1 Thursday, 5 March 2009
2 [Open session]
3 [The accused not present]
4 --- Upon commencing at 9.10 a.m.
5 JUDGE ORIE: Good morning to everyone.
6 Mr. Registrar, would you please call the case.
7 THE REGISTRAR: Good morning, Your Honours. Good morning to
8 everyone in the courtroom. This is case number IT-06-90-T, The
9 Prosecutor versus Ante Gotovina et al.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 I established that the accused are not present. Where,
12 apparently, they have taken the opportunity offered to them yesterday.
13 It has created quite a bit of confusion this morning, but because no one
14 was aware whether they would or would not use that opportunity, but I
15 think that Mr. Registrar has addressed this matter already. It would
16 have been preferable to having -- to have given notice to the Registrar
17 about that decision.
18 I'll start with the agenda. First, I address D1453, the cover
19 note or cover page, or whatever it's called, in relation to P461, the
20 transcript of the Brioni meeting. The Chamber admits it, admits D1453
21 into evidence in full awareness of the difference or at least the
22 possible difference in interpretation of what that note exactly tells us;
23 and, of course, the Chamber will consider this piece of evidence in the
24 entirety of the evidence, including the testimony of Mr. Rajcic on the
1 Second item, the Cermak Defence has requested reconsideration of
2 the admission into evidence of P2402. The Chamber finds no reason to
3 revisit the admission of P2402, which is the redacted version of the
4 Croatian Helsinki Committee report, entitled: "Military Operation Storm
5 and its Aftermath," for the following reason:
6 In considering the redacted report for admission the Chamber had
7 taken into consideration all submissions that had been made to date,
8 regarding the report. Therefore, it would only be if a matter were
9 raised that would meet the standard for reconsideration that the Chamber
10 would revisit its admission. The standard is that a Trial Chamber has an
11 inherent discretionary power to reconsider a decision in exceptional
12 cases if the requesting party satisfies the Trial Chamber of existence of
13 a clear error in reasoning in the impunge decision or if particular
14 circumstances exist justifying its reconsideration, in order to prevent
15 an injustice. New facts or argument that arise after the issuance of the
16 decision, may constitute circumstances justifying reconsideration.
17 The Chamber has not found reasons under this test to reconsider
18 its decision.
19 I move to the next item.
20 Mr. Russo, yesterday a dispute arose in court about the volume of
21 the material you would like to add to D1249 and D1252, the one being a
22 manual, the other one also a kind of a military instruction.
23 Yesterday an e-mail was sent to you because you had not revisited
24 the matter after the break, and you were invited and a copy was sent to
25 the Prosecution -- to the Defence to make submissions on the number and
1 the nature of the pages that the Prosecution is seeking to add to these
2 exhibits, and if it is more than just a brief contextualisation, the
3 reasons why you wish to do so, and, finally, why you didn't do it any
4 earlier, where the matter arose already on the 15th of January, when
5 these exhibits were admitted.
6 MR. RUSSO: Thank you, Mr. President.
7 I can inform the Chamber that having discussed the matter with
8 Mr. Kehoe yesterday we have reached agreement. I am withdrawing the
9 request for any additions to D1252 and only seeking addition of five
10 pages to D1249. It is my understanding from counsel that he will be
11 withdrawing his objection to the additions to D1249, of course as I said,
12 I will no longer be submitting chapter 5 for D1252. I'm happy to address
13 any further concerns if the Court has. If not that's --
14 JUDGE ORIE: Well, yesterday we were talking about hundreds or
15 thousands of pages. Now we are down to five.
16 MR. RUSSO: Yes, Mr. President. The manual on armed conflict --
17 I'm sorry, the UK
18 MR. KEHOE: US manual.
19 MR. RUSSO: Sorry, US
20 version that we had been referred to. As it turns out, there are
21 different online versions of it. The chapter 5, which we were thinking
22 of was 32 pages. The chapter five, which Mr. Kehoe was thinking of in
23 his version is apparently a compendium of all prior revisions to chapter
24 five which I believe does amount to several hundred pages if not more,
25 and that's my understanding of where the misunderstanding arose.
1 JUDGE ORIE: Mr. Kehoe.
2 MR. KEHOE: Yes, Mr. President. Mr. Russo and I conversed back
3 and forth about this and even on the break we were prepared yesterday to
4 discuss this with Your Honour, but I'm overcome by events, of course.
5 JUDGE ORIE: I'm not blaming anyone. I just thought it wise that
6 everyone was prepared this morning to further deal with the matter.
7 MR. KEHOE: If I may just add to what Mr. Russo and I agreed to,
8 I did send an e-mail or Ms. Katalinic did send an e-mail to both the
9 Prosecution as well as the court officer, Mr. Monkhouse; and we have
10 agreed to the addition of pages 68, 69, 82, 83, 84 of the manual, to add
11 it to D1249. Those additional five pages, Mr. President, now have a dock
12 ID number of 1D00-0921. 1D00-0921. And I'm told by Ms. Katalinic that
13 they will be released in e-court shortly.
14 JUDGE ORIE: Should we admit them as two separate documents or if
15 we are talking about contextualisation, perhaps it is better to keep
16 everything --
17 MR. KEHOE: Frankly, Judge, I think that's probably the better
18 path. And I think that Mr. Russo and I agree as to the better path. It
19 comes from the same book. That's merely a series of pages from the book.
20 It probably be best to keep it together.
21 JUDGE ORIE: Then I take it, Mr. Russo, that the Prosecution now
22 re-tenders D1249, with a few more pages of D1249, the more -- the larger
23 version, should now be -- should now replace D1249, the -- I think it was
24 only one page which was tendered before.
25 MR. KEHOE: Mr. President we could just make a joint submission
1 and keep it as a D number and just add those pages. That might be easier
2 as opposed to --
3 JUDGE ORIE: Oh, yes, it was a D number.
4 MR. KEHOE: [Microphone not activated] ... sorry. What we are
5 doing is adding to five pages to 1249.
6 JUDGE ORIE: Yes. The version which will now be uploaded in
7 e-court with the number you just mentioned, that contains both the
8 original page and the five new -- not? Could you make it a consolidated
9 version, to replace the original one.
10 MR. KEHOE: I am told, Mr. President, that the pages are added to
11 an original -- the original. But if I have just one second.
12 [Defence counsel confer]
13 MR. KEHOE: I understand what the Court wants, and we'll do it in
14 that fashion.
15 JUDGE ORIE: Yes.
16 Mr. Registrar, leave is granted to replace the admitted version
17 of D1249 consisting of one page, to be replaced by a version which still
18 contains this is one page but, in addition, five other pages, pages 68,
19 69, and then it doesn't appear on the transcript, Mr. Kehoe, was it 82?
20 MR. KEHOE: 82, 83, 84.
21 JUDGE ORIE: 82, 83, 84. And then it's new version is admitted
22 into evidence --
23 MR. KEHOE: Yes, Mr. President.
24 JUDGE ORIE: -- under the same number.
25 Then we move on to the Prosecution's motion to admit extracts of
1 presidential transcripts into evidence.
2 Mr. Hedaraly, there was a request by the Gotovina Defence to add
3 some pages to the extracts.
4 MR. HEDARALY: Yes, Your Honour, and pursuant to Your Honours'
5 instructions, we have added those portions to the extracts that we had
6 submitted; and the numbers that we have now for those are 65 ters 7229 up
7 to and including 65 ter 7233. We have added the first page of the
8 transcript, a few of the extracts proposed by the Defence, so those are
9 ready to be admitted. The only note I would like to add is we have also
10 as we were invited by the Chamber discussed the translation issues that
11 were raised by Mr. Misetic, and we agree with him that there are some
12 problems for two of those transcripts that were pointed out by
13 Mr. Misetic. So those extracts will be -- we will resubmit them for
14 translation but I don't think that this bars admission at this stage.
15 JUDGE ORIE: Mr. Misetic, you do agree?
16 MR. MISETIC: I agree that I don't have an objection to the
17 admission. Obviously I reserve on the translation until I have got a
18 chance to review it.
19 JUDGE ORIE: When, Mr. Hedaraly, do you think that the
20 translation issue could be resolved?
21 MR. HEDARALY: We're talking about, I think, two pages in --
22 three pages in one and four pages in the other, so I'm hopeful that we
23 can get it done hopefully by the end of week. I have to ask CLSS so that
24 is beyond our control.
25 JUDGE ORIE: Yes. I do understand, if the new version could not
1 be uploaded by Monday, noon
2 Chamber would like to receive notice of the impossibility to do so and
3 the reasons why.
4 Mr. Registrar, we already admitted into evidence the present
5 versions with the reservation that the translation should be reviewed. I
6 think no numbers have yet been assigned to them, Mr. Registrar, for 7229
7 up to and including 7233.
8 [Trial Chamber and registrar confer]
9 JUDGE ORIE: Mr. Registrar, will first verify before numbers will
10 be as signed to it.
11 MR. HEDARALY: Sorry, Your Honour, just for the record to be
12 clear, the two translation that will be revised are 65 ter 7231 and 65
13 ter 7233. The other three, there were no issues raised, specific issues,
14 raised by the Defence, just so that the record is clear, what is admitted
15 and what is pending review.
