     matter in a fully mature way.

 5             JUDGE AGIUS:  Thank you, Mr. Josse.

 6                           [Trial Chamber confers]

 7             JUDGE AGIUS:  All right.  So, Mr. Josse, Mr. McCloskey, and the

 8     rest, let's start from here, Mr. Josse, and forgive the unorthodoxy of

 9     the way we are deciding this matter since you presented it orally and we

10     are deciding it orally.

11             The date of our decision in which basically we communicated to

12     you a dead-line for any possible motions on your part, we view as

13     relatively incidental in the sense that you, like everyone else, had at

14     your disposal from quite earlier the -- at least the three videos of the

15     Prosecution, and you also had an indication from the Trial Chamber that

16     those were going to be admitted.  I'm not that sure in relation to

17     Ms. Fauveau's videos.  There, I certainly cannot say exactly when you may

18     have had these available, but I concede that that could have been

19     relatively recently.

20             MR. JOSSE:  I'm going -- though they do come into the equation,

21     let's ignore them for the purpose of this argument.

22             JUDGE AGIUS:  Okay.  Okay.  That's good to know as well.

23             So in our minds when we fixed the date of the 3rd of June, we

24     were assuming that already you were working, you and your team, and

25     having brain storming sections, you and Mr. Krgovic, and your client and

Page 33739

 1     investigators as to whether you could come forward -- or what to do faced

 2     with this situation.

 3             MR. JOSSE:  Can I answer that, Your Honour?

 4             JUDGE AGIUS:  Yes.

 5             MR. JOSSE:  We -- the Chamber decided to admit the evidence on

 6     the 8th of May.  We filed our certification application, and more to the

 7     point, the adjournment application seven days later on the 15th of May.

 8     In that adjournment application, we made plain that as far as we were

 9     concerned, we really couldn't deal with hypotheticals, and apart with

10     everything else, we in common with every other party to this case had to

11     meet our primary obligation of filing our final brief by the end of June,

12     and it was not until two days ago that we became aware that we had been

13     granted an extension on the final brief, which I am bound to say is

14     almost incidental to all of this.  That -- that extension may be of

15     assistance to us and to others, but it is incidental to this.  Our real

16     concern relates to the filing of this particular motion, and we had to

17     continue concentrating our efforts on getting a final brief together for

18     the 30th of June, and that is the problem.

19             JUDGE AGIUS:  All right.  So the consequence of -- you may sit

20     down, Mr. Josse, please.  The consequence of all this is that we

21     certainly reject the allegation that you made in no uncertain terms that

22     in any way by establishing the 3rd of June as the dead-line for the

23     filing of the motion was in any way unfair.  It may be seen objectively

24     as posing a problem for your defence, but that does not translate itself

25     subjectively -- objectively, it does not translate itself in any undue

Page 33740

 1     pressure or unfairness on the par of the Trial Chamber.

 2             However, the way we have conducted the trial these past three

 3     years or almost three years has been that we have most of the time or

 4     almost always operated on an understanding of trust.  The Trial Chamber

 5     has always trusted your word, and we believe you when you say that you're

 6     finding difficulties and that you will not be able otherwise to file a

 7     motion before the 12th of June.

 8             We encourage you, we enjoin you to try and do your utmost to file

 9     it even before the 12th of June, and in our mind we are sure that with a

10     little bit more effort, you can do so.  At the end of the day, you're not

11     working alone.  You have a team, and that team should be concentrating

12     and dividing the work according to the exigencies that the time schedule,

13     overall time schedule imposes.

14             So we have decided to grant you the extension that you have

15     requested, namely by amending our previous order extending the dead-line

16     from the 3rd to the 12th of June, in the hope that not only you will

17     conclude this exercise and file whatever motion you may end up filing,

18     but filing it even earlier if possible.

19             Our concern, also, is that this is not considered by you, or

20     anyone else for that matter, as a further reason for further requests of

21     extensions of the filing of the final briefs and the new dates for the

22     closing arguments that we will be announcing shortly following the

23     request of Mr. McCloskey.

24             So those dates you ought to consider as staying, binding, and to

25     be observed by you irrespective of the fact that we are giving you these

Page 33741

 1     few days extension for the filing of the motion.  I hope that it's clear

 2     enough and that it meets with your exigencies, with your problems.

 3             MR. JOSSE:  First of all, thank you very much.  The Trial Chamber

 4     is aware, having heard me address the Court over a 3-year period, that I

 5     sometimes express things what I will describe as cultural reasons in a

 6     rather forthright way.  If I was at all rude, I withdraw any rudeness and

 7     apologise.

