Tribunal Criminal Tribunal for the Former Yugoslavia

Page 3674

 1                           Friday, 19 February 2010

 2                           [Open session]

 3                           --- Upon commencing at 9.07 a.m.

 4             JUDGE ORIE:  Good morning to everyone.

 5             Madam Registrar, would you please call the case.

 6             THE REGISTRAR:  Good morning, Your Honours.

 7             This is case IT-03-69-T, the Prosecutor versus Jovica Stanisic

 8     and Franko Simatovic.

 9             JUDGE ORIE:  Thank you, Madam Registrar.

10             We'll first establish that the accused are not there.  We

11     discussed this yesterday.  I don't think that we have received any waiver

12     forms, but since they expressed themselves clearly yesterday in court,

13     we'll proceed in their absence.

14             I'd like to continue where we left off yesterday.

15             The next item on my agenda relates to P117.  There was some

16     discussion as to whether P117, photographs discussed in the statement of

17     Witness JF-007, whether that is a public document or confidential

18     document.  Until now, it has been qualified as confidential, but that

19     seems to be a mistake.

20             Mr. Hoffmann.

21             MR. HOFFMANN:  Your Honour, that's correct.  We submit it could

22     be made public.  It's a photo collection, and there's no reference to the

23     witness or nothing else that would identify the witness.

24             JUDGE ORIE:  P117 will be a public document.  The Chamber decides

25     that it will change its status from confidential into public.

Page 3675

 1             Then we had a question about the status, that is, confidential or

 2     public, also in relation to documents which were admitted through

 3     Witness JF-006.  I think we said in court that we didn't have to discuss

 4     the matter in court, but that the parties would discuss among themselves

 5     to what extent these documents could be made public.  We have not

 6     received any response from the parties in this respect, from my

 7     recollection.

 8             I don't know who to address.  Mr. Hoffmann.

 9             MR. HOFFMANN:  Your Honours, I wasn't present at that session,

10     myself, but my information from my team is that Exhibits P106, P107, and

11     P108 could, in fact, be changed to public status.

12             JUDGE ORIE:  Yes.  Is this the outcome of a consultation with the

13     Defence, because if I read what I said, that I would suggest that you

14     discuss with the Defence whether there are any without in any way making

15     the protective measures ineffective could become public.  Did you express

16     a joint position, or was it the OTP position?

17             MR. HOFFMANN:  I'm afraid at this point that's only the OTP

18     position.  I think, if I recollect, the discussion was about one of the

19     Defence exhibits, and in the course of that discussion, just to be on the

20     safe side, the other documents were kept under seal.  But that discussion

21     was mainly about Exhibit D7, if I recall.

22             JUDGE ORIE:  The Defence, first in relation to the P exhibits and

23     then in relation to the D exhibit just mentioned.

24             Mr. Jordash.

25             MR. JORDASH:  Your Honours, in relation to the P exhibits, then

Page 3676

 1     we would simply go along with the Prosecution's position, they having

 2     checked the protective measures issue.

 3             JUDGE ORIE:  You say it's their witness, so they should be

 4     primarily concerned about any protection.

 5             MR. JORDASH:  Yes, Your Honour.

 6             May I just take a moment for the Exhibit D7 just to check that?

 7             JUDGE ORIE:  Yes, D7 will -- it might be that we have a short

 8     break at a later stage and that we deal with any matter which is still

 9     pending.

10             Mr. Hoffmann.

11             MR. HOFFMANN:  I would ask that we quickly go into private

12     session for this one.

13             JUDGE ORIE:  We move into private session.

14                           [Private session]

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 3677











11 Page 3677 redacted. Private session.















Page 3678

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9                           [Open session]

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

11             JUDGE ORIE:  Yes.  And then I would repeat in open session that a

12     number has been assigned to the unredacted statement of

13     Witness Kozarcanin, P259, which is admitted under seal.

14             I move on to a few outstanding requests for a change of page

15     limits and requests for reply.  I have to take you back in history,

16     because these matters are pending since 2007, at a time, I think, that

17     none of us was yet on this Chamber.

18             For transparency, the Chamber still needs to decide on two

19     outstanding requests, both the -- and that's the first one, 9th of July,

20     2007, Stanisic Defence request for leave to exceed the page limit in its

21     response to Prosecution motions for admission of written evidence,

22     pursuant to Rule 92 ter, and - and I now come to the second - the 16th of

23     July, 2007, Prosecution request for leave to reply to Defence responses

24     to Prosecution motions pursuant to Rule 92 ter.  Both these requests are

25     granted.

Page 3679

 1             The next item.  The Chamber would like to put on the record some

 2     informal communications which should be on the record.

 3             The Chamber hereby puts on the record that on the 14th of July,

 4     2009, the Chamber informally denied a Prosecution request for leave to

 5     reply to the Stanisic Defence response to Prosecution motion for

 6     admission of written evidence of Witness C-058.

 7             I also put on the record that on the 18th of December, 2009, the

 8     Chamber informally indicated that the reasons underlying the objections

 9     raised by the Stanisic Defence in its Defence response to Prosecution

10     motion for admission of written evidence of Witness JF-005, pursuant to

11     Rule 92 ter, were considered to be insufficient to justify a denial for

12     the Prosecution to present Witness JF-005 testimony pursuant to

13     Rule 92 ter.  So, consequently, the Chamber denied the Prosecution's

14     request for leave to reply.

15             The next item on my agenda deals with the e-mail that was

16     presented by Witness JF-005.

17             I would like to put on the record that the parties have been

18     provided with the e-mail correspondence of Witness JF-005 on which the

19     name and any identifying information of the witness's friend has been

20     redacted.  I also inform you that the Chamber has no intention to further

21     follow up on this matter proprio motu.  I take it that you still are

22     aware of this, the witness sought for some material to be sent to him,

23     material which finally was already available to the parties.

24             I'd like to move for the next item into private session.

25                           [Private session]

Page 3680











11 Pages 3680-3681 redacted. Private session.















Page 3682

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9                           [Open session]

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

11             JUDGE ORIE:  Mr. Weber, you had not identified yourself, I think,

12     as being present in court, whereas I should have done it.

13             MR. WEBER:  I apologise, Your Honour.  Adam Weber on behalf of

14     the Prosecution.

15             JUDGE ORIE:  Yes, thank you.

16             We are now back in open session, and the next item on my agenda

17     is the letter that Mr. Stanisic has sent -- or at least the letter dates

18     from the 7th of January and was addressed to the Chamber.

19             First of all, the Chamber has followed up with the Registry on

20     the matters contained in Mr. Stanisic's letter to the Chamber regarding

21     his health situation.  Both the memo of the Chamber and Dr. Eekhof's

22     answer will be filed.  And as matters stand now, the Chamber sees no

23     reason not to be satisfied by the explanations given by Dr. Eekhof.  But,

24     of course, since you may not be fully aware of it, it's as matters stand

25     now, and as far as the Chamber's aware.

Page 3683

 1             In addition to the specific subject matter of the letter, there

 2     is a general question of whether sending a letter through e-mail to

 3     Chamber staff is an appropriate way to approach the Chamber, and we'd

 4     like to inform the parties that generally we would expect counsel to put

 5     any communication from the accused into a motion or a request form and

 6     then file it with the Registry.

 7             The Chamber would also like to remind counsel and the accused,

 8     and you'll pass on this message, I take it, about the Chamber's specific

 9     judicial competencies, as opposed to the Registry's competencies, in

10     relation to treatment and care of the accused.

11             In exceptional circumstances, an accused could also directly

12     address the Chamber without going through counsel.  However, this could

13     then also be done in court, rather than by way of sending a letter; of

14     course, unless there's some very specific conflict which an accused would

15     like to raise without counsel to know, which is really something which

16     the Chamber would not expect at this moment to arise at all.  But I can't

17     say that it -- in the history of this institution and our sister

18     institution, that such matters never happens, but that's really --

19     addressing the Chamber is already exceptional; this should be done in

20     court, and only in extremely exceptional circumstances, and not a direct

21     approach in another way could be considered.

22             Are there any questions in relation to this item?  There are not.

23             Then I move on to the next item, which is guidance by the

24     Chamber, guidance on the Prosecution's first motion for admission of

25     exhibits from the Bar table.  I hope that the booths have been provided

Page 3684

 1     with hard copies.

 2             On the 23rd of November, 2009 --

 3                           [Trial Chamber and legal officer confer]

 4             THE INTERPRETER:  The interpreters do have the hard copies.  We

 5     apologise.  The interpreters were given the hard copies yesterday,

 6     Your Honour.

 7             JUDGE ORIE:  Yes, okay.  Well, if I would say something was given

 8     to me yesterday, as you just told me, I would still have to consider

 9     whether I lost it overnight.  But apparently you will have an opportunity

10     to distribute the hard copies.  I'll move on, meanwhile, with other

11     matters.

12             I skipped two items.  We'll come back to them soon.

13             The next item on my agenda deals with the assigning of Defence

14     exhibit numbers.

15             The Simatovic Defence has inquired whether Defence exhibits

16     should be given 1D or 2D rather than just D numbers.  The Chamber has

17     considered this request, but could not see why the requested system would

18     be any better than the one so far used by this Chamber.  Moreover, it is

19     always visible on e-court whether a certain document was tendered by the

20     Stanisic or by the Simatovic Defence.  And, accordingly, this request is

21     denied, and we will continue with the system we started with, that is,

22     that the exhibit number expresses whether it's a P or a D exhibit that

23     does not make any distinction between 1D or 2D.

24             Mr. Bakrac.

25             MR. BAKRAC: [Interpretation] Your Honours, thank you, and I

Page 3685

 1     apologise for rising.  I understand your decision.

 2             My question only is whether we may retain, pending a D number --

 3     can we actually still use the 2D prefix until when we actually propose a

 4     document for admission as an exhibit, pending its assignment of a number

 5     which would have a D prefix?

 6             JUDGE ORIE:  Mr. Bakrac, you're referring to what I would call

 7     the 65 ter numbers, what you have there.  There's no problem in using

 8     those numbers, as long as it is clear to the Registrar what you refer to.

 9     But once we decide on admission and once exhibit numbers, which is

10     different from 65 ter numbers, once exhibit numbers will be assigned,

11     we'll use the system of just D and nothing in addition to that

12     identifying the party that tenders the document.

13             Then I think I could revisit the guidance on the Prosecution's

14     first motion for admission of exhibits from the Bar table.

15             On the 23rd of November, 2009, the Prosecution filed its motion

16     seeking admission of 336 exhibits from the Bar table.  On the 4th of

17     December, 2009, the Simatovic Defence partly responded to the motion and

18     asked for additional time to respond to the remaining part.  On the 8th

19     of December, 2009, the Stanisic Defence responded to the motion.

