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.
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.
1 JUDGE ORIE: Having dealt with those matters, we turn into closed
3 [Closed session]
11 Pages 18623-18681 redacted. Closed session.
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
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
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.
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
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
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
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.
1 [Closed session]
11 Pages 18687-18702 redacted. Closed session.
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.