Tribunal Criminal Tribunal for the Former Yugoslavia

Page 14756

 1                           Friday, 17 September 2010

 2                           [Open session]

 3                           [The accused entered court]

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

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

 6     everyone in and around the courtroom.

 7             This is case IT-08-91-T, the Prosecutor versus Mico Stanisic and

 8     Stojan Zupljanin.

 9             Thank you, Your Honours.

10             JUDGE HALL:  Thank you, Mr. Registrar.

11             Good morning to everyone.

12             First of all, I note for the record that we reconvene under

13     Rule 15 bis; Judge Harhoff being and sent.

14             May we have the appearances for the day, please.

15             MS. KORNER:  Good morning, Your Honours.  Joanna Korner and

16     Crispian Smith for the Prosecution.

17             MR. CVIJETIC: [Interpretation] Good morning, Your Honours.

18     Representing Mr. Mico Stanisic's Defence, Mr. Slobodan Cvijetic and

19     Ms. Eugene O'Sullivan.

20             MR. KRGOVIC: [Previous translation continues] ... good morning,

21     Your Honours.  Dragan Krgovic, Igor Pantelic, and Aleksandar Aleksic, and

22     Jason Antley, our Case Manager, appearing for Zupljanin Defence.

23             JUDGE HALL:  Thank you.

24             MS. KORNER:  Your Honours, I'm going to ask to go into private

25     session in a moment to deal with the next witness's protective measures.

Page 14757

 1     But before I do that, you may recall that a couple of days ago I raised

 2     the question of outstanding matters, one of which was the

 3     Mladic notebooks and a ruling.

 4             Your Honours, in the last few days, I've been going through the

 5     witness who is going to be the first witness after Your Honours' -- after

 6     the break, in other words, on Monday week, and the Mladic diaries are

 7     relevant to him.  And we give no method at the moment of uploading them

 8     into e-court, even, because we don't know whether they are going to be

 9     added to our 65 ter list.  So, if at all possible, it would be very

10     helpful if we could have the ruling this afternoon, given, as I say, the

11     absence in the next week.  Because, otherwise, we're going to start on

12     Monday morning not knowing what the situation is, Monday week.

13             MR. PANTELIC:  I do apologise, which witness you are mentioning,

14     Ms. Korner?

15             MS. KORNER: [Microphone not activated] ... the one who's coming

16     Monday week.

17             MR. PANTELIC:  Yeah, but do we have a name just to have

18     reference?

19             MS. KORNER: [Microphone not activated] ... ST -- the number of

20     the witness I'm just -- asked for ... ST-215.

21                           [Trial Chamber and Legal Officer confer]

22             JUDGE HALL:  Yes, we will seek to have a decision on that by the

23     end of today, Ms. Korner.  Thank you.

24             MS. KORNER:  Thank you very much, Your Honours.

25             Your Honours, can I ask that we go into private session.

Page 14758

 1             JUDGE HALL:  Yes.

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Page 14760

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11  Pages 14761-14816 redacted. Closed session.















Page 14817

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 9                           [Open session]

10             THE REGISTRAR:  And we're back in open session, Your Honours.

11             JUDGE HALL:  Thank you.

12             Is it the expectation of counsel that we reconvene for a third

13     session to dispose of this exhumation matter?

14             MS. KORNER:  Yes.

15             JUDGE HALL:  Any idea how long you -- you expect to be?

16             MR. ZECEVIC:  Your Honours, it's very hard for me to say, but I

17     guess my submission is half an hour, 45 minutes.

18             JUDGE HALL:  Very well.  So we'd would resume in 20 minutes.

19                           --- Recess taken at 12.25 p.m.

20                           --- On resuming at 12.50 p.m.

21             MR. ZECEVIC:  Your Honours, with your leave, I have two

22     preliminary matters before we start with the exhumations submissions.

23             First of all, Your Honours, I would like to inform the

24     Trial Chamber that 1D370, MFI document, pending -- it was MFI'd pending

25     translation.  The translation was uploaded, and I would kindly ask --

Page 14818

 1     move the Trial Chamber to remove the MFI of the document.  1D370.