20             The present Bar table motion was filed at an early stage of the

21     proceedings, and since then the Prosecution has tendered into evidence

22     several of the documents, being part of the motion, through its

23     witnesses.  In this respect, the Chamber urges the parties to adopt an

24     approach whereby documents are tendered through witnesses, to the extent

25     possible.  In light of this, the Chamber will not decide on the motion at

Page 3686

 1     this early stage of the proceedings, with the expectation that the

 2     documents can be more appropriately and efficiently be tendered through

 3     witnesses to be called during the Prosecution's case.  For the sake of

 4     efficiency, the Chamber further considers that the Simatovic Defence is

 5     not expected to file a response to the motion at this stage of the

 6     proceedings.

 7             At the same time, if, at a later stage of the proceedings, the

 8     parties consider a Bar table motion to be appropriate, the parties are

 9     encouraged to file it in the form of a joint submission.  Accordingly,

10     the tendering party should file a table containing a short description of

11     each exhibit, as well as its relevance and probative value if not

12     immediately obvious from the description already.  In case of bulky

13     exhibits with particularly relevant portions, a reference to those

14     portions is needed.

15             In the joint submission, as well as in the said table of

16     exhibits, the other parties may also provide any comments and/or

17     objections they may have with regard to each tendered exhibit.

18             And this concludes the Chamber's guidance on Bar table

19     submissions.

20             I add to this the following:  When I said if at a later stage of

21     the proceedings the parties should consider a Bar table motion to be

22     appropriate, of course, I primarily was referring to later stages where

23     other documents may have already been admitted.  Of course, the Chamber

24     was concerned that we receive a Bar table motion and then find at least a

25     number of those documents already to be admitted through witnesses, so

Page 3687

 1     those documents should not have been Bar-tabled, but should have been

 2     introduced through witnesses.  Now, there may well be a number of

 3     exhibits which cannot appropriately be introduced through witnesses, and

 4     then, of course, if that could be established most likely at a later

 5     stage, we could receive Bar table motions in the format as I just set

 6     out.

 7             Sometimes we find ourselves in a bit of a mixed situation.  From

 8     other cases, I have the experience that sometimes it makes sense to

 9     introduce one or two documents through a witness and, and then if there

10     is a series of similar documents, 10 or 20, that not to go through each

11     and every of those documents and then to submit those in a Bar table

12     submission and say -- and then this most likely will have been discussed

13     in court, I have another 18, or another 25, or another 40 of these

14     documents, and we'd like to Bar-table them.  That, of course, would be --

15     if I said "at a later stage," we always have to consider in what

16     situation we find ourselves.  And for this first Bar table submission the

17     Chamber was really concerned that we were offered quite a lot of

18     documents which, I would say, almost in a natural way were later

19     introduced through witnesses.

20             The Chamber, therefore, will be very -- will always critically

21     assess the situation in which documents are tendered in a Bar table

22     motion and see whether it's appropriately done, both in terms of time and

23     in terms of the subject matter involved.

24             Mr. Groome.

25             MR. GROOME:  Just to explain some of the rationale underlying the

Page 3688

 1     written motion, it wasn't simply about choosing between doing it in

 2     written form or with the witness.  It seemed to the Prosecution that it

 3     was only a fair and better efficient use of court time for the Chamber to

 4     have the documents underlying the evidence so that the Chamber could

 5     study those documents, because I would think that the Chamber's decision

 6     on admissibility may very well depend on the Chamber's assessment of the

 7     request of the correspondence that was received describing the provenance

 8     of the document, so the Prosecution considered that the better way to

 9     proceed was to put that before the Chamber, let the Chamber study those

10     documents and come to its own view, not only with respect to the

11     admissibility of a document but then ultimately to its weight.

12             Now, I accept what the Chamber said with respect to guidance, and

13     I'm thinking is there another way that we can efficiently make this

14     correspondence available to the Chamber so that it can refer to it, so

15     that when we do Bar-table a motion or Bar-table an exhibit into court,

16     the Chamber has some idea about the background of how that document came

17     into the possession of the Prosecution.

18             JUDGE ORIE:  Yes.  The guidance also included a joint filing,

19     which means that the Chamber, if looking at background or whatever, that

20     the Chamber would not do that on the basis of the filing by one party

21     only, but that we -- we are concerned about being flooded by hundreds and

22     hundreds of documents of which we would not really know what to look at,

23     precisely, what is the reason why it is presented in this way, and not

24     knowing what the other party thinks about admissibility.  Therefore,

25     again, the Chamber is not opposed to appropriate Bar-table filings, but

Page 3689

 1     then would like to receive all the relevant information, and also would

 2     still prefer to receive evidence, even documentary evidence, primarily

 3     through witnesses.  But as I explained before, it may well be that in

 4     this context that still it would be appropriate to Bar-table certain

 5     documents, but then we have a clear context, we know what you want, we

 6     know what the Defence response to it is, and then we can consider whether

 7     or not it is appropriate to introduce the documents in this way.  And

 8     secondly, of course, we have already an indication as to whether there

 9     are any objections against admission.

10             MR. GROOME:  Your Honour, would the Court find it acceptance if

11     we tendered as an exhibit -- as a single exhibit all of underlying

12     documents with respect to documents that we intend to introduce

13     through -- from the Bar table during the course of the trial?  This way,

14     the advocate who is tendering the exhibit could refer the Chamber to

15     P100, for example, and page 3 of that for the underlying documentation

16     that supports the authenticity of the document at issue in the particular

17     tendering.

18             JUDGE ORIE:  Yes.  If we are talking about authenticity, I can

19     imagine that you say that the whole story of authenticity, we shouldn't

20     raise that in court if there's no need to do that.  But then, of course,

21     if you want to introduce any underlying material -- first of all, of

22     course, most important is whether you have discussed with the Defence

23     whether there's any authenticity issue.  And if there is an authenticity

24     issue, then it may well be that we say, This is the document we'll use in

25     court, and for purposes of establishing authenticity these are underlying

Page 3690

 1     documents, but then where to look at exactly how you got it.  These

 2     sometimes are lengthy documents, there's whole lists of what is sent.

 3     Look at paragraph 3, number so-and-so, there you find the document.  And

 4     then we'd also hear from the Defence whether there's any challenge to the

 5     content of that material, so that we are better able to decide.

 6             Perhaps if it would assist the parties, from other cases, of

 7     course, we have examples of how these Bar-table submissions were made.

 8     If the parties would like to be informed about how this practice

 9     developed, the Chamber staff will certainly be available to give further

10     guidance.

11             Then the Chamber still owes the parties the reasons for its

12     decision to grant protective measures for Witness C-1118.  The decision

13     was delivered on the 15th of July, 2009, and the reasons will now be

14     given.

15             On the 14th of July, 2009, the Prosecution requested that

16     Witness C-1118 be granted the protective measures of use of a pseudonym

17     and testimony with face and voice distortion.

18             On the 15th of July, 2009, before commencement of his testimony,

19     the Chamber and the parties questioned the witness on his reasons for

20     requesting protective measures.  This can be found on transcript pages

21     1950 through 1957.

22             On the same day, the Chamber decided to grant protective measures

23     for the witness.  The Chamber decided to go beyond what was requested by

24     the Prosecution and grant the use of a pseudonym and testimony in closed

25     session.  I refer to transcript pages 1959 through 1961.  And the public

Page 3691

 1     is hereby informed of that decision.

 2             As the Chamber has set out in previous decisions on protective

 3     measures, the party seeking protective measures for a witness must

 4     demonstrate an objectively-grounded risk to the security or welfare of

 5     the witness, or the witness's family, should it become known that the

 6     witness has given evidence before the Tribunal.  This standard may be

 7     satisfied by showing that a threat was made against the witness or the

 8     witness's family.  It may also be meant by demonstrating a combination of

 9     the following three factors:

10             1.  The witness's testimony may antagonise persons who reside in

11     a specific territory.

12             2.  The witness, or his or her family, live or work in that

13     territory, have property in that territory, or have concrete plans to

14     return to live in that territory.

15             3.  There exists an unstable security situation in that territory

16     which is particularly unfavorable to witnesses who appear before the

17     Tribunal.

18             The Chamber adds to this that assessing whether or not to grant

19     protective measures involves a delicate balance between the right of the

20     accused to a public trial, on the one hand, and the interests and need

21     for protection and privacy for victims or witnesses, on the other.  In

22     this respect, the Chamber is mindful that protective measures do not

23     negatively affect an accused's other fair-trial rights, such as the right

24     to examine witnesses against him.

25             Even though granting protective measures is and should be the

Page 3692

 1     exception to the rule of a public trial, the threshold for when

 2     protective measures should be granted cannot be set too high.  For

 3     example, to exclude persons who have not experienced actual threats or

 4     harassment would defy the purpose of the measures; namely, the protection

 5     from risks that might occur as a result of the testimony.  The Chamber

 6     must, therefore, make a risk assessment, and inherent in such an

 7     assessment is applying a certain level of caution and erring on the safe

 8     side.

 9             Witness C-1118 is a Croatian Serb living in the same

10     Serb-majority village in Croatia he lived in during the indictment period

11     in the present case.  His testimony concerns events occurring in the area

12     of his village and involving many local Serbs.  The witness stated that

13     some of the people he would testify about currently live in his village.

14     The witness believed that should it become known that he had testified,

15     he would receive threats from his neighbours, even though he had not

16     experienced any problems with them until that point in time.  The witness

17     added that there is a tension between Croats and Serbs in the area he

18     lives in and that a large percentage of the local police are Serbs and

19     were policemen already during the conflict.

20             For these reasons, the Chamber decided to grant protective

21     measures for Witness C-1118.

22             The Chamber considered that in view of the subject matter of the

23     witness's testimony, the protective measures requested by the

24     Prosecution, namely, pseudonym and face and voice distortion, would not

25     guarantee the witness's security.  This was also acknowledged by the

Page 3693

 1     Prosecution and the Simatovic Defence, while the Stanisic Defence did not

 2     take a position on this matter.  This can be found on transcript

 3     page 1960.  Therefore, the Chamber decided, pursuant to Article 20 of the

 4     Tribunal Statute, and Rule 75 of the Tribunal's Rules, that

 5     Witness C-1118 should be referred to by his pseudonym in all public

 6     proceedings and filings, and that he should testify with the protective

 7     measures of closed session.

 8             And this concludes the reasons for the Chamber's decision.

 9             Some of the language used in the reasons for these protective

10     measures may sound quite familiar to the parties by now, because the

11     criteria applied by the Chamber are repeated in many decisions.  The

12     Chamber is considering, in future decisions, to make a brief reference to

13     earlier decisions by perhaps pointing at two or three elements or the

14     elements which we usually apply, and only give the full set of reasons if

15     there is any deviation in this respect, which will save some time in

16     court.

