1 Tuesday, 22 June 2010
2 [Open session]
3 [Accused not present]
4 --- Upon commencing at 10.08 a.m.
5 JUDGE ORIE: Good morning to everyone. Madam Registrar, would
6 you please call the case.
7 THE REGISTRAR: Good morning, Your Honours. Good morning
8 everyone in and around the courtroom. This is the case IT-03-69-T, the
9 Prosecutor versus Jovica Stanisic and Franko Simatovic.
10 JUDGE ORIE: Thank you, Madam Registrar.
11 Today a housekeeping session has been scheduled. I observe that
12 the accused are not present. Is this because they have chosen not to be
13 present because we have not received a waiver form yet?
14 MR. JORDASH: I can indicate I've spoken to Mr. Stanisic and he's
15 happy to proceed without being present.
16 JUDGE ORIE: Yes. It was his choice to proceed without his
18 MR. JORDASH: It was his choice.
19 JUDGE ORIE: To be happy to accept something as a fact is
20 different from having expressed as his preference not to be present.
21 There's a slight difference.
22 MR. JORDASH: I agree with both.
23 JUDGE ORIE: Okay. Then as far as Mr. Simatovic.
24 MR. BAKRAC: [Interpretation] Your Honours, the same applies to
25 Mr. Simatovic.
1 JUDGE ORIE: Then we can proceed and we will proceed with the
2 absence of the accused.
3 We have today this housekeeping session because due to witness's
4 unavailability we will not have normal hearings this week. Yesterday's
5 session was cancelled once it had become clear that the witness would not
6 turn up, and for similar practical reasons we'll not sit tomorrow. I add
7 to this that this has happened a couple of times. I'm not blaming at
8 this moment the Prosecution for this to happen, and I also see the
9 problems in having witnesses available on a stand-by basis. And
10 nevertheless, I would urge, not saying that you didn't do your utmost
11 best until now, but I still urge you to see that all practical measures
12 are taken to avoid that we lose court time in the way we do this week.
13 MR. GROOME: Your Honour, I do have some updated information as
14 to what happened with respect to JF-041, if the Court wishes me to inform
15 the Chamber.
16 JUDGE ORIE: Yes, that could assist the Chamber.
17 MR. GROOME: JF-041 contacted the Prosecution late yesterday
18 evening saying that he was present on the agreed meeting spot on the
19 Wednesday. He believed that he had been instructed by Victim Witness to
20 be there on the Wednesday, Victim Witness believes that they had told him
21 on the Thursday, so it seems to have been some miscommunication between
22 VWS and the witness with respect to the precise day that he was
23 travelling. We have worked with -- Victim Witness is still trying. He
24 made attempts to call Victim Witness, they are having trouble finding who
25 he called or what message was conveyed. We are still looking into that.
1 We will reschedule him and we will take measures next time to be
2 personally involved in either travelling with him or reconfirming the
3 times of travel so that there is no misunderstanding between him and
4 Victim Witness in the future.
5 JUDGE ORIE: Yes. This is the type of moment where we always
6 talk about lesson to the be learned about situation, apparently you are
7 seeking what lessons can be learned from it. That would be in line with
8 what I just said. This also means that most likely we will not -- after
9 today we will resume on Monday the 28th at quarter past 2.00 in the
10 afternoon and not any earlier.
11 I move to my next item on my agenda. There may have been some
12 lack of clarity as to whether D74 was admitted into evidence. Sometimes
13 it's on the transcript not for the full hundred per cent clear. D74
14 tendered through the witness Radic is admitted into evidence so that any
15 doubt in that respect is now removed.
16 I would for the next item I would like to briefly turn into
17 private session.
18 [Private session]
22 [Open session]
23 THE REGISTRAR: We are in open session, Your Honours.
24 JUDGE ORIE: I would like to deliver a statement in relation to
25 the Prosecution's 15th motion for leave to amend its Rule 65 ter exhibit
1 list and its 65 ter witness list. Because the Chamber wishes to raise a
2 matter in relation to that 15th motion, which was filed on the 13th of
3 April, 2010.
4 On the 25th of May, 2010, the Chamber granted the Prosecution
5 leave to add seven documents to its 65 ter Exhibit list and instructed
6 the Prosecution to identify the two witnesses it sought to add to its 65
7 ter witness list within three weeks. This can be found at transcript
8 pages 5280 and 5281.
9 On the 15th of June, the Prosecution identified in court, that
10 was in private session, the names of the two witnesses it seeks to add to
11 its Rule 65 ter witness list, and the Chamber requested the Defence to
12 make any further submissions in respect of the motion by the 17th of
13 June, 2010. This can be found at pages 5689 and 5690.
14 The Stanisic Defence on the 18th of June informed the Chamber in
15 an informal communication that it will take no position in relation to
16 the Prosecution motion until and if a witness statement will be disclosed
17 for both proposed witnesses. The Chamber notes that this communication
18 was received after the dead-line for responses given by the Chamber.
19 Given that the Stanisic Defence has considered it difficult to
20 take a position when it has not seen witness statements for the proposed
21 witnesses, and given also that the Chamber does not have the benefit of a
22 65 ter summary in relation to each proposed witness, the Chamber consider
23 that it would be preferable in this particular case to wait and decide on
24 the additions to the 65 ter witness list once both the Chamber and the
25 Defence have received 65 ter summary for each proposed witness as well as
1 a witness statement if such a witness statement is available. The
2 Chamber therefore requests the Prosecution to provide a 65 ter summary in
3 relation to each proposed witness, together with a witness statement if
4 one is available and to do that well before the Chamber will resume after
5 the recess, and the Chamber will resume its hearing after the recess
6 during the week of 23rd August, 2010.
7 The Stanisic Defence and the Simatovic Defence will then be
8 granted an additional period of two weeks from the date of receipt of
9 these documents, in which to indicate their positions in relation to the
10 proposed witnesses. And this concludes the Chamber's statement.
11 I add to this that where the Stanisic Defence on the 18th of June
12 informs the Chamber that it will take no position in relation to the
13 Prosecution's motion until and if a witness statement will be disclosed,
14 that the Chamber understands this, that what the Stanisic wanted to
15 express, is that they had difficulties in taking a position in relation
16 to the Prosecution motion and that they requested a further time until
17 after they had received a 65 ter summary or a witness statement, and if
18 that then would have communicated within the time set for response, then
19 with a little bit of the different language, the same result would have
20 been achieved.
21 Because if a party takes no position where it's invited to do so,
22 the Chamber might decide without considering that, knowing that position,
23 therefore, I think the way in which I suggested the matter would have
24 been preferably addressed would have avoided risks and again would have
25 resulted in the same understanding for the difficulties the Defence was
2 Then I move to my next item, which relates to the Prosecution's
3 motion for admission of evidence of witness B-1244 pursuant to Rule 92
4 quater, and a request regarding protective measures for witness B-1244.
5 On the 2nd of June, both the Stanisic Defence and the Simatovic
6 Defence have asked to be allowed to file a renewed response after some
7 discussions apparently have taken place in relation to this evidence.
8 Leave is granted for a renewed response which the Chamber would like to
9 receive, time-limit set at two weeks from today. Important that the
10 renewed response does not contain any repetition of what has been
11 submitted before because the first response by the Stanisic Defence was
12 already some 4.000 words, and therefore, the Chamber considers that the
13 renewed response could be limited and should be limited to 2.000 words.
14 Mr. Jordash.
15 MR. JORDASH: Your Honour, would it be possible to request that
16 we be allowed three weeks. There are 280 documents underlying this
17 response dealing with the witness's background, et cetera. We would like
18 opportunity to read them and incorporate that material, if possible, into
19 the response. Two weeks is quite short.
20 [Trial Chamber confers]
21 JUDGE ORIE: Your request for three weeks is granted,
22 Mr. Jordash.
23 MR. JORDASH: Thank you.
24 JUDGE ORIE: That is the time-limit. The remainder of the ruling
25 remains in force.
1 The next item is a decision with regard to the Prosecution's 16th
2 motion for leave to amend its Rule 65 ter exhibit list. In its motion
3 filed on the 14th of May, 2010, the Prosecution seeks to add 18 military
4 notebooks allegedly authored by Ratko Mladic to its 65 ter Exhibit list.
5 The notebooks are pending English translation. The Chamber considers
6 that the Defence and the Chamber would be assisted by the English
7 translation of the notebooks when considering the motion. In particular,
8 when assessing the extent to which the addition of the notebooks to the
9 65 ter list creates an additional burden on the Defence. Therefore,
10 pursuant to Rule 126 bis of the Rules of Procedure and Evidence, the
11 Chamber extends the time-period for Defence responses until no later than
12 two weeks after having received the English translation of all the
13 notebooks. The Prosecution is also requested to notify the Chamber once
14 the Defence has been provided with these translations.
