Tribunal Criminal Tribunal for the Former Yugoslavia

Page 19330

 1                           Tuesday, 21 February 2012

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.05 a.m.

 5             JUDGE FLUEGGE:  Good morning to everybody in the courtroom.  We

 6     have assembled today only for the purpose of dealing with some

 7     housekeeping matters with documents and some other matters, but I hope we

 8     will manage to get through all those matters and find a solution.

 9             Before we start with the MFI list, I would like to raise some

10     other matters.  The Prosecution has indicated that they are in a position

11     to offer an intercept booklet for Chambers and Defence which is an

12     outline of the intercepts admitted in the case.  The booklet contains an

13     index of all intercepts admitted in the case, along with a DVD containing

14     the intercepts.  If we understood the position of the OTP correctly, it

15     is not their intention to offer the booklet into evidence; rather, it is

16     intended as an aid to assist the Court and Defence in reviewing the

17     evidence.

18             Would the Defence agree with this proposal, to receive such an

19     index and overview of all the intercepts admitted into evidence?

20     Mr. Tolimir.

21             THE ACCUSED: [Interpretation] Thank you, Mr. President.  May

22     there be peace, God's peace, in this house, and may this day in court end

23     as God may wish it and not I, as it may best comfort our souls.

24             The Defence is not opposed to anything, though we may have our

25     own position with regard to intercepts as evidence before the Tribunal.

Page 19331

 1     We do not consider them as evidence and we don't think it is considered

 2     evidence anywhere else in any other court of law.  So we don't oppose the

 3     Prosecution to using this booklet.

 4             JUDGE FLUEGGE:  Thank you.

 5             Mr. McCloskey, in which way would you provide this index to the

 6     Defence and the Chamber?  As hard copy or in which way?

 7             MR. McCLOSKEY:  Yes, we have hard copy of the index, and I

 8     believe there's CDs attached to it that actually have the intercepts so

 9     that if going through the index we've tried to make it easy to be able to

10     go to the intercept itself.  Just a slight correction, this doesn't have

11     absolutely all intercepts that are in evidence.  As you know, intercepts

12     came in in various forms and sometimes booklets came incomplete, but

13     these were all the intercepts that we felt were significant.  It's

14     certainly most of the intercepts.  And as you've helped us point out in

15     the MFI list, there is at least one intercept operator whose intercepts,

16     for various reasons, Witness PW-31 did not -- well, came into evidence

17     and then came out of evidence.  So aside from that glitch, which I hope

18     to be able to sort out today, all the intercepts are in evidence.

19             JUDGE FLUEGGE:  You are not tendering this list.  It is only for

20     the purpose of having an overview and a list; is that correct?

21             MR. McCLOSKEY:  That's correct.  I think that's the best way to

22     do it.  No need to put it in evidence.

23             JUDGE FLUEGGE:  The Chamber would appreciate to receive the CD

24     and the hard copy of it as well as the Defence should have it, with the

25     assistance of the court usher it should be provided to the Chamber and to

Page 19332

 1     the Defence.

 2             Then I would like to turn to the next matter, a discussion

 3     regarding agreements on bar table documents from the Prosecution and the

 4     Defence.  Mr. McCloskey, you indicated you wanted to raise this during

 5     our housekeeping session today.  What is your position?

 6             MR. McCLOSKEY:  Yes, Mr. President.  I spoke briefly to

 7     Mr. Gajic, and it's my understanding he has a few documents he would like

 8     to bar table.  We came up with just maybe two or three as well.  We don't

 9     have the motion done yet, but it won't take us long at all to do that.

10     And I don't think there will be any objection from the Prosecution side

11     to the Defence documents, and I'll need to show Mr. Gajic our documents

12     as well to see.  But that's my understanding thus far.  It didn't turn

13     out to be as many as I thought there might be.

14             JUDGE FLUEGGE:  Thank you.

15             Mr. Gajic.

16             MR. GAJIC: [Interpretation] Mr. President, we would like to let

17     our colleagues on the other side and the Trial Chamber know that

18     yesterday the Defence made two filings, two bar motions, that cover only

19     four to five documents, the two bar table motions.

20             JUDGE FLUEGGE:  I take it four to five documents?  Thank you.

21             Then we look forward to receiving these motions.

22             The Prosecution has indicated they want to discuss the

23     possibility of short rebuttal to the final oral submissions by the

24     parties.

25             Mr. McCloskey.

Page 19333

 1             MR. McCLOSKEY:  Yes, Mr. President, Your Honours.  This is

 2     actually will not take long at all.  I was just requesting that the Court

 3     consider that at the time of closing arguments that you may hear from the

 4     Prosecution in a situation where we may ask for rebuttal.  And I wouldn't

 5     want it to be, nor would I ask for any more than 30 minutes, and frankly

 6     we may not ask for it.  It's sometimes rebuttal in a situation like this

 7     if something new was brought up in the Defence's closing argument, we may

 8     very well need a few minutes to discuss it.  If it's nothing new and it's

 9     the position that they've made before and they made in their brief in its

10     response to our position, then I don't anticipate any need.  But just in

11     case there's something new, something that we think needs to be

12     addressed, then I would ask leave of the Chamber to take up to 30

13     minutes.  But I just wanted to let you know that now, to see that if you

14     would consider allowing us to rise as opposed to just suddenly rising in

15     August, but just something for your -- to consider in case we find a need

16     to address you on that point.