 2             JUDGE HALL:  Yes, so ordered.

 3             MR. ZECEVIC:  Thank you very much.

 4             Your Honours, I believe we should go into private session because

 5     it refers to a confidential document and I wouldn't like to make any

 6     mistakes about it.

 7             JUDGE HALL:  Yes, we go into private session.

 8                           [Private session]

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Page 14819











11  Pages 14819-14820 redacted. Private session.















Page 14821

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23                           [Open session]

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

25                           [Trial Chamber confers]

Page 14822

 1             MS. KORNER:  Your Honour, can I just very quickly explain the

 2     basis of this legal argument.

 3             Your Honours will recall that on the 23rd of July of this year we

 4     filed a motion to add the proof of death database to our 65 ter exhibit

 5     list and tender it into evidence and also asked to remove earlier

 6     versions of that.

 7             Your Honours, the database which has been put together by, in

 8     fact, a number of different analysts, because it began way back in 2001,

 9     I believe, contains the evidence showing the -- how the Prosecution are

10     able to arrive at the lists which are attached to the schedules of the

11     indictment of people who died in the scheduled incidents of this

12     indictment.

13             JUDGE HALL: [Microphone not activated] ... may I have a moment,

14     please, Ms. Korner.

15                           [Trial Chamber confers]

16             JUDGE HALL:  Ms. Korner, it occurs to us that, having regard to,

17     without more, the nature of this evidence, that it may be more useful for

18     the Trial Chamber to hear from the Defence first as to what their

19     objection is.

20             MS. KORNER:  Yes, a --

21             JUDGE HALL:  Do you have a --

22             MS. KORNER:  Your Honours, I thought I better just outline to you

23     the basis of this objection before the Defence go into it, and that's

24     this:  In that database, there are extra names not mentioned in the

25     schedules because since the schedules to the indictment were drafted, the

Page 14823

 1     examination by the analyst has shown that some extra, in fact, in all

 2     1.700 names, can be shown to have died in these incidents - not new

 3     incidents; same incidents - that are listed on the indictment.

 4             But in each case or in most cases, Your Honours will see attached

 5     to the names of the -- that are listed in the indictment, the victims

 6     including other persons whose identities at this time are either not

 7     known or cannot be confirmed by the Prosecution.  Where we've been able

 8     to establish further identities, that's in the database.  That's the

 9     objection.

10             JUDGE HALL:  Thank you.

11             Yes, Mr. Zecevic.

12             MR. ZECEVIC:  Your Honours, I will speak in Serbian in order to

13     be understood completely clear, and I have provided my submission to the

14     interpreters for their benefit.

15             [Interpretation] Your Honours, the procedural facts related to

16     this issue are as follows:  The document was first presented with this

17     document, the exhumation spreadsheet, for the first time on the

18     22nd of July this year.  At that point, we had talks with the OTP,

19     suggesting that the Defence should inspect and analyse the document and

20     inform the OTP about our position.  Nevertheless, to your great surprise,

21     the very next day, the 23rd of July, the OTP submitted to the

22     Trial Chamber the motion proposing that this database be admitted.

23             The OTP and the Defence held two meetings about this issue about

24     which you have been duly informed.  Which established, as Ms. Korner

25     stated, that there was a preliminary, legal issue that had to be tackled

Page 14824

 1     with Trial Chamber's assistance before we could continue our talks about

 2     this problem.

 3             The problem is as follows, Your Honours:  The second amended

 4     indictment in this case was filed on 10th of September, 2009, containing

 5     Schedules A through G and an annex containing the list of identified

 6     victims in Schedules A and B.  The list has a break down based on

 7     municipalities and incidents and contains 1.443 persons, with the

 8     exception of three cases:  Firstly, the Bijeljina incident; secondly the

 9     TO warehouse in Donji Vakuf; and thirdly, the Bileca SUP.  All the other

10     listed incidents first give a list of victims.

