Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16449

1 Friday, 10 March 2000

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.12 a.m.

5 THE REGISTRAR: Good morning, Your Honours.

6 Case number IT-95-14/2-T, the Prosecutor versus Dario

7 Kordic and Mario Cerkez.

8 JUDGE MAY: The first matter is this: We

9 have prepared a schedule of sittings through until the

10 beginning of September and copies are available for

11 that from the Senior Legal Officer.

12 The next matter is this: We have, as I

13 understand it, these matters to consider, and I

14 propose, briefly, to set out the agenda. There may be

15 other matters too, but the outstanding matters are

16 these: I'm going to give a brief ruling on the

17 international armed conflict documents. We will then

18 deal with the Kiseljak binder, the video evidence, the

19 affidavits, the transcripts, any other outstanding

20 Prosecution material, and at the end, we will spend a

21 little time on some housekeeping to make sure that

22 matters are in order.

23 Turning to the international armed conflict

24 binders, we've already said that we will admit them,

25 but I think I should add this: that in doing so, we

Page 16450

1 are applying the same principles in relation to

2 admissibility as those we apply to the admissibility of

3 the documents when ruling on the outstanding exhibits.

4 The objections related to hearsay, lack of

5 foundation, and authenticity, signature, or relevance,

6 or indeed other objections, are all matters which go to

7 the weight of the evidence and not to its

8 admissibility. However, only legible exhibits will be

9 admitted and those with translations in one of the

10 languages of the Tribunal.

11 There is one matter which I want to raise

12 about those exhibits, and that is in relation to

13 Exhibit 2436, conveniently can be found in the Defence

14 objections, and it states -- the objection states that

15 material from the report has been redacted. Now, it

16 would be of assistance, before ruling on that document,

17 to know what the position is.

18 It may be convenient if we return to that

19 during the course of the morning. Mr. Scott, if you

20 could let me know what the position about that document

21 is.

22 MR. SCOTT: Yes, Your Honour.

23 JUDGE MAY: Thank you. We'll go on to the

24 Kiseljak binder. In relation to that, we shall apply

25 the principles which we set out in our written ruling

Page 16451

1 in relation to the Tulica binder; that is, we will

2 exclude witness statements and investigators' reports.

3 We will admit exhibits, that is, photographs, and

4 videos, maps, death certificates, and exhumation

5 reports.

6 I take it that all the transcripts which are

7 referred to in the report or binder have been ruled on,

8 and unless there are any other matters outstanding, I

9 think that that covers the binder.

10 I should say that we have taken into account

11 the binder itself, of course, and the documents in it,

12 and also the Defence objections which are set out in

13 their document which we've had in front of us; and

14 applying the Tulica ruling, that would be our ruling

15 about that binder.

16 Are there any other outstanding matters, Mr.

17 Scott?

18 MR. SCOTT: No, Your Honour. On Kiseljak, if

19 it please the Court, I was simply going to add that I

20 think that the revised binders, in the past couple

21 weeks, have been revised binders now down to two

22 volumes, and with a new index and an exactly -- as far

23 as I know, exactly parallels the Court's ruling. It

24 now contains the index, exhibit materials, no

25 investigator's report, no statements. So to the best

Page 16452

1 of my knowledge, the revised binders, two volumes, are

2 completely consistent with the Court's rulings.

3 JUDGE MAY: Yes, Mr. Browning.

4 MR. BROWNING: Your Honour, we would simply

5 ask that the Prosecution confirm that all material has

6 been provided to us. According to our records, there

7 are certain documents set out in the binder that we

8 have not received. Moreover, there were some documents

9 that were produced on February 25th, and there were no

10 translations provided in connection with those

11 additional documents.

12 MR. SCOTT: I confirm what I said earlier,

13 Your Honour. I think there were one or two documents

14 which were removed from the list, for whatever reason;

15 either legible copies could not be found, so they were

16 simply removed from the index and the material, or

17 there had originally been a wrong number and it was

18 like the next number, two numbers later, so that the

19 index was changed to correct that. But as far as I

20 know, the binders that I'm now looking at or have

21 before me for Kiseljak are the final binders that have

22 resolved, to the best of our ability, all the

23 outstanding objections raised by the Defence.

24 MR. BROWNING: Your Honour, we would simply

25 propose the opportunity to review that and sit down

Page 16453

1 with the Prosecution and point out the documents we

2 have specific concerns about.


4 MR. BROWNING: Thank you.

5 JUDGE MAY: The next matter concerns the

6 video evidence. The position is this: that we have

7 now been provided with an amended Prosecution

8 document. By my calculation, there are 41 videos in

9 the document, and analysing it, some 17 are of

10 interviews of various people, 7 of press conferences, 6

11 of ceremonies or public events, 3 of damage, and there

12 are 8 of other matters, miscellaneous, but that does

13 include reports, the sort of which we have been

14 admitting during the trial.

15 I must say, speaking for myself, these are

16 all the sort of items which we have admitted during the

17 trial, applying the principles with regard to hearsay

18 evidence which we have done and which we've frequently

19 set out. That is, that matters of foundation and

20 absence of foundation and absence of authentication are

21 matters which go to the weight, and these are the sort

22 of items which speak for themselves.

23 But perhaps I could start with the

24 Prosecution. You were going to go through the videos

25 with the Defence. I hope that's been done and that

Page 16454

1 this is now in final form.

2 MR. LOPEZ-TERRES: [Interpretation] Yes,

3 that's right, Mr. President.

4 Personally, I counted 42 extracts, not 41.

5 Perhaps that was a mistake I made. These are extracts

6 that come from 16 video cassettes, and some extracts

7 come from that same cassette. As of today, we have

8 presented to this Trial Chamber 28 extracts which were

9 played here. They came, according to our estimates,

10 from 17 different cassettes.

11 Therefore, there are 42 extracts that we

12 would have liked to present to the Trial Chamber, but

13 for time reasons we were not able to do that. And we

14 considered this week to present four extracts that are

15 ready and are available to you, if you want them, as

16 regards the extracts for which there are transcripts,

17 because obviously there are some extracts which, as you

18 said, which speak for themselves. They are just

19 pictures, and there's no need to have a transcript.

20 The images are sufficiently clear.

21 As regards the transcript, we reviewed it

22 thoroughly. Unless I made a mistake, we think that we

23 gave to the Defence all those transcripts which

24 correspond to the cassettes which are listed here and

25 for which, in fact, there was a need to have

Page 16455

1 transcripts.

2 JUDGE MAY: Mr. Lopez-Terres, I think you'll

3 find the number is 41. It was 42 originally. I may be

4 wrong, and correct me if I am. Two were then removed

5 and, I think, one added in the new list, so the number

6 should be 41. It seems to meet with some agreement.

7 MR. LOPEZ-TERRES: [Interpretation] I'm sure

8 that you're right, Mr. President. On my list, there's

9 still 42 extracts, but I'm sure that you have a

10 complete list.

11 JUDGE BENNOUNA: [Interpretation]

12 Mr. Lopez-Terres, as regards the transcripts, I think

13 that whatever the situation, the transcripts must be

14 exhaustive, because we, from a practical point of

15 view -- well, first we've got to look at the

16 transcripts before we can look at the images, and it's

17 from the transcripts that we can know exactly what it's

18 about. Obviously, if there is no sound, then you're

19 right, but you're only right in that case, if there's

20 no sound, if it's silent films. But insofar as there

21 is sound, we need the transcripts.

22 MR. LOPEZ-TERRES: [Interpretation] Once

23 again, according to information that I have, and we

24 worked last week on that transcripts question, unless I

25 made a mistake, all the corresponding transcripts were

Page 16456

1 submitted and they are complete.

2 What can happen sometimes is that the

3 translation of a cassette deals with several events,

4 and some of the events are not those that we consider

5 relevant for this case, so on the same page you might

6 have part of a transcript which is not part of

7 something that's of interest to us. That's simply

8 because the Translation Service used a joint document

9 for several conversations or several events, but

10 there's no selection that we made in the transcript.

11 When it's submitted, it's submitted in full.

12 The Defence already received the transcripts

13 in question. That was recently, and the Trial Chamber

14 now is being given the transcripts.

15 JUDGE MAY: Mr. Browning, let me say this

16 before you begin: that we have your document setting

17 out your objections, and of course there's a number

18 which you haven't yet received, and I hope you've had

19 the opportunity of going through the matter and

20 reviewing it with the Prosecution.

21 MR. BROWNING: Your Honour, first of all, let

22 me say that I have made every request possible to meet

23 with the Prosecution and to resolve as many of these

24 differences as possible. Unfortunately, no such

25 meeting has taken place.

Page 16457

1 I would like to say that we have analysed the

2 list that we received yesterday, and with the

3 assistance of the usher, I would like to distribute our

4 position now that we have additional information from

5 the Prosecution.

6 JUDGE MAY: Why has no meeting taken place?

7 MR. BROWNING: Your Honour, at the hearing on

8 Wednesday, March 1, I, at the end of the day, asked

9 Mr. Lopez-Terres if we might be able to meet. The next

10 day, a letter was sent to Mr. Lopez-Terres when the

11 meeting did not take place. The following day, on

12 Friday, Mr. Sayers sent a letter to Mr. Nice,

13 requesting a meeting. Sunday evening, we received yet

14 the sixth list of OTP videos. It is an ever-changing

15 list, and what happened was we got this list of 40-plus

16 videos and a stack of transcripts. And what we had to

17 do, even though we had requested them to simply provide

18 us with the exhibits so we could easily tell what we

19 were dealing with -- the mess that we were given on

20 Sunday evening was a list of videos, and we were told

21 to go to our video library, videos that we had

22 previously received from the Prosecution, and take a

23 two- or three-hour tape and, using the transcript, try

24 to determine what portion they are now considering to

25 be their exhibits.

Page 16458

1 It has required a tremendous amount of time

2 on my part and on the part of my staff. I apologise

3 that we are objecting to numerous videos, but it is not

4 without trying, on the Defence's part, to work this

5 issue out.

6 As it stands right now, there are still ten

7 videos that we have never received from the

8 Prosecution. We have made numerous and repeated

9 requests to receive the information, but it simply

10 hasn't been coming to us. This seems to be a

11 never-ending process with the Prosecution with respect

12 to the videos. As I understand what Mr. Lopez-Terres

13 is saying, there is still more changes yet to come, and

14 there has to be closure on this issue.

15 We are in the process of trying to prepare

16 our various motions, and we need to know what the

17 evidence is that the Court will consider or the

18 evidence that becomes part of the Prosecution case.

19 JUDGE MAY: Let me just interrupt you.

20 Mr. Lopez-Terres, why did a meeting not take

21 place? It was the clear order of the Court, or, at the

22 very least, a request, that there should be such a

23 meeting.