15 MR. GROOME: Your Honours, I believe yesterday they were all
16 placed on EDS and are accessible to the Defence. I will make
17 arrangements to have a copy provided to the Chamber as soon as possible.
18 JUDGE ORIE: Yes, this is what we call anticipating decisions by
19 the Chamber. You've done yesterday what we ask you to do today.
20 Mr. Jordash.
21 MR. JORDASH: May I seek clarification from the Prosecution as to
22 whether that's all we will be receiving, that's the full -- the sum total
23 of the document?
24 JUDGE ORIE: There are apparently two issues. The first is
25 whether it's on EDS which is fine, that's where it should be, but at the
1 same time you've asked to add it to your 65 ter list and, therefore, just
2 putting it on the EDS, EDS is not the -- I would say that a clear moment
3 of disclosure should be established.
4 MR. GROOME: I agree, Your Honour, we'll provide a disk with a --
5 it may already have been done, but if it hasn't been done, we'll today
6 provide a disk with a transmittal letter with respect to all 18
8 JUDGE ORIE: Yes. Mr. Jordash, in view of your 14 days being
9 short in relation to the previous one, how short is 14 days for the
10 present one? Which would start counting tomorrow, if --
11 MR. JORDASH: I think extremely short. I haven't seen the volume
12 of the translations, but I have been told the length of the B/C/S
13 document, I think ideally we would like six weeks.
14 JUDGE ORIE: Yes. We are only talking about adding it to the
15 65 ter list. We are not talking about admission into evidence. It's a
16 relatively limited, it paves the way, or at least opens the gate for
17 later admission, but at this moment not more is at stake. I can imagine
18 that you need more time to take a position in general on every single
19 entry of those notebooks, whether it should be admitted or not, whether
20 there is any probative value in that specific item, but what about three
21 weeks for the position of the Stanisic Defence on it being added to the
22 65 ter list?
23 MR. JORDASH: Could I suggest four, Your Honour, please.
24 JUDGE ORIE: Yes.
25 MR. JORDASH: Thank you.
1 JUDGE ORIE: Mr. Bakrac, five, six, seven?
2 MR. BAKRAC: [Interpretation] Your Honour --
3 JUDGE ORIE: You are less dependent on the translation, isn't it?
4 MR. BAKRAC: [Interpretation] Yes, that's right, Your Honours.
5 We don't depend on translation. If I understood you correctly, this
6 first dead-line would be relating only to adding it to the 65 ter list.
7 Therefore, I would reserve the right that if subsequently there is an
8 attempt to have all this material admitted into evidence, we would
9 request leave for additional time for us to review the document,
10 otherwise, I agree with Mr. Jordash that for putting and adding them to
11 the 65 ter list four weeks would be sufficient.
12 [Trial Chamber confers]
13 JUDGE ORIE: Mr. Groome, any position in relation to the request
14 by the Defence teams?
15 MR. GROOME: Your Honour, the only thing that I would remind the
16 Chamber that on I think it was the 15th of April in a motion to postpone
17 the testimony of General Milovanovic, matter of these diaries was
18 mentioned in that motion and it seemed to indicate, at least to the
19 Prosecution, that there had been some familiarity and study of the
20 diaries already. And, in fact, I believe the Stanisic Defence pointed
21 out what we believe to be one of the most significant passages from the
22 18 notebooks. So -- but the Prosecution will defer to the Chamber with
23 respect to scheduling responses.
24 JUDGE ORIE: Let me, before I give the ruling of the Chamber --
25 no, let's first give the ruling. Four weeks is granted. The Chamber
1 does not expect that a great deal of work will be done by the Chamber,
2 and perhaps also not by the Prosecution, prior to the recess. At the
3 same time, I already put a flag that where the Simatovic Defence now
4 says, well, we are not dependent on translation but four weeks now for
5 65 ter would be enough but, of course, we would claim more. Let's be
6 clear on this matter. The more time you spend on studying the documents
7 for the decision whether or not to add it to the 65 ter list, the less
8 time is needed to get yourself acquainted with the content of the
9 documents. And since this is -- well, especially for the Simatovic,
10 already quite a while that they could have a look at it, they have
11 another four weeks now. So to what extent the Chamber will grant
12 substantial more time to the study the documents if certain portions of
13 it are tendered into evidence at a later stage is still to be seen. I
14 just put this flag already there. So four weeks is granted.
15 Then on the 22nd of April, the OTP has filed outstanding witness
16 summaries to inform the public about the content of written evidence. In
17 the submission it states that witness JF-006 testified in closed session.
18 Witness JF-006 testified, however, with voice and face distortion and
19 only partial testimony in private session. Accordingly, the Prosecution
20 is requested to file a public summary for this witness, that means the
21 evidence this witness gave in public session also.
22 Next item relates to P166. On the 19th of February of this year,
23 the Prosecution requested that Exhibit P166 be made a public exhibit.
24 P166 is a MUP report on the situation of Muslims and Croats in
25 Sanski Most, and it's dated the 10th of November, 1992. The Defence was
1 asked to present their positions by the 24th of February, 2010, and the
2 Chamber has not heard anything from them. The Chamber sees no reason to
3 keep this document under seal.
4 MR. JORDASH: Your Honours, I understood we had informed the
5 Trial Chamber. If we haven't, I apologise, and our position is that we
6 see no reason either.
7 JUDGE ORIE: Perhaps it's good if Chamber staff and that those
8 who communicated with the Chamber just compare their information because
9 if a mistake has been made on the Chamber's side, we should pay attention
10 to that and take care that the informal communication does not get lost
11 somewhere due to any mistakes we may have made. So therefore, you are
12 invited, again lessons to be learned, to see whether it was our mistake,
13 and we don't need to have this further on the record. It will be for
14 practical working experience.
15 I hear nothing of these matters. The Registry is hereby
16 instructed to change the status of P166 into public.
17 The next item relates to P355. On the 13th of April, the Chamber
18 noticed that there was a discrepancy between the words appearing
19 underneath the video and the words interpreted in court. I refer you to
20 transcript page 4247. The discrepancy there was "Serbian MUP" or
21 "Serbian 2nd Krajina Corps" and Mr. Hoffmann wanted to address the
22 Chamber about this on that same day, but we ran out of time and the
23 discussion was postponed.
24 Mr. Hoffmann, is there anything that you would like to bring to
25 the Chamber's attention as an update on this matter?
1 MR. HOFFMANN: No, Your Honours. I would have to double-check
2 again and come back to you after the break.
3 JUDGE ORIE: Then you are invited to come back to us after the
5 Document D32 was admitted under seal on the 13th of April, 2010
6 but had not been uploaded yet. The Registry has now received the
7 electronic document and the Registry is hereby requested to link the
8 uploaded document which is 1D252, to link it to D32 on e-court.
9 The next item on my agenda relates to witness JF-033. The
10 Prosecution stated on the 17th of May, 2010, that it would take the
11 initiative in an effort to liaise with VWS and see whether further
12 information about witness's JF-033's criminal record could be obtained.
13 And the Chamber wonders whether there are any updates on this effort?
14 MR. GROOME: Your Honour, we had an update from Bob Parry of the
15 Victim Witness Services regarding this matter. He has been in touch with
16 the embassy of the state where JF-033 now resides and has communicated
17 our need for additional information. They have indicated that they will
18 provide that, although we do not have information about how long that
19 will take, but it is in the hands of the state and they are in the
20 process of fulfilling that request.
21 JUDGE ORIE: Of being obtained. Any comments from the Defence or
22 shall we just wait and see how it develops? It remains on our pending
23 issue list.
24 Then I would like to move -- on to the -- to the MFI list. I
25 sometimes even mentioned exhibits being MFI'd where we will not pay any
1 attention to. P18 is one example the Chamber has given the Defence a
2 further time to respond, by the end of June, and since we are not yet
3 there, we'll not further deal with P18.
4 Then we have P53, P54, P55, P57, P58. We -- I think we'll deal
5 with them once the witness returns. So I think we don't have to deal
6 with the matter at this moment, we wait until he will return.