11             And then there is the following sentence, uttered by Ms. Korner:

12             [In English] "Victims included other persons whose identities at

13     this time are either not known or cannot be confirmed by the

14     Prosecution."

15             [Interpretation] I will continue in Serbian.  In addition to

16     this, there are two paragraphs of the schedule, item 9.4, the firstly

17     claims two unidentified men as victims.  And then item 14.4, it reads,

18     about 150 persons whose identity is unknown to the Prosecution or cannot

19     be verified by the Prosecution at this point in time.

20             Your Honours, may I remained you that it was on several different

21     occasions during the pre-trial stage that the Defence pointed out the

22     absence of clear facts in the indictment.  We demanded that additional

23     facts be provided.  Our motion was thrown out by the Trial Chamber on two

24     separate occasions, in 2005 and 2009.  Having received the database, the

25     exhumation spreadsheet, on the 22nd of July, the Defence concluded that

Page 14825

 1     the database had contained as many as 1.795 persons whose names are not

 2     to be found in any of the annexes to the indictment.

 3             I have to say what our position is.  We find it difficult to

 4     accept that during the entire investigation, as Ms. Korner suggested,

 5     between 2009 -- 2001 and 2009, when the indictment was eventually raised

 6     and published, there had been a total of 1.443 persons listed in the

 7     annexes.  What happens a mere year later on, after the beginning of

 8     trial, and no less than 18 years after those persons allegedly went

 9     missing or were killed, we have an additional 1.795 victims.

10             Your Honours, the fact remains that when we analysed this

11     documentation which runs into over 1.000 pages and is therefore quite

12     comprehensive.  The database contains 80 persons whose date of death

13     falls outside of the scope of the time-period relevant to the indictment,

14     which is 1992.  We don't even have a date of death in the case of 582

15     persons.  As for a total of 862 persons, their whereabouts are stated as

16     "unknown."  All I'm trying to do is give you some of the statistics that

17     we found upon inspection, and I'm using these pieces of information by

18     the way of an illustration.  Believe me, there is more.

19             For this reason, from the Defence's point of view, this is a

20     complex problem.  On the one hand, one is trying to add a total of nearly

21     2.000 new victims.  On the other hand, the inadequacy of the information

22     contained in the database, combined, at least in our submissions, these

23     facts no doubt constitute a violation of the Tribunal's Statute,

24     specifically Articles 21 and 20, and stand in the way of the fair trial

25     that our clients are guaranteed by that very Statute.

Page 14826

 1             May I, please, first consider the addition of 1.725 new victims.

 2     The Prosecutor claims that they have the right to amplify the victim list

 3     during the actual trial and make this addition of 1.795 new persons a

 4     theory, which the Defence would like to challenge.  For that purpose, we

 5     would like to put forward the following arguments.

 6             Your Honours, each new victim is a new allegation of crime.  In

 7     this sense, it is a material fact that must be stated in the indictment

 8     in a timely manner with sufficient detail provided.  There was no

 9     preliminary announcement to the effect that the Prosecutor was intending

10     to amplify or add to the indictment by introducing new victims.

11             In an annex to the indictment, we find some remarks next to each

12     and every one of the incidents.  In our view, these remarks do not as

13     such make clear the intention of the Prosecutor to add new victims in

14     this sense.  If that is true, Your Honours, then we are at a loss as to

15     how to explain items 9.4 and 14.4 in the annex.  The only way to explain

16     these or to interpret these is as some form of notice, an announcement by

17     the OTP that new victims would be identified in that portion.  If indeed

18     the OTP get hold of such information at any stage during the proceedings.

19             This amplification or extension of the witness list was never

20     announced.  We were not given notice of that.  It is quite logical that

21     the Defence has not been able to mount any sort of investigation or

22     prepare itself until such time as a document was disclosed to us on the

23     22nd of July this year.

24             Hence, we believe that in this case the Prosecutor has not

25     proceeded with due diligence.  They had this information long before the

Page 14827

 1     information was disclosed to us.  The simple reason being this database

 2     is kept by the OTP.  It is in their possession.  Our learned friends have

 3     access to it on a daily basis, access to the database itself, as well as

 4     any information concerning potential new victims.

 5             In our submission, amending an indictment in this way at such a

 6     late stage in the proceedings leaves the Defence at a distinct

 7     disadvantage, simply because we have no time to verify these allegations.

