131101ED

Page 18620

1 Friday, 1 November 2013

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.33 a.m.

5 JUDGE ORIE: Good morning to everyone.

6 Madam Registrar, would you please call the case.

7 THE REGISTRAR: Good morning, Your Honours.

8 This is the case IT-09-92-T, the Prosecutor versus Ratko Mladic.

9 JUDGE ORIE: Thank you, Madam Registrar.

10 The Chamber was informed that both parties wanted to raise a

11 preliminary matter.

12 Mr. Lukic, you go first.

13 MR. LUKIC: Thank you. Good morning, Your Honours.

14 I just want to inform Your Honours that Mr. Mladic will leave the

15 courtroom after the first session, and he will waive his right so we can

16 continue with -- in his absence.

17 JUDGE ORIE: Yes. I see that Mr. Mladic is nodding yes so as to

18 approve with what you said. That's on the record. Thank you very much.

19 MR. LUKIC: Thank you.

20 JUDGE ORIE: Mr. Shin.

21 MR. SHIN: Thank you. Good morning, Mr. President, Your Honours.

22 I think I can do this in open session. I just wanted to note

23 briefly that we did confirm that the CD-ROM we provided the Defence

24 yesterday, it is functioning. In fact, it may have just been a matter of

25 how to used it.

Page 18621

1 In addition, we have prepared a CD-ROM for the Chamber, a CD-ROM

2 previously provided to the Defence, of the larger spreadsheet. And that

3 may, therefore, together with the smaller spreadsheet that was provided

4 to the Chamber yesterday, provide both the Defence and the Chamber with

5 the electronic working version that Your Honours had mentioned yesterday.

6 JUDGE ORIE: Yes. That is now an Excel version.

7 MR. SHIN: Yes, that's correct.

8 JUDGE ORIE: Thank you for that.

9 MR. SHIN: Thank you.

10 JUDGE ORIE: Then I wanted to raise briefly one matter, which

11 deals with documents listed in the eleventh motion to add documents to

12 the 65 ter list.

13 It was on the 25th of October of this year that the Prosecution

14 indicated that it has received all translations for the documents,

15 subject to the eleventh motion to add documents to the Rule 65 ter list,

16 and that it is in the process of uploading the translations into e-court.

17 The Chamber would like to have an update on how far along this process is

18 and when it can expect all translations to be uploaded.

19 [Prosecution counsel confer]

20 MR. SHIN: Yes, Mr. President, the Prosecution anticipates that

21 that will be done today. The translations are ready. We're just doing a

22 quality-control check at this point.

23 JUDGE ORIE: Thank you. Because without translations, the

24 Chamber can't proceed.

25 MR. SHIN: Yes, of course, Mr. President.

Page 18622

1 JUDGE ORIE: Having dealt with those matters, we turn into closed

2 session.

3 [Closed session]

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 18682

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 [Open session]

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

7 JUDGE ORIE: Thank you, Madam Registrar.

8 The first decision deals with the evidence of Witness

9 Ibrahimefendic.

10 On the 12th of February, 2013, the Chamber issued a decision

11 allowing the Prosecution to call Dr. Ibrahimefendic to testify viva voce

12 as an expert witness, without her statement or report having been

13 tendered.

14 On the 18th of April, 2013, the Prosecution filed a motion

15 seeking to tender the transcript of Dr. Ibrahimefendic's testimony in the

16 Krstic trial under Rule 92 ter of the Rules of Procedure and Evidence.

17 On the 1st of July, the Chamber issued a decision addressing the

18 motion under Rule 94 bis, denying the Defence request to deny the motion

19 or to redact portions thereof, in deferring its decision on the admission

20 of the Krstic transcript, in whole or in part, until the time of the

21 witness's testimony. This decision is hereinafter referred to as the

22 1st July 2013 decision.

23 Following the conclusion of Dr. Teufika Ibrahimefendic's

24 testimony on the 18th of July, the Prosecution tendered the Krstic

25 transcript while the Defence maintained its opposition to its admission.

Page 18683

1 Prior to excusing the witness, the Chamber admitted the Krstic transcript

2 under Rule 92 ter, with reasons to follow. The Chamber issued these

3 reasons on the 20th of September, 2013, hereinafter referred to as the

4 impugned decision.