16 JUDGE ORIE: Yes. Then I slowly move on.
17 The Gotovina Defence has made a bar table submission on
18 presidential transcripts, and I think the Prosecution opposed admission
19 of two video clips: 1D00-0884, 1D00-0885; presidential transcript, 30th
20 of October, 1D00-0887; and minutes from the meeting held on 3rd of
21 August, 1995, at the presidential palace, OTP 65 ter 3992.
22 There was another document on this list. That was the famous
23 cover note on which I have already given a decision this morning. For
24 the remaining four, the Prosecution objected to admission. The Chamber
25 has considered the reasons for the objection. The Chamber has looked at
1 the material. Not admitted into evidence are the two video clips; that
2 is, 1D00-0884 and 1D00-0885.
3 Mr. Registrar, no numbers were yet assigned to them or ...
4 THE REGISTRAR: Your Honours, document ID number 1D00-0884 was
5 assigned Exhibit D1450 and 1D00-0885 was assigned Exhibit D1451.
6 JUDGE ORIE: They were marked for identification. They now get
7 status non-admission.
8 Then the presidential transcript dated the 30th of October,
9 1D00-0887, Mr. Registrar was assigned number ...
10 THE REGISTRAR: Exhibit D1452, Your Honours.
11 JUDGE ORIE: And is admitted into evidence.
12 Then we skip the cover sheet.
13 Minutes from the meeting held 3rd of August, 1995, OTP
14 65 ter 3992 had received ...
15 THE REGISTRAR: Exhibit D1454, Your Honours.
16 JUDGE ORIE: And is admitted into evidence. D1453, earlier this
17 morning, was already admitted into evidence.
18 Then I move to the Prosecution's motion to add and admit two
19 documents on investigative steps by civilian authorities.
20 Before I do so, I revisit the presidential transcripts, 65 ters
21 7229 up to and including 7233, I think it is, Mr. Registrar.
22 They have been uploaded and, therefore, numbers can be assigned
23 to them.
24 THE REGISTRAR: Your Honours, 65 ter number 7229 becomes
25 Exhibit P2495; 65 ter number 7230 becomes Exhibit P2496; 65 ter number
1 7231 becomes Exhibit P2497; 65 ter number 7232 becomes Exhibit P2498; and
2 65 ter number 7233 becomes Exhibit P2499.
3 JUDGE ORIE: P2495, up to and including P2499, are admitted into
4 evidence, with the proviso that -- P2497 and P2499 will be reviewed, in
5 relation to the translation; and if no agreement on an improved version
6 is reached, the Chamber will be informed by noon on Monday, and the
7 Registry is given leave to replace 2497 and 2499, if an approved new
8 version is presented by the parties.
9 Then I move, as I said before, to the Prosecution's motion to add
10 and admit two documents on investigative steps by civilian authorities.
11 The Chamber will deliver now its decision on the matter.
12 It is a decision on the Prosecution's motion to add two documents
13 summarising investigative steps taken by civilian authorities to the
14 Prosecution's exhibit list and to admit these documents into evidence.
15 The Prosecution filed its motion on the 24th of February, 2009
16 requesting as its primary relief that the Chamber add the tables
17 contained in Appendices A and B to the motion, to the Rule 65 ter list,
18 and admit these tables into evidence. On the same day, the matter was
19 discussed in court, and the Gotovina Defence made some provisional
20 submissions. These can be found at transcript pages 16.732 through
22 On the 27th of February, 2009, the Cermak Defence filed a
23 response, in which it stated, inter alia, that the tables in Appendices A
24 and B of the Prosecution's motion were not evidence as envisaged by Rule
25 89 of the Tribunal's Rules of Procedure and Evidence, but nevertheless,
1 and I quote:
2 "Agreed to the provision of the summary tables to the Trial
3 Chamber, not as exhibits but as a work product of one of the parties."
4 On the same day, the Markac Defence joined the response of the
5 Cermak Defence.
6 On the 4th of March, 2009, the Gotovina Defence submitted that it
7 had no objection to the Prosecution's motion. This can be found at
8 transcript page 17.138.
9 The Chamber finds that the reservations expressed by the Cermak
10 and Markac Defence do not affect the admissibility of the tables. The
11 Chamber is mindful that the tables are the work product of one of the
12 parties to this trial. Nevertheless, the Chamber finds that the tables
13 may assist it in interpreting other evidence before it, and it is
14 satisfied that they meet the requirements for admission under Rule 89 of
15 the Rules.
16 Noting the absence of unambiguous objections to admission into
17 evidence from any of the Defence teams, and the express wish of the
18 Cermak and Markac Defence that the tables be provided to the Chamber,
19 which it understands as an invitation to consider them, the Chamber
20 therefore grants the primary relief of the Prosecution's motion, allowing
21 the Prosecution to add the tables contained in Appendices A and B to its
22 motion to the Rule 65 ter list, and admitting those into evidence.
23 The Chamber instructs the Prosecution and the Registrar to upload
24 the tables into e-court, if this has not already been done, and assign
25 exhibit numbers as soon as possible. The Chamber further instructs the
1 Registrar to inform the parties and the Chamber when this has been done.
2 And this concludes the Chamber's decision.
3 I know that the instructions are rather fresh, Mr. Registrar, but
4 have the relevant documents been uploaded yet?
5 MR. MARGETTS: Mr. President, they have been uploaded, and they
6 are 65 ters 5468 and 7194.
7 JUDGE ORIE: Mr. Registrar, could you please assign exhibit
8 numbers to these two documents.
9 THE REGISTRAR: Your Honour, 65 ter number 5468 becomes
10 Exhibit P2500. And 65 ter number 7194 becomes Exhibit P2501.
11 JUDGE ORIE: Thank you, Mr. Registrar. One would wish that
12 instructions were followed so quickly always.
13 P2500 and P2501 are admitted into evidence.
14 And next item is the Prosecution motion for admission into
15 evidence of the statements of the accused Cermak and Markac and
16 associated exhibits.
17 Before I deal with the matter, I do understand that the
18 Prosecution has identified at least one mistake in the transcript, and
19 that was page 41 of one of these -- 40, 41.
20 MR. HEDARALY: It was page 41.
21 JUDGE ORIE: It was page 41. My memory still serves me
22 relatively well.
23 Has the revised page 41 been uploaded.
24 MR. HEDARALY: Yes, Your Honour.
25 JUDGE ORIE: Then the Chamber grants the motion to admit into
1 evidence the interviews and transcripts of the accused as submitted by
2 the Prosecution, as well as the associated exhibits, including P2355,
3 which is currently MFI
4 The Chamber will give its reasons in writing in due course. The
5 Chamber will also admit the additional portions of the interviews, as
6 indicated in the Cermak and Markac responses. The Prosecution is,
7 therefore, asked to include these portions in the exhibits and upload
8 them into e-court, if this has not already been done.
9 In the Chamber's reasons, the Gotovina Defence will find an
10 answer, in view of the issue of -- it was called coaching. The Chamber,
11 at length, discussed the matter, and prefers prompting, which is -- but
12 that's, of course, not the core issue. But you will find an answer in
13 view of the issue of prompting and how the Chamber will deal with those
14 portions of the transcripts. With regard to any problems of translation,
15 as, for example, identified by the Markac Defence's further submission on
16 the 4th of March, 2009, the parties are invited to agree on complete and
17 correct versions of the transcripts as was done recently with the Turkalj
19 It may be clear to the parties that the Chamber, of course, seeks
20 to have versions of exhibits available with the fullest accuracy, both in
21 view of transcription and translation.
22 MR. KUZMANOVIC: Your Honour, may I be heard on this just for a
24 JUDGE ORIE: Yes.
25 MR. KUZMANOVIC: As you know, in our submission one of the issues
1 that we faced was the only portion of the transcript that we received
2 that was in Croatian was to say the least had some significant problems.
3 In listening to the DVD
4 difficult to even follow what was being said and asked an answered; and
5 that's primarily the concern we have given the fact that this is our
6 client's testimony that's being admitted into evidence. And as I said,
7 there were portions of the transcript that we believe weren't necessarily
8 relevant to the indictment.
9 But the primary issue we have, especially having faced with this
10 with the Turkalj video, is the fact that sitting down and watching these
11 DVDs is painful. Because it is very difficult, if not impossible to get
12 an accurate transcription much less a translation. And like I said,
13 three fourths at least of the interview is English only which does not
14 really allow for to us read or review to see if the translation is
16 We will try to figure something out in that regard, Your Honour,
17 that is primarily why it took so long for me specifically to respond
18 because it was just simply in many cases almost impossible. The sound
19 quality was so bad which is you know something we have to deal with.
20 But the Court should be aware of the difficulty with respect to
21 this and the fact that this basically is a statement of our client, which
22 obviously we tried to at least limit to some extent the poor quality of
23 the -- of the translation that we did receive.
24 JUDGE ORIE: Two brief responses, Mr. Kuzmanovic.
25 The first, you did not hear one word of criticism on the time you
1 took to carefully review those portions.
2 The second, of course, the Chamber is not in a position, because
3 none of the Judges speaks or understands Croatian any further than
4 "dobar dan" or "dobro jutro"; but, of course, to have inaudible portions
5 to be stricken from the transcript, would be part of the exercise the
6 Chamber invites you to do together with the Prosecution.
7 As I said before, the Chamber wants to be able to rely on
8 transcripts and translations which are reliable. If there is serious
9 doubts and if the parties cannot agree on the matter, of course, then
10 we'll have to find another resolution, including asking the advice of
11 third parties, or whether something is inaudible or not, but the Chamber,
12 of course, would prefer if the parties could agree on that. And, in that
13 respect, sometimes penny-wise is pound foolish. So let's try to avoid
14 that on one or two words which may not be vital, of course, if these are
15 vital words then I can imagine that you engage in a huge battle on it.