17             I would like to move on to a matter in relation to Witness Tihic.

18             The Prosecution has provided an informal list - I think it was on

19     the 3rd of February - of the previous testimony and/or statements to be

20     admitted pursuant to Rule 92 ter.  In item 9, reference is made to

21     transcript of previous testimony in the Simic case.  The number of that

22     case is mentioned, and then the transcript pages are referred to as

23     T-1495 up to and including T-1522.

24             In the fourth column, which is under the heading "Closed

25     Session/Under Seal," we find "T-1516, line 16, to T-1522, line 30."  The

Page 3694

 1     Chamber was confused by this way of presenting the evidence, especially

 2     since what was up-loaded in e-court was T-1495 up to and including

 3     T-1522, but with the lines I just mentioned, "Closed Session," being

 4     redacted.  If it is indicated that those pages are part of the testimony

 5     which is submitted under Rule 92 ter, those pages are part of it, whether

 6     in closed session or not.  I mean, if it's relevant evidence, closed

 7     session or not, that maybe has consequences for public or non-public

 8     versions, but the Chamber should not be confronted with redacted

 9     portions.  Therefore, it was confusing.  What apparently was intended is,

10     as a matter of fact, to exclude those redacted portions, although they

11     were included in the description of the testimony which was tendered into

12     evidence.

13             Now, this may not have great effect on the outcome, because the

14     Chamber had the possibility in checking what was redacted, because the

15     Chamber, if need be - and we'll not use that for any inappropriate

16     reason -- the Chamber has the possibility of checking evidence even in

17     closed session in the other cases.  Again, we would not do that unless

18     there was a good reason.  Here, we did, and we found, as a matter of

19     fact, that those five pages are dealing exclusively with procedural

20     matters.  So, first of all, they should not have been tended as evidence,

21     because it has no probative value whatsoever; it was procedural stuff,

22     rather than evidence.  That's one.  Second, it should not have been

23     included in the testimony which was tendered, because no reason for us to

24     read pages and pages of procedural matters.  And, third, it should not

25     have been redacted.  The Chamber wants to receive any evidence unredacted

Page 3695

 1     for us.  I mean, for the public, it may be different.

 2             This was a rather confusing thing.  It took us a while to find

 3     out what exactly happened.  Again, for the outcome, it's not that

 4     important, so the Chamber is not seeking at this moment any remedy to

 5     that, but wants to address the issue, because if large documents,

 6     transcripts of testimony, are tendered, we should be very precise in what

 7     we really need and what we do not need.  I'll come back to that at a -- I

 8     would say at a later stage, but this was an example.  I'll come back to

 9     that right away.

10             And I'm now talking in more general terms about voluminous 92 ter

11     submissions.

12             Through Witness Tihic, the Prosecution tendered very voluminous

13     prior testimony.  This was further discussed in court on the 4th of

14     February, 2010.  In relation to Witness Tihic's previous testimony,

15     before taking a final decision on admission into evidence of P176 and

16     P177 - we, by the way, just dealt with Exhibit P176 - the Chamber

17     strongly urges the parties to come to an agreement to reduce the size of

18     the tendered documents by focusing on core issues as well as contextual

19     additions.

20             For example, if a curriculum vitae appears both in a statement

21     and is extensively discussed in prior testimony, the Chamber is not

22     assisted by such repetitious tendering.  Similarly, many pages from prior

23     testimony may contain less relevant aspects for this case and should be

24     excluded from any tendering.

25             The parties are hereby instructed to keep this guidance in mind,

Page 3696

 1     and more specifically for P176 and P177, are instructed to submit reduced

 2     versions by the 15th of March, 2010.

 3             For the next item, I'd like to move into private session.

 4                           [Private session]

 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   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 3697

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4                           [Open session]

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

 6             JUDGE ORIE:  Thank you, Madam Registrar.

 7             The next item is about the -- it's P164.

 8             On the 26th of January, Mr. Groome, the Chamber noted that the

 9     document was redacted; that is, the biography of Milan Ninkovic.  The

10     Chamber inquired into the redactions.  Especially on the third page,

11     there is a redaction.  You, at that moment, thought that you would have

12     received the document with those redactions, but you said you would check

13     on that and report back to the Chamber in a few minutes.  Within the next

14     few minutes of the transcript, we could not find anything, but the

15     Chamber would like to give you the opportunity to report the result of

16     your verification.

17             MR. HOFFMANN:  Thank you, Your Honour.

18             Yes, indeed, we have checked this document again, and it's true

19     that we have received it as it was tendered, that is, with those

20     redactions.  We have also not found any unredacted version of the same

21     document.  Also, there is -- I think on the document you can see a web

22     site reference, which is actually not the public web site, so we're not

23     able at this point in time to find any unredacted version.  So we have

24     used the document as we have it.  That's all we can say at this point.

25             JUDGE ORIE:  That's fine.  But do you have a general explanation

Page 3698

 1     on the reasons for redactions of any material received from SFOR?

 2     Because if you say, Well, that's how we received it, so you have to do

 3     with that, then, of course, we would know what other criteria applied

 4     when redacting documents.

 5             MR. HOFFMANN:  The letter that we have that indicates when and

 6     how we got this document does not refer to the criteria applied by SFOR

 7     when redacting those statements -- or that document.  It's our

 8     understanding that when those documents are provided, they are

 9     de-classified, and during that process they do some redactions, but we

10     have no record of what criteria SFOR applied when applying those

11     redactions.

12                           [Trial Chamber confers]

13             JUDGE ORIE:  Mr. Hoffmann, the Chamber is not used to assess the

14     probative value of documents which are redacted by others for unknown

15     reasons.  Therefore, the Prosecution is invited to further inquire into

16     the reasons perhaps of redactions, in general, but more specifically this

17     document.  I mean, it's not one name or something of the kind; it's a

18     whole paragraph which is redacted.  So, therefore, since the Chamber

19     would really like to be able to not form its opinion and render judgement

20     on the basis of selection made by others for unknown reasons, the

21     Prosecution is invited to follow up on this redaction.  And perhaps, in

22     that context, of redactions in a more general way with SFOR.

23             MR. HOFFMANN:  We will certainly try our best, Your Honours.

24     Thank you.

25             JUDGE ORIE:  Yes.

Page 3699

 1                           [Trial Chamber and legal officer confer]

 2             JUDGE ORIE:  These were the items, apart from the MFI list, which

 3     I would like to deal with now.  Not all documents which are MFI'd are yet

 4     ready to be given a follow-up, but some of them are.

 5             The first one is P18, which is a BBC interview with

 6     Vojislav Seselj.  Very few parts of this video were shown, and they were

 7     used with the witness to identify Mr. Seselj.  Now, a considerable part

 8     of the document seems like perhaps to be Bar-tabled, but having looked at

 9     only small portions to identify Mr. Seselj, the Chamber would like to

10     hear from the Prosecution whether you would at this point in time want to

11     tender a reduced version.  Just to get in a whole video and asking a

12     witness, Is this Mr. Seselj, that's not a proper way of presenting

13     evidence.  Therefore, the Chamber would like to hear from you, how you

14     would like to deal with P18.

15             MR. HOFFMANN:  Certainly, Your Honour.

16             I think the video at the time was, in fact, tendered in addition

17     to the three clips that were played, from the Bar table.  It is still our

18     submission that the Chamber should have in front of it the whole video.

19     I think there are only a very few parts in the beginning that we

20     discussed as potentially to be excluded that deal with the biography of

21     Mr. Vojislav Seselj.  The clips played were not only played to identify

22     Vojislav Seselj, and I think on the record it is clear that there is no

23     dispute between the parties that this video is authentic, that it is

24     Mr. Seselj giving an interview in March 1995 to the BBC, but the

25     Witness Savic at the time also made his own comments and testified to

Page 3700

 1     those clips and what was said on the clips.  And the Prosecution

 2     certainly intends to use other parts of this video with upcoming

 3     witnesses, which is why we submit it would be easier for the reference if

 4     you have the video, as such, in evidence as one exhibit with the full

 5     transcripts, so when we come back to certain parts of it with other

 6     witnesses, the context is still clear and we don't end up with, let's

 7     say, maybe 10 or 20 exhibits from the same one video.

 8             At the time when this was discussed in July last year, the

 9     parties were invited to see if there's an agreement about which portions

10     could be admitted or should be admitted.  From those discussions and the

11     follow-up correspondence, it is clear that there is no dispute about that

12     the three clips should be tendered into evidence.  We had an indication

13     from the Stanisic Defence that they would agree to larger portions of the

14     video, indicated by certain pages of the transcript, but the Simatovic

15     Defence at the time finally responded that they would only agree to the

16     admission of the three clips.  So in that respect, we have to respond

17     that there is no agreement on any other admission, apart from the three

18     clips.  But we would still tender the video, as such, from the Bar table

19     for the reasons just given.

20             JUDGE ORIE:  Yes.  Now you say, Well, it's a bit of a mixed

21     approach, apparently, because you say, We tender it, rather not to cut it

22     into pieces, so that if we deal with other parts of the video with future

23     witnesses then we would have to constantly monitor what now of this whole

24     video is dealt with through other witnesses and what is not.  You're

25     anticipating on witnesses which are still to be called and still to

Page 3701

 1     appear before this Tribunal.

 2             MR. HOFFMANN:  If I may add, Your Honour, we would submit that

 3     it's basically the same approach that was taken with the Kula Camp video,

 4     Exhibit P61, where initially short clips were played.  There was no

 5     dispute between the parties about the authenticity, no dispute about the

 6     general relevance of it.  Of course, there is different interpretation of

 7     the video, but the Chamber admitted then the whole video as one exhibit.

 8     And we have used this exhibit now with different witnesses, and we

 9     haven't had the need to then tender portions and go through that process,

10     but we simply just played different clips from the P61.  And we would

11     submit that would be, in our view, the best approach with this video as

12     well.

13             JUDGE ORIE:  Yes.  I can imagine that the concern of the Defence

14     would be what finally remains as not ever being played and not being

15     dealt with by any witness.

16             Could I hear from the Defence teams.

17             Mr. Jordash.

18             MR. JORDASH:  At the time the video was played and shown to a

19     particular witness, there was a very discreet part of the video which the

20     witness was asked to comment on.  Your Honours then issued a directive

21     indicating that exhibits which are put to witnesses and tendered should

22     be relevant to that witness's testimony.  And in light of that directive,

23     we indicated and the Simatovic team indicated to the Prosecution what we

24     considered to be relevant from that video.  And for the Simatovic team,

25     it was the three clips.  We, in the Stanisic team, went a bit wider than

Page 3702

 1     that, but, nonetheless, there was a general agreement about what was

 2     relevant.  And what was not relevant was a good 8/10ths of that video,

 3     with not explanation as to its probative value or relevance to the case,

 4     and that's what we object to and that's what our present position is in

 5     relation to that video.  It's very different to the Kula video, which the

 6     relevance is clear.  There's an award ceremony indicating a unit with

 7     various remarks being made, and this case is going to be about whether

 8     those remarks were accurate and can be relied upon or whether that video,

 9     as a whole, corroborates the Prosecution case, as a whole.  That is not

10     the case with this video, the Seselj video.  Mr. Seselj speaks widely and

11     flamboyantly about a number of subjects which don't have immediate

12     relevance to this case, we submit.  Perhaps the Prosecution may in the

13     future want to indicate that those areas are relevant, but so far through

14     this witness they haven't indicated it, and they haven't indicated it

15     through the Bar-table motion.