7 The next one is P107. P107, the Chamber had to decide having
8 heard the submissions of the parties which were focusing primarily on
9 authenticity whether or not to admit the document, which is the
10 handwritten note with unsigned, with a code number under it. The Chamber
11 admits into evidence P107 and in view of the further information it
12 received as to the author does not request further verification of the
13 authenticity as it could have done under Rule 89(E). This, of course,
14 doesn't change that in giving weight to this evidence which will be done
15 in the context of the evidence in its entirety, that the concerns
16 expressed by the Defence are still on the back of our minds, but the
17 Chamber has decided to admit it and at this moment not to request the
18 verification of the authenticity, which, of course, does not prevent any
19 party to adduce further evidence either in support of or challenging the
20 authenticity of this document.
21 We leave the next one, P150 for a moment. Next one on our list
22 is P179 which will be dealt with in a written decision. Then the next
23 one on the list is P337. We were at the point that we were waiting for
24 the position of the Simatovic Defence which we do understand is now that
25 there are no further objections against admission into evidence of P337.
1 Mr. Bakrac, I see you nodding yes, that's now on the record.
2 MR. BAKRAC: [Interpretation] Yes, Your Honours.
3 JUDGE ORIE: It's hereby decided that P337, which was 65 ter 4581
4 is now admitted into evidence.
5 P378 is related to an item we earlier discussed today that is a
6 diary. Since we have granted additional time for the Defence, four
7 weeks, to take their positions as to the adding those or that diary or
8 those notebooks to the 65 ter list, P378 which is a chart which is
9 related to that will wait for a while until we have dealt with the
10 underlying material.
11 Then the next item is P379. 379 is a list of intelligence
12 reports. Here also we are still waiting for the underlying material, so
13 therefore no decision will be taken at this very moment.
14 Then I move to P380. P380 is the first of the nine documents
15 which are covered by P379. One second, please.
16 [Trial Chamber and Legal Officer confer]
17 JUDGE ORIE: Yes, for all of these documents, that's P380, P382,
18 P384, P385, P386, and P387, they have not been added yet to the 65 ter
19 list, the underlying documents, if I'm not mistaken, Mr. Groome.
20 MR. GROOME: Your Honour, that's something that I would have to
21 check if it's --
22 JUDGE ORIE: Okay. Let's deal with the matter as if you are
23 seeking now them to be added to the 65 ter list and at the same time they
24 are tendered into evidence. So you include both.
25 MR. GROOME: Yes, Your Honour. With that a written filing.
1 JUDGE ORIE: Yes. Now, there is one of these documents which
2 needs specific attention which is P386, which is in these series.
3 Earlier, I have by mistake said that P386 was already admitted. Due to
4 this mistake - and I'm referring to transcript page 5310 - confusion
5 might exist, but P386 was not admitted into evidence and therefore is
6 still on our MFI list.
7 Now, I have invited the parties to reduce the size of what should
8 be admitted from this document and I think we already expressed that it
9 still would be possible to add other portions at a later stage if that
10 would become relevant. I'd like to hear from the parties whether any
11 discussion has taken place on the redaction of the size that is to leave
12 out some portions of it, and if such discussions have taken place, what
13 the result was.
14 MR. GROOME: Your Honour, there have -- discussions have not
15 taken place yet, and one of the things the Prosecution was going to
16 invite both Defence counsel to do this afternoon and possibly tomorrow is
17 to use the time that we would have spent in hearings to discuss this and
18 a number of other pending matters that are down for us to have
19 discussions about.
20 JUDGE ORIE: Then we leave out for the time being P386. But for
21 the other documents, that is P380, P382, P384, P385, and P387, are there
22 any objections against adding them to the 65 ter list to the extent it
23 has not been done, and admission into evidence? Sorry, I have excluded
25 MR. JORDASH: For Your Honours' information, they have been added
1 to the 65 ter list already.
2 JUDGE ORIE: And that was done. Let me see, could you assist me?
3 MR. JORDASH: Sorry.
4 JUDGE ORIE: With our approval?
5 MR. JORDASH: Can I just --
6 JUDGE ORIE: Yes.
7 MR. JORDASH: One moment, please.
8 MR. GROOME: Your Honour, I wonder if there's some confusion.
9 Mr. Hoffmann advises me that given the low 65 ter number, he is quite
10 certain that they've been on the 65 ter list for a number of years now.
11 JUDGE ORIE: Let's keep matters short. To the extent someone
12 believes that they are not on the 65 ter list and wants to make separate
13 submissions as to leave to add them to the 65 ter list, to the extent
14 they are not on that list yet, I'd like to hear. And otherwise, we'll
15 deal with the matter in terms of admission, which would again, unless the
16 parties would indicate otherwise, would cover any flaws or shortcomings
17 in having those documents added to the 65 ter list.
18 Therefore, now, any objections against admission P380 up to P385
19 and P387? No objections. I hear of no objections. Therefore, P380,
20 P382, P384, P385, and P387 are admitted into evidence and the Chamber
21 would like to be informed about any -- the outcome of any conversations
22 in relation to P386.
23 P395 is waiting for cameraman to be called as a witness. P396
24 was provisionally admitted but had not at that time been uploaded yet.
25 Has P396 meanwhile been uploaded?
1 MR. GROOME: Yes, it has, Your Honour. Your Honour, if I could
2 return to the last item --
3 JUDGE ORIE: Yes.
4 MR. GROOME: -- before we get too far away from it.
5 P379, which is MFI'd, is a chart summarising the witness's
6 comments with respect to the exhibits that were just introduced or
7 admitted by the Chamber, and I wonder would it not be a good time to
8 resolve that matter as well. I believe there would be no basis for not
9 admitting that at this stage.
10 JUDGE ORIE: Well, P386 is still pending.
11 MR. GROOME: But 386 would be for Prosecution and Defence to
12 discuss what parts of 386.
13 JUDGE ORIE: Yes. But wouldn't it be appropriate to wait until
14 this has been finalised and then to go back to --
15 MR. GROOME: That's equally acceptable, Your Honour.
16 JUDGE ORIE: -- P379 so that we know that any comments is
17 comments on admitted documents or portions of admitted documents.
18 MR. GROOME: Yes.
19 JUDGE ORIE: I should say admitted portions of documents, so then
20 we have covered all the underlying material and then finally P379 will be
22 MR. GROOME: Yes, I think that's a reasonable approach, Your
24 JUDGE ORIE: Thank you. Then I go back to P396, the issue at the
25 time when we provisionally admitted it was that the document had not been
1 uploaded, which would be 65 ter 5294, number of 14 documents. These are
2 all intelligence reports marked by a witness.
3 MR. GROOME: Those charts are uploaded in e-court.
4 JUDGE ORIE: Then hereby the admission into evidence is
5 confirmed. Madam Registrar, the 65 ter 5294, has it already been linked
6 to P396? If not, you are hereby instructed to do so.
7 Then I move on to the next one, P397, it is more or less the same
8 apart from that at the time this chart was not yet provisionally admitted
9 as was the previous chart. P397, has the relevant 65 ter -- the
10 corresponding 65 ter number relating to this chart listing 14 documents,
11 has that been uploaded? I do understand from Madam Registrar that it has
12 been uploaded as P5295. As far as I remember, there were no objections
13 against admission once the document would have been uploaded. Therefore,
14 P397 is admitted into evidence. I add to this that both P397 and P396
15 are admitted under seal.
16 I also do understand just to avoid whatever confusion that to
17 these charts, the underlying documents are attached. That is true both
18 for 396 and for P397 and therefore are included in the decision to admit
19 them, and when I said the underlying documents for P397, only 39 out of
20 the 40 documents are attached because one of them -- of one of them the
21 witness could not confirm the authenticity.
22 [Trial Chamber and Legal Officer confer]
23 JUDGE ORIE: I may have missed something. One was withdrawn for
24 the reasons I just gave but it was a handwritten document which was
25 added. I would like to invite the parties to look with great precision
1 to what exactly is now covered under these exhibit numbers and to -- if
2 there are any problems to report that within one week. Mr. Groome.
3 MR. GROOME: I would say that I am unable to confirm that the
4 composite exhibit is currently attached to the e-court file. I will work
5 with Mr. Laugel to see if I can remedy that, and I will notify the
6 Chamber of our efforts and so the Chamber can, if necessary, amend its
7 ruling here until we comply with that decision.
8 JUDGE ORIE: Yes, could we hear from you when -- my problem is
9 that it usually takes some time before the admitted documents have
10 been -- let me just check.
11 MR. GROOME: Your Honour, with respect to your query with respect
12 to when, if it hasn't already been done and is not readily available,
13 Mr. Laugel informs me that he will be able to complete that task by the
14 end of today.