16 But if it is not of vital significance then, of course, to engage in such
17 a battle for weeks or months might not be wise to do.
18 I'm addressing both parties.
19 MR. KUZMANOVIC: I appreciate that, Your Honour, and I was not
20 implying that the Chamber was critical of me in terms of timing.
21 We can be assured of one thing. There is no stacionar in the
22 transcript anywhere, so we don't have to worry about that.
23 JUDGE ORIE: That saves at least two weeks, Mr. Kuzmanovic.
24 MR. KUZMANOVIC: And I suppose, maybe, if the Prosecution will
25 bring the beer, I will bring the popcorn and we can sit down and watch
1 the DVD
2 MR. HEDARALY: We'll consider that.
3 JUDGE ORIE: Mr. Hedaraly is invited to reconsider his nodding
5 That's as far as statements of the accused is concerned.
6 I would like to read out the Chamber's decision on Gotovina's
7 motion to reconsider the Trial Chamber's decision of the 25th of
8 November, 2008.
9 On the 3rd of February, 2009, the Gotovina Defence filed a motion
10 for reconsideration of the Trial Chamber's decision of the 25th of
11 November, 2008, in which, forensic documents relating to the collection
12 and burial of human remains of persons allegedly killed during and after
13 Operation Storm were admitted into evidence. The Gotovina Defence argues
14 that, as the Appeals Chamber granted the joint Defence appeal against the
15 Trial Chamber's 9th of October, 2008 decision, remanding the decision
16 back to the Trial Chamber for reconsideration, the 25th of November,
17 2008, decision should also be reconsidered, as it was based on the 9th
18 October 2008 decision.
19 On the 4th of February, 2009, the Markac and Cermak Defence
20 joined the motion.
21 The Prosecution responded on the 13th of February, 2009, arguing
22 that even if the Trial Chamber chooses to exclude one or more of the 189
23 additional victims from the scope of the murder charges in response to
24 the Appeals Chamber's ruling, the disputed exhibits are still relevant to
25 issues in the trial. By way of example, the Prosecution argues that the
1 documents are relevant to all allegations relating to notice of crimes to
2 the accused, the pattern of killings throughout the indictment area, the
3 widespread and/or systematic nature of the attack against the civilian
4 population, and the accused's general failure to prevent the killings.
5 On 16th of February, 2009, the Gotovina Defence filed a request,
6 seeking leave to reply to the Prosecution's response, in order to cite
7 case law showing that killing is not a crime per se; and, therefore, the
8 evidence of killings is irrelevant to any charge in the indictment.
9 On the 18th of February, 2009, the Trial Chamber decided to deny
10 this request and informed the parties accordingly through an informal
12 A Trial Chamber has the inherent discretionary power to
13 reconsider a decision in exceptional cases, if the requesting party
14 satisfies the Trial Chamber of the existence of a clear error of
15 reasoning in the impunge decision; or, if particular circumstances exist,
16 justifying its reconsideration in order to prevent an injustice. New
17 facts or argument that's rise after the issuance of the decision may
18 constitute circumstances justifying reconsideration.
19 The Prosecution correctly points out that in its decision, the
20 Appeals Chamber did not exclude any of the 189 victims from the charges
21 of murder in the indictment, but, rather, remanded the 9th October 2008
22 decision to the Trial Chamber for reconsideration with regard to two
23 identified errors. All other parts of that decision remained valid.
24 On the 2nd of March, 2009, the Trial Chamber again denied the
25 Defence's motion to strike the Further Clarification. In this decision,
1 the Trial Chamber granted the Defence the possibility of seeking
2 additional time for any further investigation that may be necessary as a
3 consequence of the decision.
4 On this basis, the Trial Chamber finds that no clear error of
5 reasoning or particular circumstance justifying reconsideration, in order
6 to prevent injustice has been identified, and for these reasons, the
7 motion is denied.
8 And this concludes the Trial Chamber's decision on this matter.
9 [Trial Chamber and legal officer confer]
10 JUDGE ORIE: The Chamber will now deliver its oral decision on
11 the admission of the Globus newspaper article, entitled: "Operation
12 Storm includes an offensive on Eastern Slavonja and Baranja which was
13 cancelled at the last minute."
14 On the 22nd of January, 2009, during the testimony of
15 Stig Marker Hansen, the Prosecution tendered as Globus newspaper article
16 into evidence. The Gotovina Defence objected to the admission on the
17 Globus newspaper article on the basis that the Prosecution had shown a
18 lack of due diligence by not seeking to add the newspaper article to its
19 65 ter exhibit list at an earlier stage of the proceedings. The Gotovina
20 Defence also objected to the addition of the newspaper article on the
21 grounds of lack of foundation and relevance, saying that the newspaper
22 article published in Croatia
23 reference the witness.
24 P1291 is a Globus newspaper article entitled: "Operation Storm
25 included an offensive on Eastern Slavonja and Baranja which was cancelled
1 at the last minute." Part of this article has already been admitted into
2 evidence as P701. The Chamber refers to its oral decision of the 16th of
3 October, 2008, which can be found at transcript pages 10.758 to 10.759.
4 In that decision, the portion of the article contained in P701 was
5 admitted because the witness through which it was tendered was able to
6 corroborate parts of the article with firsthand information.
7 The Chamber notes that the part of the newspaper article that is
8 not included in P701 and which the Prosecution now seeks to have admitted
9 as part of Exhibit P1291 has insufficient links to the witness through
10 which it is being tendered. The witness offers no corroboration as to
11 the content of the newspaper article, and it is the view of the Chamber
12 that the Prosecution should have tendered the document in its entirety at
13 the time that P701 was tendered into evidence. The Chamber, therefore,
14 denies the admission of P1291, and the Chamber requests the Registrar to
15 change the status of this document in e-court accordingly.
16 I now move to a decision in relation to Dr. Clark.
17 The Chamber delivers its decision on the admission of the expert
18 report of Dr. John Clark, P1251, and reasons for the Chamber's decision
19 to consider its admission.
20 On the 14th of November, 2008, the Prosecution submitted the
21 expert report of Dr. John Clark, pursuant to Rue 94 bis of the Tribunal's
22 Rules of Procedure and Evidence.
23 On the 24th of November, 2008, the Gotovina Defence filed a
24 notice opposing the admission of the report, on the ground that the
25 Prosecution had not notified the Defence or the Trial Chamber that it
1 would file an expert report for John Clark.
2 The Cermak and Markac Defence joined this objection on the 25th
3 of November and the 4th of December, 2008, respectively.
4 The Gotovina Defence further challenged the relevance of the
5 expert report, arguing that John Clark was only one of six pathologists
6 who performed the autopsies of the victims exhumed from sites in Knin.
7 On the 12th of January, 2009, the Chamber rejected these
8 objections and decided to consider the expert report for admission, with
9 reasons to follow, as indicated on the transcript pages 14.127 through
11 On the 13th of January, 2009, after the completion of the
12 testimony of John Clark, the Chamber invited, at transcript page 14.300,
13 the Defence teams to indicate if there were any changes in their
14 positions with regard to the expert report. The Defence teams did not
15 advance further arguments on the matter.
16 In the case of late submission of a report, under Rule 94 bis (A)
17 of the Rules, the Chamber determines whether it would be in the interests
18 of justice to considered admitting it into evidence. In this respect,
19 the Chamber considers whether the report, is prima facie relevant and
20 probative, whether the Prosecution has shown good cause to submit it at
21 this stage, and the extent to which the submissions places additional
22 burden on the Defence.
23 The expert report comprises a summary analysis by John Clark of
24 autopsy reports, prepared by six forensic pathologists, including the
25 witness himself, of bodies exhumed in 2001 from a cemetery in Knin. The
1 matters addressed in the expert report are relevant to the indictment, in
2 particular, to the alleged murders charged as crime against humanity, in
3 Counts 1 and 6, and as violations of the laws or customs of war in
4 Count 7. For a proposed expert report to be probative, first, the author
5 should qualify as an expert in its subject matter. The expert status of
6 the witness, as such, was not disputed by the Defence teams. The Chamber
7 was prima facie satisfied on the basis of the expert report that
8 John Clark qualified as an expert in forensic pathology.
9 The Prosecution did not put forward any argument regarding the
10 timing of its submission of the expert report. The Chamber, therefore,
11 found that the Prosecution had not shown good cause why it filed the
12 expert report at such a late stage of its case, without prior notice to
13 the Defence or the Trial Chamber.
14 The expert report was filed on the 14th of November, 2008, and
15 the testimony of John Clark was heard on the 12th and 13th of January,
16 2009, giving the Defence two months to prepare for cross-examination on
17 matters and opinions contained in the expert report. In relation to
18 this, the Chamber observed that the autopsy reports, death reports,
19 post-exhumation identification, and exhumation photographs underlying the
20 expert report appear on the Rule 65 ter list filed by the Prosecution
21 already on the 16th of March, 2007, inter alia, under 65 ter numbers
22 3817, 3818, 3819, and 3820.
23 A large number of these documents were tendered on the 5th of
24 August and admitted into evidence on the 25 of November, 2008. In light
25 of this, the Chamber finds that the burden on the Defence caused by the
1 filing of the expert report does not prevent the Chamber from considering
2 the expert report for admission into evidence.