24 MR. LOPEZ-TERRES: [Interpretation]

25 Mr. President, I wasn't myself present when those

Page 16459

1 instructions were given. I was informed that the

2 Chamber wanted contacts to be taken with the Defence.

3 I myself was very present in the courtroom this week,

4 as you know. I was not in the position to speak with

5 the Defence, and Mr. Browning was not always here.

6 Once again, I would say that further to the

7 request that was made, we performed a final analysis of

8 all the cassettes for which we had transcripts, and we

9 submitted to the Defence, through those lists that you

10 know now but which the Defence knew already, our last

11 position when the cassettes were given. And those that

12 remained and those -- and the transcripts were pending,

13 we gave our opinion about all of them.

14 There is a clarification that should be

15 made. Formerly, when we would present to the Chamber

16 extracts, we wanted to present only an extract. The

17 difficulty was that the Defence wanted each time to

18 have the entire cassette from which the extract came.

19 The cassette would have many other extracts that had

20 nothing to do with what we were attempting to present,

21 and therefore the Defence found itself, on several

22 occasions, with cassettes which had extracts that we

23 were not planning to show, extracts that were shown

24 later, and the cassettes had exhibit numbers which were

25 different depending on the case, and, in fact, this did

Page 16460

1 cause some difficulty on their part.

2 However, I would say it was the request of

3 the Defence, that wanted to be sure that we would not

4 present the extracts that could have been fabricated or

5 truncated, and that's why we gave the entire cassettes

6 each time, which perhaps may have contributed to the

7 confusion in which the Defence finds itself now. But

8 that was not what we had intended to do at the

9 beginning.

10 MR. SCOTT: Your Honour, if I might add to

11 that.

12 JUDGE MAY: Just a moment.

13 MR. SCOTT: All right.

14 [Trial Chamber confers]

15 JUDGE MAY: Yes, Mr. Scott.

16 MR. SCOTT: Your Honour, very briefly, with

17 no effort to repeat what Mr. Lopez-Terres has said.

18 There was, I understand -- I was not present in the

19 meeting. I understand there was a meeting toward the

20 latter part of February. Subsequent to that meeting,

21 there have been extensive exchange of correspondence.

22 So let me just clarify to the Court, and whether we're

23 in agreement or disagreement with the Defence on this,

24 I guess I'm not sure, but I would say to the Court

25 there has been extensive communication between the

Page 16461

1 parties on this issue. Any suggestion that there has

2 not been is in error.

3 There has been an effort to present this in

4 the most -- which admittedly is some difficult material

5 because of the way that it was originally presented to

6 the OTP by way of these composite tapes, but there's

7 been a concerted effort to simplify, as far as

8 possible --

9 JUDGE ROBINSON: The question is not whether

10 there has been extensive consultation over a period of

11 time. The question is whether, subsequent to the order

12 made by the president, there has been the consultation

13 that the Chamber required.

14 MR. SCOTT: Your Honour, I can only say that

15 I believe there was. I was not personally -- as the

16 Court may understand, none of us, on any of the teams,

17 I suspect, do everything, but my understanding is that

18 there has been extensive consultation up to and

19 including the past several days.

20 The submission -- the index that the Court

21 has in front of it that was given out a few minutes ago

22 was provided -- this last further version -- I don't

23 want there to be any impression there weren't any prior

24 versions. This last current version was submitted to

25 the Defence on Sunday with the material -- with these

Page 16462

1 excerpts and items attached. They are cross-referenced

2 by number. The items have markings on them as to which

3 excerpt they relate to: 26.1, et cetera. They are

4 provided with the chart.

5 So, Your Honour, I guess all I can say is we

6 have tried. We've made a good-faith effort. We think

7 we have done it, Judge Robinson, pursuant to the

8 Court's instruction. Perhaps not perfectly, perhaps

9 not completely to the Defence's satisfaction, but we

10 have made the best effort. I think that's where it

11 stands.

12 JUDGE MAY: Yes, Mr. Browning.

13 MR. BROWNING: Your Honours, I would

14 respectfully disagree with the statements --

15 JUDGE MAY: We don't want to hear about

16 this. Now, let's get on with it. What is the position

17 now?

18 MR. BROWNING: Your Honour, there are

19 currently 10 videotapes that we have not received, a

20 eleventh videotape we cannot decipher what it is the

21 Prosecution is referring to. There are several tapes

22 that are incomplete, and the transcripts are

23 incomplete. In one tape, for example, there are

24 47 places where -- 46 places where the transcript reads

25 "incomprehensible" and seven times when it reads

Page 16463

1 "interruption," and there are various other documents,

2 videotapes that have not been transcribed.

3 Your Honour, our position is --

4 JUDGE BENNOUNA: [Interpretation] Excuse me.

5 If in the transcript there is something which is not

6 comprehensible, then it's just incomprehensible.

7 That's it. This is not a reason for not admitting the

8 cassette. It is possible that the cassette technically

9 may not be very audible, that is, one does not hear it

10 well, and that would be indicated in the transcript;

11 that's all. But as we said, this has to do with the

12 weight that should be given to this or that document,

13 but it is not a question of admissibility.

14 The problem, in fact, which arises now for

15 you is to settle some purely technical problems with

16 the Prosecutor, because as regards admissibility, there

17 should be no difficulty in admitting a cassette. We

18 still have to know whether that does, in fact -- in

19 effect, that is the cassette that you need. If there

20 is a proper correspondence between the cassette and the

21 transcript there, then there would only be technical

22 problems that arise, and those are the problems that

23 have to be settled.

24 Can we agree as to the admissibility of the

25 evidence on the basis of what was just said by the

Page 16464

1 president, that principle, and I ask that you settle

2 technical problems amongst yourselves, because we

3 cannot continually go back to the technical problem and

4 wasting time and the Tribunal's resources.

5 MR. BROWNING: I certainly very much agree,

6 and the tape that I'm referring to we have a transcript

7 of but have never been provided the video. So until we

8 have the opportunity to see the video, we can't

9 determine the accuracy of the transcript.

10 JUDGE MAY: Let's see what you've got.

11 MR. BROWNING: Thank you.

12 JUDGE MAY: Now, Mr. Browning, you can help

13 us with this? Do you accept any of these?

14 MR. BROWNING: Yes, Your Honour. There

15 are --

16 JUDGE MAY: Let us know what you accept,

17 please. Let's go through what you accept. At least it

18 will start clearing the ground.

19 MR. BROWNING: Okay. Exhibit 117. On page

20 1. I'm sorry, Your Honour.

21 On page 4, 1280.2 was admitted on the 6th of

22 March, 2000, according to our records.

23 On page 6, 1361.1. That video was first

24 identified yesterday, but we have no objection

25 otherwise than the untimely designation.

Page 16465

1 On page 7, 2126. Ms. Bower has indicated

2 that that was previously admitted as Z1167, and

3 assuming that's the case, we would have no objection.

4 Same page, 2258.

5 JUDGE MAY: Yes. Now, going through the

6 objections, you refer to one which you don't say you've

7 received at all; is that right?

8 MR. BROWNING: The videos that we have not

9 received?

10 JUDGE MAY: Yes.

11 MR. BROWNING: The videos we have not

12 received are Z26; 26.1; 26.2; 26.3; 431.1; 478, which,

13 if I'm not mistaken, I think 478 might have been

14 removed from the list yesterday.

15 JUDGE MAY: Yes. Yes. It's not on the

16 list.

17 MR. BROWNING: I apologise for that. 528.1,

18 548.3, 652, and 1786. The one video that we still

19 cannot decipher from our tapes what the Prosecution is

20 referring to is 1298. The reason we can't decipher

21 that is I believe there was no translation provided to

22 us.

23 JUDGE MAY: Yes.

24 [Trial Chamber confers]

25 JUDGE BENNOUNA: Mr. Browning, there is

Page 16466

1 something in your objection where you mention that it

2 is in contravention of Trial Chamber's timetable order

3 directing that outstanding exhibits be produced by

4 28th of January, 2000. For example, I think number

5 1428. And there are others, 2602 and so on.

6 Can you explain exactly what is the meaning

7 of this objection?

8 MR. BROWNING: Your Honour, as I understood

9 the Court's timetabling order, there was to be a time

10 period so that the Prosecution would identify the

11 outstanding exhibits so we wouldn't be in this

12 situation at the tail end of the case, having to waste

13 the Tribunal's time on these sort of issues. If the

14 Trial Chamber decides to change that scheduling order

15 or determine it's not applicable to videos, in that

16 particular case we would have no objection, but we are

17 in this situation because the designation of the videos

18 is coming to us at the tail end of the case, and we

19 would do our best to work through it; it's just been

20 very difficult, Your Honours.

21 JUDGE MAY: Mr. Browning, given the general

22 principles that we have laid down, given the fact that

23 the case is coming to an end, what is your submission?

24 What do you ask us to do about these?

25 MR. BROWNING: Your Honour, the videos that

Page 16467

1 we have not received or have not been provided

2 information from the Prosecution so we can identify the

3 segments that they intend to use, we ask that they be

4 excluded from evidence. With respect to the tapes

5 where the video and audio are incomplete, we certainly

6 understand the position of the Trial Chamber that in

7 some cases no one can do anything to the contrary to

8 determine if there is better quality tape out there.

9 It is surprising, however, that there are so many tapes

10 that cut in and out and there are gaps in the tape, but

11 I understand there is nothing that we might able to do

12 along those lines.

13 I note our objection on that, and I guess

14 it's really a -- what will be the ground rules for use

15 of videos in this case. Can a video be admitted if

16 there are gaps in the video?

17 And I guess there are two other categories of

18 documents that we object to. I understand the Trial

19 Chamber's position, but I do think it's worth giving a

20 specific example of what I see as nothing more than a

21 witness statement that is in the form of video, and

22 that is 1281.1.

23 This is Nelson Draper, an officer from

24 CanBat, who is talking about an investigation

25 concerning Stupni Do. He proceeds to begin the tape by

Page 16468

1 describing that this tape shall only be used on a

2 need-to-know basis, and he explains the limitations in

3 his investigation, and then he proceeds to describe

4 things such as what a 4-year-old child proceeded to

5 tell an unnamed woman, who then, in turn, told someone

6 within CanBat or UNPROFOR. So you have multiple levels

7 of hearsay, and we have never had the opportunity to

8 cross-examine Mr. Draper concerning that investigation

9 or his statement, which is essentially coming into

10 evidence through this video. I would submit that it is

11 not in accordance with the Rules of the Tribunal

12 dealing with affidavit statements of witnesses. It

13 does not -- we are precluded from our right of

14 confrontation with regard to the statements that

15 Mr. Draper makes, and he was never even designated as a

16 witness.