5 On the 27th of September, the Defence filed a motion for

6 certification to appeal the impugned decision on the grounds that it: (1)

7 contradicts the 1st July 2013 decision; (2) prevented the Defence from

8 benefiting from the provisions of Rule 94 bis of the Rules; and, (3)

9 allowed Dr. Ibrahimefendic to be treated as an expert and to testify as

10 such without adequate notice to the accused.

11 The Defence argues that these matters affect the fundamental

12 fairness of the proceedings and the overall outcome of the trial and must

13 therefore be considered by the Appeals Chamber to materially advance the

14 proceedings.

15 On the 7th of October, 2013, the Prosecution filed its response

16 opposing the certification motion.

17 The Chamber recalls and refers to the applicable law as set out

18 in its 13th of August -- its 2012 decision.

19 The Chamber considers that the Defence merely asserts that the

20 grounds raised in its motion affect the fairness of the proceedings and

21 the outcome of the trial without demonstrating how they do so. Based on

22 this unsubstantiated conclusion that the first prong of Rule 73(B) has

23 been met, the Defence proceeds to conflate the two prongs of the

24 provision by arguing that the second prong has necessarily also been met.

25 The Chamber recalls that each limb of Rule 73(B) should be separately

Page 18684

1 satisfied. As neither prong of Rule 73(B) has been met, the Chamber

2 denies the certification motion.

3 And this concludes the Chamber's decision.

4 The other decision I would like to deliver is the Chamber's

5 decision in relation to P2222.

6 The Chamber will now deliver its decision on the admission of

7 Exhibit P2222, marked for identification, during the testimony of

8 Manojlo Milovanovic on the 20th of September, 2013.

9 P2222 comprises seven UNPROFOR documents and a chart with

10 Milovanovic's comments and opinions on the authenticity of each

11 underlying document. The Defence objected to the admission of the chart

12 on the ground that the witness's comments amounted to a written statement

13 which is inadmissible through viva voce witnesses and can only be

14 admitted pursuant to Rule 92 ter. This can be found on transcript

15 pages 17018 to 17020.

16 Regarding this specific comment chart, the Chamber considers that

17 there is no need to determine whether the comment chart has to be

18 admitted pursuant to Rule 89(C) or Rule 92 ter of the Rules, given that

19 the requirements for both are met in this instance.

20 With regard to the requirements pursuant to Rule 89(C), the

21 Chamber notes that the Defence did not object to the relevance or the

22 probative value. The underlying documents concern communications between

23 UNPROFOR and the VRS Main Staff during time-periods relevant to the

24 indictment, and the witness stated that the documents were authentic.

25 With regard to the witness's comment chart, the Chamber notes

Page 18685

1 that the chart relates to the underlying documents and was attested to by

2 the witness. Milovanovic mostly identifies the signatures on the various

3 underlying documents and confirms the markings he had made on them during

4 a prior testimony. The Chamber, therefore, finds that the documents and

5 the comment chart are relevant and have probative value for the purposes

6 of the admission into evidence.

7 The Chamber notes that even if Rule 92 ter was the lex specialis

8 for determining the admission of the comment chart, all its requirements

9 were fulfilled. Milovanovic was present in court, subject to

10 cross-examination, and testified on transcript pages 17017 to 17018 that

11 he recognised the comment chart and his signature, and that he had

12 nothing to add to it. The Chamber also considers that the Defence had

13 ample opportunity to cross-examine the witness on the comment chart, as

14 well as the underlying documents.

15 Therefore, even if the Chamber were to adopt the position of the

16 Defence, the comment chart would still be admissible pursuant to

17 Rule 92 ter.

18 For these reasons, the Chamber admitted P2222 into evidence.

19 And this concludes the Chamber's decision.

20 We take a break, and we resume at 25 minutes to 2.00.

21 [Trial Chamber confers]

22 --- Recess taken at 1.13 p.m.

23 --- On resuming at 1.37 p.m.

24 JUDGE ORIE: For -- to hear the evidence of the next witness, we

25 turn into closed session.

Page 18703

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 [Open session]

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

14 JUDGE ORIE: Thank you, Madam Registrar.

15 We adjourn for the day, and we'll resume on Monday, the 4th of

16 November, 2013, in Courtroom III, at 9.30 in the morning.

17 And I already inform the public that the first half of Monday

18 morning's session will again be in closed session.

19 --- Whereupon the hearing adjourned at 2.17 p.m.,

20 to be reconvened on Monday, the 4th day of

21 November, 2013, at 9.30 a.m.