3 Furthermore, the expert report assists the Chamber in the
4 interpretation of underlying forensic material, and the Chamber,
5 therefore, found the expert report and the answers given by John Clark of
6 high value. Balancing these considerations, the Chamber found that it
7 would be in the interests of justice to considered admitting the expert
8 report into evidence.
9 The general standards of admissibility set forth in Rule 89 of
10 the Rules applied to expert reports. Rule 89 (C) of the Rules provides
11 this a Chamber may admit any relevant evidence which it deems to have
12 probative value. In addition, the Trial Chamber's jurisprudence requires
13 that the witness who drafted the report be considered an expert by the
14 Chamber, and that the content of the expert report fall within the
15 accepted expertise of the witness. An expert is a person who, by virtue
16 of some specialised knowledge, skill, or training can assist the trier of
17 fact to understand or determine an issue in dispute.
18 The Chamber finds that the Prosecution has established during the
19 testimony of John Clark his expertise in forensic pathology. It finds
20 further that the expert report falls within the area of expertise.
21 Having read the report, and considered the testimony of John Clark, the
22 Chamber is also satisfied that the expert report meets the requirements
23 for admission set out in Rule 89(C) of the Rules.
24 The Chamber, therefore, admits the expert report of John Clark,
25 which was marked for identification as P1251 into evidence.
1 And this included the Chamber's reasons for considering the
2 admission of the expert report and decision on its admission into
4 Still a few MFIs are outstanding. We'll not deal with all of
5 them at this moment. But the maps have meanwhile been uploaded, at least
6 28 of them were uploaded. The binder of maps consisted of 31 maps. One
7 was admitted already into evidence; that was the aerial view of Knin
8 which we've seen many times.
9 May I ask the parties whether they agree on only seeking
10 admission of 28 of the remaining, which means that two maps are out.
11 MR. MARGETTS: Yes, Mr. President that was the agreement reached
12 with the Defence.
13 MR. MISETIC: Yes, Mr. President.
14 JUDGE ORIE: Thank you, Mr. Misetic. If I do not hear from other
15 Defence counsel that they thoroughly disagree with you, I take it that
16 one answer of one of the Defence teams is valid for the other Defence
17 teams as well.
18 MR. MISETIC: If I could inquire whether the --
19 Sorry, we found the mistake. Thank you.
20 JUDGE ORIE: I'm not aware of a mistake but I'm happy that you
21 found it.
22 MR. MISETIC: A mistake on our side, Mr. President.
23 JUDGE ORIE: Oh.
24 Mr. Registrar has meanwhile provisionally assigned exhibit
25 numbers to the maps. The parties have received an e-mail in which they
1 find the 65 ter numbers, and the exhibit numbers, on the assumption that
2 the 65 ter numbers correspond with the 28 maps, the parties jointly are
3 seeking to be admitted into evidence. The Chamber decides that P2405, up
4 to and including P2432, are admitted into evidence.
5 The Chamber was informed that the Prosecution seeks or will seek
6 leave to re-call the witness Rajcic. I think -- I don't know whether the
7 application has already been filed or not. I'm not aware of the reasons,
8 although I can guess about it. But I'll not do that.
9 MR. RUSSO: Mr. President, we had intended to make oral
10 application to the Chamber today.
11 JUDGE ORIE: Oral. Then please make that oral application.
12 MR. RUSSO: Yes, Mr. President.
13 For the reasons primarily argued for the -- against the admission
14 of the list of targets D1447, the Prosecution seeks to re-call
15 Mr. Rajcic, Witness 175, in order to put the document to him. And
16 determine the circumstances under which the document was created if he
17 knows, and how that document relates to either the planning or execution
18 of Operation Storm.
19 Our remaining argument with respect to this, Mr. President, can
20 be found at the transcript for Tuesday, 3rd of March.
21 In addition to that, Mr. President, we would seek an
22 application -- make an application for the issuance of a subpoena to
23 Mr. Rajcic to appear for that testimony with the Court grants leave to
24 re-call him. And finally, we would seek an instruction from the
25 Trial Chamber to the Defence not to contact Mr. Rajcic at least until the
1 Chamber decides with respect to our application to re-call him.
2 JUDGE ORIE: Thank you, Mr. Russo. Is the Defence or are the
3 Defence of the accused already in a position to respond to the oral
5 MR. KEHOE: Yes, Mr. President, my first question is -- is
6 touched the last point. Have the Office of the Prosecutor contacted
7 Mr. Rajcic already? Or did they do what they were supposed to do, go
8 through the Victims and Witness Unit?
9 MR. HEDARALY: Your Honour, we have contacted him solely for the
10 purpose of seeing whether he is available and whether he would come
11 without a subpoena. Nothing was discussed as to why he was being
12 re-called or what was the purpose of the testimony.
13 MR. KEHOE: Well, then my next question, Mr. President, is who in
14 the Office of the Prosecutor made that contact? Was it an investigator?
15 Was it a lawyer? Who?
16 MR. HEDARALY: Does the Chamber wish us to respond to that,
17 Your Honour?
18 JUDGE ORIE: I don't know yet what the relevance of the question
19 is. Perhaps Mr. Kehoe could explain.
20 MR. KEHOE: The relevance of question is, if investigators for
21 the Office of the Prosecutor, as opposed to the Victim and Witness Unit,
22 in fact contacted Mr. Rajcic, and we don't know what anybody talked
23 about, how can the Prosecution stand before this Chamber and say that the
24 Defence shouldn't talk to Mr. Rajcic when they have?
25 MR. HEDARALY: Your Honour, there are two separate issues here.
1 There's the practical logistical aspects of, first of all, finding out if
2 we would need a further subpoena and when that could be done and when the
3 witness is available. And then there is a substantive issue about
4 discussing a specific document, a specific exhibit that was not discussed
5 with the witness initially that we want to re-call to put that document
6 to him. So when we talk about contact, we're talking about no discussion
7 about any substance of the testimony and we were very careful. We
8 instructed the investigators that contacted Mr. Rajcic, and they can come
9 and testify if Mr. Kehoe wants, and they clearly only talked about his
10 availability, and he informed us of that, and he would not come here
11 without a subpoena, so that we could make the oral application for a
12 subpoena as well.
13 MR. KEHOE: My initial question --
14 JUDGE ORIE: Mr. Kehoe, that -- Mr. Hedaraly informed you at
15 least about what he knows or what was talked about and what instructions,
16 explicit instructions apparently were given.
17 MR. KEHOE: Well, I mean, I would like to bring the investigator
18 in here and have him put under oath number. Because, number one why did
19 the Prosecutor not have the VWU and have the VWU make that inquiry as to
20 subpoena or whatever question, and why, in fact, the Prosecution decided
21 to use an investigator and who was that investigator? I want to cross
23 JUDGE ORIE: Mr. Hedaraly.
24 MR. HEDARALY: Your Honour, my -- I mean, this was done clearly
25 because of the place we are at the case now, the juncture we're at. We
1 had to expedite matters and, I mean, these contacts are made with
2 witnesses on a regular basis for every single witness; and frankly,
3 Your Honour, this is just -- there just no basis, no basis for that. The
4 basis for asking the Defence not to contact him is a very simply.
5 Mr. Rajcic as the Court knows does not -- does not talk to the
6 Prosecution. Last time he came here, the Prosecution had not talked to
7 him [indiscernible] a very detailed 92 ter statement from the Defence and
8 that's why the Prosecution wants to make sure that that document can be
9 put in front of Mr. Rajcic without any -- any indication by the Defence
10 as to what Mr. Rajcic may or may not say or should or should not say
11 based on Mr. Misetic's reputation on what that specific document was.
12 That is the basis for the application.
13 JUDGE ORIE: Mr. Kehoe.
14 MR. KEHOE: Yes, Mr. President.
15 JUDGE ORIE: First of all, is there any specific reason why you
16 tend to believe that at least that's how I understood your words that --
17 but perhaps I'm wrong that Mr. Rajcic more was discussed than just
18 practicalities and availability and whether he would appear without a
20 MR. KEHOE: Yes, Mr. President.
21 JUDGE ORIE: There are.
22 MR. KEHOE: And I'll tell you the reason. The reason is the
23 choice of who made the phone call. I didn't know who made the phone call
24 and was just revealed that was, in fact, was an investigate as opposed to
25 the VWU. Now normally in these circumstances, and I could be entirely
1 wrong, but under these circumstances when we had a witness that come
2 before this Chamber that had been in the care, custody, or control of the
3 Victim and Witness Unit, the procedure is to contact the Victims and
4 Witness Unit, check on this person, where he is. I don't know what other
5 questions they ask, but I'm sure it is availability, subpoena needs
6 et cetera, travel needs, and low and behold what do we find? We find
7 that an investigator on that case runs back yesterday to call this guy.
8 I trust it was yesterday because that's when we got the e-mail from
9 Mr. Hedaraly and starts asking him questions, and we're supposed to
10 believe that it is simply - I don't know who the investigator is - it was
11 simply a matter of asking scheduling? Why did -- VWU generally does
13 MR. HEDARALY: Two points.
14 JUDGE ORIE: One second. This is a repetition of your argument.
15 MR. HEDARALY: Yes, Mr. President.
16 JUDGE ORIE: Do I have to understand that the basis for wanting
17 to hear from the investigator, whether he talked about anything else than
18 these practicalities is because it was done through an investigator or is
19 there any other additional reason?