17 There are two other tapes which fall within

18 that category: 2544, 342.4, and one other, 1292.

19 JUDGE ROBINSON: What page is that, 342.4?

20 MR. BROWNING: It would be on page 2.

21 JUDGE MAY: Deal with 342.4. You say "a

22 broadcast on Serbian TV." You say in here it would be

23 unreliable. That's purely a matter of weight, isn't

24 it? But you go on to say "contains a witness

25 statement." What is this all about?

Page 16469

1 MR. BROWNING: Your Honour, basically it is a

2 Serbian army scout testifying on Serbian TV about --

3 basically, the statement is made by this witness that

4 the HVO asked Serbs to shell a particular location. We

5 have been denied the opportunity to cross-examine that

6 witness. I think it would be unfair for this clip to

7 come into evidence without the opportunity of

8 confrontation.

9 JUDGE MAY: And the last one?

10 MR. BROWNING: 1292, which is on page 5. And

11 I'll also note 2544, which is on page 7.

12 JUDGE MAY: Deal with 1292. Again, you say

13 this is Serbian TV.

14 [Trial Chamber confers]

15 JUDGE MAY: You say it's Serbian TV; is that

16 right?

17 MR. BROWNING: Yes, Your Honour.

18 JUDGE MAY: But again that's a point which

19 has got to be considered. And what is the witness

20 statement here?

21 MR. BROWNING: The witness statement concerns

22 Mr. Kordic, if I recall. I would need to pull the

23 specific transcript, which could be done fairly

24 quickly, Your Honour.

25 JUDGE BENNOUNA: [Interpretation]

Page 16470

1 Mr. Browning, as regards your last objection, are these

2 interviews which were distributed or did they come from

3 the archives? Because there's a difference between an

4 interview which was distributed or broadcast to the

5 public, which became a public thing which was seen by

6 other people, and other interviews which remained in

7 the archives. If I've understood you correctly, these

8 are interviews that were broadcast over television.

9 MR. BROWNING: With respect to this specific

10 example, 1292, if you consider Serbian TV to be a

11 reliable source, presumably it was broadcast over

12 television to the public by Serbian TV.

13 JUDGE BENNOUNA: [Interpretation] The problem,

14 you see, is that from the time that a video was

15 broadcast, it becomes evidence insofar as it had an

16 impact on the public. It's not the -- by the fact that

17 it had impact it is no longer a private thing but, rather,

18 public information, such as information found in a

19 newspaper or any other information distributed to the

20 public. It's a different thing between information

21 which is broadcast to the public and information which

22 remains confidential within an institution. Therefore,

23 from the time it has been distributed to the public,

24 it's known and it's going to have an effect on that

25 public, so as such, it's of interest to the Tribunal.

Page 16471

1 MR. BROWNING: Your Honour, in response to

2 your question, it is 1281.1 would be the one video

3 among those four that I've been discussing which would

4 not be available to the public. The other three appear

5 to be broadcasts made to the public.

6 JUDGE MAY: And you're going to deal -- you

7 dealt with 1292, and did you have one other?

8 Mr. Lopez-Terres, we'll hear you at the end.

9 MR. BROWNING: The other one is 2544, which

10 is on page 7. This is a broadcast, or appears to be a

11 broadcast. It is undated by the Prosecution, but it is

12 my understanding the broadcast was made seven months

13 after the events in Stupni Do. In that situation, I

14 believe it would be beyond the indictment period, and I

15 would submit that would have no bearing upon the

16 public's reaction to this particular broadcast.

17 JUDGE MAY: Thank you. Unless there's

18 anything else that you want to add, we'll hear from

19 Mr. Cerkez' Defence.

20 MR. BROWNING: The only thing else that I

21 would add, Your Honour, with respect to the transcripts

22 that have just been distributed, if they are identical

23 to the transcripts that I received, what takes place is

24 you have a half a page of transcript, followed by what

25 the Prosecution intends to designate as the "Z"

Page 16472

1 number. I would submit it would be more appropriate to

2 remove the portion of those transcripts that are not

3 part of the Prosecution exhibit. Otherwise, it will

4 simply create confusion in the record, in my opinion.

5 JUDGE MAY: So you're saying that they

6 contain -- what do you say they contain, Mr. Browning?

7 Let me see if I follow you.

8 MR. BROWNING: I was trying to -- as I

9 understand the way the Prosecution has laid out the

10 transcripts, they transcribe a tape in its entirety,

11 then choose to use a portion of that tape as an

12 exhibit. So if you look in your transcript book, you

13 will see several pages of transcription and then a "Z"

14 designation written into the margin. The one that I'm

15 looking at, you have three quarters of a page and then

16 you see the words "Z419.2." So three quarters of the

17 page has no bearing upon the exhibit being introduced,

18 is extraneous, in some cases contains separate material

19 that would be objectionable, and it would be better to

20 simply clearly designate the transcript for the

21 specific videos at issue without including extraneous

22 material either before or after those transcripts of

23 the Prosecution videos.

24 JUDGE MAY: Thank you.

25 MR. BROWNING: Thank you.

Page 16473

1 JUDGE MAY: Yes, Mr. Kovacic.

2 MR. KOVACIC: Thank you, Your Honour.

3 [Interpretation] The Cerkez Defence has been

4 following this list. This list has been narrowed down,

5 and practically all video material that would be

6 related to evidence, even such poor and insufficient

7 evidence against the co-accused Mario Cerkez, is now

8 eliminated.

9 However, in principle, we oppose the

10 introduction of videotapes as evidence in this way. We

11 believe that they can be introduced only with the

12 assistance of a witness who recognises the recorded

13 scene in a way, describes it, confirms it. Also, we

14 need information about the person who did the filming,

15 where, when, and it is only at such a point that that

16 kind of videotape can have corroborative value related

17 to other pieces of evidence.

18 I don't think there's any point in my

19 elaborating this point any further.

20 I just wish to add one more than thing, lest

21 I be misunderstood by the Court. There has been an

22 enormous amount of video material during discovery.

23 Recently, we gave up on following this entire story,

24 because we got a video from the Prosecutor and in one

25 clip it seemed that Arnold Schwarzenegger, the actor,

Page 16474

1 belonged to the HVO forces. And we viewed this 15

2 times, and when we realised what this was and when we

3 came to the conclusion that we could not confirm

4 whether this was filmed by the BBC or not and this was

5 BBC material, to tell you the truth, we gave up on the

6 entire thing. We saw that there was no evidence

7 against Cerkez, and we think that it is not worth all

8 this time and effort. Thank you.

9 MR. LOPEZ-TERRES: [Interpretation] To respond

10 directly to what Mr. Kovacic said, I see that he's got

11 a lot of humour, first of all. It was never claimed by

12 the Office of the Prosecutor that Mr. Schwarzenegger

13 was part of the HVO. I suppose that was a comment that

14 the journalist made and that it's become common

15 language now that somebody who was covered with

16 munitions and weapons is either called "Schwarzenegger"

17 or "Rambo". That's just part of the way people talk

18 today. But that doesn't mean that the Office of the

19 Prosecutor has to add the people who were being -- as

20 people being prosecuted here, Arnold Schwarzenegger.

21 As regards what Mr. Kovacic said, he did say

22 that for each cassette, he wanted somebody to come to

23 identify it, et cetera. And I would say if the

24 Tribunal is going to become the tribunal of every

25 journalist in the world, then we're prepared to do so,

Page 16475

1 but I'm afraid that's going to take a great deal of

2 time.

3 JUDGE MAY: You needn't trouble about that

4 argument. It's the hearsay argument.

5 MR. LOPEZ-TERRES: [Interpretation] Very

6 well.

7 JUDGE MAY: But perhaps you might deal with

8 the detailed argument that Mr. Browning put forward.

9 MR. LOPEZ-TERRES: [Interpretation] I would

10 simply like to say, and this is an illustration of what

11 I was explaining a few minutes ago more specifically,

12 perhaps, for Judge Bennouna, that the transcripts that

13 were transmitted to the Defence are transcripts that we

14 have, and they also have OTP reference numbers.

15 The Translation Service at this Tribunal,

16 which does not come under the authority of the OTP, let

17 me remind you, translated the cassettes successively.

18 By that, I mean if on the cassette there was several

19 events, several facts, you would find, on a single

20 page, the transcript which corresponds to several of

21 those events. And this is why on this document, for

22 example, that the Defence mentioned a few minutes ago,

23 Z442.4, which I would like to say, in passing, it

24 doesn't only talk about the Serbian army but the Jajce

25 Brigade, there are several translations, several

Page 16476

1 transcriptions, and, in fact, the top part has nothing

2 to do with the extract that we are asking the Trial

3 Chamber to review. If the OTP had understood that that

4 extract would also be taken into consideration, an

5 exhibit number would have been attributed to it. There

6 was no bad faith or any attempt on the part of the

7 Prosecutor to fool people and to push through

8 documents, but it was simply the fact that it was on

9 the same page.

10 There are only transcripts for which there

11 are reference numbers. If the Chamber wants, in order

12 to avoid any misunderstandings, assuming that there was

13 a misunderstanding, wants us to cut out the upper or

14 lower parts and that you consider only the transcript

15 which more specifically deals with the extract from the

16 cassette, we can do that. But it's self-evident that

17 only the extract with a reference number is the one

18 that we are asking review of.

19 As regards the second exhibit which was

20 mentioned by the Defence a few minutes ago, that is,

21 Z1292, it has been presented in the same way. The

22 upper part deals with another fact, another interview,

23 the lower part also, and we are not considering that.

24 The only thing that we are considering is the

25 transcript, which is in the middle of the page, with,

Page 16477

1 in the margin, the exhibit which is referenced.

2 I would also like to say that contrary to

3 what was said a few minutes ago, this document comes

4 from Croatian television and not from Serbian

5 television, as is stated at the beginning. This is the

6 logo of the television in Croatia, and Mr. Ivica Rajic,

7 the HVO commander in Kiseljak, is giving interview, and

8 the interview was given to Serbian television or French

9 television or Croatian television. It's really not of

10 any importance. What does matter is what the person

11 who is speaking says.

12 In general, in order to finish with this

13 argument, it seems to us that the all the problems

14 which are raised by the Defence through the chart that

15 has been established or Mr. Browning's comments this

16 morning, these are problems that are not part of

17 admission of exhibits, whether they be transcripts or

18 extracts, but simply a problem of weight which is to be

19 given by the Trial Chamber and the probative value that

20 the Trial Chamber will give to the various documents.

21 JUDGE MAY: Thank you. We'll consider this,

22 of course, and give you our ruling after the

23 adjournment.

24 We'll turn now to the affidavit evidence on

25 which we have submissions by all parties, apart from

Page 16478

1 the Defence of Mr. Cerkez. We have full submissions

2 from the Prosecutor and also from the Defence of

3 Mr. Kordic.

4 Unless anybody wants to add anything to those

5 submissions, we'll hear from Mr. Kovacic.