17             JUDGE FLUEGGE:  Thank you.

18             What is the position of the Defence, Mr. Tolimir?

19             MR. McCLOSKEY:  I'm sorry, Mr. President, I left out one key

20     part.  We also -- we have no objection to the -- if we did a 30-minute

21     rebuttal, for the Defence to have the final word and get another 30

22     minutes.  So that's no problem.

23             JUDGE FLUEGGE:  That was my understanding.

24             Mr. Gajic.

25             MR. GAJIC: [Interpretation] Mr. President, unless I'm mistaken,

Page 19334

 1     this sort of practice is envisaged under the Rules of Procedure and

 2     Evidence, that the Prosecution would have their closing arguments,

 3     followed by the Defence, and then both parties are entitled to a second

 4     round.  So I don't see any difficulty in that.  However, I would suggest

 5     that the Trial Chamber should in advance limit the time allowed for

 6     rebuttal to 30 minutes.

 7                           [Trial Chamber confers]

 8             JUDGE FLUEGGE:  The Chamber grants this request by both parties,

 9     for each party 30 minutes rebuttal.  That should take place on the third

10     day.  One day final arguments or submissions by the Prosecution; one day

11     for the Defence; and then on the third day, if necessary and requested by

12     the parties, for each party 30 minutes rebuttal.

13             Then I would like to move to the next topic.  It's related to a

14     document P114, the Zvornik Brigade log-book.  The Chamber had asked the

15     OTP to provide a complete translation to take the place of the partial

16     translation available in e-court.  The OTP has done so and this simply

17     needs to be put on the record along with an order to the Registry to make

18     this replacement.  That will be done and is done now.  The Registry

19     should make this replacement accordingly.

20             Mr. McCloskey.

21             MR. McCLOSKEY:  I've got P14, Mr. President, for that.

22     Ms. Stewart says that it's correct.  And I think we've got 114 on the

23     record.

24             JUDGE FLUEGGE:  I said "114."  I was informed that it was 114,

25     but it should be checked.

Page 19335

 1                           [Trial Chamber and Legal Officer confer]

 2             JUDGE FLUEGGE:  I'm glad to say you're absolutely right,

 3     Mr. McCloskey.  It was a typo.  It is P14.

 4             I would now like to move to some matters to be raised by the

 5     Chamber.  For the first one we should go to private session.

 6                           [Private session]

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Page 19336











11 Pages 19336-19341 redacted. Private session.















Page 19342

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17                           [Open session]

18             THE REGISTRAR:  We're back in open session, Your Honours.  Thank

19     you.

20             JUDGE FLUEGGE:  I turn now to the documents P2392 through P2400.

21             The Chamber has noted that certain maps admitted into evidence as

22     associated exhibits are of lower resolution than those admitted in the

23     previous proceeding.  Therefore, the Chamber instructs the Prosecution to

24     upload the same maps that were admitted in the Popovic et al. case for

25     exhibit numbers P2392 up to and including P2400 and orders the Registry

Page 19343

 1     to make the necessary replacements in e-court, informing the Chamber on

 2     the record when this has been completed.

 3             Now I turn to the document D511.  The Chamber has noted that the

 4     B/C/S original is hardly legible and hereby instructs the Defence to

 5     upload a more legible version and the Registry to replace the original in

 6     e-court, informing the Chamber on the record when this has been

 7     completed.

 8             Now I turn to the complicated and, nevertheless, hopefully not

 9     too much time-consuming list of documents marked for identification on

10     various reasons.  So I have today at the end of today's hearing hopefully

11     a clear record.

12             First I would like to raise the two Chamber documents, C1 and C2

13     marked for identification.  These are the two documents handed over by

14     the Witness Pecanac.  One is a one-page document, personal documentation;

15     and the other is a notebook.  I would kindly request the Registry to --

16     that we can get a translation of both documents, and we should then at a

17     later stage decide how to deal with this, these documents.  It is not

18     possible to come to an end with that without knowing the content of these

19     documents.

20             Now I would like to start with the Prosecution documents.  I hope

21     that there are some documents that we can deal with together, but now I

22     start with P387.  There are three documents, 387, 389, and 390.  They

23     were marked for identification as associated exhibits, but they were not

24     tendered by the Prosecution as such, although portions of each were later

25     admitted under different exhibit numbers.  And therefore, it's the

Page 19344

 1     intention of the Chamber to mark them but not admit them, which means

 2     MNA.

 3             Does the Prosecution agree with that?

 4             MR. McCLOSKEY:  Yes, Mr. President.  On our sheet that we sent

 5     out, we've looked at those and noted that those can be withdrawn as far

 6     as we're concerned.

 7             JUDGE FLUEGGE:  These three documents are marked but not

 8     admitted.

 9             I turn now to P388, MFI'd pending translation.  The translation

10     is not uploaded yet.  What is the estimation of the Prosecution when this

11     will be done?

12             MR. McCLOSKEY:  Mr. President, this is a -- one of these

13     handwritten intercept notebooks that I think at this point we don't feel

14     the need to even have it in evidence, nor do I think it will help you.  I

15     think it was perhaps used to help get a date of an intercept, but I think

16     it's easier at this point and better, frankly, just to withdraw that.

17             JUDGE FLUEGGE:  Then it will be -- remain marked but not

18     admitted, MNA.

19             Then I will turn to P455.  It was marked for identification but

20     not offered into evidence in our case.

21             MR. McCLOSKEY:  Yes.  We would say not necessary in this case and

22     withdraw it completely.

23             JUDGE FLUEGGE:  Yes.  Thank you.  MNA.

24             We come to P456.  It's the same situation, not offered into

25     evidence.