16             And that's our position, Your Honour.

17             JUDGE ORIE:  Thank you.  The Simatovic Defence, please.

18             MR. BAKRAC: [Interpretation] Your Honours, we fully agree with

19     what Mr. Jordash our learned colleague has said.  There is nothing that

20     we would wish to add.

21             JUDGE ORIE:  Thank you.  The Chamber will consider the matter.

22             I move on to, not entirely unrelated but perhaps less contested,

23     P21.  That is a B-92 video-clip.  The original up-loaded version had four

24     excerpts, but only two of them are tendered.  There were no objections

25     against the two clips to be admitted into evidence.  Has now the version

Page 3703

 1     which only two clips been up-loaded?  Because if that's the case, we

 2     could then decide to admit the two clips tendered and get rid of the

 3     pollution, to say so.

 4             MR. HOFFMANN:  Your Honours, it's my understanding that that was

 5     done.  But if we may just, in light of the time, just double-check over

 6     the break.  If there is one, then we'll come back to you after the break.

 7             JUDGE ORIE:  Please double-check that over the break.

 8             Then I move on to P107.  P107 is MFI'd under seal.  I think that,

 9     nevertheless, we could deal with the matter in open session.  But the

10     parties are hereby informed not to say anything about this document which

11     would make the protective measures ineffective.

12             The issue being, in relation to P107, that the authenticity and

13     the provenance of the document were questioned by the Simatovic and the

14     Stanisic Defence, the OTP then provided further information as to the way

15     in which this document, which is an official note, was obtained, and

16     stated that it could provide the Defence with underlying documentation.

17     I then said that we would further hear from the Defence, whether or not

18     the disclosure of these underlying documents would remedy the objections

19     raised by the Defence.  The Chamber would like to check with the Defence

20     whether the objections still stand after the discussions, any with the

21     Prosecution.

22             Mr. Jordash.

23             MR. JORDASH:  May I just quickly discuss with the Simatovic team.

24     I think they led the objection, so I just want to --

25             JUDGE ORIE:  Yes.  What about doing that during the break we'll

Page 3704

 1     have anyhow, and then we'll hear from you after the break?

 2             MR. JORDASH:  Thank you, yes.

 3             JUDGE ORIE:  Then I move on to P134, which is a video which was

 4     introduced through Witness B-1108.

 5             There were objections by the Stanisic Defence mainly on the basis

 6     that the prisoner speaking in this video refers to special police or

 7     special forces from Belgrade.  The Simatovic Defence has joined in these

 8     objections, and suggested to the parties that all the contested

 9     references be redacted.  And, meanwhile, the video and the transcript

10     were MFI'd.

11             Now, the Chamber does understand that redactions were agreed upon

12     by the parties and that they were up-loaded.  If that's the case, there

13     seems to be no further objections against admission.  And then, of

14     course, the redactions to be understood as the video will not change, I

15     take it, but that the Chamber, as far as the text spoken on that video,

16     will exclusively pay attention to the portions of the text transcribed.

17     From what I remember, it was someone speaking German, from what I

18     remember.  But that would mean that if we would follow this, that

19     although the video is admitted into evidence, that we would ignore any

20     spoken text which is left out -- is redacted in the transcript.

21             I hear no objections with this approach.  Under those

22     circumstances, P134, a video with a redacted transcript, is admitted into

23     evidence.

24             I suggest that we first have a break.  It may be that some

25     matters arise after the break which would require another very brief

Page 3705

 1     pause after that.  We'll have a break, and we'll resume at five minutes

 2     to 11.00.

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

 4                           --- On resuming at 11.06 a.m.

 5             JUDGE ORIE:  Before we continue, I'd like to revisit a few

 6     matters which were left over before the break.

 7             The first one is D7, P106, P107, P108, the Defence was invited to

 8     look at it, and not just as a matter of courtesy, but to really look into

 9     the matter, whether they could be made public.

10             MR. JORDASH:  We come to the same conclusion, Your Honour.

11             JUDGE ORIE:  Same conclusion.

12             The Simatovic Defence.

13             MR. PETROVIC:  [Interpretation] We join Mr. Jordash's stand.

14             JUDGE ORIE:  Yes.  Then under those circumstances, D7, P106,

15     P107, and P108 are made public documents.  Their status changes from

16     confidential into public.

17             If you would give me one second.

18             From before the break, we have still pending P18, which is the

19     video.  The Chamber would like to invite the Prosecution to make a

20     submission similar to what we discussed before the break, the Bar-table

21     submission, that is, to set out specifically the non-played portions,

22     what the relevance is subject by subject; then to present that to the

23     Defence, that the Defence then can then make its comments in relation to

24     relevance, or probative value, or whatever comments they have.  And under

25     the present circumstances, I can imagine that the Prosecution would, in

Page 3706

 1     respect of every portion of it, would also indicate with which witness

 2     they intend to further deal with the matter.  Then we can see -- that

 3     also gives an opportunity to the Defence to see whether there is a risk

 4     that we have large portions of a video in evidence where we'll never hear

 5     any further evidence on it, or whether we find clues in the 65 ter

 6     summaries of those witnesses or in their statements which would give them

 7     confidence that nothing is lost at this moment in admitting the whole of

 8     the video, because it has practical advantages.  It's clear that if we

 9     have 17 separate clips of a video in evidence, that is not very practical

10     to work with.  But a fair opportunity should be given to the Defence to

11     express themselves in more detail, once the Prosecution has explained, in

12     similar detail, what they expect to do with that or what could already

13     have been done with the non-played part of the video.

14             Therefore, it's not extremely urgent.  How much time would you

15     require to make such a submission?  And then, of course -- I would say

16     how much time would you need to prepare the submission up to it being

17     available to the Defence to give their comments on it?

18             MR. HOFFMANN:  Your Honours, we would aim at the end of next week

19     to provide it to the Defence.

20             JUDGE ORIE:  Could I then expect the Defence teams to add their

21     comments?  Again, it's not full litigation, it's not full submissions,

22     but just, We object because of this, or, We object because of that, or

23     reference is made to a witness who doesn't appear on the 65 ter list,

24     whatever, but short, to the point, so that we know more or less what

25     we're talking about.  Ten days after you receive that, would that do?

Page 3707

 1             Mr. Jordash is nodding, Yes.  I see the Simatovic Defence --

 2     well, if you would say, I would need two weeks or three weeks, we would

 3     consider that.

 4             MR. BAKRAC: [Interpretation] Your Honours, I would appreciate it

 5     if you could grant us two weeks for the Simatovic Defence.

 6             JUDGE ORIE:  Two weeks after you have received the initial table

 7     or the initial spreadsheet indicating what portions, what is the

 8     relevance, perhaps what witnesses to be -- then two weeks for the Defence

 9     to add their comments to what then could become a joint submission.

10             P21, you would verify whether the new video had been up-loaded

11     with only the two excerpts you were tendering?

12             MR. HOFFMANN:  Yes, Your Honour, that has been done, so that the

13     transcripts and the video with those two clips only are up-loaded in

14     e-court.

15             JUDGE ORIE:  Yes.  And the number known to the Registrar?  Same

16     number as earlier?

17             MR. HOFFMANN:  Yes, the same number.

18             JUDGE ORIE:  Same number.

19             Madam Registrar, hereby leave is granted to replace the earlier

20     version of P21 to a new version of P21 as up-loaded by the Prosecution,

21     and P21 is admitted into evidence.

22             In relation to P107, Mr. Jordash, you asked to be given an

23     opportunity to consult with the Simatovic Defence.  Could I hear from --

24     I see Mr. Petrovic is on his feet.

25             Mr. Petrovic.

Page 3708

 1             MR. PETROVIC: [Interpretation] Your Honours, I will try to

 2     explain our joint position.  As initiators of this objection, we stand

 3     by, regarding P27, in terms of authenticity.  You probably have this

 4     document in front of you.  It's a document that is unsigned, and the

 5     place where the signature should be --

 6             JUDGE ORIE:  Let's have a look at the document.

 7             Could we have P27 on our screen.

 8             MR. HOFFMANN:  Your Honour, I think there's maybe a typo.  I

 9     thought we were talking about P107.

10             JUDGE ORIE:  No, it was not a typo.  It was my mistake.  It is

11     P107 which we'd like to have on our screens.

12             MR. PETROVIC: [Interpretation] Your Honours, if you allow us, we

13     will see the English version in a moment, I hope, but I think it is

14     already clear by just looking at the B/C/S version that this document is

15     unsigned.  In place of the signature, there is some kind of designation

16     which does not point in any way as to who the author of this document

17     might be, so that our objection remains.

18             The Prosecution has informed us how it has obtained this

19     document, and that is indisputable.  The Prosecution has obtained this

20     document via the Ministry of the Interior of the Republic of Croatia, and

21     this document was attached to a police report in the proceedings against

22     Cedomir Bulat.  In other words, it was part and portion of the initial

23     document that was submitted in the proceedings against this person.  We

24     don't know what happened with this document afterwards, whether it was

25     part of the indictment, and even less do we know how the Croatian

Page 3709

 1     authorities actually handled this document.  We just know that it was

 2     attached to the police report or police complaint, and this doesn't

 3     really mean anything because of the fact that in our system there are

 4     numerous documents that are attached to the criminal complaint, so that

 5     this does not really help in any way.

 6             What we would request is that the Prosecutor provide some further

 7     evidence as to the provenance of this document.  And if they do so in the

 8     course of these proceedings, we can revisit this issue.  In the meantime,

 9     our position remains the same.  This document should remain as an MFI'd

10     document.  This is our principal position on any such documents, a

11     document that is unsigned.  Unsigned and unclear documents do not really

12     meet the requirements, especially in a situation where we don't know

13     anything about its provenance, or authenticity, or authorship.

14             Thank you.

15             JUDGE ORIE:  It does not meet what requirements exactly,

16     Mr. Petrovic?

17             MR. PETROVIC: [Interpretation] Well, primarily I mean the

18     requirement of authenticity, but we can also discuss other aspects.  As

19     for its probative value, we could discuss that, but the first and

20     foremost problem with this document is its authenticity.

21             JUDGE ORIE:  What, then, do you exactly mean here by

22     "authenticity"?  Do you say it is -- because you said quite a lot of

23     things in relation to this document.  You said, well, it apparently was

24     attached to a certain file.  Then you say, We do not know what happened

25     to this document afterwards.  In what respect would that affect the

Page 3710

 1     authenticity?