 8             JUDGE AGIUS:  I'm used to that, Mr. Josse.  In my study in my

 9     summer house in Malta, I have a big picture of an English Judge with the

10     title "A Blunt Judge."  So we are fine-tuned on that.  We don't need to

11     expand any further.

12             Which brings me --

13                           [Trial Chamber confers]

14             JUDGE AGIUS:  Now, I beg you to bear with us for a few more

15     minutes.  The option is to have a break now and continue afterwards, but

16     we don't have much time that we need to dispose of the matters that we

17     wanted to dispose of, so my suggestion is if there is agreement,

18     particularly from the staff, technical and translators and interpreters

19     and everything, if we could stay maybe for another 10 minutes, 15

20     minutes.

21             MR. McCLOSKEY:  Yes, the Prosecution would prefer that.

22             JUDGE AGIUS:  The staff?  Twenty minutes for the tape.  Okay.

23             Let's start with a matter that came to the notice of the Trial

24     Chamber the last couple of days following our consolidated decision on

25     the motion on behalf of Milan Gvero seeking an adjournment and Popovic's

Page 33742

 1     request for an extension of the dead-line for the final brief.

 2             You would have realised that we were dealing there with two

 3     Defence motions which we granted -- or one which we dealt with.  The

 4     question arose in the mind of the Prosecutor whether the variation of the

 5     dead-lines for the filing of the final briefs left their dead-line for

 6     their final brief as it was in the previous decision, and obviously the

 7     practice has always been that all final briefs are filed simultaneously,

 8     so we are varying that order and making it clear that the parties and not

 9     just the Defence teams shall file their final trial briefs by not later

10     than the 20th of July.

11             Earlier on we heard Mr. McCloskey plead for a delay of oral

12     arguments, the closing arguments, until -- from the 24th of August until

13     the 31st.  We have discussed this, and we grant the request, and an

14     amended order will be issued to that effect shortly.

15             Anyway, we'll decide whether we need to have it in writing or

16     not.  However, the scheduling of the closing arguments will be moved from

17     the 24th to the 31st of August.

18             Now, the Trial Chamber is also seized of the confidential Nikolic

19     motion seeking leave to amend its Rule 65 ter list of exhibits filed on

20     the 25th of May, in which the same Defence team also request that two

21     stipulations, namely those contained in Exhibits 3D584 and 3D585 be

22     admitted into evidence.  The motion states that the Prosecution does not

23     object and that the requirements for admission are met.

24             Mr. McCloskey, we just need a confirmation from you that you

25     don't object.

Page 33743

 1             MR. McCLOSKEY:  That's -- that's correct, Mr. President.

 2             JUDGE AGIUS:  Thank you.  And we want to make sure that there are

 3     no objections from any of the other Defence teams.

 4             Hearing the Prosecution's declaration and there being no

 5     objection from other Defence teams, taking this into account and

 6     considering that no prejudice will be caused to the co-accused, the

 7     Trial Chamber grants accused Nikolic leave to amend his Rule 65 ter list

 8     of exhibits and formally admits these two stipulations.

 9             Next, on the 11th of May, accused Nikolic filed a motion seeking

10     admission of written evidence provided by anybody Nebojsa Jeremic in view

11     of his viva voce testimony, and this pursuant to Rule 92 bis.

12             On the 14th of May, accused Pandurevic filed a response, and the

13     Prosecution filed theirs on the 25th of May, both not opposing the

14     motion.

15             We have considered this and also the interests of judicial

16     economy, and pursuant to that we provisionally admit the statements given

17     by Nebojsa Jeremic pursuant to Rule 92 bis without requiring him to

18     appear for cross-examination, provided that the statement is presented to

19     the Trial Chamber in a form which fully satisfies the requirement of

20     Rule 92 bis.

21             Next, on the 11th of May, accused Pandurevic filed a motion for

22     admission of documents from the bar table; and on the 14th of May, a

23     corrigendum followed.  In it, Pandurevic requests the admission of a

24     number of documents as identified in the annex to his motion.

25             On the 14th of May, the Prosecution filed its response, not

Page 33744

 1     objecting to the motion but suggesting that one document, namely

 2     65 ter 3389, which Pandurevic sought to withdraw in his corrigendum,

 3     should be in fact admitted.  The Prosecution further submitted that

 4     16 documents be withdrawn from the motion because they are already

 5     admitted into evidence.

 6             Yesterday, the Pandurevic Defence team replied, stating that it

 7     would not make further submissions with regard to the Prosecution's

 8     submissions or response.

 9             The Trial Chamber finds that the documents are prima facie

10     relevant and have probative value.  It grants, therefore, the motion and

11     the orders that the documents identified in the annex to the original

12     motion as amended by the corrigendum and excluding those listed in para 3

13     of the Prosecution response be admitted into evidence.