Page 19345

 1             MR. McCLOSKEY:  And we would say not necessary and so the same.

 2             JUDGE FLUEGGE:  And I think the same is the case for P457, P458,

 3     P501, P505, and I come to the others later.

 4             MR. McCLOSKEY:  Yes, we think not necessary.

 5             JUDGE FLUEGGE:  Thank you.  They will be marked but not admitted.

 6             I come to P500.  That was used by Mr. Tolimir during

 7     cross-examination of the Witness PW-050, but not tendered by the

 8     Prosecution.  What is the position of the -- of you, Mr. McCloskey?

 9             MR. McCLOSKEY:  The Prosecution doesn't feel a need for the

10     document.

11             JUDGE FLUEGGE:  In that case, it will be marked but not admitted.

12             Now I turn to P624, a book of still images.  I would like to

13     ask -- it was a problem of correct pagination.  It is quite similar to

14     P2799, and perhaps you can clarify if that is -- if the pagination is the

15     same.

16             Mr. McCloskey.

17             MR. McCLOSKEY:  Yes, it's my understanding, Mr. President, that

18     this 624 is the original and earlier version of the one you just

19     mentioned and that it was used with witnesses and it does have different

20     pagination because it's a slightly different version.  The other version

21     was updated, had more faces that we were able to identify.  So since the

22     older version was used with witnesses, and I believe we pointed to page

23     numbers and things, we thought it be best to have that into evidence as

24     well as the newer one.  Because if we review the witnesses where the old

25     one is used, it won't make sense if we have the new one, the pages won't

Page 19346

 1     be the same.  So we're thinking it's best to have both.

 2                           [Trial Chamber and Legal Officer confer]

 3             JUDGE FLUEGGE:  Is there any objection to have both versions of

 4     this document as an exhibit in evidence?  I don't see any objection by

 5     the Defence, so both documents will be in evidence.

 6             I turn back to P622.  It was not offered into evidence by the

 7     Prosecution.  What is the position in relation to that, Mr. McCloskey?

 8             MR. McCLOSKEY:  It's not necessary.

 9             JUDGE FLUEGGE:  Then marked but not admitted.

10             Now I turn to P781.  We are waiting for the translation.  What is

11     the position of the Prosecution?

12             MR. McCLOSKEY:  I think I would withdraw this at this time,

13     Mr. President.  It's not a necessary exhibit.

14             JUDGE FLUEGGE:  Okay.  It's withdrawn and therefore MNA.

15             What about P814, intercepts?  We are waiting for the translation.

16     Mr. McCloskey.

17             MR. McCLOSKEY:  One second.

18                           [Prosecution counsel confer]

19             MR. McCLOSKEY:  We don't believe this is necessary,

20     Mr. President.

21             JUDGE FLUEGGE:  I take it you are withdrawing it.  Is that --

22     what is the --

23             MR. McCLOSKEY:  That's correct.

24             JUDGE FLUEGGE:  What about the next document, P862, same

25     situation?

Page 19347

 1             MR. McCLOSKEY:  Yes.  In fact, if we go on the list from 862 all

 2     the way down to P999, we've asked to withdraw all those as not necessary

 3     for this case.

 4                           [Trial Chamber and Legal Officer confer]

 5             JUDGE FLUEGGE:  I take it, Mr. McCloskey, you are withdrawing

 6     P814, P862, P940, P941, P942, P943, P944, P945, P946, P947, P948, P949,

 7     P993, P994, P997, P999?

 8             MR. McCLOSKEY:  That's correct, Mr. President.

 9             JUDGE FLUEGGE:  Thank you very much.

10             Then I turn to P1000.  It is marked for identification but was

11     not used with the witness or another witness.

12             MR. McCLOSKEY:  Yes, Mr. President.  That is a, as we can see, a

13     23 June document from Vujadin Popovic, and we would like to enter that

14     into evidence.  And I can do that now or I can put in a bar table motion.

15             JUDGE FLUEGGE:  It was marked for identification because the

16     witness was not able to identify it and the witness was Stefanie Frease.

17     And at that point in time we said it should be tendered or may be

18     tendered through another witness and the same relates to the following

19     documents.  I would appreciate if you want to have it in evidence, to

20     file a bar table motion.

21             MR. McCLOSKEY:  Yes, Mr. President, understood.

22             JUDGE FLUEGGE:  In my view, the same relates to P1001.  If you

23     are interested in it.

24             MR. McCLOSKEY:  Absolutely.  That is the same and it -- you're

25     correct, it does not have the foundation required, so we'll put that in

Page 19348

 1     the bar table motion as well.

 2             JUDGE FLUEGGE:  Now I turn to P1009.  It was marked for

 3     identification as part of the 92 ter package for Witness Rave.  And you

 4     will recall -- both parties will recall that at an earlier stage of this

 5     trial we had a different procedure.  All the documents listed to be used

 6     in -- with a witness were previously marked for identification.  Later on

 7     it turned out that they were not used and therefore we have still these

 8     MFI problem.  Later on we changed this procedure and that didn't occur

 9     again.  So I would kindly ask you the two documents P1009 and P1010, it's

10     the same situation, two documents not used and not tendered through

11     Witness Rave.

12             MR. McCLOSKEY:  Yes, Mr. President, we do not feel they're

13     necessary and withdraw them, and I can tell you that as we go down from

14     the list from there, P1046 all the way to P1367 on the following page,

15     we're requesting those all be withdrawn as well.

16             JUDGE FLUEGGE:  Thank you for that.  But I would like to put

17     every number on the record for further identification.