 2             MR. PETROVIC: [Interpretation] Your Honour, I tried to explain

 3     the procedure.  This document was part of the criminal report, as the

 4     initial document used in the proceedings against Cedomir Bulatovic [as

 5     interpreted].  Now, what happened with this document after that, whether

 6     it ever became part of an indictment, or how it was assessed by a Trial

 7     Chamber, if indeed this was brought to court, we don't know any of that.

 8     And the initial document, in its nature, is such that it consists of a

 9     huge number of documents that can later be accepted by a Trial Chamber or

10     not.  So the fact, itself, that it was part of this initial document does

11     not really speak to its validity or to its probative value, because there

12     are all sorts of documents that may find their way into this initial act.

13     What later happened, we don't know.

14             JUDGE ORIE:  Yes.  Well, the way whether this document was used

15     in those proceedings, whether it was used as evidence supporting whatever

16     decision, seems not to be an authenticity issue.  It is -- as far as I

17     understand, you are saying that it is an authenticity issue, whereas in

18     your explanation it appears to be a kind of a mixture of probative value,

19     validity -- I do not know how to exactly understand what that means,

20     whether -- I mean, the fact that it could or could not be used in local

21     proceedings is not, in itself, an authenticity issue.  It may be an

22     aspect of weight to be given to a document.  And if too little weight can

23     be given to a document, that might come down to lack of sufficient

24     probative value to admit it.  I mean, you are mixing up a lot of matters

25     which you then say, Well, it's primarily an authenticity issue.

Page 3711

 1             Yes.

 2             MR. PETROVIC: [Interpretation] Your Honours, I tried, when I

 3     spoke about the future destiny of this document, indicate the explanation

 4     offered by the Prosecution does not support any assertion on its

 5     authenticity.  It's being part of a criminal report doesn't say anything

 6     about its authenticity.  Anyone could have typed it and attached it to

 7     this criminal report.  This is what I wanted to say.  The very fact that

 8     it was attached to the criminal report means nothing.  It doesn't say

 9     anything about this document really being drafted, but we don't know who

10     drafted it, under what circumstances, and where.  If that was not clear,

11     I apologise for not being precise enough.  All we know is that this was

12     originally part of a criminal case file, but it doesn't offer sufficient

13     ground for us to conclude that this was an authentic document.  It could

14     have been typed by anyone and then inserted into the case file.

15             Thank you.

16             JUDGE ORIE:  Yes, which might make it an authentic document of

17     someone unknown having typed a certain document.  I mean, it's not a --

18     of course, the issue is whether the official status -- how we would have

19     to establish that, if that is at all important.  Perhaps it has no

20     sufficient status.  I mean, if I have a handwritten piece of paper, then

21     it could still be authentic.  It depends on what it claims to be.  And if

22     you say, This is claimed -- well, as you say, to be a judgement, but it's

23     a forgery, because never such a judgement was passed, or, It is not

24     signed and any judgement would have to be signed, and, therefore, there

25     are many aspects.  I would say authenticity is primarily a matter of:  Is

Page 3712

 1     the document what it claims to be?

 2             Now, Mr. Hoffmann, there you may have a problem, because if you

 3     say it is a document which doesn't claim any more than to be a document

 4     which was in the initial file, author unknown, so no possibility

 5     whatsoever to verify that, then, of course, you might have a problem;

 6     perhaps not with the authenticity, but relevance and probative -- perhaps

 7     even not relevance, but probative value.

 8             Mr. Hoffmann.

 9             MR. HOFFMANN:  Thank you, Your Honour.

10             Maybe just for the record, the document -- the underlying

11     document we talk about, I just want to note for the record that this is

12     ERN 0152-7750 in the English, the starting page.  What we have provided

13     yesterday to the parties and the Chamber is a document index which was

14     provided by the Karlovac police.  It does list this particular document,

15     P107, which is to be found on page 2 of this document under item 4.

16             JUDGE ORIE:  Can I stop you there.

17             The issue, apparently, is not whether you received it from the

18     authorities.  The issue, apparently, is that this was a piece of paper

19     which ended up in a criminal file, not knowing where it comes from, not

20     knowing what it led to, and, therefore -- again, I'm having some problems

21     with the primary claim of authenticity, but the Chamber will consider

22     that, whether we would require further authentication of this document.

23     But that seems to be the problem, whereas your response at least started

24     with explaining where it comes from.

25             MR. HOFFMANN:  Yes, Your Honour.  I just wanted to introduce

Page 3713

 1     where I'm going.

 2             It says here directly that this document, as we see it on the

 3     screen, is signed with a code-name, and in this document that we provided

 4     yesterday, it explains exactly who the author is, who is behind that

 5     code-name.  It said "Code-name 91/020," in brackets "explained code for

 6     the member of DB late Djuro Ogrizovic," O-g-r-i-z-o-v-i-c, "nickname,

 7     Snjaka."  So in our submission, with this document we show, A, that we

 8     got this document from the Karlovac police.  I do agree that whether or

 9     not it was then used in criminal proceedings, Karlovac, to me, or to us,

10     doesn't make any point.  And, furthermore, this document shows who the

11     author of this document is.  That would be our submission.

12             We're happy to tender this additional document if that is of

13     assistance, into evidence.

14             JUDGE ORIE:  I, therefore, do understand that you rely implicitly

15     on a practice where documents of this kind were not signed by the

16     authors, but which were, I would say, quasi-signed by just putting the

17     number of the relevant agent which took the statement at the bottom of

18     the statement.

19             Do you have any examples of similar practice, I mean, because the

20     Simatovic Defence heavily relies on the absence of a signature?  You say

21     this was created in a system where it was not signatures, but numbers.

22     Are similar documents known which would support your position that this

23     actually was the way in which they made such statements?

24             MR. HOFFMANN:  I think it is our understanding that it's common

25     practice in the intelligence.  And as an example, I think we've seen a

Page 3714

 1     number of documents from the so-called Pauk operation.  Some of them we

 2     still want to introduce at some stage, but some of them are actually only

 3     signed with a nickname of persons or only with TG-2, 3, or 1, tactical

 4     group, and without further reference, so, yes, we do have a number of

 5     those examples.  And I am just been told that we also have number

 6     references, which are actually relating to Arkan, for example.

 7             JUDGE ORIE:  Yes.  Mr. Petrovic, on the basis of this further

 8     explanation, any further submissions to be made?

 9             MR. PETROVIC: [Interpretation] Just two brief things.

10             This document may be admissible with this additional explanation

11     as regards authenticity.  However, what my colleague says about the

12     content of this information provided by the Croatian MUP, there is no

13     cited source.  And on what basis do they interpret that this number,

14     "91020," can be linked to any particular individual?  I can't discern

15     that from this document.

16             If you allow me just one more sentence, please.

17             My colleague mentioned, for example, Tactical Group.  Once you

18     say "Tactical Group," it's very clear who the author can be.  But if you

19     have a five-digit number on an official note, drafted by an individual,

20     without any additional evidence, does not offer any insight into the

21     authorship of this document.

22             JUDGE ORIE:  Mr. Jordash.

23             MR. JORDASH:  May I add to Mr. -- to the Simatovic's submissions.

24     In our submission, simply saying that there's a code number on it and

25     there's also a code number on other documents doesn't take the matter any

Page 3715

 1     further.  It simply says -- it could simply say that the person who

 2     manufactured the document copied previous practice.  What would, in our

 3     submission, take the matter further would be some indication as to who

 4     said it was an official note.  Did the Prosecution ask somebody to

 5     confirm it was an official note?  Did a named person confirm it was an

 6     official note?  And, further, where did the information come as to the

 7     code number, and who can confirm the code number relates to the said DB

 8     member?  It's that kind of information which would take the matter

 9     further than just simply saying it's an official note, which is all we

10     have.

11             JUDGE ORIE:  Have you studied the underlying material which

12     apparently was available to the Prosecution and which was made available

13     to the Simatovic Defence?

14             MR. JORDASH:  This --

15             JUDGE ORIE:  Yes.  I don't know exactly what it is.

16             MR. JORDASH:  It's a letter, it seems, from the Republic of

17     Croatia MUP, dated the 28th of February, without a year, and it simply

18     lists --

19             JUDGE ORIE:  Well, it will be from next week.

20             MR. JORDASH:  Yes.  It simply lists the documentation that was

21     sent from the MUP to the Prosecution.  So it takes the matter no further,

22     I think, than simply the Prosecution saying, Can you confirm you sent us

23     the information?

24             JUDGE ORIE:  But apparently with information about who was known

25     by the person who wrote that letter -- or by the institution that wrote

Page 3716

 1     that letter, who was known under number 91/020.

 2             MR. JORDASH:  Well, it says, in relation to that, official note

 3     on participation in the attack of -- when purporting to describe this

 4     exhibit or potential exhibit, official note on participation in the

 5     attack of Subosko [phoen] on the 12th of November, 1991, signed by code

 6     number 91/020 "(code for the member of the DB late Djuro Ogrizovic,

 7     nicknamed Snjaka)."  And then 4.1 biography Djuro Ogrizovic.

 8             So it's simply somebody purporting to describe what we can all

 9     see.  I could give the same description to the Court by looking at the

10     document, but I have absolutely no information about the authenticity of

11     this document.

12             JUDGE ORIE:  No, you couldn't give the name of the person.

13             MR. JORDASH:  No, but I could say, Here's the code.  I say the

14     code relates to Franko Simatovic, and no one would know any different if

15     I simply asserted that to be the case.

16             JUDGE ORIE:  That's clear.

17             Mr. Hoffmann, anything to add?

18             MR. HOFFMANN:  Just a quick note.

19             In the original, we do find the year.  It's 28 February of 2001,

20     when this letter was sent to the ICTY.  It's coming from the Republic of

21     Croatia, the Ministry of Interior, Police Administration, Karlovac.  It

22     does say on the English document, in fact on the top of it, This document

23     index was provided by Ivan Horvat from the Karlovac police.  So we do

24     claim that this is, at this point in time, sufficient information about

25     the authenticity of the document.  We would tender this document into

Page 3717

 1     evidence as underlying material, if need be.  In the next step, we could

 2     only call this person who signed the letter or who provided the material.

 3             It's clearly our understanding, when this material was provided

 4     to us, that, in their understanding, they did not provide false material

 5     but what they believe are authentic documents.

 6             JUDGE ORIE:  Yes.  But that, of course, is an assumption.  If we

 7     would apply that, that our work might be far easier in many courts, not

 8     only in this court.

 9             MR. HOFFMANN:  All I'm saying is I think we apply some of the

10     standards when it comes to documents that are provided through official

11     channels, through official correspondence, upon RFAs.  I think it's not

12     the practice that we always ask the person who's responding on an RFA to

13     appear in court to explain that he actually provided authentic documents

14     or documents they have found in their collection.