20 MR. KEHOE: I don't have any other reason other than that.
21 JUDGE ORIE: Mr. Hedaraly, then --
22 MR. HEDARALY: Two quick point, if I may before that, Your
24 If the issue is the contact had with the investigator Mr. Rajcic
25 come. Mr. Kehoe can cross-examine on that contact so bringing the
1 investigator now is not --
2 I must say in this response to my e-mail I got a response from
3 Mr. Misetic saying now I don't think that was in jest or not that we were
4 going to get a 92 ter statement from him this morning. I mean, I took
5 that as being -- as being -- as being a joke about the contact. I mean,
6 now they're being accused of contacting him, I at least have to put that
7 on the record as well.
8 MR. MISETIC: Your Honour, it was a joke, for the record.
9 JUDGE ORIE: It was a joke for the record. Well, that resolves
10 at least one issue.
11 Mr. Hedaraly, so we have two issues now. An oral application to
12 re-call Mr. Rajcic; and an application by Mr. Kehoe for the reasons given
13 by him to hear the testimony of the investigator who contacted
14 Mr. Rajcic.
15 MR. KEHOE: Just one further thing -- further clarification on
16 the nature of this conversation. Mr. Hedaraly said they talked about
17 need for subpoena, availability; and I'm reading from page 24, lines 20
18 through 25. I'd like it know what was discussed in that regard as well.
19 I think the Chamber would as well.
20 JUDGE ORIE: Mr. Hedaraly, you said and then this is an issue
21 about discussing a specific document or exhibit that was not discussed
22 with the witness initially that we want to re-call to -- I take it to put
23 the document it him or to -- so when we talk about contact we're talking
24 about no discussion about any substance of the testimony.
25 I understood this, although the language is not unambiguous, that
1 not in any way and in according with the instructions the investigator
2 touched upon the substance matter of the testimony you were seeking, not
3 even mentioning, for example, a target list.
4 MR. HEDARALY: That is correct, Your Honour. And just to correct
5 one last thing. There are actually three issues. There is the issue of
6 the application to re-call Mr. Rajcic, the issue of no contact with him
7 to discuss these matters, and also the issue of the oral application for
8 a subpoena.
9 JUDGE ORIE: Yes. Could I inquire whether the Defence has had
10 any contacts with Mr. Rajcic.
11 MR. KEHOE: No, Mr. President. Our -- our e-mail going back and
12 forth --
13 JUDGE ORIE: No, no I see that there is --
14 MR. KEHOE: [Overlapping speakers] ... well there was another one
15 too. I gave Mr. Russo one too. There are actually two.
16 JUDGE ORIE: I wanted to have a clear view on all possible
17 complications that may arise, and I want it before the Chamber will
18 consider the matter.
19 MR. KEHOE: I just want to be candid, Judge, Mr. Misetic was not
20 the only one, and I just kind of carried it out, carried it one step
22 JUDGE ORIE: Yes.
23 Any of the party, anything to add.
24 MR. KEHOE: Just to --
25 JUDGE ORIE: Mr. Hedaraly.
1 MR. HEDARALY: No, Your Honour, I think it is on the record.
2 JUDGE ORIE: Mr. Kehoe.
3 MR. KEHOE: Mr. President, again I want the nature of the
4 conversation. You know, what was discussed concerning the subpoena,
5 availability. What -- I mean there had to be some discussion as
6 Your Honour pointed out as to why an investigator is calling a -- a --
7 Marko Rajic and what's the exchange back and forth, all those issues I
8 would like to know; and I think the Chamber deserves to know,
9 availability, subpoena, topic, all of those issues.
10 JUDGE ORIE: Yes.
11 Mr. Hedaraly, you have been relatively shy on the matter, why you
12 did not use the services of the victims and witness section.
13 MR. HEDARALY: Frankly, Your Honour, first of all, my
14 understanding is once the witness has -- has completed his testimony, he
15 is no longer in the hands of the Victims and Witness Unit, and it is just
16 a routine matter for us. Our investigators have been contacting
17 witnesses, calling them to arrange schedules, calling them to arrange
18 whether they would come voluntary, whether they would need a subpoena.
19 This is -- these are things that happened throughout the trial; and
20 frankly, Your Honour, one of the reasons why the Prosecution was able to
21 be very efficient in bringing witnesses here and we didn't have many days
22 without witnesses in court. And it is just the way that the Prosecution
23 has been contacting witnesses to have them come here to testify. It was
24 always done through the investigators on our team, and that's -- frankly
25 the only reason that can he did it this time as well because it was the
1 same practice and to be efficient and to get the matter in front of the
2 Court as soon as possible, given the time -- the juncture we're at in the
3 case right now.
4 MR. KEHOE: Mr. President, that was not the procedure that had
5 been used with Mr. Rajcic from the get-go from what I understand. So I
6 mean -- I don't know what he may be talking about theoretically, but if
7 we take it back to how Mr. Rajcic was dealt with, my understanding was he
8 had been dealt with back and forth with the Victims and Witness Unit. So
9 I have -- I must not -- I must demere from what Mr. Hedaraly said that
10 that was not the procedure with regard to this witness.
11 JUDGE ORIE: Mr. Kehoe, when you took a statement from
12 Mr. Rajcic, did you approach him through the victims and witness section?
13 MR. KEHOE: We did not.
14 JUDGE ORIE: I take it that you aware that the victims and
15 witness section is offering its services to both parties.
16 MR. KEHOE: And I understand that -- that -- we had been in
17 discussions as you know with Mr. Rajcic prior to that time, as he told
18 during the course of the testimony, that -- in fact, I had met Mr. Rajcic
19 in Knin, I believe it was the summer of 2007, along with Mr. Misetic, and
20 we were talking about various areas and discussing the artillery matters.
21 So frankly, Your Honour, in all candor, there had been discussion back
22 and forth, and I think Mr. Rajcic discussed those meetings that and I and
23 Mr. Misetic and others had with him prior to that.
24 JUDGE ORIE: The Chamber will consider the matter.
25 MR. KEHOE: The other, Mr. President, is -- I don't know if
1 Your Honour wants to hear any input with regard to the merits of calling
2 on this particular document or that's for another discussion.
3 JUDGE ORIE: Well, Mr. Hedaraly referred to what is in the
4 transcript, and I take it from just for efficiency reasons he explained
5 at the time when we are discussing the admission into evidence of this --
6 of this target list, so there has been quite an exchange of views on the
7 matter. Mr. Hedaraly referred to that. If you want to respond to that
8 as well, you're free to do so. Although, of course, the position taken
9 by the Defence not specifically in view of re-calling the witness but
10 what the Prosecution thought that should have been done by the Defence at
11 the time. The Chamber never decided that issue. We only decided on the
12 admission of the document into evidence. So if you'd like to further
13 respond to that beyond what is already on the record, you have an
14 opportunity to do so.
15 MR. KEHOE: Yes, Mr. President.
16 And given the oral application, it is not -- I'm not certain if
17 we even object to the re-call of Mr. Rajcic, but I will note for the
18 record that this particular document the Jagoda target list which is
19 number D --
20 JUDGE ORIE: We are aware of --
21 MR. HEDARALY: [Microphone not activated]
22 MR. KEHOE: Thank you, counsel. D1447, was, of course, was not
23 authored by Mr. Rajcic but authored by another individual by the name of
24 Kardum, who was in the operative group -- excuse me,
25 Operative Group Zadar at the time.
1 JUDGE ORIE: The Chamber is aware of the details of this -- is
2 more than aware of the details of this document and in the discussions on
3 admissibility, I think that, Mr. Hedaraly, when explaining what he had
4 expected the Defence to do, also pointed at the issues on which the
5 witness could have testified, if the Defence would have done what he
6 expected the Defence to do, so that's on the record.
7 And in response to that - and I'm just now talking from the top
8 of my head, Mr. Kehoe - I think that in response to that, it was argued
9 that, first of all, that the witness was talking about targets fired at
10 rather than just about target lists. It was our attention was drawn to
11 the different levels of -- on which target lists were prepared; and our
12 attention was also drawn to the fact that Mr. Rajcic, at that level, may
13 have had no influence, may not have been aware of the existence let alone
14 the content of those target lists.
15 So what the party would say expect the witness could testify
16 about or could not testify about, is to a considerable extent, I don't
17 know whether it is complete or not, but is to a considerable extent on
18 the record. If you would like to add anything to what you said at the
19 time, and you're now aware of how the Chamber understands this debate on
20 what the witness could or could not testify about, if you would like to
21 add anything, you're free to do so.
22 MR. KEHOE: Just taking it to one last step. If, in fact,
23 Mr. Rajcic comes and authenticates this is document and says, Yes this
24 is, in fact, a real document, then I would trust that the OTP is just
25 going to accept his authenticity; absent that, if he, in fact,
1 authenticates it, this is an exercise in futility.
2 So if we're going to travel on this path and we don't necessarily
3 object with if Mr. Rajcic comes in and says, This is an authenticate
4 document, then the OTP has got to accept that. Because if they're going
5 debate that comment then we're in a different arena, and it's a waste of
7 JUDGE ORIE: I think we are in an area of speculation. I think,
8 as a matter of fact, what I understood from the argument at the time was
9 not that the Prosecution thought that the Jagoda target list should have
10 been put to the witness just to ask him whether it is authenticate but
11 whether he knew more about it, whether he knew more about how it was
12 created, whether he would know more about whether it was used during
13 Operation Storm, whether he could add anything, as he did for other
14 target lists at a different level, whether these targets were fired at.
15 So I did not have the impression that it was just for the
16 authentication of this target list that you would want it recall the
18 MR. HEDARALY: That is absolutely correct, Your Honour; and we
19 are obviously going to stipulate to anything in advance. The whole point
20 is to have the witness come here an ask him questions on the document.