18             The following ...

19                           [Trial Chamber and Legal Officer confer]

20             JUDGE FLUEGGE:  So I take it that the Prosecution withdraws the

21     following exhibits:  P1046; P1047; P1088; P1091; P90 -- no, sorry, P1093;

22     P1092, I skipped that; P1097.  This is now -- was replaced by another

23     document, therefore this is withdrawn.  P1100 is the next one.  Then the

24     Prosecution has withdrawn P1101, P1140, P1141, P1165, P1166.

25             Now I come to P1181.  This document was not admitted with the

Page 19349

 1     witness in previous proceedings and not used with the witness or not

 2     tendered again in this case, but we noted that Mr. Tolimir has used this

 3     document, it's an OTP statement of the witness, extensively during

 4     cross-examination.  Mr. Tolimir didn't tender it either; however, for a

 5     better understanding of the transcript the Chamber intends to admit it

 6     into evidence.

 7             Mr. Gajic.

 8             MR. GAJIC: [Interpretation] Mr. President, we absolutely agree

 9     and I was just about to rise and say that the Defence would also like to

10     have this document admitted into evidence.  It is a witness statement by

11     Tanacko Tanic given on the 24th of June, 2002.

12             JUDGE FLUEGGE:  Thank you very much.  P1181 will be received as

13     an exhibit.

14             Now I turn to P1209, this is withdrawn by the Prosecution and

15     therefore marked but not admitted.

16             Now I turn to P1226.  That has been replaced by a surrogate

17     sheet, following the Trial Chamber's oral decision dated 13th of July,

18     2011, and therefore the Chamber receives the surrogate sheet under this

19     number, 1226, to have a clear record of the documents.

20             Now we come to P1232.  That was MFI'd.  It was not used with the

21     witness and not tendered.  What is the position of the parties in

22     relation to that?

23             MR. McCLOSKEY:  Not necessary, withdraw.

24                           [Trial Chamber and Legal Officer confer]

25             JUDGE FLUEGGE:  It is withdrawn and therefore marked but not

Page 19350

 1     admitted.

 2             I turn to P1245.  The document was replaced by a surrogate sheet,

 3     and this will be admitted to have a clear record.

 4             What about P1249.  It was not used and not tendered in this case.

 5     The OTP had indicated that it would tender it through other witnesses but

 6     didn't do that.  And therefore, I think you are going to withdraw it.

 7             Is that correct?

 8             MR. McCLOSKEY:  Correct.

 9             JUDGE FLUEGGE:  Marked but not admitted.

10             Can you tell me -- you indicated earlier, Mr. McCloskey, that you

11     withdraw all documents up to, but I've forgotten the number.  Please,

12     help me with that.

13             MR. McCLOSKEY:  1367, just a few more down.

14             JUDGE FLUEGGE:  Okay.  You are withdrawing P1258, that will be

15     marked but not admitted; P1278, this was replaced by P1252 ...

16                           [Trial Chamber and Legal Officer confer]

17             JUDGE FLUEGGE:  No, I was mistaken.  I was going to come back to

18     P1252 because I skipped that.  That was not used by the Prosecution and

19     will be marked but not admitted.  It was withdrawn.

20             The same relates to 1278, it will be marked but not admitted.

21             And the last one withdrawn by the Prosecution is P1367, it will

22     be marked but not admitted.

23             Now we turn to P1369.  We are waiting for the translation.  What

24     is the position, Mr. McCloskey?

25             MR. McCLOSKEY:  Yes, Mr. President, we have a date of 5 March on

Page 19351

 1     that.  We hope to get it.  As you know, it's mostly photos and people's

 2     Bosnian names, but there is some English in it and we hope to get that

 3     done by -- translated back by 5 March.

 4             JUDGE FLUEGGE:  Thank you very much.  In that case it will then

 5     be admitted after having received the translation.

 6             The next one is P1491.  It was not used with the witness,

 7     Mr. McCloskey.

 8             MR. McCLOSKEY:  Yes, and we would withdraw 1491 and then down the

 9     list the next six to P01516, we would also withdraw that, so that group.

10             JUDGE FLUEGGE:  Okay.  The documents P1491, P1506, P1507, P1508,

11     P1511, P1516 will be marked but not admitted.

12             Then we come to another set of documents MFI'd because not used

13     with the witness or not with another witness.

14                           [Trial Chamber and Legal Officer confer]

15             JUDGE FLUEGGE:  Mr. McCloskey, P1537 and the following are

16     related to 92 bis witness PW-031 and there was a technical problem

17     because the attachment received by the Chamber was black.  Was that

18     problem resolved in the meantime?

19             MR. McCLOSKEY:  Yes, and thank you for identifying that for us.

20     We -- in the original filing, we gave a nice index of the various 92 bis

21     witnesses and on CDs with the material related to them.  And for some

22     reason in our index of this particular witness, we didn't list his

23     exhibits and the index was blank.  And the Court in its decision undid

24     its original ruling because the original ruling required that the

25     exhibits be in that annex B.  Now, in looking at annex B a little

Page 19352

 1     further, we were able to see that while the index was blank, the

 2     exhibits, the intercepts, were on the annex that -- on CD 4.  Given they

 3     were a bit hidden since our index was blank, but they were and they are

 4     on that annex.  So we did technically meet the requirement but we didn't

 5     help the Court much by leaving the index blank.

 6             So we would offer those into evidence.  I was able to see CD 4

 7     last night and see that they were there and CD 4 is part of that annex B.

 8     And so we are a bit late, we're not within the 30 days to fix it, but

 9     that's that explanation.  And that material is all there.  It's just we

10     missed it in the index.