15                           [Trial Chamber confers]

16             JUDGE ORIE:  Mr. Hoffmann, the Chamber would like you to tender

17     the document you just mentioned.  A number could be assigned to it

18     immediately.  We'll MFI it, and the Chamber will take a decision on

19     admissibility on the two documents together; that, of course, the

20     supporting document is -- the relevance only is to see whether the claim

21     of non-authenticity is with merits and whether the Chamber should ask, as

22     the Chamber can do, for further authentication of the document.

23             Could you please give the 65 ter number, if there is any yet.  If

24     not, it may not be in your 65 ter list.  But since the Chamber asked you

25     to produce it, perhaps you --

Page 3718

 1             MR. HOFFMANN:  What I can give is the ERN again.  The starting

 2     ERN is 0152-7750.

 3             JUDGE ORIE:  And it is a letter --

 4             MR. HOFFMANN:  From the Karlovac police in Croatia, dated

 5     28 February 2001.

 6             JUDGE ORIE:  2001.

 7             Madam Registrar.

 8             THE REGISTRAR:  It will become Exhibit P260, marked for

 9     identification, Your Honours.

10             JUDGE ORIE:  Thank you.  And it will keep that status for the

11     time being.

12             I will move on.  But before I move to my next MFI, I'd like to

13     move to an MFI which isn't an MFI, it's: "What you see is not what you

14     get."

15             When we were looking at the associated exhibits for JF-008,

16     Ms. Friedman said that there were two MFIs on that list.  I'm talking --

17     two MFIs on that list.  Then I corrected her and said, I see three MFIs,

18     and she said, I stand corrected.

19             Now, the three MFIs I saw on that list was P150, P146, and P148.

20     Now, it turns out that where I saw three, there actually were only two,

21     because P146, which appears on this list as an MFI, was already admitted

22     into evidence on the 20th of January.  And, therefore, Ms. Friedman was

23     right, that there were only two MFIs, I was right that I saw three, and

24     that is now clear on the record.  So, therefore, the MFI P146 is not an

25     MFI.

Page 3719

 1             Then I move on.  P179 is a document which is MFI'd under seal.

 2     There are two objections against this document.  The first one was the

 3     link between the witness and the document, speculation as to the identity

 4     of a person mentioned in this document.  That objection is denied.

 5             Now, there was another objection.  That was authenticity.  It was

 6     a document which did not bear a full signature, but rather a kind of

 7     initials.  And I think it was contested that this was signed by

 8     Mr. Stanisic.

 9             MR. GROOME:  Your Honour.

10             JUDGE ORIE:  Yes.

11             MR. GROOME:  Sorry to interrupt, but if I could inform you that

12     based on our communications with the Government of Serbia, this is a

13     document that they intend to file protective measures regarding, so

14     perhaps it might be more prudent to be in private session to talk about

15     it in detail.

16             JUDGE ORIE:  Yes.  As a matter of fact, I would not go into any

17     further detail on the matter.

18             The challenge to the authenticity, the Chamber invites the

19     Stanisic Defence to further elaborate on this challenge to authenticity.

20     That could be done by showing that, for example, initials and signature

21     are always different.  Of course, it doesn't make that much sense to

22     compare initials with full signatures, if documents exist both with full

23     signature and with initials, and then to say that the initial is

24     different from a signature, of course, it is not very helpful for the

25     Chamber to assess the authenticity.  If, however, there are other

Page 3720

 1     documents in your possession - but in response, of course, the

 2     Prosecution could claim that they have such documents - where you'd see

 3     that, if initialled, those initials look quite different from what we see

 4     on this document, then we have a further substantiation of the challenge

 5     of authenticity.  Further, one could look at the similarity of documents,

 6     are there documents of a similar structure, similar subject matter,

 7     similar provenance, similar numbering, whatever, which are initialled

 8     where it's not contested that the initials or the signature are from

 9     Mr. Stanisic, that might help us in better understanding the challenge.

10     And if there's any other piece of information which would shed additional

11     light on the challenge to the authenticity, then, of course, the Chamber

12     would like to hear that.  I think best to be done in a written

13     submission, further elaborating on the challenge of authenticity.  We'd

14     then receive the response by the Prosecution, and then the Chamber will

15     decide whether or not it requires further proof of authenticity.  As you

16     may know, the Chamber can require such evidence.  But we'd like to

17     receive further information before coming to any conclusions in this

18     respect.

19             MR. JORDASH:  Could I just inform the Court of this, because it

20     might affect whether Your Honours still require us to do something in

21     written form at this stage:  They'll be essentially two challenges.  One

22     will be to the nature of Mr. Stanisic's job, and we will submit that his

23     job did not entail this type of work.  That's the first way which we

24     intend to deal with it during our Defence case.  And then, secondly, we

25     will be giving due consideration to a handwriting expert.  We do not know

Page 3721

 1     whether there is sufficient writing to conduct such analysis.

 2             JUDGE ORIE:  Is the original available?

 3             MR. JORDASH:  That, we don't know.  We haven't as yet --

 4             JUDGE ORIE:  Because I know from my experience that don't ask an

 5     expert to give an expert opinion on copies, because the first answer

 6     you'll get, that someone needs the original.  But perhaps -- Mr. Jordash,

 7     have you finished or --

 8             MR. JORDASH:  Yes.  It's those two ways in which we will seek to

 9     demonstrate that this document is not an authentic document.

10             JUDGE ORIE:  Yes.  Now, the first argument you used, that it is

11     not within, let's say, the job description of Mr. Stanisic, to say it

12     briefly, is of a different kind -- of a totally different kind from the

13     second one.  Now, of course, to challenge all that, there's no need to do

14     that if the document is not admitted into evidence.  So the first

15     decision the Chamber will have to take is whether or not at this moment

16     it would require further authenticity, and it would like to receive as

17     much information -- of course, if you would, in this context, want to

18     provide an expert report, we would consider that, because we asked for

19     any information which could shed further light on the authenticity.

20             But as I said before, there are many elements, the structure of

21     the document, similar documents, but if you say they are not similar

22     documents, then that would certainly support your first argument that

23     this is not within the job description.  If, however, there are 10 or 20

24     of the same, where there's no challenge to the signature or to the

25     initials, then, of course, it may, to some extent, undermine your first

Page 3722

 1     argument.

 2             MR. JORDASH:  Yes, that's right.  On the other hand, we -- yes,

 3     that's right.  There aren't a huge number.  Off the top of my head, I

 4     don't know.  I think there are at least one or two more documents like

 5     this.  But there are not a huge number.

 6             JUDGE ORIE:  Okay.  We'll have -- the Chamber invites the

 7     parties -- invites, first of all, you to make further submissions to

 8     substantiate your authenticity challenges, and if you want to include

 9     there the job description, I must admit that I don't know whether I'm the

10     only one in this courtroom, but I have done, at some occasions, things

11     which did not fit for the full 100 per cent in my job description in many

12     capacities.  So therefore it is a different kind of argument because it

13     is a relative argument rather than the other part of your submission,

14     that is, you want to have expert opinion on whether this could have been

15     written by a certain person.  You're invited to make these submissions.

16             Mr. Groome.

17             MR. GROOME:  Your Honour, we'll rely on written submissions as

18     well.

19             I would just point out now at this stage that this is a document

20     that we received in response to a request for assistance from the

21     Government of Serbia, number 1382, and is discussed in detail in the

22     first Bar table motion.  But we will respond to the specific submissions

23     of Mr. Jordash.

24             JUDGE ORIE:  Yes.  And we'll then certainly have a look at the

25     Bar table motion.  There's no need to copy everything again.

Page 3723

 1             Yes, I would like to close this one.

 2             Mr. Jordash, when do you think you could make submissions?  I

 3     could imagine that an expert report would take more time, but just to

 4     elaborate on your challenge of the authenticity.

 5             MR. JORDASH:  If we could have 14 days that would be --

 6             JUDGE ORIE:  Fourteen days is granted.

 7             And then may I take it that the Prosecution, wether or not by

 8     brief references also to other submissions already made, one week, would

 9     that do?

10             MR. GROOME:  Yes, Your Honour.

11             And just if it assists Mr. Jordash, I believe the originals of

12     the documents do exist in BIA, the new name of the former State Security

13     Service.

14             JUDGE ORIE:  Then I would like to move on to D3, which is an

15     official note which was introduced through Witness Saric, and the OTP

16     contests the authenticity.  The parties will be given a further

17     opportunity to make submissions on the admission of this document, on the

18     sources on the basis of which the OTP contested the authenticity, so we

19     would like to receive a further elaboration on the objections.  And then,

20     of course, the Defence will have an opportunity to respond to that, so

21     that we'll finally be able to see whether we need to order the parties to

22     provide further evidence, as far as the authenticity is concerned.

23             Mr. Hoffmann.

24             MR. HOFFMANN:  I was just wondering, I think it's a pretty

25     straightforward issue with this document, and it could be dealt, I think,

Page 3724

 1     very shortly for all submissions.

 2             JUDGE ORIE:  How much time do you think you would need to do

 3     that?

 4             MR. HOFFMANN:  Well, my submission would be probably just a few

 5     lines.

 6             JUDGE ORIE:  A few lines.  Please go ahead.

 7             MR. HOFFMANN:  Thank you, Your Honour.

 8             The document we're talking about is allegedly a witness statement

 9     of a certain Emil Cakalic.  What this Cakalic allegedly said was put to

10     the witness, which is fine, but then the alleged statement was tendered

11     into evidence and marked for identification.  At the time, there was no

12     foundation laid.  Witness Savic did not confirm any of the content of

13     that statement.  We submit it should be up to the Defence, if they want

14     to call in their case this witness, they could do so.  Otherwise, they

15     could tender the statement under 92 ter.

16             And more importantly, we noted already at the time that the same

17     witness of whose that statement allegedly is testified under oath in the

18     Milosevic case on the same point that was put to Witness Savic, and on

19     three or four occasions in the Milosevic trial, and that's on 16 July

20     2003, he denied those very allegations, and it was just about the

21     question whether or not Witness Savic did beat this Mr. Cakalic, yes or

22     no.  That's contained in the statement.  That was put to the witness, and

23     under oath various times in the Milosevic trial, he said that was not the

24     case, it was not true.

25             So we see no basis whatsoever to tender this statement.

Page 3725

 1             JUDGE ORIE:  At least to have it admitted, because it has been

 2     tendered already, isn't it?  It has been MFI'd?

 3             MR. HOFFMANN:  Yes.  No basis for admission, Your Honours.

 4             JUDGE ORIE:  Yes.

 5             Mr. Petrovic, because it was the a Simatovic Defence matter.

 6             MR. PETROVIC: [Interpretation] Mr. President, it happened while

 7     the other Defence team was here.  I think that my colleague from the

 8     Prosecution is misrepresenting the context in which this statement was

 9     put to the witness.

10             At pages 1913 and 1914, that's what was done.  The main issue was

11     whether Witness Savic questioned Witness Cakalic or not.  That was the

12     question.  Do I understand the transcript?  And since Witness Savic

13     denied having interrogated Cakalic in any way, then my colleague

14     Jovanovic tendered this statement, and this statement was shown to the

15     witness.  And this is where it all ended.  It was -- the court was about

16     to adjourn, and there was no debate.