 8     In order to do that, we would have to cease all other preparations for

 9     this trial and come to grips with that.  Any information available to us

10     right now cannot be verified.  For example, by interviewing witnesses who

11     have already appeared.

12             I will briefly quote some jurisprudence before this Tribunal

13     regarding this problem.  I'm trying to make sure no errors occur.

14     Therefore, I'll be quoting in English.

15             [In English] [Previous translation continues] ... Prosecutor

16     versus Krnojelac decision on preliminary motion on form of indictment --

17     amended indictment 11 February 2000, paragraph 54.

18             "It is abundantly clear that the content of the schedules form an

19     integral part of the indictment and that they have been added in that

20     form in order to avoid cluttering up the text of the indictment at the

21     places where they are so described.  They must be treated as if they were

22     incorporated into the text at those places.  The general allegations of

23     the individual and superior responsibilities of the accused made in

24     paragraphs of the indictment apply to those schedules in the same way as

25     they applied to any other part of the indictment."

Page 14828

 1             And, additionally, Kvocka appeals decision, paragraph 67:

 2             "In a recent case, the Appeals Chamber held that an indictment

 3     must necessarily, in the absence of special order, consistent of one

 4     document, that schedules to an indictment form an integral part of the

 5     indictment, and that -- that they can contain essential material facts

 6     omitted from the body of the indictment.  In the case under appeal, the

 7     Appeals Chamber sees no reason to depart from this approach.  The events

 8     contained in the schedules amount to material facts that have to be

 9     proven before the accused can be held responsible for the crimes

10     contained in the indictment.  The Trial Chamber, therefore, in this case,

11     correctly reached this conclusion."

12             [Interpretation] Your Honours, as for the Tribunal's

13     jurisprudence, I have here a total of 12 documents, 12 Judgements.  I

14     have delivered this list to our friends from the OTP.  I would not like

15     to take up more time than necessary and quote each and everything single

16     one; therefore, my proposal is to have this list distributed to officers

17     of the court so that they can familiarise themselves with our position on

18     that matter, regarding the Tribunal's jurisprudence.

19             As for the other aspects.  The inadequacy of the database.

20     Your Honours, I will reflect upon that very briefly.  Based on our

21     analysis, which you will realize is quite a comprehensive one, of such

22     documents as we received from the OTP, we have concluded that the

23     documentation is not appropriate to form a basis for a Court ruling.  The

24     documentation manifests a number of shortcomings.  The documents were not

25     verified nor indeed were they cross-referenced based on a -- different

Page 14829

 1     sources.

 2             I think the best way to illustrate this to the Trial Chamber

 3     would to be use an example.  I'm doing my best not violate any provisions

 4     regarding secrecy and confidentiality.  I will name specific instances

 5     from the indictment, but the names and figures are purely fictitious.

 6             We have a situation where one of the witnesses states that five

 7     people were detained.  His names are unknown to the witness.  For

 8     example, on 20th of July these people were taken away from Omarska.  They

 9     never returned.  The suspicion is well-founded that these people are no

10     longer alive.  Based on such information, an entry was made to the OTP's

11     database, hence we come across an allegation about five persons taken

12     away from Omarska on 20th of July, 1992, who are listed as missing.

13             Now we have another witness who says, On or around 20th of

14     July Muhamed Muhamedovic [phoen] and his two sons and two other persons

15     were taken out of Omarska and never returned.  The names are fictitious.

16     Now, this is again entered into the database.  And then we have

17     Muhamed Muhamedovic and his two sons, called Muhamedovic, and two unknown

18     persons, and they are listed as missing.  We have a third witness, then,

19     who says, I saw in July, Muhamed, whose last name I don't know, being

20     taken out of Omarska with his four relatives and he never returned.  Now,

21     this is again entered into the database as additional five missing

22     persons.  And then we get another witness saying, On the 22nd of July, I

23     was taken out of my village in the municipality of Prijedor to a site and

24     then five or six other persons were brought in.  They fired on us.  I

25     survived, and the rest didn't.