14             As regards 65 ter 03389, withdrawn in the Pandurevic corrigendum,

15     our decision is that this document is nonetheless admitted.

16             We do want to raise with you for your possible immediate feedback

17     matters related to document 65 ter 7D870, which the Prosecution suggests

18     was already admitted into evidence and should, therefore, be withdrawn.

19             We've examined this document like all the others, and it appears

20     to us that this document is not completely identical to Exhibit P1221 in

21     that 7D0870 has additional pieces of intercepted communication registered

22     at 1230 hours, 1244 hours, and 1249 hours, which do not appear in

23     Exhibit P1221, and there is also no English translation of it except for

24     a few lines in Exhibit P01221.

25             Consequently, if you are in a position to answer us now, we would

Page 33745

 1     like to know whether you can reach an agreement as to the need to admit

 2     both or stay with Exhibit P01221.

 3             Mr. McCloskey, you're the one who suggested that they were

 4     identical.

 5             MR. McCLOSKEY:  Mr. President, as you know, those print-outs have

 6     more than -- sometimes more than one intercept on them, and the

 7     description, it's my understanding, that the Pandurevic people put on was

 8     a particular intercept at 1346 hours, and that was the one that we're

 9     talking about is already in evidence, and I'm not sure the Pandurevic

10     team meant to have the ones on either side of it, and my guess is they

11     wouldn't want those in, but --

12             JUDGE AGIUS:  Yes, but --

13             MR. McCLOSKEY:  I think that's where we are.

14             JUDGE AGIUS:  Thank you.  You understand we cannot decide this

15     issue unless we've heard both of you, actually.

16             Mr. Haynes.

17             MR. HAYNES:  Well, the short and simple fact of the matter is I'm

18     sure we can agree very quickly.  The double difficulty for both

19     Mr. McCloskey and I is that the additional passages are not translated as

20     you've said, so we may need to go away and have a little look at them,

21     but my first glance at them indicates to me that there is nothing

22     conditional to P1221 that we want in evidence.

23             JUDGE AGIUS:  All right.  Thank you.

24                           [Trial Chamber confers]

25             JUDGE AGIUS:  So our decision, having heard both of you, is not

Page 33746

 1     to admit 7D870 for the reasons stated.  If after having reconsidered the

 2     matter you wish us to change our position, Mr. Haynes, you'll come back

 3     to us.

 4             MR. HAYNES:  Absolutely.

 5             JUDGE AGIUS:  Thank you.

 6             Next, the Trial Chamber notes that there are three documents

 7     marked by the Beara expert Mr. Gogic that had not been formally tendered

 8     by the Beara Defence team at the time of the gentleman's testimony and

 9     are, therefore, still not admitted.  These are IC0214, please refer to

10     e-court page 123; IC0215, please refer to e-court 124; IC0216, e-court

11     126, of Exhibit P00377.

12             The Trial Chamber has been informed by the Beara Defense team

13     that neither the Prosecution nor the accused object to their admission.

14     I need a confirmation from you, Mr. McCloskey, that this is so, in which

15     case I will proceed immediately to admit them into evidence.

16             MR. McCLOSKEY:  Mr. President, I don't recall speaking to

17     Mr. Ostojic.  I haven't spoken to him for a while about things.  If I

18     could have one second to refresh my recollection.

19             JUDGE AGIUS:  All right.  In the meantime, we move to our last

20     point, and hopefully this will be the last time we will have to raise

21     this, and there will be consequences if our instructions are not

22     followed.

23             I'm addressing the Beara Defence team.  We refer you to our

24     decision of the 10th July, 2008, which related and dealt with your

25     Rule 92 bis motion, in the absence of Mr. Ostojic.  There, we

Page 33747

 1     provisionally admitted 25 statements, 11 of which your team has never

 2     submitted to the Trial Chamber in a form which satisfies the requirements

 3     of Rule 92 bis (B).  We would have easily come here today and given you

 4     the surprise that you would never expect, namely to say, forget it, now

 5     these 11 documents are out.

 6             However, we prefer not to give such surprises.  We are ordering

 7     you instead to file the 11 outstanding statements in the form required by

 8     Rule 92 bis (B) no later than the 12th of June, failing which the

 9     Trial Chamber will not deal with this issue any further except that it

10     will make an entry into the records that these 11 statements are not

11     admitted.

12             Mr. McCloskey.

13             MR. McCLOSKEY:  Your Honour, if I could have -- the first

14     document that popped up is something that comes at me out of context, and

15     I'm not sur where it came from, and I don't recall speaking to anybody

16     about this, so -- we'll be able to sort it out very quickly, though.