17             Let me remind you of one other thing.  The point is not whether

18     he had beat him or whether -- the point is whether he had questioned

19     Cakalic.  At page 24522 through 24525 in the Milosevic trial, it is my

20     understanding that Witness Cakalic did not deny that he had been

21     questioned by Witness Savic, and Goran Hadzic, to boot.  The point is

22     whether he questioned him, not whether he beat him.  So the witness

23     accepted the claim that he had been questioned, but not that he had been

24     beaten.  So it's not the issue of physical abuse, but of interrogation.

25             So in this context, where Witness Savic denied having taken part

Page 3726

 1     in Cakalic's interrogation, my colleague Mr. Jovanovic showed him a

 2     document, which we have now in front of us, D3, and it's a document that

 3     a few days before that, on the 12th of May, 2009, was submitted to the

 4     Simatovic Defence by the Prosecution as exculpatory material under

 5     Rule 68, although there is not a clear distinction whether it was under

 6     Rule 68(1) or 68(2), but this was stated in the cover letter from the

 7     Prosecution.  This is how the Defence obtained this letter.

 8             So this is the context.  And given this context, there is every

 9     reason for this statement to be admitted into evidence.

10             Thank you.

11             JUDGE ORIE:  So if I understand you well, the Prosecution is

12     objecting because it says that the content of the statement in the

13     Official Note is contradicted by testimony given under oath, whereas the

14     Simatovic Defence says that, That's not the issue for us.  For us the

15     issue is that Mr. Savic says that he never interviewed Mr. Cakalic, and

16     this document shows that he did.

17             MR. HOFFMANN:  Your Honours, the main objection is the way how to

18     introduce statements of other witnesses.  It wasn't about whether or not

19     this could be put in questions to the witness, but whether or not it's

20     proper.  And I think we've had many similar discussions before that,

21     whether or not it's simple, without any 92 ter or bis foundation, to

22     tender a statement of a different witness.  It's up to the Defence to

23     call Mr. Cakalic in their case, if they want.  It's been put to the

24     witness.  And whether or not -- the issue is whether he was interrogated

25     or beaten, the under-oath testimony shows that, at least in part, the

Page 3727

 1     statement put forward as D3 exhibit is not correct.

 2             JUDGE ORIE:  Well, that's still to be established, what is

 3     correct or not correct.  They're contradicting.  That's how I understand

 4     your observation.

 5             Mr. Hoffmann, isn't it true that Rule 92 ter applies certainly to

 6     any document which was created for the purposes of this Tribunal, whereas

 7     official notes are usually not documents which are prepared for being

 8     used in this Tribunal, and that statements prepared for other purposes

 9     can be admitted under Rule 89?  I'm just asking you.  It's a legal issue.

10     You raised the issue.

11             MR. HOFFMANN:  Yes, Your Honours.

12             Yeah, I think you're right on this, that if we have a local

13     statement which was not prepared primarily for the proceedings in this

14     Tribunal, then that could be potentially admitted under 89(F).  But,

15     again --

16             JUDGE ORIE:  Yes, which means that your reliance on the

17     requirements of 92 ter not to be met is, to say the least, not the most

18     solid one.

19             MR. HOFFMANN:  Well, I think the issue remains that part of the

20     statement that is put to us has been contradicted by this witness when he

21     testified before this Tribunal under oath, so we do have an issue.  And

22     I think that the least we would say is if that statement would be

23     admitted into evidence, then at least the corresponding Milosevic

24     transcript should be admitted as well.

25             JUDGE ORIE:  Mr. Petrovic, would you have any objection against

Page 3728

 1     the Milosevic transcript to be admitted into evidence?

 2             MR. PETROVIC: [Interpretation] It is absolutely acceptable to us

 3     for the pages that I've just quoted to you to be admitted into evidence

 4     and to be part of the record side by side with this exhibit.

 5             JUDGE ORIE:  Would that --

 6             MR. HOFFMANN:  I would have to verify the page numbers,

 7     because --

 8             JUDGE ORIE:  I would then suggest the following: that the parties

 9     are invited to sit together and to see whether the objection by the

10     Prosecution would still stand if certain portions of the evidence of this

11     witness, a selected portion - we're not seeking the whole of it; it's

12     apparently focusing on a certain matter - would be admitted in relation

13     to this document.  We'd like to hear from the parties within a week.

14             Then next one, D5.  There was a request.  It was an interview.

15     It was tendered by the Stanisic Defence, and the OTP would like to have

16     redactions of sensitive information in this document.

17             I do know that we have a redacted version in evidence.  However,

18     the unredacted version has not been up-loaded, has not been assigned a

19     number, and has not been admitted.  And, of course, the Chamber needs in

20     evidence the unredacted version.

21             Has the unredacted version been up-loaded?  It has been.  I see

22     Madam Registrar confirms that.

23             Madam Registrar, that would be number --

24                           [Trial Chamber and registrar confer]

25             JUDGE ORIE:  No, I would like you to assign a number -- a

Page 3729

 1     separate number to the unredacted version so that it can be admitted

 2     under seal.

 3             THE REGISTRAR:  This will become Exhibit D27, under seal,

 4     Your Honours.

 5             JUDGE ORIE:  D27 is admitted under seal.

 6             As far as D6 is concerned, there was a translation issue.  The

 7     Prosecution would verify and correct the translation.

 8             Has the revised translation been up-loaded?

 9             MR. HOFFMANN:  Yes, Your Honours, just today, is my

10     understanding, but it has been.

11             JUDGE ORIE:  Under the same number -- 65 ter number?

12             MR. HOFFMANN:  My understanding is it was up-loaded under "D6."

13             JUDGE ORIE:  D6.

14             Madam Registrar, leave is granted to replace the new version of

15     D6 in the e-court system.

16             D9 is a document --

17                           [Trial Chamber and legal officer confer]

18             JUDGE ORIE:  Yes.  Apart from replacing it, of course, the

19     Chamber would still have to give a decision on admission.  D6, in its new

20     version, is admitted into evidence.

21             I move to D9, which is a document under seal, but with the

22     adequate caution we could deal with it in open session.

23             An objection was raised against admission of D9.  But, as I

24     understand, the OTP has withdrawn its objection, but under the condition

25     that the document would be admitted under seal.  Is that correct,

Page 3730

 1     Mr. Groome?

 2             MR. GROOME:  Sorry, Your Honour, we're quite a bit surprised by

 3     that.

 4             JUDGE ORIE:  D9.

 5             MR. GROOME:  Your Honour, if we could just have a moment.  If

 6     there's another matter we could move on to, I'll try to call that

 7     document up and see if I can refresh my recollection.

 8             JUDGE ORIE:  Transcript pages 2608 to 2611, and in private

 9     session 2619.  It was Witness JF-007.

10             MR. GROOME:  Mr. Hoffmann informs me that he believes that we've

11     withdrawn this as an exhibit, but if I could have until -- I'm sorry,

12     withdrawn its objection.  Yes, Your Honour.

13             JUDGE ORIE:  Yes.

14             MR. GROOME:  If I could just verify that and then come back to

15     the Court the next time we're sitting.

16             JUDGE ORIE:  Yes, that's our information as well, that the

17     withdrawal was expressed on the 21st of January.

18             Would there be any objection against admission under seal?

19             MR. PETROVIC: [Interpretation] No, Your Honours.

20             JUDGE ORIE:  Then D9 is admitted under seal.  And if further

21     verification would show that what you think to be the case and what we

22     think you've done, that is, to withdraw the objection, then we still can

23     reconsider that.

24             D13, there was a missing first page to be up-loaded by the

25     Stanisic Defence.  Has this been done?

Page 3731

 1             MR. JORDASH:  Apologies, it hasn't.  But we can commit to making

 2     sure that it's done by Monday.

 3             JUDGE ORIE:  Yes.  Then we would revisit the matter on Monday --

 4             MR. JORDASH:  Oh, I beg your pardon.  I think what has to happen

 5     is we have to have it translated first.  So if we can --

 6             JUDGE ORIE:  Yes.  It would first have to be translated, but, of

 7     course -- and then to be up-loaded.  As a matter of fact, we instructed

 8     you to inform us when it was translated and up-loaded, but this was

 9     already a while ago.  And since it was only one page, we expected the

10     results.

11             MR. JORDASH:  This is an oversight on our part and we do

12     apologise, but we will make sure it's submitted for translation by

13     Monday, at the latest.

14             JUDGE ORIE:  Yes.  So it's only one page.  Could we -- by the end

15     of next week, too?

16             MR. JORDASH:  Certainly.

17             JUDGE ORIE:  Mr. Hoffmann.

18             MR. HOFFMANN:  Just on Exhibit D13, if I remember correctly,

19     Your Honours had some questions about this document to the Defence which

20     weren't answered at the time.  It was about whether this one, about a

21     certain Slobodan Katanic, or another one would be correct.  I don't know

22     if those questions, in the Chamber's view, have been clarified or not,

23     but I thought that was one of the issues why it was marked for

24     identification.

25             JUDGE ORIE:  Mr. Jordash saved us by the bell, because we now

Page 3732

 1     have an opportunity to further review pages 2914 to 17.  Mr. Jordash will

 2     do the same, and then we'll have a look at whether we have received all

 3     the information we need for a final decision.

 4             MR. JORDASH:  I can indicate now, Your Honours, that we haven't

 5     as yet investigated which date of birth is the correct one, and what we

 6     have done is simply relied upon a document.  There are other documents

 7     relating to this particular gentleman.  And we could, of course, set out

 8     and investigate when his date of birth was, or the Prosecution could

 9     simply indicate whether they actually dispute the existence of this man

10     and the detail in the exhibit.

11             JUDGE ORIE:  Perfectly a matter for further conversations and

12     perhaps to see what the Prosecution still expects from the Stanisic, or

13     the other way around.

14             MR. HOFFMANN:  Your Honours, we didn't object at the time, and we

15     didn't have any questions.  At the moment, I also have no verification of

16     the date of birth, but we had no issue with the admission of this

17     document.  I was just noting your questions to the Defence at the time

18     about the Defence position on whether the one or the other document is

19     true.

20             JUDGE ORIE:  Okay.  So, therefore, as far as admission is

21     concerned, there seems to be no problem.  Then we are still waiting for

22     the translation and for uploading of the document, and we'll hear from

23     you by the end of next week, Mr. Jordash.

24             Then I move to D14, which is a document under seal.  Yes.  There

25     has been an issue as to what to do with the document, which contains, as

Page 3733

 1     it was emphasised by the Prosecution, a negative answer to a question

 2     whether the MUP records and archives show that a certain person - I think

 3     we're talking about Witness JF-005 - worked for the special forces, yes

 4     or no.