6 MR. KOVACIC: Just as a matter --

7 JUDGE MAY: I'm sorry. I had overlooked

8 that. Do you want to add anything of your own?

9 MR. KOVACIC: Pardon?

10 JUDGE MAY: Mr. Sayers, do you want to add

11 something?

12 MR. SAYERS: I propose not to add anything to

13 the matter that's already stated in our papers. They

14 speak for themselves, but just a brief response to the

15 document we received yesterday from the Prosecution.

16 JUDGE MAY: Yes.

17 MR. SAYERS: It seems to me that the

18 Prosecution is saying, "We would like the Court to

19 admit these seven affidavits," and there's another one,

20 which have been submitted to us. The same arguments

21 apply to it.

22 In regard to the other affidavits which were

23 mentioned yesterday, and I have no idea how many of

24 them are, but apparently some others are still being

25 sought regarding Novi Travnik.

Page 16479

1 The arguments that we've made in our papers

2 apply to those and there is no point in repeating

3 them. But it just seems to us -- and do I want to add

4 this one point -- that what the Prosecution is

5 suggesting to this Court is that you, respectfully,

6 should invent a new Rule, not Rule 94 ter. You should

7 ignore Rule 94 ter. You should invent a new Rule that

8 applies to the process that the Prosecution is now

9 seeking to follow doing, and we think that that's

10 completely improper.

11 There is a Rule that addresses specifically

12 affidavits and formal statements. It's been in

13 existence since November, and it's absolutely clear.

14 It is simple to follow and it prescribes precisely how

15 the process should be done, and the Prosecution, quite

16 simply, has not done it, for all of the reasons we've

17 stated in our papers. I think the reason is because

18 they realise that at this late stage of their case,

19 they cannot comply with the specific timing or

20 substantive requirements of Rule 94 ter. And unless

21 they can, obviously the affidavits cannot come into

22 evidence, for all of the reasons that we've stated.

23 That's all I wanted to say, Your Honour.

24 Thank you.

25 MR. MIKULICIC: [Interpretation] Your Honour,

Page 16480

1 of course I would like to join everything that my

2 learned friend Mr. Sayers has said, and I believe that

3 this is not just a technical matter, but I think that

4 the question of admission of affidavits is of essential

5 importance because these documents can be very

6 important.

7 Therefore, the Defence of Mr. Cerkez insists

8 on the procedure prescribed by Rule 94 ter being

9 followed, and we do not agree to some other procedure

10 that the Prosecution finds suitable should be

11 followed. We do not think that this Rule can be a lex

12 specialis. That's all I want to say.

13 JUDGE BENNOUNA: [Interpretation]

14 Mr. Mikulicic, could you tell us very briefly how you

15 understand 94 ter?

16 MR. MIKULICIC: [Interpretation] Your Honour,

17 I will be very pleased to do that. Mr. Cerkez's

18 Defence and I myself interpret Rule 94 ter just as it

19 is formulated, which means that an affidavit or another

20 formal statement may be used in the proceedings as

21 supporting material in relation to a fact which is

22 contested and which is referred to by a witness. Such

23 material must be delivered to the Defence before the

24 witness examination, and the Defence should have an

25 opportunity to lodge an objection and it should have

Page 16481

1 seven days in which to do so. Therefore, affidavits

2 may not be admitted as part of a package but only as

3 supporting material, along with a live witness

4 testifying in court.

5 This procedure simply has not been complied

6 with by the Prosecution. The Prosecution submitted

7 several affidavits and wished to submit them as

8 exhibits, just as it did the village binders and some

9 other materials. However, this is not the procedure

10 prescribed by Rule 94 ter.

11 I hope that I have answered your question,

12 Your Honour.

13 JUDGE BENNOUNA: [Interpretation] Thank you

14 very much.

15 JUDGE MAY: Yes.

16 MR. GUARIGLIA: Your Honour, just briefly.

17 We would rely mainly on the skeleton argument that was

18 presented to Your Honours.

19 Just a couple of points. It seems to us that

20 maybe our submission wasn't clearly understood by the

21 Defence. We have never tried to invent a new rule. We

22 have never tried to ignore that. Unfortunately, and

23 due to the practical problems that we have faced in

24 finding a procedure suitable for the national

25 authorities in Bosnia and for the parties, we were not

Page 16482

1 in a position to meet the timely requirements of

2 Rule 94 ter.

3 What we have said is that nonetheless, the

4 affidavits or former statements are corroborative in

5 nature, they all address facts in dispute, and that the

6 unfortunate possibility of complying with the timely

7 requirements doesn't cause a fatal prejudice or any

8 sort of prejudice at all, actually, to the Defence in

9 this case, and that the Chamber will be in a position

10 to be indulgent to the Prosecution, mindful of the

11 practical problems obtaining these affidavits have

12 caused. And in the event that that Chamber considered

13 that the timing requirements for 94 ter are essential,

14 the Chamber will still have the power to admit these

15 affidavits under Rule 89(C).

16 That was the core of our submission. Apart

17 from that, we have nothing more to add to our skeleton

18 argument.

19 JUDGE MAY: Thank you.

20 [Trial Chamber confers]

21 JUDGE MAY: We'll consider these two matters

22 now. We will take the coffee break. We will sit again

23 at quarter to, unless you hear to the contrary.

24 --- Recess taken at 10.15 a.m.

25 --- On resuming at 11.38 a.m.

Page 16483

1 JUDGE MAY: I deal first with the video

2 evidence, beginning by saying, as I did at the outset,

3 that we have admitted videos in this case. Very often,

4 they speak for themselves. However, there are

5 occasionally matters which give rise to concerns about

6 authentication and the like, and our ruling reflects

7 that.

8 I would also add this: that, of course, very

9 often what's on a video isn't hearsay evidence at all;

10 it's merely an evidence of fact. For instance, public

11 ceremonies, proclamations, that sort of thing. All

12 that's being shown is what actually occurred, and so

13 there's no breach of any hearsay rule, if such existed

14 here.

15 First of all, those -- and I will deal with

16 this by way of number, the exhibit number as on the

17 Prosecution list -- first of all, those admissible, not

18 objected to and already admitted, 117, 419.2, 1280.2,

19 1298, 1361.1, 2126, 2258.

20 The next category to be admitted are those of

21 public broadcasts, because once an item is broadcast,

22 it is in the public domain, it becomes a fact. This

23 was the broadcast which may or may not have an effect

24 upon the public, but it's also something which is

25 admissible of the broadcast itself, and the fact that

Page 16484

1 it's public gives it added authenticity. Under this

2 heading, admissible are 255, 342, 342.2, 342.5, 419,

3 1185, 1280.3, 1292, and 1356.1. In the same category

4 are the press conferences, 173, 235, 562, and the

5 public ceremonies, 330, 1186.

6 The following are excluded; first of all,

7 those not provided to the Defence: 26, 26.1, 26.2,

8 26.3, 431.1, 528.1, 625, and 1786. We accept too the

9 Defence submissions that where, in effect, what is

10 happening is that the broadcast or the video -- in one

11 case not a broadcast at all but for confidential

12 consumption; that is, Mr. Draper's broadcast is, in

13 effect, the giving of evidence by a witness not subject

14 to cross-examination and not subject to oath, and that,

15 of course, in effect, is evidence without

16 cross-examination and amounts to hearsay,

17 controversial, and of a sort which, in our view, should

18 be excluded as too prejudicial to be admitted without

19 cross-examination. 1281.1 and 2544 are in that

20 category.

21 We also exclude matters outside the

22 indictment: 1428, 2482.

23 We also exclude as incomplete or merely

24 evidence which it appears to us not to be probative, in

25 some cases interviews: 342.3, an interview with Roso;

Page 16485

1 457.1, 1315.6, another interview with Roso; 1322, an

2 interview with Kostroman, and the date is unclear;

3 1347, another interview with Kostroman, 1347.2, 1390,

4 2238, 2602.

5 I turn next to the affidavit evidence.

6 The Prosecution seek to have admitted the

7 evidence of eight affidavits under Rule 94 ter, the

8 terms of which I will refer to briefly.

9 To prove a fact in dispute, a party may

10 propose to call a witness and to submit, in

11 corroboration of his or her testimony on that fact,

12 affidavits or formal statements signed by other

13 witnesses in accordance with the law and procedure of

14 the State in which such affidavits or statements are

15 signed. These affidavits or statements are admissible

16 provided they are filed prior to the giving of

17 testimony by the witness to be called and the other

18 party does not object within seven days after

19 completion of testimony of the witness through whom the

20 affidavits are tendered. If the party objects and the

21 Trial Chamber so rules, or if the Trial Chamber so

22 orders, the witnesses shall be called for

23 cross-examination.

24 To this application, the Defence object. I

25 say the Defence submissions were made by Mr. Kordic in

Page 16486

1 writing, to which Mr. Cerkez joins. The objections

2 which are made are in this form:

3 First of all, it's said that the affidavits

4 or formal statements should be taken in accordance with

5 the law and procedure of the State in which they are

6 signed. This, they say, say the Defence, is a

7 procedure only available to States, and therefore to

8 admit the affidavits would violate the principle of

9 equality of arms. The Prosecution point out, on the

10 other hand, that the Defence may seek the assistance of

11 the Trial Chamber to obtain affidavits, and in

12 Aleksovski they were able to do so; and I can say that

13 in Kupreskic too, affidavits on behalf of the Defence

14 were admitted. That seems to us to be a sensible

15 submission.

16 There is no breach of the equality of arms

17 here. It is open to the Defence, as I have said, to

18 obtain these affidavits, and if not, they can certainly

19 apply to the Trial Chamber for their assistance.

20 The second objection is that the affidavits

21 must be supplied, according to the Rule, to the other

22 party before the principal witness testifies. The

23 Defence point out that to meet this requirement, they

24 would have had to hold back witnesses until virtually

25 the end of the case, important witnesses, and they also

Page 16487

1 point out that there is no prejudice to the accused.

2 The Trial Chamber, in this connection,

3 observed that Rules must be interpreted to give them

4 useful effect. This is a principle of international

5 law, expressed in French as: "l'interpretation par la

6 methode de la faire utile", and also in the Latin maxim:

7 ut res magis valeat quam pereat. And this reference to

8 this principle may be found in the Chorzow Factory

9 case, 1927, Permanent Court of Justice, the Corfu

10 Channel case, 1950, International Court of Justice.

11 The Trial Chamber applies this principle to the

12 Rule, and our Rule holds here that the admission of

13 these statements is not prevented by Rule 94 ter. To

14 do so would be to rule that a technical procedural

15 requirement, if it were right, would certainly lead to

16 or may lead to a defeat to the interests of justice.