15 JUDGE ORIE: Yes. Because the underlying documents at this
16 moment are not attached in e-court because it's a -- at least in the
17 English translation it's a four-page document listing 40 reports, but
18 they apparently are not attached to it. Let me check the same for 369.
19 That is the same situation it appears.
20 Mr. Groome, do you think that it would be before we finish today
21 that you could provide us the final confirmation that the related
22 documents are attached, or if so, otherwise I'll just leave them on the
23 MFI list because then otherwise we get all kind of problems later,
24 uncertainty about what is in evidence, what is not in evidence.
25 MR. GROOME: Your Honour, that might be best and I'll -- again
1 I'll inform the Chamber as soon as its --
2 JUDGE ORIE: Okay. So what we have now, P397 and P396, the only
3 remaining matter is they both now have been uploaded, but the attached
4 documents have not yet been uploaded and that's the one and only reason
5 why they are still on our MFI list. And as soon as we receive
6 confirmation that the related documents have been attached, then the
7 decision to admit will be taken.
8 The next item on my agenda is P426, which is a document where we
9 can read at the bottom that it was authored by Captain Dragan and
10 wherein, with the use of slightly different typing machine, typewriter,
11 or another ribbon or whatever, but that we find the name Vasiljkovic
12 added, we see a similar thing appear at the top of the document. The
13 Chamber has carefully considered the matter. The Chamber admits the P426
14 into evidence, but when giving weight and when interpreting what this
15 document exactly tells us, we'll consider all the issues that were raised
16 by the Defence.
17 Then I move on. Next items are P444 up to and including P468.
18 Lists of per diem payments made to members of the RDB, JATD, over various
19 time-periods. It was announced that these documents would be tendered as
20 bar table documents. The Prosecution was invited to do so. The Chamber
21 has not yet received the usual bar table format for those documents;
22 that, is relevance, specific attention, comments by the Defence.
23 MR. GROOME: Your Honour, I'd want to double-check this, but I
24 believe this was all done in the November application that the
25 Prosecution made with respect to the original bar table. If the Chamber
1 recalls we attempted to introduce all of these en masse in a very
2 detailed bar table motion in the fall. The Chamber expressed its
3 preference to do it in smaller amounts more directly related to
4 witnesses. I will check but my memory is that these are documents that
5 form a part of that November submission. I will be able to check that in
6 the next few minutes. I can confirm now, Your Honour, that they are.
7 JUDGE ORIE: Yes, matters sometimes seem to be more complex than
8 at first sight. I can't talk about it on the basis of my recollection
9 because that would be insufficient to deal with the matter. My staff
10 informs me that the Chamber expressed as its preference to have a real
11 bar table submission on those lists of payments that although -- that
12 there was a discussion about whether to have more of the same in the same
13 batch and then finally that the Defence positions were not present in the
14 bar table -- bar table list.
15 Now, if you say the matter has been dealt with in November, the
16 matter certainly has been revisited in May of this year. May I invite
17 you to specifically pay attention to P5078 -- T-5078 up to 5084 and then
18 it later -- it was on page, transcript page 5151, the final invitation
19 appears and that's what we are talking about.
20 MR. GROOME: Your Honour, I would ask -- I mean, this is a very
21 important issue for the Prosecution, and one that we've been a bit
22 troubled by in that we've tried a number of ways to try to get what we
23 think are very important documents into evidence. Could I ask that we be
24 given an opportunity to review all that has been said and perhaps next
25 week that we devote perhaps 20 minutes to it. Our position is that from
1 last August we presented both Defence with a very detailed explanation
2 about what we thought was the relevance and specific information about
3 the documents and then made that part of the motion. But I would ask an
4 opportunity to study the transcripts myself rather than speak from my
5 recollection, which will be faulty.
6 JUDGE ORIE: I would not even -- I don't know what is the
7 position of the Defence is in this respect. Perhaps it might be very
8 practical that one of the staff members of Chambers who is dealing with
9 this and, of course, you'll understand that the Chamber is assisted in
10 preparing, we try to verify a lot but not every single transcript page,
11 that you and perhaps with one of the team members of the Defence present
12 as well, go through all the relevant transcript pages and see where we
13 are now, what is tendered, how is it tendered, is it separately tendered
14 or not, was ever a decision taken on it so that we know exactly where we
15 are procedurally and, of course, we are not talking about substance, but
16 since we are just trying to establish where we procedurally are to do
17 that in a relatively short and informal meeting so that everyone can
18 report back to us either Defence team or for Chamber staff to Chambers
19 where we exactly are.
20 MR. GROOME: The Prosecution would certainly welcome such an
21 opportunity. Your Honour, I would make one request, however, is that
22 this is -- actually we don't -- all of the document that are in that
23 original bar table motion have not been used in court yet, but they will
24 be used with upcoming witnesses who appear on them. It might make sense
25 to look at the entire body of evidence --
1 JUDGE ORIE: No problem with that. So that the only thing we are
2 doing is trying to establish exactly what is in evidence, what is not in
3 evidence, and if it's not yet in evidence, why it is not yet in evidence,
4 whether there are any outstanding issues which were an obstacle to
5 admission so that we can get clarity in this respect.
6 MR. GROOME: Thank you, Your Honour. The Prosecution is
7 available at the convenience of the Chamber staff or the Defence staff to
8 do this.
9 JUDGE ORIE: Yes.
10 [Trial Chamber and Legal Officer confer]
11 JUDGE ORIE: From Chamber staff, Mr. Schaeffer would available to
12 meet on short notice.
13 Then I move on to my next item which is P473. P473 will be dealt
14 with in a written decision together with P179.
15 Then I move to P523 and P524, both of which were tendered on the
16 15th of June, 2010, through witness JF-048, and they are under seal. The
17 Trial Chamber considers that P523 and P524, which were until now both
18 marked for identification and are under seal, are relevant and have
19 probative value. The Trial Chamber acknowledges that the parts of these
20 documents addressing Kosovo are less relevant and have less probative
21 value. However, since these parts are not deprived of relevance and
22 hence probative value in its entirety, and since reference to Kosovo was
23 part of the evidence, the Trial Chamber sees no reason to take a separate
24 decision on admission into evidence of these specific parts. Therefore,
25 P523 and P524 are admitted under seal.
1 The next item is P535, which is a video-clip. As the parties
2 will remember, it's about the -- about certain text being expressed by
3 groups, either outdoors or in a canteen or a mess. Mr. Petrovic has
4 given some further information about the words spoken, but I think we are
5 still waiting for translation and one of the obstacles to translation may
6 be the audibility of the text. Do we have any idea as to when we could
7 expect any further information from CLSS in this respect?
8 MR. GROOME: I believe it was for us to submit.
9 JUDGE ORIE: Yes.
10 MR. GROOME: It has been submitted to CLSS. I can query them
11 about when they might expect it might be ready. The Prosecution is
12 interested in knowing, it's unclear whether the Simatovic Defence still
13 maintains that it's a voice-over, that it's not the people actually
14 speaking, or whether they've -- now that they've had a chance to
15 carefully examine, whether they accept that the words spoken are the
16 words of the people on the video.
17 JUDGE ORIE: Mr. Petrovic.
18 MR. PETROVIC: [Interpretation] Your Honour, we attempted to
19 review it and as we all recall, there seem to be two groups allegedly
20 stating the text. First of all, I'd like to say the following: When one
21 listens to it in good conditions one can make out the words. The audio
22 part of that footage. They can be transcribed and translated. However,
23 the problem arises, at least in our understanding, with whether what we
24 can hear on the audio track is actually what is pronounced by the people
25 appearing on the footage at the very moment. There are two groups, it
1 seems to me - I stress it seems to me - that the first group that is
2 outdoors, that those people seem to be opening their mouths exactly
3 matching the text. However, this does not apply to the second group.
4 I'm not sure whether their facial expressions and movements correspond to
5 the words we can hear. In case of the first group this seems to be so
6 and in the case of the second group, I am unsure of that. Thank you,
7 Your Honour.
8 JUDGE ORIE: Yes. Now, for our understanding, Mr. Petrovic, do
9 you say be very cautious in attaching weight and interpreting the,
10 especially the second part where people in this canteen or mess are shown
11 simultaneously with an audio stating a text that it may well be that
12 these are not the persons who are speaking these words, or is it -- then
13 it would go to weight and admission -- weight and interpretation of the
14 evidence, or do you -- is it your argument that it should not be admitted
15 for that reason?