21 MR. KEHOE: On Your Honour's last comment, I need to inform the
22 Chamber of a decision not made by Mr. Rajcic but made by the Gotovina
23 Defence team. As you know Mr. Ivanovic was charged with certain crimes
24 down in Zagreb
25 particular document. The Gotovina Defence made a decision given the fact
1 that Mr. Rajcic was a witness in that, not to somehow damage those
2 proceedings by going into the details of the Jagoda list prior to that
3 particular trial.
4 Now that doesn't necessarily impact here, but I wanted Your
5 Honour to have a reason why this document wasn't shown to Rajcic when we
6 were in our 92 ter discussions.
7 JUDGE ORIE: Yes, you will understand that the Chamber has, by
8 far, insufficient knowledge of what could or what could not damage
9 proceedings which are not before this Chamber, and what, if could I say,
10 strategic or policy decisions within the Defence teams were made in this
11 respect, and the Chamber will not further explore that as you well
13 MR. KEHOE: [Microphone not activated]
14 JUDGE ORIE: The Chamber knows what was asked, what the questions
15 were that were put to Mr. Rajcic, and what questions were not put to him.
16 That is for us the simple starting point.
17 MR. KEHOE: I understand that, Judge, just as a factual reason, I
18 do believe that on concern occasions during our proceedings before this
19 Chamber or any other Chamber that the Court deserves a reason for certain
20 things; and that is where I was coming from. I believe that the Court
21 deserves an explanation from the Defence as to why something happened.
22 Doesn't necessarily go to the facts, Judge. I understand what Your
23 Honour is saying. It is just an explanation I think the Court deserves.
24 JUDGE ORIE: Thank you.
25 The Chamber will consider the matter. I think that yesterday
1 evening I seen a courtesy copy of a motion for a stay of proceedings, a
2 joint filing by the Defence.
3 Could the Prosecution inform the Chamber when they intend to
4 respond and whether they intend to respond.
5 MR. HEDARALY: Your Honour, as you know, we just got it last
6 night as well. We can try to respond either orally, hopefully. We need
7 at least a day just to think about it and see what our position is,
8 review the filing at this point. It's -- depending on that obviously
9 it's going affect the response and then we can inform the Chamber as to
10 when -- if written response is needed, how much time we would need, or if
11 we can simply respond in an oral manner to expedite matters. We got it
12 last night as well so we didn't have a chance to review it carefully.
13 JUDGE ORIE: Mr. Hedaraly, the Chamber does not discourage you
14 from first thinking before responding.
15 MR. HEDARALY: Thank you, Your Honour.
16 MR. KEHOE: Mr. President, just going back to our discussion with
17 regard to Mr. Rajcic; and I did ask for some clarification on what
18 exactly was discussed, subpoena, non-subpoena, availability, timing, all
19 of those issues. Obviously we have matters that we -- I would just like
20 the full context and full pieces of information that were told to the
22 JUDGE ORIE: Yes. I do encourage the Prosecution to perhaps have
23 informal conversations which might or may not satisfy Mr. Kehoe in what
24 he wants to know and whether he still wants the witness to be called to
25 give further explanation about his communications with Mr. Rajcic.
1 One very practical question: Is that investigator in The Hague
2 or is he any else?
3 MR. HEDARALY: I believe he is -- I don't believe -- I know he is
4 in The Hague
5 JUDGE ORIE: Thank you. We will have a break. The Chamber will
6 have to consider a few more matters. We'd like to have a longer break
7 than usual. The Chamber would like to re-start at 20 minutes past 11.00.
8 --- Recess taken at 10.38 a.m.
9 --- On resuming at 11.35 a.m.
10 JUDGE ORIE: The Chamber again apologises for its bad assessments
11 of the time it needed to continue.
12 As far as the MFI
13 Prosecution's motion pending, the motion to add 66 military police
14 documents to the 65 ter list and to admit 70 military police documents
15 into evidence. The Chamber cannot decide at this moment because it
16 granted Mr. Cayley another 24 minutes to file its response to that. The
17 Chamber, however, intends to see whether we can finish at approximately
18 12.00 so that we immediately start, Mr. Cayley, to look at your
19 submission, and then the Chamber has the intention to file a very brief
20 decision on the matter, mainly informing the parties on the decision
21 without lengthy reasoning.
22 MR. CAYLEY: Thank you, Your Honour. I do have some submissions
23 to make. They're not very controversial. First of all, it won't take
24 long, and secondly, I think the Chamber will be able to come to a very
25 rapid and easy decision over the matter. But -- I mean, I'm prepared to
1 make the submissions whenever you wish me to do so.
2 JUDGE ORIE: You would rather than make them orally than in
4 MR. CAYLEY: I think that's probably best, Your Honour, so we can
5 move at more speed.
6 JUDGE ORIE: Please to do.
7 MR. CAYLEY: You'd like me to do it now, Your Honour.
8 JUDGE ORIE: Then let's do it right away. Even though it's not
9 filed yet.
10 MR. CAYLEY: We're talking about here about Prosecutor's
11 Exhibit 002210 to P02312. These are not inclusive numbers. It is serial
12 numbers 22 to 89 in the MFI
13 basis of the four appendices, Appendix A through to Appendix D.
14 From the outset, I can state that we don't have an objection to
15 any of these documents to either add them to the 65 ter list or for these
16 documents to be admitted into evidence, but we with like to make some
17 observations on matters of procedure, which, as with you recall, was our
18 original area of concern.
19 In respect of Appendix A, which concerned three documents, the
20 Prosecution stated that the significance of these documents only became
21 apparent during the trial, and the Cermak Defence would like to point out
22 to the Court that, in fact, two of these documents were in the original
23 Theunens report of December of 2007. That's P02210, which was footnote
24 178 in that report; and P02217, which was footnote 927 in the Theunens
25 report. The third document, which is P02214, was footnote 3 in the
1 Theunens addendum, which was disclosed to the Defence on the 18th of
2 September of 2008.
3 These are just comments, Your Honour.
4 That's in respect to Appendix A.
5 In respect of Appendix B, these documents were disclosed to us on
6 the 15th of January of 2009, and that was ten days prior to Mr. Lausic
7 giving evidence.
8 In respect of the third appendix, which is Appendix C, and these
9 are the 49 documents, these were disclosed to the Defence as Rule 66 or
10 Rule 68 between 11th of October and the 14th of December, 2007, as part
11 of a RFA package. And in respect of the last documents, Appendix D, we
12 don't have any comments at all.
13 So I emphasise again we don't object to admission or to these
14 documents being placed -- the ones that were not on the 65 ter list being
15 placed on the 65 ter list, but we make these observations for the
16 consideration of the Chamber.
17 Thank you, Your Honour.
18 JUDGE ORIE: Thank you, Mr. Cayley. As I said before, the
19 Chamber intends to deliver a rather brief decision more or less of the
20 find, as the oral decisions given in court, on this matter, preferably
21 today; if not today, then tomorrow.
22 Then the next item I would like to deal with is -- are the Rajcic
23 bar table submissions. The Chamber will -- exhibit numbers have
24 meanwhile been assigned, and the Chamber will deliver its decision. I'll
25 try to keep it as short as possible, as far as numbers are concerned:
1 P2433, up to and including P2437, are admitted into evidence.
2 P2440, up to and including P2442, are admitted into evidence.
3 P2444, up to and including P2475, are admitted into evidence.
4 P2478, up to and including P2482, are admitted into evidence.
5 P2484 is admitted into evidence.
6 P2487 is admitted into evidence.
7 P2488 is admitted into evidence.
8 P2490 is admitted into evidence.
9 P2493 and P2494 are admitted into evidence.
10 P2438 and P2439 are admitted into evidence.
11 P2485 and P2492 are admitted into evidence.
12 Not admitted into evidence are the following: P2443; P2476;
13 P2477; P2483; P2486; P2489; and P2491.
14 This concludes the decision on the Rajcic bar table submissions.
15 There is still an outstanding request, the Prosecution's motion
16 to add one document to the Rule 65 ter exhibit list. That is a motion in
17 relation to a document which, after that, we never heard about so never
18 any moment that it was either tendered in a bar table submission or put
19 to a witness or sought to be tendered into evidence, and the Chamber
20 wonders whether that motion still needs to be decided upon.
21 MR. RUSSO: Yes, Mr. President, we would seek a decision for
23 JUDGE ORIE: Then it is on the 65 ter list and then to do what
24 with it, Mr. Russo.
25 MR. RUSSO: And then to move it into evidence, Mr. President.
1 JUDGE ORIE: And when would you like to do that? Next year or
2 still this year?
3 MR. RUSSO: Preferably immediately after the Court's decision on
4 the addition.
5 MR. KEHOE: Your Honour, I'm lost here. My apologies. I don't
6 know which 65 ter -- which document we're referring to, if I may.
7 JUDGE ORIE: Mr. Russo.
8 MR. RUSSO: It was the diary for TS-4, which was received by us
9 on 13 February. We had sent it over on that date. I will have to look
10 up the 65 ter number.
11 [Prosecution counsel confer]
12 [Defence counsel confer]
13 JUDGE ORIE: May I --
14 MR. KEHOE: Just trying to catch up here, I mean, this was not
15 again on a document put to Mr. Rajcic. It's part of this bar table
16 submission? Because I don't believe that the TS-4 diary was ever shown
17 to him. My recollection could be refreshed on that, but I don't think it
19 MR. RUSSO: That's correct Mr. President. I had added -- move to
20 add it to the 65 ter list in anticipation of having to show it to
21 Mr. Rajcic. That opportunity did not arise, and I didn't feel it
22 necessary to do that at that time.