17 We note, finally, that no prejudice to the

18 accused can be occasioned by the admission, at this

19 stage, of the affidavits. The Defence have had the

20 affidavits for some time and have been able to make

21 their detailed submissions.

22 I'm told that the Corfu Channel case was in

23 1949.

24 The next objection is that Rule 94 ter didn't

25 envisage the use which has been made of it in this

Page 16488

1 particular case, that is, validating witness statements

2 from some time ago.

3 The Prosecution respond that this was the

4 only practical course; namely, to have the witness

5 approve and swear to the original witness statement,

6 that witnesses here were prepared to make and did make

7 changes to their statements, and that if this course

8 wasn't followed, the Rule would be impractical.

9 The Trial Chamber observed that there is no

10 practical reason why this procedure should not be

11 followed and that a witness should not look at his or

12 her statement and swear that it's the truth. So that

13 reason does not find favour.

14 The next objection is that the Rule

15 anticipates that there is a live witness whose evidence

16 on a specific fact is corroborated by the affidavit in

17 question, and in this case there was no live witness.

18 The Prosecution, in response, say that the

19 evidence in the affidavits is, in fact, corroborative

20 and that the term of "fact in dispute" should be given

21 a broad interpretation.

22 I turn, in those circumstances, to the

23 particular witnesses and deal, first of all, with Mujo

24 Alispahic. He gives evidence about Rijeka and

25 Dubravica. In this connection, I would say that the

Page 16489

1 Trial Chamber is of the view that the Prosecution's

2 submission about this is correct, that all that is

3 required is that there should be some confirmation or

4 support of evidence in a very general sense and that

5 the term "facts in dispute" should be given a very

6 broad interpretation.

7 There's evidence of Dubravica from Abdulah

8 Ahmic; Payam Akhavan, from Rijeka; Sulejman Kavazovic,

9 and Witness L. There's evidence about trench-digging

10 from Witness U, Fuad Zeco, Mirsad Ahmic.

11 We turn next to Nusreta Hrustic. She gives

12 evidence about Gacice -- again I'm summarising this

13 very generally -- about the attack on Gacice, and about

14 Mr. Kordic's appearance on television. Again, there is

15 evidence in this case, a great deal of evidence, about

16 television appearances by Mr. Kordic, for instance, by

17 Nusreta Mahmutovic, Anto Breljas, Witness Q, and

18 there's evidence about the attack on Gacice from

19 Mr. Morsink, Witness V, and the transcript of Major

20 Friis-Pedersen.

21 I turn next to Sedzad Hrustic. He gives

22 evidence about Mr. Kordic being at an oath-taking, and

23 he also gives evidence about events in the cinema.

24 There is, it's pointed out by the Defence, no evidence of

25 Mr. Kordic being present at the cinema in any of the

Page 16490

1 rest of the evidence. However, given the broad

2 interpretation that I said we should, there is much

3 evidence that Mr. Kordic was in Vitez; Witness Z, for

4 instance, and Anto Breljas. There is much evidence

5 about the cinema, and, in those circumstances, we're

6 satisfied that this criterion is approved -- is met, I

7 should say.

8 The next witness is one whom I'm not going to

9 name. She was subjected to sexual attack in the

10 cinema, she says. There is, it's pointed out by the

11 Defence, no evidence of such attacks in the cinema.

12 However, evidence was given by Witness S of such

13 attacks in the area of Vitez, and in those

14 circumstances the criterion is met.

15 Salih Sadibasic, evidence about Mr. Kordic on

16 television. Again, I've covered that. Vasvija Kermo

17 gives evidence about Loncari and Jelinak. Again, there

18 is substantial evidence on both those topics, that is,

19 the attacks on those villages. Mr. Kavazovic, Witness

20 H, Witness T, Witness A, Witness O, and Witness J both

21 deal with Loncari, Jelinak, and also, I should mention,

22 Merdani.

23 Number 7 is Mr. Morsink. His affidavit

24 arises in this way: that he said in his original

25 statement that a list was supplied to him of

Page 16491

1 detainees. The list was supplied by the HVO in Vitez.

2 He was given that list. He did not mention that in his

3 evidence. It arose as a matter in dispute. Therefore,

4 it was suggested that an affidavit be supplied. In

5 this case, there is much evidence about the detention

6 in the cinema. This list is a list of detainees which

7 is admissible.

8 Finally, the statement of Mr. Causevic, the

9 affidavit of Mr. Causevic. He gives evidence about

10 Vitez and Dubravica school. Again, there is much

11 evidence on all those matters. The vet station,

12 evidence was given by Mr. Fuad Zeco. There was

13 evidence, much evidence about Mr. Kraljevic and on the

14 relationship between Mr. Cerkez and Mr. Kraljevic.

15 Angus Hay, Anto Breljas, and Lee Whitworth gave

16 evidence. Likewise, there is much evidence, which I

17 will not enumerate, on Mr. Miroslav Bralo.

18 For those reasons, the submission that there

19 is no live witness giving the evidence which this is

20 corroborative of, that submission is rejected.

21 Finally, we have to consider, in light of the

22 Defence objections, whether there should be

23 cross-examination of the witnesses. We have considered

24 that. We do not think that that is required or

25 necessary in this case. We think that the matter is

Page 16492

1 covered by the affidavit being on oath. But when we

2 come to consider this evidence, we will, of course,

3 bear in mind that it was not given subject to

4 cross-examination.

5 Yes. We turn to the next matters, and I

6 think the next matter is the transcripts. Mr. Scott,

7 were you going to deal with those?

8 MR. SCOTT: Yes, Your Honour.

9 JUDGE MAY: The confidential witness, of

10 course, you can address us on; Mr. Kaiser, without much

11 encouragement.

12 MR. SCOTT: I understand. I can be brief.

13 Your Honour, in terms of the confidential

14 witness, maybe I'll discuss it generically, without any

15 identification, and if that's the case -- it might be

16 in a private session, I suppose. I leave it in the

17 Court's hands, whether it might be ultimately better to

18 discuss it in private session.

19 JUDGE MAY: If you could deal with the matter

20 in public, so much the better. But if you want to go

21 into private session at any stage, I'll do so.

22 MR. SCOTT: I think I can attempt to do it in

23 public session, Your Honour.

24 Your Honour, the transcript of that witness

25 is, in the Prosecution's view, very important. It

Page 16493

1 touches on issues -- both general issues of the case,

2 including such things as international armed conflict.

3 It also touches upon at least one of the accused very

4 specifically. We think that the admission of that

5 transcript to be entirely consistent with the Court's

6 other rulings on transcript evidence.

7 There was a full and, in our view, searching

8 cross-examination in the earlier case. There has been

9 no articulation of any reason to think that

10 cross-examination in this case would be substantially

11 different. Any such questions that might be raised

12 according to questions of credibility, et cetera, as

13 the Court's ruled before, goes to weight. We think,

14 and submit, Your Honour, that the transcript of the

15 confidential witness should be admitted.

16 JUDGE MAY: Just help us, if you can. You

17 say it touches on one of the accused. In general

18 terms, what does it say?

19 MR. SCOTT: Your Honour, it talks about, I

20 think, meetings with Mr. Kordic in Zagreb. So we think

21 it's highly probative, Your Honour, by a reliable -- by

22 an eminently reliable source, and again any need for

23 cross-examination has been satisfied by

24 cross-examination in the earlier case by Defence that

25 had, for these purposes, virtually identical

Page 16494

1 interests.

2 If the Court will allow me to turn -- I'm

3 sorry, either way; however, the Court would like to

4 proceed. Would you like the Court then to proceed with

5 the other transcript matter?

6 JUDGE MAY: No. We'll deal with them one at

7 a time.

8 MR. SCOTT: Thank you, Your Honour.

9 MR. SAYERS: With respect to the confidential

10 witness, Your Honour, this witness testified for a

11 number of days in the Blaskic case, as the Court

12 knows. I believe he gave about 250 pages worth of

13 testimony, and many exhibits were introduced through

14 him.

15 The focus of his testimony was, of course, as

16 the Court knows from his background, politics and

17 political figures.

18 MR. SCOTT: Your Honour, excuse me. I think

19 at this point we're going to have to request private

20 session. I apologise for the interruption, but ...

21 MR. SAYERS: I don't think a private session

22 is necessary, Your Honour, but --

23 JUDGE MAY: We're in one.

24 [Private session]

25 (redacted)

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Page 16503

1 (redacted)

2 [Open session]

3 MR. SCOTT: Your Honour, I know we're getting

4 toward the end and the hour is short, and I know the

5 Court's view on this, but if the Court will allow me

6 literally about three minutes concerning Dr. Kaiser.

7 I do think it's an important point, and I

8 think it can be quickly covered, and the Court can

9 certainly be in a position to rule quickly, but I ask

10 the Court to just give us a few minutes to at least try

11 to persuade the Court as to our position on this

12 issue.

13 If I could ask the usher to hand to the

14 Court. Copies of this were provided to Defence counsel

15 yesterday, but for ease of reference, if you want to

16 provide an additional copy today, you may.

17 JUDGE MAY: Yes, Mr. Scott.

18 MR. SCOTT: Your Honour, we understood the

19 Court's -- well, two things. To set the scene, the

20 objection to Dr. Kaiser's transcript coming in when we

21 were dealing with these issues more extensively a few

22 weeks ago was largely on the basis, at least from the

23 Defence, that that was in the nature of an expert

24 witness, who had not been properly presented to the

25 Court as such. And the Court's own ruling, it appeared

Page 16504

1 that the Court gave substantial weight or consideration

2 to the fact that the Court considered the items to the

3 proof to be cumulative.

4 Let me say that what we have done, Your

5 Honour, what we asked the Court to consider, is some

6 very -- a limited amount of Dr. Kaiser's testimony. I

7 have handed the Court now two documents. One I'll

8 just -- I'll just start with the one page entitled

9 "Kaiser Evidence." The Court will see we have been, I

10 think, extremely selective as to a portion of the

11 transcript, a total of some 33 pages, and certain

12 exhibits that accompany those portions of the

13 transcript.

14 What the other document does, Your Honour,

15 the chart, the other chart that is some two pages, to

16 give some further idea as to what this testimony covers

17 and the issue of cumulativeness, Your Honour, what this

18 does is indicate on the left side the particular

19 location addressed by Mr. Kaiser. We submit that in

20 these portions he is not providing expert opinion; he

21 is simply saying, "I was at such locations and observed

22 this damage." He is essentially a contemporary

23 observer at these locations.

24 For instance, as an example, Loncari mosque.

25 He was at the mosque. It was destroyed by a charge.

Page 16505

1 He talks about that at pages 6 -- 10614 to 10615.

2 There is a photograph of that. Then that's a quick

3 summary, Your Honour.