16 MR. PETROVIC: [Interpretation] Your Honour, this does not seem to
17 me to be the reason not to be admitted. I only wanted to express my
18 doubts as to the issue of weight that should be attached to it. I don't
19 think the conditions for admission were not met, however, I do believe
20 that there is an issue of weight and interpretation because although I'm
21 no expert, but it doesn't seem to me that the people open their mouths
22 the way we can hear on the audio track. And you, of course, will attach
23 appropriate weight to it as you deem appropriate.
24 JUDGE ORIE: Certainly a number of them facing the camera with
25 their backs which makes it at least a bit difficult to find out whether
1 they opened their mouth or not, because we needed a second camera in that
2 respect. Football matches are better recorded than these type of
3 meetings. Seven cameras. Mr. Petrovic, you apparently formed an opinion
4 about the words spoken and you say it in good conditions we were able to
5 hear what was said and consider it possible to transcribe those text.
6 Would you --
7 MR. PETROVIC: [Interpretation] Absolutely, Your Honour.
8 JUDGE ORIE: Would you assist CLSS if others would have problems
9 then to say this is what I hear, and I can imagine that a common effort
10 might lead to an agreement on the words -- the words that could be heard
11 on the audio, whether spoken by the persons shown or not. Would you be
12 willing to --
13 MR. PETROVIC: [Interpretation] Of course, Your Honour.
14 JUDGE ORIE: Mr. Groome.
15 MR. GROOME: Your Honour, just in resolving the issue of who is
16 speaking and if it's the people that are depicted on the video. I'm not
17 sure there's forensic expertise that would resolve that, but it seems to
18 me if the Defence did not oppose and the Chamber accepted the Prosecution
19 could take a short statement from the maker of the film and ask him how
20 it was he produced this particular clip, and if it would be admitted
21 under 92 bis, the Chamber would have some additional information that
22 would help it in deciding what weight if any should be placed on the
24 JUDGE ORIE: Yes, if you want to, and -- if you don't have it, we
25 have to do with the evidence as its there. If you want to add anything.
1 Of course, apart whether there is any forensic expertise, of course we
2 have some evidence that links those words spoken to meals, for example,
3 that's not to say that this is the final evidence that those who are
4 seated at tables and apparently having their meals did speak those words,
5 but as I said before, evidence will be interpreted in its -- in the
6 context of the entire evidence.
7 MR. PETROVIC: [Interpretation] Your Honour, by your leave I'd
8 like to add another sentence. It seems to me that my learn friend
9 Mr. Groome's idea is a constructive one, although I believe it is
10 important to see what the person editing the footage might want to say as
11 well as the person recording it. I'm not sure whether Mr. Groome had in
12 mind the person recording the film in the mess or the one editing it. I
13 think both would be useful, given that this footage will be an issue of
14 further discussion, not only in relation to this segment, but we will
15 also have additional questions in different stages of our case.
16 Actually, this should be the beginning of the process of shedding more
17 light on who recorded what and who edited what part and in that sense it
18 might come in handy.
19 JUDGE ORIE: Yes. As a -- Mr. Jordash.
20 MR. JORDASH: Your Honour, I would only add that in our view that
21 should be done and in our view admissibility should be decided at that
22 point. If what comes back from that investigation suggests that it is a
23 voice-over and it's a voice-over purely for, shall we say artistic
24 reasons, for impact, Your Honours may take the view that it should be --
25 it isn't admissible.
1 JUDGE ORIE: Yes. Whether we subscribe to that is another
2 matter, but both parties, both Defence teams are thinking, Mr. Groome,
3 that it would assist the Chamber in reaching a decision on admissibility
4 if that information would be known. Now, it comes as a bit of a surprise
5 because part of the video there seems to be no problem. It would only
6 cover the second part of the video. And when Mr. Petrovic suggests that
7 we should both hear the one who recorded it and the editor, I think the
8 first and most important person would be the person who recorded it,
9 because if he says what you see on your screen and what you hear is
10 exactly what I heard and saw when I made the recording, then to go into
11 further details as to what was edited on this video or not seems not to
12 be very important. So the Chamber leaves it in the hands of the
13 Prosecution, but certainly understands the submissions by the Defence
14 teams as encouragement, encouragement which are quite understandable for
15 the Chamber.
16 MR. GROOME: Yes, Your Honour. Just a couple of points. I had a
17 detailed conversation with the maker of this film, Philip Svarm about how
18 he produced the film. His people did not record the original footage or
19 most of it. He did record some interviews, so some of the interviews the
20 Chamber saw with respect to General Milovanovic, for example. He was the
21 videographer. But with respect to the archival footage, that was footage
22 that his investigation and his efforts was able to obtain, and it was
23 recorded by unknown people to him, but they were obtained from people who
24 had some connection with the units that are depicted there. So I don't
25 believe I'll be able to produce the people that recorded those two
1 excerpts in question, but I can produce Mr. Svarm. Could I at this point
2 solicit both the Defence and the Chamber's view on their position with
3 respect to inviting Mr. Svarm to come as a witness and to answer any
4 questions that the Chamber or Defence may have with respect to his
6 JUDGE ORIE: Well, much depends on what exactly his role was,
7 what techniques were used. For example, sometimes techniques are used
8 where video and audio are an almost inseparable thing together, and where
9 you start cutting and editing that you always cut and edit both the video
10 and the audio at the same time; whereas, sometimes these are separate
11 tracts where you could separate the audio from the video. So there's --
12 it depends a lot on, of course, we -- if full information by the parties
13 would lead to an agreement on whether there's a possibility that the
14 words spoken, especially then in the canteen, would have been taken from
15 somewhere else and then pasted to that video, if you could agree on
16 whether that is a possibility or has not happened, then to inform the
17 Chamber about that. Because if finally the matter would have to be
18 settled in this courtroom -- I'm not saying that I would not be delighted
19 to ask all the technical questions, but if there's no need to do that, we
20 should avoid spending time in court on it.
21 So therefore, what first should be done is that you fully
22 disclose all the information you have about recording, editing of this
23 video, and see whether this leads to a common interpretation of what we
24 see. If not, then of course, you could consider if it is -- if you find
25 it important enough to also have the canteen or the mess part in evidence
1 apart from the other part, or whether you can live with some uncertainty
2 and put it in the hands of the Chamber to decide whether or not it will
3 accept that portion of the video as depicting persons who are speaking at
4 the same time the text. It's finally up to you, Mr. Groome, to make
5 those assessments, but I do understand that the Defence teams would be
6 willing to participate in a further exploration of the matter that is
7 telling you what in their view should be known in order to come to
8 certain conclusions.
9 MR. PETROVIC: [Interpretation] That's right, Your Honour, but
10 only there is a risk for us to stray a bit from the main topic that you
11 have raised, which is very important for this video. One of the key
12 problems that arises there is what was used in editing this material,
13 what we are discussing here, there are two segments that each lasts 5, 6,
14 or 7 seconds. The person who shot this film probably compiled this using
15 a larger volume of the material. This larger volume of material can
16 provide a better key information and context and in view of the
17 importance attached to it by our learned friends from the Prosecution, it
18 is so important now to deal with this in great detail. We need this
19 person to tell us what material he used when he was editing, which
20 original tapes he used, how he had obtained them, and I think that would
21 be a critical topic that we need to address as soon as possible. Thank
22 you, Your Honours.
23 JUDGE ORIE: First and foremost it is important for you as
24 parties to obtain that information and then to see how to procedurally
25 proceed with that information. Also, whether you would like to call the
1 editor if it ever comes to that to Defence case or whether -- I mean,
2 there's of course, some margin of appreciation for each party, although
3 it's always good that Prosecution listens well to the Defence and that
4 the Defence listens well to what the Prosecution can tell us.
5 I suggest that we -- what we have left is the D part of the MFI
6 list and I take it that we need another half an hour for that after the
7 break. We'll have a break and we resume at five minutes past 12.00.
8 --- Recess taken at 11.36 a.m.
9 --- On resuming at 12.12 p.m.
10 JUDGE ORIE: Mr. Hoffmann, I was informed that you could address
11 the Chamber in relation to the P355, that is the discrepancy between the
12 words appearing underneath the video and the picture of the video, and
13 what was translated to us in court.
14 MR. HOFFMANN: Yes, Your Honour. It seems that there had been a
15 misinterpretation or misrecording at the time in court, that is on
16 LiveNote on the transcript that has been in the meantime corrected, at
17 least in most part. It reads now at transcript T-4239, there is now the
18 reference to the special units of the Republic of Serbian Krajina
19 brackets it says "realtime transcript read in error 2nd Krajina Corps."
20 I've checked the transcripts, we uploaded both in B/C/S and English, do
21 refer to the RSK MUP units. The subtitles in the video-clip we played
22 and provided refers to the RSK special units.