23 Is it 65 ter 7160.
24 MR. KEHOE: Putting a document in that wasn't shown to the man,
25 you know, with a witness that is being recalled. I will go back and take
1 a look it, Judge. Certainly we continue our objection about this. If
2 this is the document that came in at literally the eleventh hour, and I
3 believe this is the document that -- yeah. I mean, with regard to TS-4,
4 I mean, we certainly do object to it.
5 JUDGE ORIE: It came in at a later hour for both the Prosecution
6 from what I understand and the parties and for the Chamber.
7 MR. KEHOE: If can I get a view in this 65 ter 7160 as to when it
8 came in.
9 JUDGE ORIE: Mr. Russo you said it --
10 MR. RUSSO: It was sent to the Prosecution by the government of
12 that date, prior to having received an electronic registration number
13 stamp on it. Immediately after we had it stamped, we again disclosed,
14 and moved to add it to the 65 ter list in anticipation of possibly having
15 to put it to Mr. Rajcic.
16 MR. KEHOE: [Microphone not activated] ... Mr. President, they
17 get to bring Mr. Rajcic on to put a document him that didn't get to put
18 the document to. Now they have a document that they didn't give to him.
19 Yet they want to put it on the 65 ter list and get it admitted into
21 It seems to me a bit of an inconsistent position on the part of
22 the Prosecution that it may, in part, is driven what they want to do with
23 the time. Leave that as it may, again, this is another eleventh-hour
24 document. I'm looking at our records as to when it was obtained. The
25 Office of the Prosecutor did not inform us as to when it was obtained. I
1 know that it was ultimately given to us in the original on the 16th of
2 February, and a translation for my purposes was not given to me until the
3 17th of February. And I believe that was a day or so before Mr. Rajcic
4 took the stand.
5 JUDGE ORIE: Yes. We all know that if the Prosecution received
6 on the 13th of February that was a Friday, so that we have Saturday,
7 Sunday, and 16th is the next working day.
8 MR. KEHOE: Yes.
9 JUDGE ORIE: The Chamber will consider the matter, and it has not
10 been withdrawn.
11 MR. KEHOE: If I may, Your Honour, consistent with Your Honours'
12 admission, the Prosecution can inform the Chamber in writing when they
13 got this document, because I looked at the spreadsheet that had been
14 given to us by the Office of the Prosecutor and the date of when they got
15 it is blank.
16 JUDGE ORIE: Mr. Russo.
17 MR. RUSSO: I say it for a third time, Your Honour, on the 13th
18 of February, we received it from the government of Croatia.
19 JUDGE ORIE: Even if it is not in writing there. That is the
20 information that Mr. Russo provides to the Defence and to this Chamber.
21 We'll further consider the matter.
22 Then this is an decision which is, to some extent related to a
23 decision that was, I think, delivered yesterday. That is the reasons for
24 the decision on the Defence motions to exclude evidence of
25 Dr. Eric Baccard and a decision on the Markac motion to exclude.
1 On the 3rd of February, 2009, the Gotovina Defence filed a motion
2 to exclude, pursuant to Rule 89(D) of the Rules, 44 autopsy reports
3 admitted into evidence under the exhibit numbers P91; P728; P732; P735;
4 P738; P1545 through P1566; P1569 through P1571; P1677; P1681 through
5 P1687; P1689 through P1694; and two documents from the Prosecution 65 ter
6 list with the 65 ter numbers 6053 and 6063.
7 On the 4th of February, 2009, the Gotovina Defence filed two
8 corrigenda to its motion.
9 On the 4th of February, 2009, the Cermak and Markac Defence
10 joined the Gotovina motion and the first corrigendum.
11 The Markac Defence, in addition, requested the Chamber to exclude
12 six additional exhibits; namely, P1544, P1567, P1568, P1573, P1678 and
13 P1680. The Markac Defence also requested the Chamber not to admit the
14 documents under 65 ter 6041, but since this document was admitted under
15 Exhibit P1668 on the 12th of January, 2009, the Chamber considers this as
16 a request to exclude that exhibit.
17 On the 4th of February, 2009, the Chamber denied the Gotovina
18 motion with reasons to follow, as indicated at transcript page 15.735.
19 In the Gotovina motion, then joined by the Cermak and
20 Markac Defence, the Defence stated that the contested autopsy reports
21 refer to killing incidents that are not in the indictment or in the
22 Clarification Schedule and/or did not occur in the area of responsibility
23 of the Split Military District. With regards to some of the autopsy
24 reports, the Defence stated that the cause and/or the date of death is
25 unknown. The Markac Defence further supplemented these arguments by
1 stating that the Croatian special police were not in the vicinity of the
2 location of alleged killings at the time they occurred.
3 Rule 89(D) of the Rules provides that the Chamber may exclude
4 evidence if its probative value is substantially outweighed by the need
5 to ensure a fair trial.
6 The exhibits that the Gotovina and Markac sought and seek to have
7 excluded were tendered with different witnesses and admitted by the
8 Chamber or admitted through the Chamber's decision on the 25th of
9 November, 2008.
10 In the admission decision, the Chamber assessed the relevance and
11 probative value of the exhibits mentioned. With regard to the exhibits
12 that were admitted through the 25th of November, 2008 decision, the
13 Chamber held, inter alia, that the autopsy reports in question relate to
14 the death of persons during and immediately following Operation Storm and
15 are, therefore, relevant to the indictment allegations contained in
16 Counts 1, 6, and 7. The Chamber further recalls its Order, pursuant to
17 Rule 73 bis (D) to reduce the indictment, the order dated the 21st of
18 February, 2007, in which it held that the Prosecution would be permitted
19 to present relevant evidence relating to pattern, intent, or knowledge.
20 The Chamber considered that the Defence's arguments relates
21 solely to the relevance and probative value of the exhibits which was
22 considered at the time of admission. The Chamber, therefore, finds that
23 the Defence has not substantiated its position that the probative value
24 of the autopsy reports is substantially outweighed by a need to ensure a
25 fair trial.
1 As to the exclusion of the two autopsy reported from the
2 Prosecution's 65 ter list under 65 ter numbers 06053 and 06063, these
3 documents have not been tendered by the Prosecution. The Chamber,
4 therefore, did not consider the Defence motion in this respect.
5 And for the forgoing reasons, the Chamber denied the Gotovina
6 motion in its entirety, and the Chamber also denies the Markac motion.
7 And this concludes the Chamber's reason for the decision of the
8 Defence motions to exclude evidence of Dr. Eric Baccard and the decision
9 on the Markac motion to exclusion evidence of Dr. Baccard.
10 I move on. Decisions on the fourth motion for admission of
11 evidence, pursuant to Rules 92 quater and the Prosecution's third motion
12 for admission of evidence, pursuant to Rule 92 bis will be filed, if not
13 this afternoon, which is more likely the case, by tomorrow.
14 One of the outstanding MFIs is D1083 for which a translation has
15 not been received. The Chamber will actively seek that a translation
16 will be delivered as soon as possible, and advises the parties - and I do
17 see that there is a problem for the Prosecution - to seek assistance in
18 understanding the content of it and to act on the basis, as if D1083 were
19 admitted into evidence.
20 [Trial Chamber and legal officer confer]
21 JUDGE ORIE: There are then still a few MFIs outstanding. We
22 have the Lausic and some of the Rajcic MFI'd exhibits. As I said before,
23 the Chamber will make an effort to see whether it can file - again, if
24 not today then tomorrow - a decision in which decisions are put on paper.
25 The Chamber is aware that, at this moment, there are certain
1 outstanding matters. For example, no decision has been taken on whether
2 Mr. Rajcic should be re-called or not; neither has there been a decision
3 whether we should hear the evidence of the investigator who approached
4 Mr. Rajcic.
5 The Chamber does not want to rush these matters, and I give, for
6 example, one of the reasons, Mr. Hedaraly. Let me just find it.
7 I haven't got it here but there is some case law on whether or
8 not once a witness has been excused and is about to be re-called what
9 would be the proper way of dealing with that witness. The Chamber wants
10 to give that some thought before we give a decision. But we, of course,
11 want to take that decision as soon as possible.
12 There is still an outstanding Defence request for stay of
13 proceedings. I don't think that the Defence would appreciate if we would
14 come with a 15-minute thought decision.
15 Mr. Hedaraly, I encouraged you to think over matters for one day.
16 Sometimes the Chamber needs to think about matters as well.
17 The Chamber is also aware -- by the way, the Chamber invites the
18 Prosecution to file submissions or to file a response to the motion for a
19 stay of proceedings in writing, and you said you needed one day to think
20 about it. Could we receive that by when?
21 MR. HEDARALY: What we can do, Your Honour, is inform the Chamber
22 through the legal officer later today when we would anticipate the file.
23 That may be the most prudent course. We will try to get it done by
24 tomorrow depending on how many issues that we intend to raise or if we
25 intend to raise any issues.
1 JUDGE ORIE: And if not, then immediately after the weekend.
2 MR. HEDARALY: Yes, absolutely.
3 JUDGE ORIE: Yes. Of course, there is still an ongoing 54 bis
5 MR. KEHOE: If I may, just a way of scheduling consistent with --
6 and I know we haven't yet, but we have a request for a certification that
7 we will be filing this afternoon as well.