Page 14830

 1             Now, this bit of information is, again, entered into the

 2     database, and based on all of this, one can get the impression that four

 3     times five people, 20 in total, were killed; whereas, in the actual fact

 4     we're talking about the same five people mentioned in the statement by

 5     the first witness, the witness who didn't know those people.  I think

 6     that we now have a duplication of victims in various incidents.  And for

 7     the purposes of a criminal trial, this renders the database unusable.

 8             The Prosecution will surely say that the number is irrelevant

 9     here, and, as a matter of principle, I tend to agree.  But what I would

10     like to illustrate is this:  The database is unreliable, because these

11     data will probably lead to the conclusion that some of the persons never

12     really existed, the ones who are entered in the database, because names

13     are entered differently.  They were not killed at all; they live abroad,

14     they moved out.  We had cases of this nature in Srebrenica.  And this has

15     engendered a great deal of controversy regarding the acceptance of

16     adjudicated facts before this Tribunal and has been widely reported in

17     the media.

18             We would like to give some sources that are used for this

19     database which lack objectivity, in our submission.  Let me give you some

20     examples.  One of the sources is the Sarajevo Household Survey.  Then we

21     have the Muslims Against Genocide 2002 list.  The third is The Book Of

22     Missing Persons, Prijedor.  These are all sources that were used to

23     create this database, and in our submission, they lack objectivity.  And

24     the same goes for some other sources that were used in the creation of

25     this database.

Page 14831

 1             The Defence has -- is of a view that regardless of the complexity

 2     of proceedings before this Tribunal, all the cases before it have been

 3     and are criminal proceedings that deal with the commission of specific

 4     crimes.  Principles of criminal law, of evidence and procedure, are more

 5     or less universally acknowledged and recognised in all jurisdictions

 6     regardless of whether we are talking about the adversarial or

 7     inquisitorial system or a combination of the two, such as we have here at

 8     this Tribunal, and any diverging from these rules constitutes in its very

 9     essence the negation of those rules and directly violates the principle

10     of fair trial which is universally guaranteed right of each and every

11     accused.

12             So, to sum up, the Defence opposes to the addition of persons who

13     are not listed in the schedules to the indictment for reasons that I

14     listed at the beginning of my submission; and, secondly, in light of the

15     unreliability of the database, the Defence has notified the Prosecution

16     that it would demand from the Prosecution to disclose to the Defence the

17     minimum necessary information that would enable the Defence to identify

18     each and every person listed in the schedules to the indictment, in a way

19     which will make it possible for the Defence to challenge the allegation

20     that the victims listed there are in fact the -- have -- were in fact the

21     victims of the crimes that the accused are charged with.  And this is

22     consistent with the jurisprudence before this Tribunal.

23             The victim must be identified in such a way that the Defence is

24     able to challenge the allegation that these were indeed victims of a

25     crime that the accused is charged with.  The Defence has already

Page 14832

 1     submitted to the Prosecution the minimal information that it requires,

 2     and once it has been received, we would like to present our position

 3     regarding each and every victim in the schedules to the indictment, and I

 4     would now like to acquaint you with the minimum information that we

 5     require.

 6             One, first name last name.  Second, father's name.  Third,

 7     personal identification number of the victim.  Four, place and date of

 8     the murder or disappearance.  Place where the remains of the victim were

 9     found.  The forensic findings regarding the cause of death.  And the

10     judicial decision to declare a missing person as deceased.

11             We understand that the Prosecution might perhaps not have all

12     this information for each and every victim.  That's why we included some

13     other items, because item 6 might assist us with items 4 and 5, and so

14     on.

15             Your Honours, this is my submission.  Thank you very much for

16     your time.

17             JUDGE HALL:  [Previous translation continues] ... Mr. Zecevic.

18             Yes, Mr. Pantelic.

19             MR. PANTELIC:  Yes, Your Honour.  Just very briefly, because

20     Zupljanin Defence is completely along the lines that my learned friend

21     Mr. Zecevic explained and we were participating in this mutual contacts

22     and negotiation with the OTP.

23             First of all, just a small correction to the transcript.  On

24     page, 64 line 4, instead of Bijeljina it should Biljani as a site of

25     incident, to have a clear record.