4 In terms of whether the evidence is

5 cumulative or not, Your Honour, we reviewed the

6 evidence to date, or at least up until the last week or

7 so in the case, and the closest evidence that would

8 come to touching on this issue is in the far right box,

9 Your Honour.

10 We submit to the Court that on these points,

11 based on a very careful review of Dr. Kaiser's

12 evidence, it is not cumulative. For instance, on

13 Gomionica, the only evidence that touches on that

14 specifically, one might even broadly construe it, was

15 that one witness talked about Muslim homes being

16 destroyed in Gomionica. That is not the same as the

17 religious properties that Mr. Kaiser would indicate

18 destroyed.

19 Your Honour, we would ask the Court to

20 consider that on these very selected showings, which is

21 only a small portion of Dr. Kaiser's overall testimony,

22 that the Court allow it. Our review of the Blaskic

23 case, Your Honour, is that Dr. Kaiser's testimony was

24 important. Quite frankly, we do believe there will be

25 a substantial hole in the case, in the Prosecution's

Page 16506

1 evidence, if at least these portions of his evidence

2 are not admitted.

3 Thank you, Your Honour.

4 JUDGE MAY: Mr. Sayers. Other than to say

5 that we should stick to our earlier ruling, is there

6 anything you want to add?

7 MR. SAYERS: No, Your Honour.

8 MR. KOVACIC: No. Thank you so much.

9 JUDGE MAY: I think immediately I should say

10 that what this deals with, of course, are pure matters

11 of fact. This is what this witness observed, and that

12 is the thrust of the Prosecution's submission.

13 If you want to say anything about that, do.

14 MR. SAYERS: I am the first to admit, Your

15 Honour, that I have not had the opportunity extensively

16 to review the transcript or the portions of the

17 transcript given to us yesterday, but it appears, and I

18 stand to be corrected on this, but it appears that

19 Dr. Kaiser went to Bosnia-Herzegovina, he says on page

20 10578, in October of 1995, when the ceasefire began,

21 having been asked by UNESCO to take up the post of

22 representative in Bosnia-Herzegovina.

23 I cannot say that it appears that this expert

24 witness was a contemporary observer of the damage that

25 other witnesses have testified about. He appears to

Page 16507

1 have visited the particular locations at issue long

2 after they actually occurred. So he doesn't appear to

3 be attesting to facts which are relevant to this case.

4 Of course, I suppose he does attest to the

5 facts as he saw them when he finally went to the

6 locations at issue some years after the events at

7 issue, but that still seems to me to partake more in

8 the nature of expert testimony, trying to give his

9 views on what occurred contemporaneously, not being a

10 contemporaneous observer himself, and therefore I see

11 no reason to separate pieces of his testimony. He is

12 an expert. He testified as an expert in Blaskic, and I

13 don't think there's any reason for the Court to depart

14 from its earlier ruling. Thank you.

15 JUDGE MAY: Mr. Kovacic.

16 MR. KOVACIC: Your Honour, I should maybe add

17 just one sentence. Indeed, in all those evidences

18 offered through this witness, there is not really

19 probative value. We know from this case, from any

20 other evidences, that there was a lot of burned houses

21 or ruined houses.

22 Unless this witness, or material connected to

23 that, could demonstrate who did it, when, and how, so

24 some causal connection, then yes, we could discuss

25 that, but there is not such material offered. And that

Page 16508

1 is irrelevant. That is only 200 pages of material more

2 in the case which does not have any probative value.

3 Thank you.

4 [Trial Chamber confers]

5 JUDGE MAY: We've considered this. We take

6 into account what the Prosecution says of this, but,

7 nonetheless, these were matters on which we ruled not

8 very long ago. We can see no strong argument for

9 departing from our earlier ruling, and we shall stand

10 by it.

11 MR. SCOTT: Your Honour, then if I could

12 address as to one other outstanding -- the Court may

13 have other outstanding items, which it indicated

14 earlier, housekeeping and other matters, but if the

15 Court would allow me then to turn to one last -- I

16 would think the last evidentiary issue. And likewise,

17 Your Honour, indulge me a few moments on Dr. Cigar and

18 a couple of documents associated with him.

19 There are --

20 JUDGE MAY: We've been handed a bundle of

21 newspaper articles.

22 MR. SCOTT: Yes, Your Honour.

23 JUDGE MAY: Exhibit Z2817.

24 MR. SCOTT: That's correct, Your Honour. And

25 the argument concerning Dr. Cigar will essentially be

Page 16509

1 in two parts. I will cover a part of it concerning

2 some non-media material, if you will, and Ms. Somers

3 will talk about the items, the open-source material

4 that's been provided to the Court.

5 Your Honour, in terms of -- everyone's

6 obviously aware of your ruling on Dr. Cigar. It's not

7 our point in coming here today to argue that further.

8 However, there were some documents which had been

9 anticipated to be introduced through Dr. Cigar.

10 We've again reviewed his three binders of

11 materials. He had three binders of supporting

12 material, if you will. These documents, Your Honour,

13 have an existence independent of Dr. Cigar. They are

14 not in -- they exist independent of him. Whatever

15 significance they have exists independent of him. They

16 are simply like other evidence, other documents.

17 There is no disclosure issue concerning these

18 documents, Your Honour, because they were documents

19 disclosed last fall, some time ago, well before

20 Christmas. They are the category which the Court has

21 readily admitted under -- in other circumstances. For

22 instance, some time ago when we used this chart about

23 different kinds of exhibits, whether it was HVO

24 documents, HV documents, BBC, other media, ECMM, et

25 cetera, the documents -- I'm going to get to the point,

Page 16510

1 Your Honour. I'm only going to ask the Court to

2 consider about seven or eight documents. All of them

3 fall into similar categories.

4 The fact that they were once associated with

5 a report by Dr. Cigar, Your Honour, we submit should

6 not disqualify them as being considered in evidence.

7 We have gone through and identified the

8 following exhibits as the only ones, other than the

9 media materials, which Ms. Somers will address, that we

10 would ask the Court to admit. In fact, many of them,

11 it appears to be, are not disputed, but because of the

12 Cigar ruling there may be some question.

13 So if the Court would allow, we would ask

14 that Exhibit 274 -- of course, all of these are

15 proceeded by "Z" -- Exhibit Z2745, which had been part

16 of the core bundle and apparently at one point agreed

17 to by the Defence, but there was some later objection

18 raised to authentication.

19 Exhibit Z281, which we think was agreed to

20 but was also incorporated as part of Dr. Cigar's

21 papers.

22 JUDGE MAY: Mr. Scott, do you have copies of

23 these or can you tell us what these are?

24 MR. SCOTT: Without looking at the exhibit

25 list, Your Honour, I don't think I can specifically

Page 16511

1 say. If the Court would give me a moment.

2 I believe most of them can be generally

3 characterised, Your Honour, as HVO and HVO-HDZ

4 documents.

5 Exhibit 274. I think it may be easier to see

6 on -- 274, Your Honour, is an HVO-HDZ document

7 concerning a meeting, calling of a meeting of the

8 Travnik Regional Community by Dario Kordic and Ignjac

9 Kostroman, on the 10th of November, 1992.

10 Exhibit 281 is a record of the HDZ-BiH 2nd

11 General Assembly in Mostar.

12 We would also ask for Exhibit 606 to be

13 admitted, which is, again, an invitation by Mr. Kordic

14 and Mr. Kostroman to a meeting dated the 5th of April,

15 1993. Apparently the objection there had been lack of

16 foundation.

17 Exhibit 729.1. It's a certificate that a

18 particular HVO soldier was wounded on the 19th of

19 April. Again, apparently the previous objection had

20 been lack of foundation.

21 943.3. Your Honour, I'm sorry. That must be

22 a new exhibit that wasn't on mine the last time I

23 looked at this list. It is a second report by a civil

24 rights investigator, dated the 19th of May, 1993. It's

25 one of the U.N. investigators sent into Central

Page 16512

1 Bosnia.

2 Exhibit 1220.2, which was a document by

3 Marijan Skopljak, dated the 28th of September, 1993,

4 HVO, or HDZ, if you will, document, Your Honours. It

5 was also specifically mentioned by Mr. Elford in his

6 testimony. Again, it's our position it's not a

7 document separate or distinct from many, many other HVO

8 documents that have been admitted into evidence.

9 Finally, Exhibit 1434, which is an ECMM

10 report dated the 7th of -- I'm sorry -- 12th of July,

11 1994. Although again, Your Honour, looking at this

12 chart, seems to indicate that it's in. If it's in,

13 it's in, obviously. The problem, Your Honour, is there

14 were some documents that were included in Cigar's

15 supporting material, and it was not clear whether some

16 of these were, in fact, in evidence or not.

17 In any event, Your Honour, we would ask the

18 court to include and admit 274, 281, 606, 729.1, 943.3,

19 1220.2, and 1434, if not already admitted, and I'll

20 leave to Ms. Somers the open-source material. Thank

21 you, Judge.

22 MS. SOMERS: I promise to be very brief, Your

23 Honours. Of the two binders of material, most of which

24 were open source, the articles which are listed, I

25 believe, would provide necessary points of information,

Page 16513

1 almost all of which come from interviews either with

2 Franjo Tudjman or with Dario Kordic himself; Mate

3 Boban; Josip Manolic, the security services chief at

4 one time. Subsequently -- some of these articles are

5 written subsequent to his departure from that

6 position.

7 The point we try to give very briefly. We

8 apologise. Some of it thrown together a bit too fast,

9 and we apologise for any brevity, but just to let the

10 Court know what the gist of it is, and these are not

11 the whole articles we seek to introduce. If the Court

12 takes a look at the B/C/S parts -- and we'll clean this

13 up considerably if the Court is so interested in having

14 these materials -- there are just some points that are

15 highlighted, and these would be the only points that we

16 think would be of particular relevance.

17 If the Court wishes to see these further,

18 because these were -- except for number 1 and number 3,

19 which are written in 1996 and 1998, the rest are

20 written close in time during the time of the conflict,

21 very much relevant in terms of time frame to the issues

22 that have been raised in the Prosecution's case.

23 Again, we are only seeking to have -- I must

24 point out to the Court that there are some obituary

25 notices that were taken from the Croatian newspapers,

Page 16514

1 and the explanation is the content of it distinguishes

2 between soldiers dying in Bosnia and soldiers dying in

3 Croatia, HV soldiers. We would have to make sure this

4 is cleaned up so the Court can have an accurate

5 translation of all the different obituaries.

6 And I just want again to the court that these

7 are all Croatian publications -- Globus, Nacional --

8 either Croatian or Croatian orientation, if it's from

9 the Bosnian Croat section.