8 JUDGE ORIE: May I take it the certification against the
9 decision, the renewed decision on the clarification.
10 MR. KEHOE: Yes, yes.
11 JUDGE ORIE: [Overlapping speakers] ... then we would that to
12 the outstanding issues. There's still the Prosecution motion seeking
13 protection of documents obtained by the Gotovina Defence. There is still
14 a Prosecution's request the Chamber to order the Gotovina Defence to
15 disclose information with regard to its communication with Croatia
16 still have an outstanding request for disclosure to Croatia of concern
17 portions of a confidential transcript. And the Chamber owes the parties
18 still the reasons for a number of decisions.
19 The Chamber is fully aware of these outstanding matters. At the
20 same time, if we would wait with all of them, then we would lose time,
21 others would say we would gain time; but at least we would move forward
22 more slowly.
23 The Chamber, therefore, has taken as its position at this moment
24 that we will move on and, of course, it could well be that the still
25 pending matters would, at any further stage, but we try to resolve most
1 of them, giving reasons, giving a decision on the request for stay of
2 proceedings. It goes without staying that if we would grant that motion,
3 then, of course, the whole scheduling after the 98 bis would be quite
4 different. We could not move on in a similar way. A decision on
5 re-calling Mr. Rajcic might have some consequences on, as far as timing
6 is concerned.
7 The Chamber reminds the parties that in the interests of justice,
8 the Chamber has the authority to change the order of -- of the
9 presentation of evidence under Rule 85. So if there would be need to do
10 so, the Chamber will use that authority. But, as a practical matter, and
11 this gives a concrete answer in relation to the scheduling, as you find
12 it in the Scheduling Order, the Chamber considers that, today, the
13 Prosecution's case has materially been concluded.
14 The Chamber will deliver a formal written decision next week,
15 explaining exactly what matters are, as far as the closure of the
16 Prosecution's case is, and the Chamber - as matters stand now, and new
17 circumstances, of course, could change that - will hear 98 bis
18 submissions, starting on the 19th of March, and concluding at the 25th of
19 March. The earlier Scheduling Order counted from the conclusion of the
20 Prosecution's case. For these mathematics, the Chamber starts counting
21 today as the day on which, materially, the Prosecution case has been
22 concluded, which would also mean that the Chamber sets at a date on which
23 the 65 ter filings should be received is Thursday, the 9th of April.
24 [Defence counsel confer]
25 JUDGE ORIE: This is what was on my agenda.
1 Mr. Hedaraly.
2 MR. HEDARALY: Just a procedurally, Your Honour. I think it is
3 not on the record that given the Chamber's statement of the 2nd of March,
4 the Prosecution will withdraw its submissions of Rule 92 ter for
5 witnesses 59 up to and including 63 for the reasons given by the Chamber.
6 So at the present stage, we are not be calling them, but I guess that was
7 already informally announced and obviously related to the issue of the
8 end of the Prosecution case.
9 JUDGE ORIE: Thank you for putting this on the record,
10 Mr. Hedaraly.
11 Mr. Misetic.
12 MR. MISETIC: Yes, Mr. President, for the record, just so that
13 the record is complete, the Chamber invited the Gotovina Defence to
14 specify and clarify the relevance of its bar table submissions for
15 Roberts, Lausic, and Puhovski.
16 JUDGE ORIE: Isn't it true that this was either filed with a
17 courtesy copy already sent to chamber staff?
18 MR. MISETIC: It was not filed. It was e-mailed to Chamber
19 staff. If the Chamber wishes, we will file it but ...
20 JUDGE ORIE: If the Chamber would have prefer to have if filed,
21 where usually it is in the table of -- it's in the table of the bar table
22 submissions so that we have guidance as to where to look at, what pages,
23 not to read line by line.
24 MR. MISETIC: Yes.
25 JUDGE ORIE: Then we'll let you know.
1 MR. MISETIC: Thank you, Mr. President.
2 JUDGE ORIE: But the information was received clearly, and was
3 copied to the Prosecution.
4 MR. MISETIC: Thank you.
5 We were not anticipating some of the comments of the Chamber
6 which is fine here at the end, but we did wish to alert the Chamber with
7 respect to the issue of the prejudice to the Defence of the additional
8 189 killings and the stay of proceedings.
9 I understand Rule 85 allows the Chamber to put in different order
10 the cases that will be put. However, one or more of the defendants may
11 choose not to put on a defence at all and/or under Rule 82 seek to
12 separate the trials at the close of the Prosecution's case. That would
13 make relevant the resolution of the 189 killings to be done within the
14 Prosecution's case, in line with the Trial Chamber's most recent
15 decision. All of that at this point, nothing has been decided, but I
16 wish to put that on the record for the Chamber that there may be issues
17 there if one or more of the defendants chooses not to put on a defence.
18 Thank you, Mr. President.
19 MR. KEHOE: [Overlapping speakers] ... if I could just add --
20 add -- add to that --
21 JUDGE ORIE: Yes, I'm aware of that. And then if that would be
22 choice of one of the defendants, then, of course, I think explained
23 clearly then, of course, we have to face the situation we find ourselves
24 in, and we'll seriously do that.
25 Mr. Kehoe.
1 MR. KEHOE: If I may, Mr. President, and I just to put this on
2 the record. I understand Your Honours' discretion under Rule 85, but I
3 hasten to add the enormity of the task of investigating 189 murders. I
4 have tried to explain in numerous, several filings the -- what we have
5 endeavoured to do on this score; and it is something that we had fully
6 intended to -- if Your Honour is going to consider those, take those, and
7 take them on during the 89 bis proceeding. That's going to be virtually
8 impossible. It was likewise virtually impossible to investigate these
9 matters during the course of the Prosecution's cast. I think Your Honour
10 can see that the Defence spend an enormous amount of time working on
11 matters as they come across the transom cleaving off resources that we
12 don't have to investigates 189 killings that came in in July of 2008 in a
13 specific Further Clarification Schedule rendered further investigation
15 So I -- I must put on the record and I understand Your Honours'
16 position. It is an enormously prejudicial position for the Chamber to
17 take for force us to move ahead prior to the 98 bis hearing without
18 having the opportunity to fully investigate these matters.
19 It is a matter, at this point, given the fact that it's an issue
20 of fundamental fairness. And given the fact Your Honour -- the Chamber
21 in its decision noted that the accused can be found guilty of murder even
22 though the individual was not listed in a clarification schedule even
23 though, it is not listed in a charging document such as an indictment,
24 magnifies the importance of these 189 killings far beyond anything I
25 think the Defence conceived of. That being the case, the -- the -- it is
1 imperative that the -- that the Defence be able to vet these killings
2 prior to the 98 bis motion and have additional time to do so. And they
3 have very, very difficult to do given the scant resources or scant amount
4 of information that comes across the transoms from the Prosecution, so I
5 just want to put on the record the -- the tremendous prejudice to the
6 Defence if we are forced to move ahead pursuant to Rule 85 to answer the
7 98 bis motion before this matter concerning 189 killings is resolved.
8 JUDGE ORIE: Thank you for putting it on the record, Mr. Kehoe.
9 You will understand that this will be part of our considerations on the
10 motion, which I looked at only yesterday evening late together with a lot
11 of other material. We'll certainly -- and as I said before, if, on the
12 basis of decisions or other considerations, the Chamber finds at a
13 certain moment that we should opt for another schedule, of course, we'll
14 do. But as matters stand now, this is what the Chamber has in mind.
15 MR. MISETIC: Mr. President, I apologise, a housekeeping matter
16 again. You indicated that you will be issuing a Ruling in writing on the
17 Rule 92 quarter submissions of the Prosecution. One of them is a Rule 92
18 quater for Witness 43, and we e-mailed to the parties and the Chamber
19 pursuant to Your Honours' request that document that we had attached to a
20 response with a complete translation and also the other documents that
21 were in that response, four of those document do not have MFI numbers
22 right now, and I don't know if we wish to MFI them now so they don't fall
23 off the radar or --
24 JUDGE ORIE: Do we have numbers which would allow Mr. Registrar
25 to --
1 MR. MISETIC: Yes, we do, Mr. President.
2 JUDGE ORIE: -- know what he assigns a number to?
3 MR. MISETIC: Yes.
4 JUDGE ORIE: Mr. Registrar.
5 MR. MISETIC: I'll read it out: 1D00-0847; 1D00-0869; 1D00-0872;
6 and 1D00-0882. Thank you.
7 JUDGE ORIE: Mr. Registrar, numbers to be assigned to these
9 THE REGISTRAR: Your Honours, 1D00-0847 becomes Exhibit D1455;
10 document ID 1D00-0869 becomes Exhibit D1456; 1D00-0872 becomes
11 Exhibit D1457; and 1D00-0882 becomes Exhibit D1458.
12 JUDGE ORIE: Thank you, Mr. Registrar.
13 Mr. Misetic, the Chamber will consider whether decision on
14 admission will be part of that short decision just determining what is
15 and what is not admitted into evidence or that we'll include it in the
16 decision on the 92 quater motion that is still a technical matter still
17 to be seen.
18 Any other matter to be raised at this moment?
19 Then we'll adjourn, and we resume on Thursday, the 19th of March,
20 9.00, Courtroom I.
21 --- Whereupon the hearing adjourned at 12.23 p.m.
22 to be reconvened on Thursday, the 19th of March,
23 2009, at 9.00 a.m.