11             JUDGE FLUEGGE:  I think it would be better for a better

12     understanding by the Chamber and the Defence to receive this submission

13     to tender this set of documents in writing, so that this proposed

14     evidence is properly before the Chamber.  And the Defence should have the

15     opportunity to look at it, and if they -- if the Defence would say today

16     they have no objection to that, that will make the situation more or less

17     complicated, but of course the Defence has the right to respond to that.

18             Mr. McCloskey.

19             MR. McCLOSKEY:  Yes, and in that, Mr. President, everyone can

20     refer also to an index that was sent to everyone, sent to the parties, on

21     29 November 2010 of this witness and listing all the intercepts that were

22     in fact on the CD.  So this is a matter that everyone has been aware of

23     and we will clarify that in a filing so you can see how it became a bit

24     unravelled, but we appreciate being notified by you that that happened

25     and we should have gotten to it earlier.  That's my fault.

Page 19353

 1             JUDGE FLUEGGE:  Thank you for that, and this relates to quite a

 2     lot of documents in the list, starting with P1537A through P1562.  Is

 3     that correct?

 4             MR. McCLOSKEY:  That's correct.

 5             JUDGE FLUEGGE:  Thank you very much.

 6             What is the position of the Defence?  Mr. Tolimir, do you want

 7     the opportunity to respond to this written submission we expect in due

 8     course?

 9             THE ACCUSED: [Interpretation] Thank you.  Yes, we will file a

10     written response.

11             JUDGE FLUEGGE:  Thank you very much.

12             Then I would like to turn to P1617.  This was marked for

13     identification but not used with -- not admitted through the relevant

14     witness and not used with another witness.  And these are quite a lot

15     again related to PW-052, three documents in fact.

16             What's the position of the Prosecution, Mr. McCloskey?

17             MR. McCLOSKEY:  Mr. President, regarding P01617, a Main Staff

18     order dated 11 July by General Mladic, this will be -- we will offer this

19     in through a bar table motion.  This is the third and last document for

20     the bar table motion that we spoke of.

21             JUDGE FLUEGGE:  Thank you very much.

22             What about P1618?

23             MR. McCLOSKEY:  We had looked at P1618 --

24             JUDGE FLUEGGE:  Oh, I see it was replaced by a surrogate sheet.

25     And in that case, we should admit this surrogate sheet for a proper

Page 19354

 1     record.

 2             MR. McCLOSKEY:  Yes, so we -- basically from P1618 on to P2246,

 3     we've -- find those unnecessary and withdraw those.

 4             JUDGE FLUEGGE:  Thank you.  P1618 will be admitted but only the

 5     surrogate sheet, P1619, P1626, P1627, P1660, P1661, P1666, P1668, P1677,

 6     P1678, P1679, P1680, P1705, P1706, P1733, P1741, P1743, P1744, P2209 will

 7     be marked but not admitted.

 8             I have some information in relation to P2246.  At an earlier

 9     stage, in May 2011, the Chamber said we have to review the content and so

10     on.  That was the subject of comments in court on the 30th of May 2011.

11                           [Trial Chamber and Legal Officer confer]

12             JUDGE FLUEGGE:  I refer the parties to the testimony of Mr. Janc

13     and on the transcript I'm recorded to having said:

14             "We should postpone the decision of the Chamber in relation to

15     your move to admit this document into evidence.  We have to review it,

16     the content, to review it and the relation to the report of Mr. Janc.  It

17     was a very brief introduction and we should only mark it for

18     identification for the moment."

19             In the meantime, the Chamber has reviewed this document and sees

20     some probative value in it and is now prepared to admit it unless the

21     Prosecution says they don't want to have it and withdraw it.

22             Mr. McCloskey.

23             MR. McCLOSKEY:  Thank you, Mr. President.  We do think it has

24     probative value and we had not recalled that exact -- I recalled the

25     testimony but I didn't recall the exact reason that you were looking at

Page 19355

 1     it.  So I would offer that into evidence.

 2             JUDGE FLUEGGE:  It will be received as P2246.

 3             The next one is P2402.  We are waiting for the translation.

 4             Mr. McCloskey.

 5             MR. McCLOSKEY:  That was located and uploaded yesterday, so --

 6             JUDGE FLUEGGE:  Very well.  It will be now received as P2402.

 7             What about P2874, we are waiting for the translation.

 8             MR. McCLOSKEY:  Mr. President, we do not feel that that is

 9     necessary and can withdraw that.

10             JUDGE FLUEGGE:  Thank you.  It will be marked but not admitted.

11             So that's all for the Prosecution.  We turn now to the Defence.

12     Mr. Gajic, would you like to make some introductory remarks or shall we

13     just continue with the list?  The first one would be D43.

14             Mr. Gajic.

15             MR. GAJIC: [Interpretation] Mr. President, I know how it is to

16     read numbers all the time, so I didn't want to interrupt you earlier.

17     From the list that you've read out of Prosecution exhibits, we would like

18     some of those, namely, P1626, to be admitted as well as P2874.  The

19     former document is considered relevant, and as for the latter it is one

20     of the articles that Mr. Vanderpuye used with Witness Skrbic.  In our

21     view, the transcript would not be clear if the document was not admitted

22     into evidence.

23             JUDGE FLUEGGE:  Thank you.  The first one you mentioned is 1626,

24     P1626.  It was not admitted through the witness in previous proceedings

25     and not used with another witness in our case.  What is the basis that

Page 19356

 1     you are now moving for admission, Mr. Gajic?

 2             MR. GAJIC: [Interpretation] Mr. President, it is relevant.  We

 3     believe that the document has probative value.  If you so require, we

 4     will file a bar table motion for that document.  I just wanted to let you

 5     know that the Defence will be seeking to tender this document.