23 The one thing which I have to follow up with CLSS is that the
24 current transcript on the record still misses the word "MUP," but the
25 main issue 2nd Krajina Corps versus the RSK units that has been already
1 solved on the record.
2 JUDGE ORIE: Yes, so therefore the discrepancy doesn't require or
3 relieve you of the video material, that's I think, important that MUP
4 still to be -- "MUP" is still missing, is that -- that's a translation
5 issue you'll --
6 MR. HOFFMANN: It's not a translation issue, it's simply missing
7 on the record of that testimony on that day. I just reviewed the video
8 again, it's very clear in the question of the journalist that he does
9 refer to the RSK MUP, just the word "MUP" is missing in the transcript in
10 LiveNote. That's all. It's in the transcript -- in the translations and
11 transcript that we uploaded for P355, it is included. In the subtitle
12 it's included. The only issue where it's missing is the LiveNote
13 transcript of that day.
14 JUDGE ORIE: Yes. Now, either we live with this small
15 imperfection which has then been put on the record by this discussion or
16 does any of the parties insist on having the transcript being reviewed
17 any further? Parties are satisfied with Mr. Hoffmann's explanation.
18 Then I think it would be wise to leave it to that. If it would be a
19 vital issue in the case, then of course, it would be different, but it
20 seems to be a really marginal matter.
21 [Trial Chamber and Legal Officer confer]
22 JUDGE ORIE: Yes, as far as whether or not the Defence had
23 communicated to the Chamber staff it's position in relation to P166, I do
24 understand that there has been a open and fruitful decision which doesn't
25 need any further reflection on the transcript.
1 Then I'd like to move to the remaining items on the MFI list, and
2 we start now with the Defence exhibits. We start with D3. On the 19th
3 of February the Trial Chamber asked the parties to sit together and to
4 see whether the admission of portions of the Milosevic transcript could
5 remedy the objections that were raised. On the 25th of May, the
6 Prosecution reported that it had sent a proposal to the Simatovic
7 Defence, and the Chamber then gave Simatovic Defence five days to report
8 back. Have we heard anything since then from the Simatovic Defence?
9 MR. PETROVIC: [Interpretation] Your Honours, after a day or two,
10 we notified the Prosecutor about our position regarding D3, with respect
11 to both the transcript and the exhibit itself.
12 JUDGE ORIE: Okay. And then what is now the position?
13 MR. GROOME: Your Honour, our position remains that the event
14 with respect to the witness speaking with this other person, the most
15 reliable evidence is his sworn testimony in the Milosevic case, and it's
16 our position that the prior statement that was tendered by the Defence is
17 unreliable on its face and also in light of the sworn testimony provided
18 by that witness about the matter in the Milosevic case.
19 JUDGE ORIE: And that would -- the Chamber then, if it would not
20 be in evidence, would miss an opportunity to interpret both the Milosevic
21 evidence and this evidence in the context of all kind of other evidence
22 we still may receive. So therefore the question is then, is it a reason
23 to -- you say it's unreliable --
24 MR. GROOME: Perhaps Your Honour is right, it's a matter of
25 argument and how the Chamber is to interpret --
1 JUDGE ORIE: Yes, because we started, I think, as a matter of
2 fact, with the authenticity issue, isn't it?
3 MR. GROOME: Yes, Your Honour.
4 JUDGE ORIE: Now, does the objection to admission stand or not?
5 MR. GROOME: Your Honour, the -- qualified -- if the Chamber is
6 minded to admit both contradictory pieces of evidence on this, the
7 testimony as well, then the Prosecution would withdraw its objection to
8 the admission of the initial document.
9 JUDGE ORIE: Yes. Now, isn't it true that the Milosevic
10 transcript wasn't admitted into evidence, isn't it? Or have we -- and
11 then we still have to -- we'll consider the matter. We take notice that
12 you -- the Prosecution says if the Milosevic evidence is admitted, then
13 you don't object to this, I would say, contradictory evidence in order
14 for us to evaluate what to believe and what not to believe.
15 MR. GROOME: That's a fair characterisation of our position, Your
17 JUDGE ORIE: Yes. One second.
18 [Trial Chamber and Legal Officer confer]
19 JUDGE ORIE: Yes, I was -- I'm now -- Mr. Petrovic, you gave your
20 position to the Office of the Prosecution. Was there finally an
21 agreement on what portions of the Milosevic testimony should then be
22 selected for admission so that we have the full picture, is that --
23 MR. PETROVIC: [Interpretation] Yes, Your Honour. Precisely the
24 portion mentioned in his letter by Mr. Groome. That particular portion
25 from the Milosevic transcript is acceptable to us. I don't have the page
1 number in front of me, but we can easily establish that. So that, and D3
2 constitutes the solution to the whole problem that we are facing.
3 JUDGE ORIE: Yes. Although has the Chamber been informed about
4 what exact portion then, I think we don't have a letter identifying the
5 relevant portion. So what we need to know is at this moment what portion
6 of the Milosevic the parties agreed that could be admitted, and then
7 admit that together with D3.
8 MR. GROOME: Your Honour, I've just retrieved the e-mail, and if
9 you give me a few moments we can return to this. In a few moments I
10 should have that transcript page reference.
11 JUDGE ORIE: Yes, but has it been uploaded? I mean --
12 MR. GROOME: I don't believe it has, Your Honour, because I don't
13 even have a record of Mr. Petrovic's response, but I take him at his word
14 that he has responded.
15 JUDGE ORIE: May I suggest the following: You make a joint
16 filing in which you set out that you have agreed on admissibility of
17 Milosevic transcript so and so and so and that under those circumstances
18 that any objections against the three do not any longer stand, and on our
19 next housekeeping session we'll admit both into evidence. Meanwhile, you
20 take care that it -- the relevant portions are uploaded, Milosevic D3 is
22 MR. GROOME: Yes, Your Honour.
23 MR. PETROVIC: [Interpretation] It's all right with us, Your
25 JUDGE ORIE: Then we'll resolve that. D13, there was a issue in
1 relation to the year of birth of the person that appears in the document.
2 The Chamber has further looked into the matter and has compared, for
3 example, the name of the father, previous occupation of that person, and
4 at this moment, the slight inconsistency does not bring the probative
5 value of this document below the required standards. And, therefore,
6 there seems to be no obstacle to admission any longer. We do understand
7 that D13 is now uploaded in its entirety, the missing page being added.
8 Therefore, D13 is admitted into evidence.
9 MR. JORDASH: Your Honour.
10 JUDGE ORIE: Yes, Mr. Jordash.
11 MR. JORDASH: For Your Honours' information, that's been uploaded
12 at -- the official translation has been uploaded at 5931 to 5932.
13 [Trial Chamber and Legal Officer confer]
14 JUDGE ORIE: If the translation differs from the previous one,
15 Madam Registrar is instructed to replace the new translation -- to
16 replace the old translation by the new one referred to by Mr. Jordash.
17 For the next item we have to move into private session.
18 [Private session]
23 [Open session]
24 THE REGISTRAR: We are in open session, Your Honours.
25 JUDGE ORIE: I now move to D30, which was a document which was
1 not at the time yet uploaded. I do understand that the document has now
2 been uploaded. It was known under 65 ter number 1D186. Since there were
3 no objections against admission, this 1D186 now uploaded can be linked
4 with D30 and D30 is admitted into evidence.
5 We'll not deal at this moment with D40. I move to D55. D55,
6 organisational principles for setting up an internal affairs service.
7 One of the issues was whether the original version of that document could
8 be found. Has it been found? Because it was a document which was
9 provided by Mr. Stanisic and ended up in the electronic systems in that
10 way from what I remember.
11 MR. JORDASH: Apologies, but we haven't advanced the matter as
12 yet. I hope to travel to Belgrade
13 assist Your Honours with some more information.
14 JUDGE ORIE: Yes. What about before the recess?
15 MR. JORDASH: Yes, before the recess.
16 JUDGE ORIE: And then you would include D56 as well, I take it,
17 which has a similar story. Now, it seems that D56, that nothing at all
18 has been uploaded, so there we are still talking about a vacuum. So what
19 is there apart from your search for a more original version, could you at
20 least upload into the system what we have at this moment.
21 MR. JORDASH: I think, Your Honour, that D56 has been uploaded
22 and it's at 1D251.
23 JUDGE ORIE: 1D251.
24 MR. JORDASH: Yes, Your Honour.
25 JUDGE ORIE: And that seems, I'm informed, that this is related
1 to, I can check that, to D58.