 5             The Chamber admits D14, under seal, but the Chamber would be

 6     assisted in properly attaching weight to this document if the parties

 7     would present further submissions on the fact whether or not this person

 8     worked in that position, and to present any further evidence to that.

 9     Therefore, we admit the document in evidence, but we give a clear signal

10     to the parties that in order to be better capable of giving weight to

11     this document, that we would like to hear further submissions on this and

12     similar matters.

13                           [Trial Chamber and legal officer confer]

14             JUDGE ORIE:  I'm informed that apart from this matter, that

15     finally the document can only be admitted if an English translation is

16     attached and up-loaded.  So, therefore, the Chamber -- well, I've just

17     said it's not a final decision of the Chamber.  We'd like to have the

18     English translation first.  But what is to be found in the document needs

19     -- the Chamber needs further assistance in exactly weighing this

20     evidence, and invites the parties to make further submissions on this

21     matter.

22             MR. GROOME:  Your Honour, as you'll recall, the concern that I

23     raised was Serbia's repeated representations that their archives have

24     been -- so --

25             JUDGE ORIE:  You said -- you explained to us that these

Page 3734

 1     situations happened before, that you got similar information which then

 2     later turned out to be wrong.  Now, of course, the Chamber -- that's what

 3     you said.  If there's any documentary evidence showing that, We asked

 4     this for a different person, we got this answer at that moment, and it

 5     turned out to be true because they wrote us at a later stage that -- or

 6     we received evidence.  So that's exactly the kind of information the

 7     Chamber would like to receive, because on face value, it seems to be

 8     denial, although saying that we find anything in the records can mean two

 9     things; that it didn't happen, or that it wasn't recorded.  I mean, there

10     are several options.

11             Now in order to better able to understand the probative value of

12     this document, the Chamber would like to hear from the Prosecution of

13     similar experiences, well documented, so that the Chamber is better able

14     to assess what weight to give to this document, phrased in the way as it

15     is, because you specifically have drawn our attention to the way in which

16     the denial or the negative finding was phrased.

17             MR. GROOME:  Yes, Your Honour, and it may require that the

18     Prosecution call a representative of Serbia to explain their position

19     with respect to these.  But I will look into the matter and decide what's

20     the best course to take.

21             JUDGE ORIE:  Yes, of course.  Nothing opposes, apart perhaps from

22     the time granted to you in your 65 ter list, to receive evidence, even

23     witness testimony, in respect of this.

24             Mr. Jordash.

25             MR. JORDASH:  Your Honour, could I just seek some clarification?

Page 3735

 1             What the Chamber is looking for is submissions on the -- I

 2     suppose the meaning of documents which emanate from this source?

 3             JUDGE ORIE:  Not only from this source.  Perhaps also from the

 4     source.  I do not know.  I mean, the Chamber is not fully acquainted with

 5     all the -- if it is source, then we would like to hear that from the

 6     Prosecution that documents coming from this source have turned out to be

 7     inaccurate several times; or information from whatever source about

 8     members of Unit A, B, or C, have turned out to be inaccurate several

 9     times.  The Chamber is just not aware, and that's the reason why we admit

10     this document into evidence, but in order to better assess the probative

11     value the Chamber would like to have substantiation of the matters that

12     were raised by the Prosecution or any other matter which may shed some

13     light.  And if, at a later stage, you would call witnesses on this

14     matter, then you could say, This and this is our experience, but apart

15     from that we intend to call Witness A, B, or C, to shed further light on

16     this or similar documents.

17             MR. JORDASH:  Certainly.

18             JUDGE ORIE:  Yes.

19             MR. JORDASH:  But Your Honours are not looking -- I just want to

20     be certain about this aspect.  Your Honours are not looking for

21     substantive submissions on the witness and whether -- our respective

22     positions on whether the witness was a member of a particular unit?

23             JUDGE ORIE:  At this moment, we are seeking additional

24     information which allows us to better understand the probative value.  If

25     there would be clear evidence -- if you would say -- or you would say, I

Page 3736

 1     have five pictures and four telephone conversations which clearly showed

 2     that he was a member, then, of course, that could shed some light as

 3     well.  But at this moment, the Chamber is primarily focusing on a further

 4     substantiation of the matters raised in relation to this document by the

 5     Prosecution.  But we do not exclude, because the document is just saying,

 6     We don't have records of this person being in this service, yes or no.

 7     I can imagine that, at a later stage, the parties -- you to say, This is

 8     correct, or you to say, This is not correct, that would further focus on

 9     the substance, not any more directly related to the probative value or

10     the weight to be given to this specific document, which is just one

11     element in what apparently is the substance of the problem, was he or was

12     he not.

13             MR. JORDASH:  Thank you.  Thank you very much.

14             JUDGE ORIE:  Yes.  Then I know it's getting later and later.

15             I have one final matter on my agenda, which relates to D19.

16             D19, there was an objection.  The Prosecution requested an

17     opportunity to further verify the origin of the document.  And then on

18     the 9th of February, the Prosecution made a submission in which it states

19     that it verified the origin of the exhibit and informs the Trial Chamber

20     and the Defence that, according to records in the possession of the

21     Office of the Prosecutor, the Witness Slobodan Lazarevic, provided the

22     document on the 4th of January, and therefore does not object any further

23     to the authenticity of D19.

24             Mr. Groome.

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

Page 3737

 1             JUDGE ORIE:  Therefore, since there were no other objections, as

 2     I understand, it's ready to be admitted.

 3             MR. GROOME:  Yes, Your Honour.

 4             JUDGE ORIE:  D19 is admitted into evidence.

 5             I am through my list, and I don't think that --

 6                           [Trial Chamber and legal officer confer]

 7             JUDGE ORIE:  I've gone through my MFI list.

 8             First question:  Any other matters as far as MFI's are concerned?

 9             MR. GROOME:  Yes, Your Honour, there were two other MFIs with

10     respect to the Witness Slobodan Lazarevic.  I refer Your Honours to

11     transcript of 9 of February, transcript pages 3487 and 3489.  If you

12     recall, this was the -- the two documents that purported to be an

13     indictment and an arrest warrant.  It was very late in the day, and I

14     simply noted my objection.  And without having time to express it, the

15     documents were marked for identification.

16             JUDGE ORIE:  Is that D25 and D26?

17             MR. GROOME:  Yes, Your Honour, I'm sorry, D25 and D26.

18             JUDGE ORIE:  D25 and D26.  I think -- let me just check.

19                           [Trial Chamber and legal officer confer]

20             JUDGE ORIE:  Yes.  The Chamber will deal with this matter, and

21     invites the parties to wait until they've heard from the Chamber, and

22     then only to decide on any follow-up of D25 and D26.

23             MR. GROOME:  Will the Prosecution have an opportunity to put its

24     position with respect to the admissibility?  I'm not sure what

25     Your Honour is referring to, but --

Page 3738

 1             JUDGE ORIE:  Yes.  No.  Further the Chamber will address the

 2     matter, and of course we'll also at that moment -- it's not just about

 3     admissibility - that's the issue - but that is related to it, and

 4     therefore the parties are invited to wait to make any further submissions

 5     until the Chamber has addressed the matter first, and then you'll be

 6     given an opportunity.

 7             MR. GROOME:  Thank you, Your Honour.

 8             Mr. Hoffmann has two matters regarding MFIs.

 9             JUDGE ORIE:  Yes, Mr. Hoffmann.

10             MR. HOFFMANN:  Thank you, Your Honour.

11             Very briefly, I wanted to note that for Exhibit P260, the

12     document that we talked about a while ago, we have already up-loaded and

13     released the one, which is the underlying document for Exhibit P107.  You

14     already assigned the numbers, pending the --

15             JUDGE ORIE:  Yes.  Could you remind me what number

16     Madam Registrar had a assigned to it?

17             MR. HOFFMANN:  P260.

18             JUDGE ORIE:  P260.  And there was no need to have it admitted

19     under seal, was it?

20             MR. HOFFMANN:  No.

21             JUDGE ORIE:  Now, let me just -- yes, that was the underlying

22     document, giving further details so that the Chamber could consider P107

23     and P260 in context.

24             P260 is admitted into evidence.

25             MR. HOFFMANN:  Thank you, Your Honour.

Page 3739

 1             The other issue is just a matter of the status of another

 2     exhibit.  It's Exhibit P166.  It's currently under seal.  It's a

 3     document -- a report from the SGB in Sanski Most that was used with

 4     Witness B-1048.  It was used in closed session, the answer on the

 5     document was given in closed session, but we submit that the document, as

 6     such, doesn't reveal any of the identity, so that the document, itself,

 7     could be well made public.

 8             JUDGE ORIE:  Yes.  We'll consider it, we'll have a look at it.

 9     Of course, I was not prepared to deal with that.

10             Could the Defence teams also look into the matter.  We'd like to

11     hear from you by next -- no, let's not say if you do not make any -- we'd

12     like to hear from you, an answer, whether you would or would not object

13     to making P166 a public document by Wednesday, and the Chamber would then

14     decide.

15             Any other matter, Mr. Hoffmann?

16             MR. HOFFMANN:  Yes, one final matter.

17             I don't know if and when the Chamber wanted to deal with the

18     exhibits and prior statements of Witness Kovacevic.  At the time, they

19     were all marked for identification.  I think that was done at the time

20     because of the adjournment of cross-examination.  However, as

21     Your Honours may recall, the witness did attest to his prior statements,

22     so the 92 ter requirements were fulfilled.  We tendered a number of

23     exhibits, and we would submit that those should be admitted into evidence

24     even prior to the continuation of his examination and cross-examination.

25             Thank you.

Page 3740

 1             JUDGE ORIE:  Yes, we will consider that, and I'm not going to

 2     immediately rule on your request.  We'll further consider the matter and

 3     let you know most likely in the middle of next week.

 4             Having dealt with all the MFIs, any further MFI concerns with the

 5     Stanisic Defence, not with the Simatovic Defence?

 6             Any other procedural matter to be raised, apart from the MFI list

 7     and the ones we've dealt with already?

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

 9             JUDGE ORIE:  Thank you, Mr. Groome.

10             Mr. Jordash, no further issues?

11             MR. PETROVIC:  [No interpretation]

12             JUDGE ORIE:  Mr. Petrovic, the same.

13             Then we adjourn, and we'll resume Monday --

14             MR. PETROVIC: [Interpretation] No, Your Honour.

15             JUDGE ORIE:  Oh, I saw on my screen:  "Mr. Petrovic: [No

16     interpretation]."  No interpretation, apparently.  It's therefore on the

17     record that neither Mr. Jordash, nor Mr. Petrovic, had anything to be

18     added to our agenda.

19             We'll adjourn, and we'll resume on Monday, the 22nd of February,

20     quarter past 2.00 in Courtroom II.

21                           --- Whereupon the hearing adjourned at 12.28 p.m.,

22                           to be reconvened on Monday, the 22nd day of

23                           February, 2010, at 2.15 p.m.