17             JUDGE AGIUS:  All right.  Unless I hear any disagreement from my

18     colleagues, we will MFI ...

19                           [Trial Chamber confers]

20             MR. McCLOSKEY:  To try to simply my it, I do see one that's

21     IC214, which is a document marked up by the witness on the stand, so

22     there's no problem with that.  And if it's all the same thing, then it's

23     not a problem.

24                           [Trial Chamber confers]

25             JUDGE AGIUS:  All right.  I'm giving you the possibility to check

Page 33748

 1     further.  We will admit these on the usual temporary basis, MFI'ing them.

 2     They will be regularly -- automatically regularly admitted if you do not

 3     communicate to the Trial Chamber and to the parties your opposition.

 4             MR. McCLOSKEY:  I'm just seeing 215 and 216, and there's no

 5     problem.

 6             JUDGE AGIUS:  All right.  Then they are permanently admitted.

 7             That disposes of all that we needed to dispose of.  One moment.

 8                           [Trial Chamber confers]

 9             JUDGE AGIUS:  Not exactly.  I was going to forget one very

10     important matter.

11             Mr. Josse.

12             MR. JOSSE:  Well, could we go into private session for a moment?

13             JUDGE AGIUS:  For how long?

14             MR. JOSSE:  I hope literally a moment.

15             JUDGE AGIUS:  Okay.  Let's go into private session for a short

16     while.

17                           [Private session]

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 33749

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8                           [Open session]

 9             JUDGE AGIUS:  The memorandum of service and medical reports have

10     been officially filed yesterday or these last few days.  Kosoric accepted

11     service but said he is unable to testify for health reasons, as he has

12     been receiving medical treatment at a particular department of the

13     military hospital in Belgrade since 1996 where he has been diagnosed with

14     a condition that is stated and is on medication.  In his last medical

15     examination on 13th May, it was advised that he needed hospitalisation,

16     and according to the memorandum, he also does not possess, does not hold

17     a passport.

18             Now, Mr. Zivanovic, you have had an opportunity to examine these

19     documents and to assess the situation much more -- much better -- in

20     better circumstances than the Trial Chamber has.  Are you going to insist

21     on this witness, or are you going to withdraw him?

22             MR. ZIVANOVIC:  I have to double-check these documents received

23     from the witness yesterday and to see his real medical condition and his

24     ability to appear as the witness in this case.

25             JUDGE AGIUS:  Yes, but I am sure you are sensitive to the need

Page 33750

 1     that this be cleared up and decided once and for all without further

 2     delay.  This person can either come or not come depending on whether

 3     you're going to insist or not.

 4             MR. ZIVANOVIC:  Okay.

 5             JUDGE AGIUS:  And we will not say more than that.  I am sure that

 6     with your experience as a lawyer, you know what would be more

 7     advantageous for you given the circumstances, how they have developed.  I

 8     see that your assistant is drawing -- wishes to draw your attention.

 9                           [Defence counsel confer]

10             MR. ZIVANOVIC:  I'm not able to tell you this right now, so I

11     would need some time to check it again and to get back to you on Monday.

12             JUDGE AGIUS:  All right.  Monday is a public holiday.  You will

13     communicate your decision on Tuesday.

14             MR. ZIVANOVIC:  Thank you.

15             JUDGE AGIUS:  Thank you.  Mr. Josse.

16             MR. JOSSE:  Can we be assured that it will not be in the next

17     nine working days, in other words, before the 12th of June that we will

18     hear from him?  That is --

19             JUDGE AGIUS:  Hear from whom?

20             MR. JOSSE:  Mr. Kosoric.

21             JUDGE AGIUS:  I think first Mr. Zivanovic needs to consider

22     whether it pays him to continue insisting on him at this stage, and then

23     we'll see.

24             Mr. Haynes.

25             MR. HAYNES:  I'm conscious that I'm hard up against the end of

Page 33751

 1     tape, but I need to play some record pursuant to what you said earlier,

 2     that we have two issues with the transcript, P4537.  They are two missing

 3     lines of conversation at English page 5, B/C/S page 4, and a line of

 4     conversation attributed to the wrong speaker on page 7 of both versions.

 5             JUDGE AGIUS:  Thank you.

 6             So that concludes our session.  I need to put on record the

 7     Trial Chamber's gratitude to you all, interpreters, technicians,

 8     recorder, and all others, not excluding, of course, the parties and our

 9     staff, for having made it possible for us to finish now.

10             We'll hear from you on Tuesday.  You will communicate your

11     decision to the Trial Chamber, and we take matters up after that.

12             Thank you.

13                           --- Whereupon the hearing adjourned at 12.53 p.m.