Page 14833

 1             Your Honours, adopting all points explained by Mr. Zecevic, I

 2     would like to respectfully ask this Trial Chamber to direct Office of the

 3     Prosecutor to amend the indictment or to reduce this list of alleged

 4     victims.  Why?

 5             In light of -- I will make a short digression, which -- which is

 6     related to my submission.

 7             In light of the findings in Judgement of Simic et al., Samac

 8     case, the -- the OTP theory of that case was that more than 17.000

 9     non-Serbs were prosecuted -- persecuted, deported, expelled from the

10     municipality of Samac.  At the end of the day, beyond a reasonable doubt,

11     only 16 persons out of 17.000 of non-Serbs were considered as a persons

12     persecuted or deported.  This illustration, Your Honours, gives me a

13     right to respectively ask this Trial Chamber, in order to avoid this huge

14     basis, crime bases where our friends from the OTP are comfortably

15     swimming, and this ocean of concept of JCE category 3 is very warm and

16     comfortable sea for them and that -- that's why they are doing what they

17     are doing in this particular case.  They are just adding and putting

18     without any particular minimum requirements by the criminal case just the

19     names.

20             As illustration, in these Confidential Annexes, they even don't

21     have a name, they have just abbreviation, like LNU, et cetera, or FNU,

22     et cetera.  I believe that, in quest for justice, this process might --

23     should go along the -- very precise rules and very precise categories.

24     And that's why I think that the OTP should precisely enumerate victims

25     with all necessary elements, and to, accordingly, amend the indictment or

Page 14834

 1     present this particular piece of evidence or case in support of their

 2     theory.  Going into the thousands of names of alleged victims will

 3     inevitably bring us to the situation where we would not able to know for

 4     whom, how, when, and why certain criminal responsibility should arise.

 5     That's why I -- I support all -- all what -- all points what Mr. Zecevic

 6     outlined, and respectively ask this Trial Chamber to direct and to

 7     instruct Office of the Prosecutor to narrow this base and to help even

 8     Defence, to some extent, to -- to maybe find a solution with the Office

 9     of the Prosecutor of certain, maybe, undisputed facts or data, so that

10     this trial could go smoothly -- as smoothly as possible.

11             Thank you for your attention, Your Honour.

12             JUDGE HALL:  Yes, Ms. Korner.

13             MS. KORNER:  Your Honour, there are two wholly separate

14     applications being made here.  One of which is suitable for Your Honours'

15     ruling, which is the first, whether we should be allowed to add the

16     database containing the extra names; the second, the adequacy of the

17     information in the database and/or on which the Prosecution rely is a

18     matter of fact to be argued by evidence, if required.

19             Can I make this quite clear:  We have, from the beginning, told

20     the Defence that we will at any stage supply them with the underlying

21     information relating to the deaths which are in the schedules and in the

22     database.  Not -- not just recently but right from the beginning and,

23     indeed, the question of the exhumation evidence has been raised from the

24     pre-trial stage, as to how it was going to be dealt with.  So if there is

25     any suggestion that we have deliberately withheld that information, then

Page 14835

 1     we reject that.  And as I'm sure Mr. Zecevic will agree, that has always

 2     been on offer.

 3             The second matter is this:  The spreadsheets which the Defence

 4     have been provided with set out each and every piece of evidence, which

 5     is not just the Prijedor Book of the Dead or the -- whatever the other

 6     two documents that were quoted, but other evidence that goes with it,

 7     including statements, documents, and the like.  And it's clear from the

 8     spreadsheet what the Prosecution offer.  And, of course, the Defence can

 9     have those documents at any stage.  It's a mammoth task but, of course,

10     they are entitled to and we would never think of refusing it.

11             Third on this point, which, as I say, is not a matter for

12     Your Honours to rule on today, the Defence are entitled to challenge each

13     and every name, the pieces of evidence which relate to those in the

14     schedules of the indictment or in the database by insisting that the

15     evidence is called.  It's not being done in other case but that doesn't

16     mean to say it can't be done.  It is their right and we'll do it if they

17     say so.  It will take I don't know how many months to go -- to call every

18     witness to explain how the person disappeared or died or he saw him shot,

19     but we will do it.  That is their right, subject to Your Honours' ruling

20     on this matter.