 6             JUDGE FLUEGGE:  Thank you very much.  Indeed, we appreciate to

 7     receive a bar table motion, to have your position clear on the record.

 8             This second one was P2874.  Just a moment.  This is -- was indeed

 9     used during the testimony of the Witness Ratko Skrbic.  It was now

10     withdrawn by the Prosecution, although the translation unit was asked to

11     translate it.  What is the position of the Prosecution, Mr. McCloskey?

12             MR. McCLOSKEY:  Mr. President, I seem to recall that this is one

13     of the articles or books that's very similar to Mr. Skrbic's report.

14     And, as you know, we are on the record objecting to the entry of that

15     report; and so we also object to this version of it.  I don't think it's

16     necessary to have that in evidence to understand the testimony or the

17     cross-examination.  I think the issues there were pretty clear.

18             JUDGE FLUEGGE:  Mr. Tolimir, in that case you are tendering now

19     this document which is not yet translated.  The question is if it would

20     be a good idea to deal with this document in conjunction with the expert

21     report of Mr. Skrbic, which will be done in writing.  What is your

22     position?

23             THE ACCUSED: [Interpretation] Thank you, Mr. President.  The

24     Defence will tender this document into evidence in writing.  We believe

25     that that which is realistic, which is part of reality, is what matters

Page 19357

 1     and not what somebody fancies or not.

 2             JUDGE FLUEGGE:  Okay.  We will look forward to receive such a

 3     motion.

 4             Now we should turn to the Defence documents.  We start with D43.

 5     Mr. Gajic.

 6             MR. GAJIC: [Interpretation] Mr. President, we don't think it

 7     necessary to have this document in evidence, so we withdraw our request.

 8             JUDGE FLUEGGE:  It will be marked but not admitted.

 9             The next one is D72.  The Chamber asked the Defence to provide

10     information regarding the date, source, and background of the video.

11     What is the situation, Mr. Gajic?

12             MR. GAJIC: [Interpretation] Mr. President, Exhibit D72 contains a

13     set of video-clips which were subsequently tendered into evidence as

14     Prosecution exhibits, P2125 and P2126.  I think that they were part of

15     the 92 ter package of exhibits related to the evidence of Mr. Smith.

16             JUDGE FLUEGGE:  I take it that this is now replaced by a

17     surrogate sheet; is that correct?

18             MR. GAJIC: [Interpretation] Yes, that is correct, Mr. President.

19     In fact, that is something that should be done.  The current surrogate

20     sheet should be replaced by a new one.

21             JUDGE FLUEGGE:  That will contain a reference to the exhibit

22     which was received under a different number; is that correct?

23             MR. GAJIC: [Interpretation] Yes, yes, you're absolutely correct,

24     Mr. President.  The numbers involved are P2125 and P2126.  They are

25     identical video-clips.

Page 19358

 1             JUDGE FLUEGGE:  Thank you very much.  We would appreciate if you

 2     upload the surrogate sheet as soon as possible and then this one, this

 3     sheet, will be admitted as D72.

 4             And we turn to D74, that was lengthy document, only small parts

 5     used with Witness Celanovic.  The translation is expected in February

 6     2012, as I was informed.  What is the position?

 7             MR. GAJIC: [Interpretation] Mr. President, the translation has

 8     not been done yet.  We do hope to receive it quite soon since we sent the

 9     document to be translated a long time ago.

10             JUDGE FLUEGGE:  Are you tendering the whole book with 178 pages

11     or only those pages which were used during the examination of the

12     witness?

13             MR. GAJIC: [Interpretation] Mr. President, some time ago this

14     same issue was raised with relation to this document.  The Defence

15     selected specific pages, of which both the OTP and the Chamber were

16     informed, and our intention was to make it into an exhibit once these

17     selected pages had been translated.

18             JUDGE FLUEGGE:  Okay.  That means you have uploaded or are going

19     to upload this selection of pages you want to have admitted into evidence

20     as a separate document; is that correct?

21             MR. GAJIC: [Interpretation] Yes, Mr. President.  We are still

22     waiting for the translation, though.

23             JUDGE FLUEGGE:  Then you will upload this package of pages as a

24     separate document; is that correct?

25             MR. GAJIC: [Interpretation] Of course.

Page 19359

 1             JUDGE FLUEGGE:  Okay.  In this case it will remain marked for

 2     identification pending translation.  I turn now to P76.  The

 3     Witness Nicolai couldn't comment on the document but later another

 4     witness, Fortin, was able to say something about its contents.  What is

 5     the position?  Are you still tendering it?

 6             MR. GAJIC: [Interpretation] Mr. President, we have the same

 7     document identical to that which was admitted as D16.

 8             JUDGE FLUEGGE:  In that case, you should withdraw this one.

 9             MR. GAJIC: [Interpretation] Yes, Mr. President.  It will be

10     replaced by a surrogate sheet so that we know which document was used

11     with which witness.

12             JUDGE FLUEGGE:  That is appreciated, and that surrogate sheet

13     will then be admitted into evidence as D76.

14             Now we turn to D83.  It was used with Witness Nicolai who

15     couldn't testify about it at all.  What is your position, Mr. Gajic?

16             MR. GAJIC: [Interpretation] Mr. President, a document with the

17     same text but a slightly different format became P1475.  Therefore, there

18     is no need to have D83.  We withdraw that request.