2 MR. JORDASH: No, I don't think that's right, Your Honour. I
3 think that exhibit concerned the Simatovic team who were going to provide
4 a translation.
5 [Trial Chamber and Legal Officer confer]
6 JUDGE ORIE: Some mistakes were made at our side as well. As far
7 as D55 and D56 is concerned, the search continues, and you check what is
8 uploaded and what is not uploaded. Don't have to pay attention to it
9 now. Then we move to D58 which is the Simatovic, that is 2D62, I take
10 it. Has that been uploaded and has a translation been uploaded?
11 MR. BAKRAC: [Interpretation] Your Honour, I think we do have a
12 translation, and we are now in touch with our associates. Yes, it's all
13 been uploaded and the translation of D58 has been received. It is 2D192
14 and not 2D62, Your Honour.
15 [Trial Chamber and Legal Officer confer]
16 JUDGE ORIE: Yes. D58 is not yet admitted into evidence because
17 there seems to be great confusion about what document we are actually
18 talking about. This will be sorted out out of court until the parties
19 agree what was at the time uploaded, what was at the time discussed which
20 was at that moment described as one of the patriotic war documents of the
21 Republic of Croatia
22 is not a very precise description. The parties should sit together and
23 to see what was discussed at that time in court, what was tendered,
24 whether that is -- which at the time was 2D62.
25 [Trial Chamber and Registrar confer]
1 JUDGE ORIE: Yes.
2 MR. BAKRAC: [Interpretation] Your Honour, by your leave perhaps
3 I may be of assistance. There was an error in translation. It was
4 marked as 2D62 instead of 2D122, perhaps this may help resolve the
6 JUDGE ORIE: Yes. The problem was that at the time you had
7 tendered it, that although the number D58 was reserved for that document,
8 and there apparently were no -- we only had hard copies. So we have to
9 verify first whether the hard copy that you distributed in court and
10 which was assigned number D58, whether that is the same document as the
11 document which is now uploaded as 2D122. Madam Registrar will do this
12 verification out of court and will report back to the Chamber. It may be
13 clear that the document which was discussed at the time and distributed
14 in hard copy is the only document that could now under D58 be admitted
15 into evidence under whatever 65 ter number it is uploaded but it should
16 be the same document, nothing else. And we leave that until
17 Madam Registrar has verified that.
18 For D60, D61, D62, D63, D64, D65, and D66, which are all
19 documents dating from 2006 to 2008, the parties would be given an
20 opportunity to make further submissions as to relevance. That's the
21 issue in relation to all these documents, Mr. Groome.
22 MR. GROOME: Your Honour, exhibits D60 to D66 marked for
23 identification contain internet articles and medical records related to
24 the witness Dejan Sliskovic. Mr. Sliskovic and at least 20 other
25 employees of the Petrokemija factory were engaged in the chemical
1 processing of mercury during their employment. As a result of their
2 duties, the employees sustained mercury poisoning. The Prosecution was
3 given the English translations of these documents which include expert
4 materials at the start of court on the 19th of May. This was not an
5 adequate opportunities for materials of an expert and technical nature to
6 be reviewed; however, based on the cursory review that the Prosecution
7 was able to do, we did not see any record of any permanent defect or
8 disability which would have been relevant to the Trial Chamber's
9 assessment of Mr. Sliskovic's reliability as a witness. The Prosecution
10 sought to be heard on its objection and maintained that the entire line
11 of questioning and these exhibits should not be allowed at transcript
12 page 5232.
13 The Chamber indicated that the parties would have an opportunity
14 to further address the relevance, and so I would it now. As a general
15 matter, it's the Prosecution's position that private medical information
16 of witnesses should not be needlessly thrust into the public domain
17 simply because they are called as a witness. Even if the witness is
18 willing to discuss this information, as Mr. Sliskovic was, this
19 willingness does not equate to the medical information being relevant to
20 this case. Furthermore, this type of medical evidence has little
21 probative value without proper context and expert testimony.
22 With respect to the examination concerning exhibits D60 to D66,
23 the Prosecution notes that some of the questions put to the witness in
24 relation to these documents had little or nothing to do with the
25 substance of the exhibits themselves. As an example, the first document
1 displayed and publicly broadcast was Exhibit D60 on which is a 9th of
2 June, 2008
3 and Sterility," all purporting to be conditions suffered by the witness.
4 On page 5233, the Simatovic Defence begins its entire line of
5 examination by confirming that the photograph of the witness -- the
6 photograph of the witness depicted on the first page under the title of
7 the article. The initial reports appear to indicate that the witness did
8 suffer from temporary and treatable anxiety and depression as a result of
9 the mercury poisoning in 2006. This temporary condition and treatment
10 was portrayed out of context during examination. As an example, the
11 witness had a severe reaction to his initial medication which was changed
12 to a much less powerful and common over-the-counter drug. The Defence
13 asked about the witness finding himself at different locations on pages
14 5239 and 5240, but did not elicit evidence that this was caused by this
15 medication. The witness also contested the journalist account of the
16 medical reports without the referenced reports being tendered. There
17 does not appear to be any indication that any of these psychological
18 effects of the mercury poisoning or treatment were permanent.
19 Accordingly, none of the --
20 JUDGE ORIE: [Overlapping speakers]
21 MR. GROOME: My apology to the French booth.
22 Accordingly, none of this evidence appears relevant to the
23 Chamber's assessment of Mr. Sliskovic's reliability as a witness.
24 The Prosecution believes that the confidential medical documents
25 from a court file and internet articles containing characterisations of
1 medical treatment by lay journalists are needlessly discussed in court.
2 The Prosecution submits that it would only be proper at this stage for
3 the Simatovic Defence to articulate what it was the specific reason and
4 the relevance with respect to the value of these exhibits.
5 JUDGE ORIE: Mr. Bakrac.
6 MR. BAKRAC: [Interpretation] Your Honour, I apologise. We did
7 not have the agenda for today. I see that Mr. Groome had already
8 prepared himself to speak on this topic. I can only speak from my memory
9 based on what I can recall about my cross-examination and based on our
10 general position.
11 JUDGE ORIE: Mr. Bakrac, in the response, Mr. Groome asked for
12 the Simatovic Defence to articulate what was the specific reason and the
13 relevance with respect to the value of these exhibits. Your answer
14 starts more or less by saying, well, we may not be fully prepared,
15 Mr. Groome was. Well, of course, he has the agenda as you had it, that
16 is to go through the MFI list, and whatever is on the MFI list is
17 therefore on our agenda. So at the same time I don't want to force you
18 now into the matter, I suggest that you prepare --
19 MR. BAKRAC: [Interpretation] Your Honour, I can certainly speak
20 on that and should there be any further necessary comments, I can ask for
21 your leave to put it in written form. The witness was brought here who
22 was supposed to testify of certain events which took place 20 years ago.
23 In the meantime, he fell ill and we showed the medical certificates to
24 you. He did not contest that. Inter alia, we concluded that he had an
25 obsessive disorder, such was the finding of the treating physician. I
1 cannot be any more precise than that. And the witness confirmed himself
2 that he frequently simply tried to reach a certain location and find
3 himself three hours later at another location without any memory of how
4 he got there.
5 JUDGE ORIE: Mr. Bakrac, Mr. Groome and you are talking about two
6 different matters. You are arguing what your conclusions are and what
7 your interpretation of all that is, whereas Mr. Groome challenges the
8 admissibility of the evidence on a bit more technical grounds.
9 The main issue being to what extent what was established at that
10 moment in various sources from journalistic to court reports whether that
11 needs further expert interpretation or needs further elaboration, that's
12 one. And the second, and that seems to be the more important one, is to
13 what extent what was established at the time, and let's just assume that
14 you give the Court always the detailed information and not the
15 information which is, well, a bit coloured perhaps in favour of the case
16 you are bringing before that Court, but to what extent that information
17 would still be valid at this moment. How long does such an intoxication
18 have effect, you need expert evidence for that. That's what Mr. Groome
19 is saying.
20 So apparently you are talking at least for -- well, let's say for
21 60 per cent about different problems, and the Chamber is assisted by two
22 parties discussing the same problem and not different problems. I
23 suggest, and perhaps we could then, Mr. Groome, would it be an excessive
24 burden for you to put what you already prepared in a short written
1 MR. GROOME: No, Your Honour.
2 JUDGE ORIE: And then you could respond in also a short written
3 submission. We don't need all details and a lot of background, just
4 enough to identify what we are talking about. Then --
5 MR. BAKRAC: [Interpretation] Thank you.
6 JUDGE ORIE: The next one on my list is D68. You had not seen
7 that document because it was disclosed to you only minutes before it was
8 tendered, Mr. Groome. Has the Prosecution formed its opinion about it?