21             But as I say, that is not a matter on which Your Honours can

22     rule.  The Defence are entitled to put us to strict proof, and if that's

23     what they do, then that is what we will do as well.

24             On the matter of whether or not the extra names which are

25     contained in the database should be admitted into evidence subject to the

Page 14836

 1     question of -- of proving each and every one of them, Your Honours,

 2     the -- the names, the averments in the schedules, whether those are

 3     material averments in the indictment depends on the proximity of the

 4     accused to the actual killings themselves.  Tribunal jurisprudence has

 5     said that over and over again.  Effectively, forget about the Simic case,

 6     which is a distinctly old case, but since the Brdjanin case onwards, when

 7     Judge Hunt made it clear in his ruling on the Brdjanin indictment, if I

 8     can just remind you of that and then remind Your Honours of the latest

 9     case, which is not on Mr. Zecevic's list, and this is at paragraph 18 of

10     the objections -- the decision on the objections by Momir Talic, so

11     Mr. Zecevic is probably familiar with it, to the form of the amended

12     indictment, paragraph 18:

13             "A distinction is drawn in the Tribunal's jurisprudence between

14     the material facts upon which the Prosecution relies which must be

15     pleaded and the evidence by which those material facts will be proved,

16     which need not be pleaded.  Whether a particular fact is a material one

17     which must be pleaded depends, in turn, upon the nature of the case which

18     the Prosecution seeks to make and of which the accused must be informed.

19     The materiality of such details as the identity of the victim, the place

20     and date of the events for which an accused is alleged to be responsible

21     and the description of the events themselves necessarily depends upon the

22     alleged proximity of that accused to those events."

23             "In a case --" paragraph 19 --  "based upon superior

24     responsibility --" which is what this case is -- "what is most material

25     is the relationship between the accused and the others who s did the acts

Page 14837

 1     for which he is alleged to be responsible and the conduct of the accused

 2     by which he may be found to have known or had reason to know that the

 3     acts were about to be done or had been done by those others and to have

 4     failed to take the necessary and reasonable measures to prevent such acts

 5     or to punish.  However so far as those acts of the other persons are

 6     concerned although the Prosecution remains under an obligation to give

 7     all the particulars which it is able to give, the relevant facts will

 8     usually be stated with less precision and that is because the details of

 9     those acts by whom and against whom they are done is often unknown and

10     because the acts themselves often cannot be greatly in issue."

11             Your Honours, in reality, that is the case here.  The killings

12     which are listed in the schedules to the indictment are not in fact, as

13     far as we've been able to tell over the last year of trial, in issue.

14     The question of the perpetrators may be, but not the acts themselves.  In

15     the recent decision in the Gotovina case, the original trial ruling on 9

16     October 2008 and the Appeals Chamber ruling in 2009 it was made

17     absolutely clear that -- if I can get to the -- the right page:

18             "The current Defence submissions --" this is paragraph 10 of the

19     decision of 9th of October 2008 -- "The current Defence submissions also

20     dealing with the lists on the indictment are derived from the supposition

21     that the identities of victims constitute material facts which need to be

22     pleaded in the indictment.  The requirements of the pleading of the

23     identities of victims have either, however, already been litigated before

24     the Trial Chamber which, in its decision on Gotovina's preliminary

25     motions, found that the Prosecution did not need to identify each and

Page 14838

 1     every victim in the indictment."

 2             However, Your Honours, I'm sorry there is one other case I

 3     think -- which I can't lay my hands on at the moment.  What we've done

 4     here is where we have been able to identify them, and Your Honours, I

 5     think in the Popovic case that came up, which, at the moment, I can't lay

 6     my hands on, we are obliged to give that information to the Prosecution

 7     [sic].  And so what we've done here, Your Honours, it's not a question

 8     that all of this information is new information.  It's the analysis of

 9     the information.  Since the schedules were done, further analysis has

10     been done of the information that was available, as a result of which,

11     and as I say, it is all set out very clearly in the spreadsheet, we can

12     identify, we submit, further names from each of the scheduled killings.