19                           [Trial Chamber and Legal Officer confer]

20             MR. GAJIC: [Interpretation] Let me repeat the number it is P1475.

21             JUDGE FLUEGGE:  Thank you.  That means that D83 will be marked

22     but not admitted.

23             We turn to the next one, it's D104.  That was marked for

24     identification because the witness could not give any information about

25     it.  It was the Witness Torlak.  It was not used with another witness.

Page 19360

 1     What is the position of the Defence, Mr. Gajic?

 2             MR. GAJIC: [Interpretation] Mr. President, the Defence is going

 3     to request for this document to be admitted into evidence through a bar

 4     table motion.

 5             JUDGE FLUEGGE:  Very well.  We are looking forward to that.  Then

 6     I turn to D108, it's the same as the video P593, but it's not identical.

 7             Mr. Gajic.

 8             MR. GAJIC: [Interpretation] Just one second, Mr. President.  I

 9     need to find my bearings in my papers.

10             As far as video-clip D108 is concerned, it has been used on two

11     occasions in this courtroom, first time with Witness Torlak and the

12     second time with the Witness Emma Sayer.  We are talking here about a

13     sequence that shows a meeting held on the 19th of July, 1995, at

14     Boksanica.  And this video-clip is not an integral part of the

15     Prosecution video entitled:  "Zepa Video, Trial Video."

16             This particular segment was taken over by the Defence from the

17     video-clip provided to us by the Prosecution and the title is:  "Missing

18     in Bosnia, the Story of Avdo Palic."  It was directed by Mr. Beltrami.

19     And it was broadcast on Televisione Svizzera.

20             JUDGE FLUEGGE:  Mr. Gajic, a DVD was not provided to the Chamber

21     and the Prosecution yet.  That should be done.  Or has it been done in

22     the meantime?  I see the staff nodding.  It was provided I take it and

23     therefore it will be received as an exhibit with a D number 108.

24             We turn to -- no, I think we are not able to finish before the

25     break.  We need a break now and then we will ...

Page 19361

 1                           [Trial Chamber and Registrar confer]

 2             JUDGE FLUEGGE:  I was told that another 20 minutes are possible.

 3     Perhaps we are able to finish during this session.  Therefore, we should

 4     continue until the tapes will run out.

 5             I turn now to D134, only page 5 was used and tendered through

 6     Witness PW-017.  What is the position, Mr. Gajic?

 7             MR. GAJIC: [Interpretation] Well, the Defence would naturally

 8     request for the entire document to be admitted into evidence.

 9             And, Mr. President, I'm currently checking the e-court and I see

10     that the translation has been uploaded.

11             JUDGE FLUEGGE:  I was told it has been uploaded.  What is the

12     reason to tender the entire document instead of page 5?

13             MR. GAJIC: [Interpretation] Mr. President, in documents of this

14     kind, i.e., articles, sometimes a certain statement needs to be perceived

15     in the whole context so that we can understand the nature of the

16     statement, of what the author relied upon in producing this document,

17     et cetera.  We consider this document to be relevant for

18     cross-examination of a witness who testified in a private session and the

19     entire text would help to understand the contents better.  Of course we

20     are not going to refer to the entire document, but rather to those

21     portions that we used with this witness.  However, we believe that it

22     would be beneficial for the Prosecution and the Trial Chamber to have the

23     entire document admitted into evidence.

24             JUDGE FLUEGGE:  The entire document will be received as D134.

25             I turn now to D141.  This was used with Witness Boering, who was

Page 19362

 1     not able to testify about its content.  It was not used with another

 2     witness.  What is the position of you, Mr. Gajic?

 3             MR. GAJIC: [Interpretation] Mr. President, the Defence is going

 4     to tender it into evidence through a bar table motion.

 5             JUDGE FLUEGGE:  Very well.

 6             Then I can proceed with D177.  I was told that this was

 7     mistakenly marked for identification pending translation.  It's an

 8     English original tendered by the Defence.  No B/C/S translation was

 9     needed, although one was later created and uploaded.  It will now be

10     admitted into evidence.

11             I turn to D179.  The Defence was instructed to tender this

12     document which was shown to Witness Joseph first who was not able to

13     testify about it, to put it to the Witness Smith and to tender it with

14     this witness, which didn't happen.  What is the position of the Defence?

15             MR. GAJIC: [Interpretation] Mr. President, the Defence is going

16     to request this document to be admitted into evidence.  We believe it to

17     be an authentic one and we believe that the OTP has no problems with the

18     documents provided by the United Nations, and if we cannot do it now we

19     are going to submit an oral request --

20             THE INTERPRETER:  Interpreter's correction:  A written request.

21             JUDGE FLUEGGE:  Mr. McCloskey, does the Prosecution have a

22     position in relation to that?

23             MR. McCLOSKEY:  No objection to this document.

24             JUDGE FLUEGGE:  It will be received as a Defence document, D179.

25             I turn to D195.  It was used with Witness Smith but not admitted

Page 19363

 1     because the Chamber was not satisfied with his answers -- put to the

 2     witness.  It was later not used with another witness.  What's the

 3     position of the Defence, Mr. Gajic?

 4             MR. GAJIC: [Interpretation] Mr. President, concerning this

 5     document, that is, the letter from General Mladic to General Janvier, the

 6     Defence is going to tender it into evidence.  At the time when we used it

 7     with Witness Smith there was no translation and that was one of the major

 8     problems.  At any rate, we can do this by filing a written request for a

 9     bar table motion admittance.

10             JUDGE FLUEGGE:  Thank you very much.  That is appreciated.

11             Then we turn to D234.  I would kindly ask the Defence which pages

12     will be translated and when can we expect these parts of the document?