10 JUDGE MAY: Ms. Somers, this is the binder we

11 have, Z2817.

12 MS. SOMERS: It is, sir.

13 JUDGE MAY: Yes, Mr. Sayers.

14 MR. SAYERS: Let me just begin,

15 Mr. President, by saying this puts us in a little bit

16 of a difficult position. As I'm sure the Court knows,

17 we've got substantial obligations that could be argued

18 to fall due a week from now, and we still don't know

19 what the evidence in the case is. We really do need to

20 have closure on this issue.

21 JUDGE MAY: Well, this is why we're ruling

22 now.

23 MR. SAYERS: Exactly. Let me just turn to

24 the exhibits themselves. I don't have them before me,

25 and I did not realise that these issues were going to

Page 16515

1 be raised, but insofar as Exhibits Z274 and 281 are

2 concerned, our objections are noted on the list that

3 was delivered to us today, the OTP exhibit list, which

4 consists of about -- well, of 68 pages. I have no idea

5 what the numerical count on these exhibits is, but our

6 objections are stated there.

7 Exhibit 606, if I might just draw the Court's

8 attention to page 29, is not even listed, so I don't

9 even know what Exhibit 606 is.

10 Exhibit 729.1, we've stated our objection, as

11 recorded by the Prosecution.

12 Exhibit 943.3. Let me say that we registered

13 no objection to that. So that appears to be

14 non-controversial.

15 Exhibit 1220.2 on page 52, our objection is

16 that there's a missing translation, but I have, I must

17 confess, some recollection of this issue coming up, and

18 maybe it is this document, a translation having been

19 provided. If it has been provided, then obviously the

20 basis for our objection would be withdrawn. If it has

21 not been provided, then the question has to be posed:

22 When will it be provided? And that's a real problem

23 for us, along the lines that I just mentioned, and I'll

24 get into that in just a minute.

25 Exhibit 1434, I think that we registered no

Page 16516

1 objection to that, and that's accurately recorded in

2 the Prosecution's chart.

3 With respect to this new binder of so-called

4 open-source materials, might I just draw the Court's

5 attention to the very first one, because I think this

6 is representative of the general objection that we

7 would make.

8 It appears to be an article from Globus in

9 1996, and if you return to the translation of it -- I

10 mean, the article goes on for some four

11 pages -- there are translations of snippets, extracts

12 taken from this article, and we believe that's not

13 fair. If the article is to be admitted, then all of it

14 should be admitted and there should be a translation of

15 all of it so that we can understand what the article

16 says, what its context is, and where the snippets that

17 have been extracted from it stand in regard to that

18 overall context. And I think that objection adheres

19 generally to the articles in here, which apparently

20 have all been translated, or at least the ones that I

21 can flip through right now, just in part and not in

22 whole.

23 With respect to the other documents that the

24 Prosecution mentioned, I really can't locate them in

25 here. Obituary note -- maybe these are them.

Page 16517

1 Provided there is an accurate translation

2 provided of these obituaries, as the Court stated in

3 its previous rulings, they appeared as they are in the

4 press. Presumably they're factually founded. But the

5 general problem is the lack of translations of these

6 substantial number of articles and only partial

7 translations having been provided.

8 This is not a new issue, Mr. President, and I

9 must confess it is somewhat surprising that it arises

10 on the last day of the Prosecution's case.

11 MR. KOVACIC: Your Honours, I would join what

12 my colleague said, but I would add, relating to those

13 Prosecution open-source materials where we are dealing

14 with press articles, here we are having a couple of

15 interviews or similar statements of either top

16 politicians or intelligence officers, or better to say

17 head intelligent officers of Croatian at that time, in

18 the press at a contemporary time.

19 I think all of us are very well educated and

20 experienced persons to understand that no politician,

21 particularly an intelligence officer, would relay

22 anything which is near to true publicly at the time of

23 such critical events. So I really don't think there is

24 any probative value of what either Mr. Tudjman, or

25 Mr. Manolic, or anybody else listed here, would say to

Page 16518

1 the public at that time.

2 In addition, I notice another piece of

3 information here. Those are announcements about

4 deceased persons from the newspaper.

5 I should just say that it is a national

6 custom in Croatia and Bosnia, and other ex-Yugoslav

7 countries, to print obituaries, which are paid, so

8 those are informations either by family, or by friend,

9 or some third party, or anything else. So it is also

10 not relevant information, because there were examples

11 -- and perhaps we will deal with that in the Defence

12 case, if necessary -- there were many examples where,

13 for various reasons, the friends, or families, or

14 somebody else, announced on many occasions that

15 somebody is supposedly dead, including location of the

16 death, or without that including the time, or without

17 that, for many, many different reasons, which I will

18 obviously not enter into now. But I do not think that

19 a page from a Croatian newspaper with such

20 announcements has any probative value, because if such

21 person was dead -- we have heard the testimony the

22 citizens at that time were provided with so-called

23 unique registering numbers of the citizen and

24 appropriate numbers that authorities could search by

25 computer through the official books and find out

Page 16519

1 whether somebody passed away or whether somebody

2 survived. But if that is the information which we will

3 enter into the case, then probably we will have to show

4 you, through the Defence case, just merely as a matter

5 of example, that such things are simply not reliable.

6 Thank you, Your Honour.

7 JUDGE BENNOUNA: I have a question to

8 Mr. Scott just about the usefulness of -- what use are

9 you going to make with these articles? Are you going

10 to rely on these articles somewhere, or what is your

11 aim in asking the Chamber to admit these newspaper

12 articles in the evidence? Because this can help us,

13 perhaps.

14 MR. SCOTT: Thank you, Your Honour.

15 To answer the Court's question, we would

16 expect to rely on them, to various extents, as public

17 statements by some, in many instances, senior public

18 officials of places like the State of Croatia, which we

19 think is corroborated by other evidence in the case. I

20 don't think any of us would expect the Court to base a

21 ruling, in its entirety, on a press statement. But to

22 the extent the Court, based on the extensive evidence

23 you've heard over the past 11 months, is able to

24 accept -- to review these media materials in a way

25 that, whether they are corroborated or consistent with

Page 16520

1 the other evidence the Court has heard or not, are they

2 consistent with ECMM assessments, are they consistent

3 with what BritBat and UNPROFOR were saying, are they

4 consistent with what other witnesses have said, the

5 Court is in a perfect position to assess the weight

6 that should be given to these articles. They are no

7 different, again, than the numerous meeting material

8 that the Court has accepted before. All the objections

9 go to weight.

10 As to other issues, Your Honour, there is not

11 new material and it is not fair to say that this is yet

12 another new set of materials. These materials were

13 provided last fall. They've been in the Defence

14 possession for a long, long time.

15 As to translation issues, Your Honour, the

16 only thing we can commit to that, as we've committed

17 before -- and we understand the Court's ruling on other

18 exhibits -- is that we fully understand that

19 ultimately, and before the Court can consider these

20 documents for purposes of judgement, they will have to

21 be translated. We fully understand that, and we will

22 translate them at the earliest time. I would think

23 they could be certainly translated by early in the

24 Defence case. The Defence will have ample opportunity

25 to meet this evidence, ample opportunity, and we think

Page 16521

1 the objections go to weight and it should be admitted,

2 Your Honours.

3 JUDGE MAY: Thank you.

4 [Trial Chamber deliberates]

5 JUDGE MAY: I deal first with the single

6 exhibits; 274, 281, 729 are all matters which are

7 objected to, but the objections go to the weight, as

8 we've often said before. They will be admitted.

9 Similarly, 943.3 and 134, where there is no objection,

10 they will be admitted.

11 The other two documents: 606, it's said, has

12 not been provided; and 1220.2, it's said, there's no

13 translation. Those documents will only be admitted if

14 they have been provided and there is a translation

15 available. If neither of those criteria are met, why

16 then, they won't be admitted.

17 MR. SAYERS: Mr. President --

18 JUDGE MAY: I haven't finished.

19 The other application is in relation to 2817,

20 the press materials. We have had to make a judgement

21 about this.

22 It seems that this evidence suffers from a

23 number of drawbacks, if I can put it that way. First

24 of all, the probative value, it may be, of a press

25 article is, on occasion, open to question, and we are

Page 16522

1 particularly concerned as to whether this has any real

2 probative value. Secondly, there are the problems of

3 translation, which are real ones. It means that the

4 Defence are not in a position really to deal with these

5 articles without a translation being provided. We are

6 not satisfied that the death notices, the obituaries,

7 have any real probative value, and of course if only

8 extracts are translated and not the whole document,

9 there are real difficulties both for the Defence and,

10 of course, for the Tribunal.

11 We are not prepared to admit these documents

12 at this stage. If they become relevant during the

13 course of the Defence case, of course, they can be put

14 to witnesses or, indeed, they can be introduced during

15 the case in rebuttal. But at this stage, because of

16 those variety of reasons, we shan't admit 2817.

17 MR. SAYERS: Mr. President, my apologies for

18 interrupting you. I just wanted to point out that with

19 respect to Exhibit 606, it was not our position that

20 this document had not been provided. I simply do not

21 know whether it has been provided, because it is not

22 listed on the summary of outstanding exhibits that we

23 were given by the Prosecution today. But assuming that

24 it requires a translation and a translation is

25 provided, obviously we would have no objection to it.

Page 16523

1 JUDGE MAY: Very well.

2 That brings us finally to the --

3 Mr. Lopez-Terres.

4 MR. LOPEZ-TERRES: [Interpretation] If you

5 will allow me, Mr. President.

6 We began the hearing this morning raising the

7 question of the international armed conflict, referring

8 to a document which was, according to the Defence,

9 redacted, and you asked for information on that point.

10 I am prepared to do so, if you want me to. I've got

11 the document with me.

12 JUDGE MAY: Yes. What is the position,

13 please?

14 MR. LOPEZ-TERRES: [Interpretation] The

15 document is the one which was referenced Z2436. It's a

16 report dated 6 August 1993, and it comes from the Human

17 Rights Centre of the United Nations in Zagreb.

18 The document is being produced as we have

19 it. No redaction was done by us. But I would like to

20 point out that the document has five pages, and it says

21 on the first page that there are five pages. It's also

22 indicated, at the bottom of the last paragraph of that

23 document on the first page, that the drafter did not

24 attach some parts of the report in order to avoid

25 revealing the identity of its source. So this comes

Page 16524

1 right from reading the document and shows us that some

2 information is not there, but the report is complete

3 and it's in the state that we received it.

4 JUDGE MAY: Yes. Thank you,

5 Mr. Lopez-Terres. That -- unless, Mr. Sayers, you want

6 to say something about that particular document, I mean

7 the explanation. It's one thing if it's redacted by

8 the Prosecutor, but it's the document as they've

9 received it. It doesn't seem to me that they can do

10 much better than that.