13     This is not a new allegation.  It is simply, if you like, giving further

14     detail, for which the Defence in one sense should be grateful, of the

15     names of those we say died at the -- at the various killings.

16             And Your Honours we submit that in the end result, it may not

17     make a huge difference.  In fact, we very much doubt, given the nature of

18     this case, in the event of a conviction, how many people, whether it was

19     1.700 or 3.000, died but there is an importance from the point of view of

20     the record that those that the Prosecution can say are rightly listed as

21     victims of these crimes should be listed.  And so we say the addition of

22     these names, leaving aside the proof, which is a totally separate matter,

23     is one that properly should be admitted by this Trial Chamber.

24             Your Honours, as Mr. Zecevic says, there are a number of

25     authorities.  We can provided also the list of the extra authorities.

Page 14839

 1     But the only issue, we say, that Your Honours can decide upon now is

 2     whether or not the database should be admitted into evidence containing

 3     those names.

 4             JUDGE HALL:  Thank you.  Well, we have your arguments and

 5     submissions on the record and we will give a ruling as soon as

 6     circumstances permit.

 7             Before we rise we do have a brief oral ruling to deliver.

 8             Judge Delvoie.

 9             JUDGE DELVOIE:  Yes, indeed.

10             And it is an oral one because of the urgency of the decision in

11     relation to the Prosecution's motion and further findings for the

12     addition of the Mladic diaries to its Rule 65 ter list, the Chamber finds

13     that of all the 22 diaries submitted, only the eight diaries from 1992 in

14     their entirety and the five identified portions from 1993 but not the

15     three related diaries may be added to the exhibit list.

16             Further, the evidence of General Milovanovic will suffice in the

17     view of this Chamber to establish the prima facie authenticity of the

18     diaries, and therefore is added to the Prosecution's witness [sic] list

19     in the interest of justice.

20             Written reason of the decision will follow shortly.

21             MS. KORNER:  [Microphone not activated] is he -- the -- the --

22     can I -- just a moment.

23                           [Prosecution counsel confer]

24             MS. KORNER:  I think we need -- can we redact, please, the last

25     part of Your Honours' ruling, from line -- page 78, line 15 to 18.

Page 14840

 1             Can we go into private session.

 2             JUDGE HALL:  Yes, private session.

 3                           [Private session]

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21                           [Open session]

22             JUDGE DELVOIE:  Just out of curiosity, Mrs. Korner, was your

23     motion filed confidentially?

24             MS. KORNER:  I can't remember, is the answer.

25             I'm sorry, does that mean he is 92 bis?  That's all I wanted to

Page 14841

 1     know, his evidence.  In other words, his statement can go in.  Because

 2     that's what we applied for.

 3             JUDGE DELVOIE:  No, Mrs. Korner, he will be viva voce.  But you

 4     will read that in the written -- in the written reasons.

 5             MS. KORNER:  Well, Your Honours, I would respectively ask that it

 6     be 92 ter.  I don't want to have take him through every single -- or one

 7     of us take him through every single word he said in both the Stanisic,

 8     Simatovic, and Popovic and repeat it all.  He can be there for

 9     cross-examination, and indeed I think the only objection to authenticity,

10     which I may is utterly surprising given that it is not contested by

11     either Karadzic or Perisic, however, is that the Defence can then

12     cross-examine him if they really wish to pursue this line.  But we would

13     ask that it is 92 ter.  Why on earth would we want to make him go through

14     chapter and verse for the third time?

15                           [Trial Chamber confers]

16             JUDGE DELVOIE:  Let's see if -- if -- if you will uphold this

17     application for 92 ter after having read the written reason, Ms. Korner.

18             MS. KORNER:  Certainly, Your Honour.

19             JUDGE HALL:  Thank you.  And with that, we take the adjournment

20     to Monday, the 27th of September, in Courtroom III, at 9.00 a.m.  Thank

21     you.

22                            --- Whereupon the hearing adjourned at 1.49 p.m.,

23                           to be reconvened on Monday, the 27th day

24                           of September, 2010, at 9.00 a.m.