13             MR. GAJIC: [Interpretation] Mr. President, the Defence has

14     already selected specific pages from this document.  We have sent it to

15     be translated, and hopefully we'll receive them soon, probably in the

16     course of the next month.  I cannot tell you exactly now which particular

17     pages we used because we used only, for example, certain passages from

18     certain pages because we believed that there was no need for the whole

19     section to be translated.  But I think that the aggregate quantity and

20     number of pages would be about 15, although don't take my word for it.

21     It was some time ago.

22             JUDGE FLUEGGE:  Thank you for that, Mr. Gajic.  Did you upload

23     these pages as a separate document?

24             MR. GAJIC: [Interpretation] No, Mr. President.  Once we have

25     received the translation, the pages in both the Serbian and the English

Page 19364

 1     languages will be uploaded.

 2             JUDGE FLUEGGE:  Thank you very much.  The document will remain

 3     marked for identification.

 4             I turn now to D241 pending translation.  The translation is now

 5     attached and it will be admitted into evidence.

 6             The same is the case with D242, translation is now attached and

 7     therefore it will be admitted into evidence.

 8             I turn to D65 [sic], the English translation is now attached and

 9     therefore -- I have to correct the transcript.  It is D265.

10             Mr. Gajic, what is your position?

11             MR. GAJIC: [Interpretation] Yes, Mr. President, I was just about

12     to point to this error in the transcript, and I think that this should be

13     admitted into evidence.

14             JUDGE FLUEGGE:  It will now be received.

15             Then we turn to D267.  Can you tell us the status of this

16     document today, Mr. Gajic?

17             MR. GAJIC: [Interpretation] Mr. President, this document, if I'm

18     not wrong, was used with Mr. Janc.  There is a transcript of the portions

19     that we used with this witness here in the courtroom, and all of that is

20     going to be uploaded into e-court tomorrow or the day after tomorrow

21     because we are expecting the translation to come any minute now.  As for

22     the video, I think it was submitted to both the Registry and the OTP.

23             JUDGE FLUEGGE:  I hope that was done and the CD was provided to

24     the Chamber and the Prosecution.  I take it that this is the case, and

25     therefore we will admit this document into evidence.

Page 19365

 1             Now D290, we are waiting for the translation.  Mr. Gajic.

 2             MR. GAJIC: [Interpretation] Mr. President, I have been informed

 3     by our case manager that all the translations are expected to arrive next

 4     month, that is to say, March 2012, hopefully in the first half of the

 5     month.

 6             JUDGE FLUEGGE:  Thank you.  That means that D290, D308, D341,

 7     D356, D360, D363, and D364 will remain marked for identification pending

 8     translation.

 9             In relation to D350, I was informed that the translation is now

10     attached to the document and therefore it will be received.

11             Now we turn to D368 and D369.  These are the documents related to

12     the expert report of Ratko Skrbic.  The Chamber is -- and it is the

13     confidential and the public redacted version of that.  The Chamber is in

14     the process of considering the submissions by both parties, and we will

15     issue a written decision thereon in due course.  If -- because we only

16     have received oral submissions by both parties, I would invite the

17     parties, if they so wish, to give some more information, supplemental

18     information, in writing, if possible, by next Monday so that we can take

19     everything into account which should be considered.

20             Mr. McCloskey.

21             MR. McCLOSKEY:  Mr. President, we're satisfied with

22     Mr. Vanderpuye's oral submissions, though if the Defence files something

23     we could respond within a day if necessary.  So that -- I don't want to

24     hold us up on that.

25             JUDGE FLUEGGE:  Thank you very much.

Page 19366

 1             And the Defence.

 2             MR. GAJIC: [Interpretation] I have to admit, Mr. President, we

 3     are somewhat taken aback by this invitation of you.  I don't think we are

 4     going to provide any written submissions because Mr. Tolimir provided

 5     arguments in favour of the admittance of Ratko Skrbic's expert report,

 6     and we stand by that.

 7             JUDGE FLUEGGE:  Thank you very much.  The Chamber will file a

 8     written decision in due course.

 9                           [Trial Chamber and Legal Officer confer]

10             JUDGE FLUEGGE:  I was told that I have misspoken or a mistake in

11     the transcript.  D267 has, up to now, no translation and therefore it

12     should remain marked for identification pending translation.  And D341,

13     there is now a translation uploaded and therefore it will be admitted.

14             One last point, it is D535.  Pursuant to the Trial Chamber's

15     decision of 17 February 2012, the transcript of the OTP interview with

16     Petar Salapura under 65 ter 1D743 has been MFI'd pending addition of a

17     diagram contained in appendix C of the Prosecution's consolidated

18     response to the accused's first and second bar table motions dated 21st

19     of December, 2011.  This diagram has been added and the document will be

20     now admitted as D535.

21             Mr. Gajic.

22             MR. GAJIC: [Interpretation] Mr. President, I was just about to

23     say that it's on page 66 in e-court, transcript.

24             JUDGE FLUEGGE:  Thank you very much.

25             Is there anything else to raise during this housekeeping session?

Page 19367

 1             I don't see anything.  Therefore, we have to adjourn for today

 2     without a clear date.  We know that we will have our oral submissions

 3     after the summer recess.  The Chamber will file some decisions in due

 4     course.  Again, I would like to thank you, the parties and the whole

 5     staff who helped us today, and especially the court reporter.  I think

 6     it's always a difficult task to deal with so many numbers.  Thank you

 7     very much for that.

 8             We adjourn.

 9                           --- Whereupon the hearing adjourned at 10.53 a.m.