9 You are supposed to have given your opinion on the 27th of May. My
10 report says that you didn't do that, perhaps there was no time, I don't
11 know, but what is your position as far as admission of D68 is concerned?
12 Any objections?
13 MR. GROOME: Your Honour, could I have just a few minutes. I
14 apologise for being caught off-guard with that particular exhibit. See
15 if I can get information as soon as possible.
16 JUDGE ORIE: Yes. Meanwhile, I move on to D69. D69 is a
17 document where we had no translation when it was given to witness JF-035
18 to read parts of it. It was then asked whether what was stated in the
19 document, whether that was consistent with his knowledge. First of all,
20 do we have a translation by now?
21 MR. PETROVIC: [Interpretation] Your Honour, yes. Excuse me, we
22 asked for a translation but it is still pending.
23 JUDGE ORIE: Okay. Once that translation is there, of course the
24 OTP should have been opportunity and same for Stanisic Defence to look at
25 the document and apart from that, then also to see whether the whole of
1 the document should be admitted or just the portions read or whether they
2 would have any suggestions for further portions to be admitted into
3 evidence. We'll wait until the translation is there and then further
4 discuss admission.
5 Mr. Groome.
6 MR. GROOME: Your Honour, with respect to D68, the Prosecution
7 has no objections.
8 JUDGE ORIE: D68 is admitted into evidence.
9 Now, we are at D70. There the question was whether the original
10 version of that document was found because there was an authenticity
11 issue. D70 is an order, one of the problem was the dates on it, there's
12 a stamp on that document with the date of 11th of July, 1992, although
13 the document dates 1995. That's the reason why the Chamber would very
14 much like to learn more about the original version of this document and
15 where it comes from and how it was obtained, because that's an
16 inconsistency which is not easy to overcome. Could the Simatovic Defence
17 inform us any further about these inconsistent dates on the document and
18 provenance of the document?
19 [Trial Chamber and Legal Officer confer]
20 JUDGE ORIE: Now, perhaps to -- it was tendered by the Simatovic
21 Defence and they apparently took it from the documents that came from the
22 Prosecution, but the Prosecution says the origin was Mr. Stanisic, so
23 therefore whether it's you, Mr. Bakrac and Mr. Petrovic, or whether it's
24 you, Mr. Jordash, who could help us out to find a solution for a clear
25 intrinsic contradiction in this document. You are nodding.
1 MR. PETROVIC: [Interpretation] Your Honour, we will of course do
2 our utmost to try and ascertain the issue in question. With all due
3 respect, however, this document does not appear to me to be one of the
4 documents that have to do anything with Mr. Stanisic. I stand to be
5 corrected, though.
6 JUDGE ORIE: The only thing -- I'm not saying -- I do understand
7 that the origin as recorded by the Prosecution was that it initially came
8 from Mr. Stanisic.
9 MR. GROOME: That's correct, Your Honour. During an interview.
10 JUDGE ORIE: So therefore whether it has to deal with him or not
11 or whether it was a private collection or whether he had found it
12 somewhere, I've got no idea, but that's apparently how it came into the
13 disclosure system in this court. And with this rather obvious
14 inconsistency within the document, we'd like to know more about where it
15 comes from and if possible, to be provided with an original version.
16 MR. JORDASH: Could we have a little more time to look into that.
17 We've --
18 JUDGE ORIE: Yes. Well, first of all, it's not your duty to do
19 that because -- but of course, it's appreciated that you want to assist
20 the Simatovic Defence in this because they are tendering it. Prosecution
21 says don't ask us any further because it comes from Mr. Stanisic, and you
22 therefore may be the key player to resolve the matter, Mr. Jordash.
23 Please inform the Chamber as soon as you have any news about that.
24 D75 is the last one on my list. There was no objection but there
25 was no translation yet of this registration form used for displaced
2 [Trial Chamber and Legal Officer confer]
3 JUDGE ORIE: Yes. Perhaps I should have said and there is no
4 official translation yet, there is kind of a draft translation.
5 MR. JORDASH: Your Honour, we have e submitted the document for
6 translation and we await.
7 JUDGE ORIE: Okay. Then we'll wait until that's ... That
8 concludes what was on my agenda. Any other matter? Mr. Hoffmann.
9 MR. HOFFMANN: I would just briefly like to come back to Exhibit
10 D58. I think I can actually facilitate the solution of that issue.
11 JUDGE ORIE: Yes.
12 MR. HOFFMANN: It was used by the Defence on 13 May this year, it
13 was witness JF-038. And it can be found at transcript 4965. I think the
14 Defence already indicated that at the time the wrong 65 ter number was
15 used. On that page we can find the reference to 65 ter 2D62, while in
16 fact it should be 2D122. For the latter 65 ter number, a translation is
17 it now available in e-court. I reviewed that. I think the Prosecution
18 has no objection to the admission of that particular document. Any other
19 matters we had with that document is something that goes to the weight.
20 JUDGE ORIE: And was that the document that was produced in hard
21 copy in court?
22 MR. HOFFMANN: Yes, that's the hard copy that I think three pages
23 from a book that was presented in hard copy. I can verify that what I've
24 seen in ringtail here is what was used during cross-examination. But
25 again it's 2D --
1 JUDGE ORIE: What you say is -- what you say is the following:
2 You say 2D122 is the uploaded document which is the same as the hard copy
3 that was shown in court and which was assigned D58.
4 MR. HOFFMANN: Yes. I think that was what the Defence said and I
5 can verify that. And having seen the translation in e-court as well just
6 now, I can say that the Prosecution has no objection to the admission of
7 this document.
8 JUDGE ORIE: Yes. Mr. Petrovic.
9 MR. PETROVIC: [Interpretation] Your Honour, I think that my
10 learned friend Mr. Hoffmann is right. It is the document. I used the
11 document myself and I said -- I gave the number in B/C/S and it was
12 correct, but it was transcribed wrongly and hence the confusion. It is a
13 document that Mr. Hoffmann just referred to and the document that was
14 distributed to everyone in hard copy.
15 JUDGE ORIE: Yes. Now, D58 is admitted into evidence and D58 is
16 the document which was distributed in court. I think it was on the 25th
17 of May, if I'm not mistaken.
18 MR. HOFFMANN: If I may, it was 13 May.
19 JUDGE ORIE: 13th of May.
20 MR. HOFFMANN: JF-038.
21 JUDGE ORIE: Yes. So therefore, D58 is the document which was
22 shown on the 13th of May in court, and is uploaded now under 2D122. It
23 is admitted into evidence and Madam Registrar is instructed to verify the
24 accuracy of the statement that 2D122 corresponds with the hard copy which
25 was on the 13th of May distributed in court. If this verification would
1 lead to anything else than a positive result, we'll further discuss the
3 Then finally, there's one other matter which I'd not like to deal
4 with at this moment, but the P540 up to P547, there may be -- they have
5 been admitted into evidence already, there may be some uncertainty about
6 what 65 ter numbers they correspond to. Madam Registrar, would you
7 please -- I invite you to make that in a short -- to set that out in a
8 short table, submit it to the parties so that they can verify. Perhaps
9 you already briefly need P540 would be?
10 THE REGISTRAR: 65 ter 5001.
11 JUDGE ORIE: P541 would be.
12 THE REGISTRAR: 65 ter 5002.
13 JUDGE ORIE: P542.
14 THE REGISTRAR: 5003.
15 JUDGE ORIE: P543.
16 THE REGISTRAR: 5005.
17 JUDGE ORIE: P544.
18 THE REGISTRAR: 5008.
19 JUDGE ORIE: P545.
20 THE REGISTRAR: 5117.
21 JUDGE ORIE: P546.
22 THE REGISTRAR: 5118.
23 JUDGE ORIE: P547.
24 THE REGISTRAR: 5119.
25 JUDGE ORIE: Thank you, Madam Registrar.
1 The Chamber meanwhile received the forms absent from court which
2 says due to illness, although the explanation says that it's not due to
3 illness, both accused have stated that it's not due to illness but
4 there's no necessity to go to court, and we have this put on paper and we
5 have received it. Any other matter?
6 Then we will adjourn, and as matters stand now we will resume on
7 the Monday, the 28th of June, quarter past 2.00 in the afternoon in this
8 same Courtroom II.
9 --- Whereupon the hearing adjourned at 1.08 p.m.
10 to be reconvened on Monday, the day of 28th day
11 of June, 2010, at 2.15 p.m.