11 MR. SAYERS: I don't think it bears any

12 further attention, Your Honour.

13 JUDGE MAY: Thank you. The matter will be

14 admitted.

15 Now, it's one o’clock. We are really close to the

16 end of the matters. There are just one or two

17 housekeeping matters which we have to consider, and the

18 Defence want to raise something with us.

19 MR. SAYERS: Three short matters ex parte.

20 It would not take more than five minutes in total, Your

21 Honour.

22 JUDGE MAY: Very well. Let me just deal,

23 Mr. Scott, with the housekeeping matters.

24 First of all, the transcripts. Now, we

25 understand that they've been marked up by the

Page 16525

1 Prosecution and they are with the Defence. Is that

2 so?

3 MR. SCOTT: Some, as Mr. Nice I think has

4 been indicating, Your Honour, some have been marked. I

5 can't say that they've all been marked yet.

6 Admittedly, we've all been busy these last couple of

7 weeks, and some of us have been marking transcripts

8 when we had a few extra minutes to do it ourselves.

9 But I would expect that they could all be finished in

10 the week ahead, given the additional time to devote to

11 it.

12 JUDGE MAY: Yes, right. So that there's no

13 doubt about it, perhaps you could do it within a week.

14 MR. SCOTT: Yes.

15 JUDGE MAY: Within the week, because we need

16 to start work on them ourselves.

17 MR. SCOTT: Fair enough.

18 JUDGE MAY: Yes, Mr. Kovacic.

19 MR. KOVACIC: Your Honour, I think that you

20 just raised an additional question. We should need

21 probably -- I'm talking about merely technical reasons

22 in order to avoid the later problems. We should have

23 some kind of list index of the transcripts involved,

24 and most of those witnesses in that manner tendered in

25 this case should get some pseudonym from this case.

Page 16526

1 JUDGE MAY: Well, that is a point which I --

2 MR. KOVACIC: I'm sorry.

3 JUDGE MAY: No, no, you're quite right to

4 raise it, Mr. Kovacic.

5 MR. KOVACIC: And if I may --

6 JUDGE MAY: Yes, let's deal with that point

7 now while it's still being considered.

8 Some of the witnesses, Mr. Scott, it's right

9 should have pseudonyms.

10 MR. SCOTT: Yes, Your Honour.

11 JUDGE MAY: Where they had pseudonyms before,

12 unless there's any objection, they should have them

13 again. I'll be informed of what a suitable pseudonym

14 for a transcript is. "T1", "T2", "T3" is the

15 suggestion.

16 MR. SCOTT: That would be possible, and I'm

17 literally thinking about this for the first time as I

18 stand here. It might be easier reference, in referring

19 to the Blaskic transcripts, just to simply keep the

20 existing designation in those and make some indication,

21 "/B" for Blaskic, or "/K" for Kupreskic, or something,

22 and then if someone knows they are talking about

23 Witness NN from the Blaskic case, it's still "NN." As

24 I said, I'm --

25 JUDGE MAY: We needn't rule on this now, but

Page 16527

1 provided it doesn't confuse the witnesses in this

2 case.

3 MR. SCOTT: That's the issue, yes.

4 JUDGE MAY: Well, some suitable form of

5 pseudonyming should be found.

6 MR. SCOTT: Yes, Your Honour.

7 JUDGE MAY: And, indeed, an index. I imagine

8 there will be. An index should be prepared, indicating

9 the witnesses whose transcripts have been admitted,

10 together with their pseudonyms and paginated in some

11 way.

12 MR. SCOTT: Yes, Your Honour. We appreciate

13 that, and the points are obviously well taken.

14 JUDGE MAY: Yes, and in binders, please.

15 Yes. Now, when do the Defence think that

16 they might be able to add any comments to the

17 transcripts, or would you rather simply leave it, leave

18 it be and leave it for comment? It may be simpler,

19 given the time constraints, for you to simply comment

20 on the transcripts in due course.

21 MR. SAYERS: It may be, Your Honour. But

22 just thinking out loud, it might be useful for us to

23 supply the particular parts upon which we would rely in

24 due course, and I can't say exactly when that would be

25 because we have some pretty substantial --

Page 16528

1 JUDGE MAY: The answer is this: that we will

2 receive the Prosecution transcripts, marked up,

3 indicating the parts on which they rely, and the

4 Defence can deal with it in whatever way they think

5 fit. It may be appropriate, during the Defence case,

6 for you to produce those parts upon which you rely.

7 MR. SAYERS: That's appropriate.

8 But let me say just one thing on this, Your

9 Honour. We're concerned that there's a little bit of a

10 moving target here. We've got a very short period of

11 time within which to prepare a fairly substantial

12 document, and we really don't know what the, you know,

13 the final state of the evidence is. And I frankly am

14 at a loss to know how to assess that. If we --

15 JUDGE MAY: You now should know what's been

16 admitted and what hasn't. Have you the transcripts

17 which have been admitted?

18 MR. SAYERS: Yes.

19 JUDGE MAY: So you've got the evidence, and

20 you should have all the exhibits.

21 MR. SAYERS: Except for the translations,

22 which are still to be provided, and that's -- might we

23 suggest -- I don't know that there's a substantial

24 number of translations that are outstanding. Might we

25 suggest that a deadline be set for them, you know, by

Page 16529

1 Monday or Tuesday, and that maybe our one week to do

2 the motion for judgement of acquittal runs from that

3 time?

4 JUDGE MAY: We're concerned not to let the

5 timetable slip. When can we expect any outstanding

6 translations? I know there are translation problems,

7 but this is a serious matter.

8 MR. SCOTT: Your Honour, I'm afraid the

9 honest answer to that is I can't begin to anticipate.

10 As you know, those resources are entirely outside of

11 our control. We have a number of matters pending. We

12 have asked and we have submitted translation requests,

13 but I think it would be disingenuous for me to stand

14 here and try to give you some prediction. I don't

15 know, without talking to them and asking.

16 JUDGE MAY: The simplest course may be this:

17 that if you are going to rely on any untranslated

18 documents in your submissions, then they will have to

19 be translated. If you're not going to rely on any

20 untranslated documents, then the matter may not be so

21 pressing.

22 If, Mr. Sayers, you come across documents

23 which you need for the purposes of your submissions,

24 then you can refer the matter to us in writing while

25 we're not sitting, and we'll deal with it as best we

Page 16530

1 can.

2 MR. SAYERS: Could I raise one more -- I hate

3 to be the -- well, it's on the international armed

4 conflict issue.

5 The Court has requested, in its ruling of

6 March the 8th, submissions from the Prosecution within

7 two weeks, and then requested submissions from us two

8 weeks after that, and we're pleased to make

9 submissions. But it's difficult for me to see exactly

10 what we would be responding to without introducing our

11 own evidence on the subject. Did the Court have in

12 mind us highlighting particular issues which would be

13 disputed and particular issues which would be --

14 [Trial Chamber confers]

15 JUDGE MAY: Yes. If it wasn't clear, it

16 should be, that what the Trial Chamber wants is the

17 matters at this stage that are in dispute, what it is

18 you dispute about their submissions; not your positive

19 case, of course.

20 MR. SAYERS: That will be no problem, Your

21 Honour, and thank you for clarifying that.

22 [Trial Chamber confers]

23 JUDGE MAY: Mr. Scott, the other outstanding

24 matters which the Chamber needs are the village

25 binders, in their final form, and the final list of

Page 16531

1 exhibits. Admittedly, that will have to reflect our

2 rulings today. Is there any reason why those should

3 not be with the Trial Chamber within seven days?

4 MR. SCOTT: Subject to Ms. Verhaag, Your

5 Honour, I can't see why that shouldn't be doable by the

6 end of next week.

7 JUDGE MAY: Yes. I mean the important point

8 is we have it and the Defence have it in order to deal

9 with any submissions that are made.

10 MR. SCOTT: I understand, Your Honour.

11 JUDGE MAY: So the order will be seven days.

12 MR. SCOTT: Your Honour, I'm sorry, if the

13 Court will allow me just three final housekeeping

14 matters, if you will, from the Prosecution side.

15 First off, Your Honour, as to the marking of

16 the transcripts, I feel compelled to tell the Court, so

17 there is no misunderstanding, in marking some of the

18 transcripts to date, when you get to a village witness

19 whose transcript may be 40 pages in direct and it's all

20 about the attack on Han Ploca, for instance, I wouldn't

21 want the Court to think that you necessarily be more

22 selective than one would expect. I mean that witness

23 tells the story about the attack on Han Ploca, and it

24 isn't a question of saying, "Well, we want this one

25 line here and one line on the next page." I mean

Page 16532

1 obviously it's the story of that attack.

2 JUDGE MAY: A broad indication is

3 sufficient.

4 MR. SCOTT: Also, Your Honour -- I guess it's

5 a request to the Defence, if you will, through the

6 Court, or if the Court has any feelings on it, the

7 Court could give some guidance -- it would be helpful

8 to the Prosecution, Your Honour, if the Defence might

9 consider giving us their half time or motions for

10 judgement of acquittal in electronic form. If they

11 would consider doing that, it might assist making a

12 timely response.

13 JUDGE MAY: Any difficulty about that?

14 MR. SAYERS: I don't anticipate any

15 difficulty, but if there is, we'll promptly notify the

16 Chamber and the Prosecution.

17 JUDGE MAY: It's the Prosecution in

18 particular. It seems sensible.

19 MR. SCOTT: Finally, Your Honour, Mr. Nice

20 mentioned this yesterday, but I do feel -- this is very

21 important in Prosecution, and it's a matter of some

22 point to us. We will, if you will, rest our case with

23 the outstanding binding order litigation in mind.

24 We are fully of a mind, Your Honour, that if

25 the various parties, the Federation or Croatia, are in

Page 16533

1 fact prepared finally to be forthright in the

2 production of documents, that there could be very

3 important documents that would still be important to

4 bring to the Court's attention. To the extent we rest,

5 Your Honour, we rest subject to the ability to bring

6 those documents before the Court, documents which have

7 been asked now for some three-plus years. Thank you,

8 Your Honour.

9 JUDGE MAY: We understand that that is the

10 Prosecution case, that you're reserving your position

11 on any future documentation which may appear, and we

12 will consider that in due course and the appropriate

13 course to take.

14 MR. SCOTT: Thank you, Your Honour.

15 JUDGE MAY: We will hear the Defence ex parte

16 motion now. Meanwhile, as far as the general case is

17 concerned, it's adjourned until the next hearing, which

18 will be on the 30th of March, at the usual time, half

19 past 9. We will adjourn now.

20 --- Whereupon the hearing adjourned

21 at 1.15 p.m., to be reconvened on

22 Thursday, the 30th day of March, 2000,

23 at 9.30 a.m.



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