Tribunal Criminal Tribunal for the Former Yugoslavia

Page 36085

 1                           Monday, 22 June 2015

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.32 a.m.

 5             JUDGE ORIE:  Good morning to everyone after a relatively long

 6     period of not sitting.

 7             Mr. Registrar, would you please call the case.

 8             THE REGISTRAR:  Thank you and good morning, Your Honours.  This

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

10             JUDGE ORIE:  Thank you, Mr. Registrar.

11             The Chamber was informed that the Defence would like to raise a

12     preliminary matter.

13             Mr. Lukic.

14             MR. LUKIC:  Good morning, Your Honours.

15             Yes, you are right.  We have to address Your Honours on the issue

16     of our ability to continue with the trial, and I will read short

17     statement in B/C/S.

18             [Interpretation] Your Honours, we are addressing you after our

19     return from the field and after a month during which there was no

20     sessions, and the Defence has been given that time to prepare for the

21     Tomasica Prosecutor's case.  The reason we are addressing you is our duty

22     to inform you that the Defence has not succeeded in such a short time to

23     prepare for the continuation of this case with regard to Tomasica.  The

24     Defence wants to officially file on the record that the time that has

25     been given to us to prepare for the Tomasica segment was neither


Page 36086

 1     reasonable nor sufficient to allow the Defence to complete all the

 2     preparatory actions which are necessary to adequately and fully confront

 3     and refute the testimonies of the Prosecutor's expert witnesses.

 4             Despite our great effort, the number of expert witnesses and

 5     their various specialities have not allowed us to have a complete

 6     overview of their testimonies despite our consultations with the Defence

 7     expert witnesses.

 8             [In English] I think that the translation is a bit different.  It

 9     says "despite consultations with the Defence expert witnesses."  We did

10     not have consultations with Defence expert witnesses.

11             [Interpretation] Despite the efforts of -- invested by the

12     Defence, the allocated time has not allowed us to find Defence expert

13     witnesses.  Even if we had, that would not have been enough for the

14     expert witnesses to review all the materials provided by the Prosecutor's

15     expert witnesses and to prepare for the cross-examination.

16             The facts in this case say that the Tomasica investigations

17     started in 2002.  They continued in 2004 and in 2006 with the help of the

18     prosecutor's office of Bosnia-Herzegovina.  The final works on the

19     exhumation of the bodies finished in 2013.

20             We can find this fact in paragraph 2 of Ian Hanson's paper.  Let

21     us mention that the entire ICMP was involved in this work, the ICMP being

22     the International Commission on Missing Persons.  The Prosecutor had the

23     help from the police and the prosecutor's office of Bosnia and

24     Herzegovina.  Obviously, this was what involved a lot of work and the

25     Prosecutor needed more than a decade to complete it with the help of a


Page 36087

 1     vast machinery that it had at its disposal.  The Defence could not

 2     complete the work with the limited resources and the limited number of

 3     people that were -- that were allocated to us in just a month.

 4             We take this opportunity to ask for -- from the Trial Chamber to

 5     allocate us additional time to prepare and to continue to work

 6     professionally and to protect the rights of our client.  The Defence is

 7     prepared to cross-examine the fact witnesses provided by the Prosecutor.

 8             As far as the Prosecutor's investigation is concerned, we can

 9     tell you that it is ongoing.  Last night we received new information that

10     the Prosecutor learned in their conversation with the witness who is

11     supposed to testify second in this case, so it is obvious that the

12     Defence needs additional time to be able to cross-examine the

13     Prosecutor's witnesses.

14             Thank you for having listened to us.

15             JUDGE ORIE:  Mr. Tieger, any response?

16             MR. TIEGER:  Just very briefly and just about one aspect of the

17     argument raised by Mr. Lukic.

18             First I should note that we had no indication before this morning

19     immediately before we commenced that he would be offering that position

20     to the Court; but, in any event, I feel at least compelled to point out

21     one aspect of the argument that may illustrate the larger fallacy in his

22     position, and that is the claim that somehow the initiation and

23     unsuccessful efforts to probe Tomasica initially in 2002 and then only

24     the partially successful efforts to excavate that large site in 2004 and

25     2006 and then eventually the probing and identification of additional


Page 36088

 1     remains resulting in the excavation in 2013 are somehow part of an

 2     ongoing process that bears some relationship to the amount of time that

 3     must be invested by the Defence in analysing the results of the 2013

 4     excavation and exhumations.  There are few more striking examples of the

 5     apples-and-oranges fallacy that I can think of.  These are two completely

 6     different things.

 7             And the fact that there a was an unsuccessful probe in 2002 and

 8     then there was a long gap between that time and the 2013 excavation have

 9     absolutely nothing to do with the review of the very concise, very clear

10     information about the 2013 exhumation that was adduced in response to

11     those efforts and that has been presented to the Defence.  That is aside

12     from the issue of when the Defence was properly seized of the information

13     about the Tomasica excavation such that efforts to identify experts who

14     could assist in their evaluative efforts might first be commenced.

15             So I cannot offer an exhaustive review of Mr. Lukic's comments,

16     but I would suggest that these two issues alone suffice to make clear

17     that this submission is misplaced and should not result in the relief

18     sought.

19             JUDGE ORIE:  Mr. Lukic, anything to add?

20             Yes, Mr. Traldi.

21             MR. TRALDI:  Sorry --

22             JUDGE ORIE:  I apologise.

23             MR. TRALDI:  I apologise.  Just to very briefly add to Mr. Tieger

24     remarks, having been involved with the fact witnesses.  Mr. Lukic

25     suggested on the basis of having received a proofing note yesterday that


Page 36089

 1     that meant investigations were continuing.  Of course, he received the

 2     standard sort of information that both parties have provided during the

 3     course of witness preparation, and I think to misconstrue that to suggest

 4     that there remain some sort of investigative process beyond the standard

 5     witness preparation is misleading.

 6             JUDGE ORIE:  Mr. Lukic.

 7             MR. LUKIC:  I am afraid that I cannot agree with my learned

 8     friend that I was misconstruing anything.  The documents were offered to

 9     this witness to comment on them yesterday.  At least we were informed

10     that way.  So he never commented on the documents mentioned in that

11     proofing note, never before.  So it was part of the investigation.

12             You will probably be offered this chart made from that

13     conversation, and you will see from the information report that many

14     things were raised for the first time, and we can ask the witness if

15     those facts were actually raised with him for the first time yesterday.

16     So I'm not misconstruing anything.  It's visible from the documents that

17     the Prosecution was conducting investigation yesterday with that witness.

18             JUDGE ORIE:  Anything else, Mr. Lukic?

19             MR. LUKIC:  No, Your Honour.  Thank you.

20             JUDGE ORIE:  Thank you.

21                           [Trial Chamber confers]

22             JUDGE ORIE:  The Chamber noted that the Defence declared its

23     preparedness to cross-examine at least the witnesses of fact.

24             MR. LUKIC:  Yes, Your Honour.  That's true.

25             JUDGE ORIE:  Yes.  So therefore, that's the reason why we'll not


Page 36090

 1     at this very moment determine the matter.  We'll further consider it and

 2     we'll also keep in the back of our minds, Mr. Lukic, that the matter of

 3     the time to be granted to prepare for the reopening has been litigated

 4     and has resulted in a decision by the Appeals Chamber in which the appeal

 5     against the decision of this Trial Chamber was denied, but we'll look at

 6     all that together and not hasten and hurry at this moment to give a

 7     decision within half an hour.  We'll take at least one or two days to

 8     further consider the matter.

 9             Any other matter you intended to raise, Mr. Lukic, or was this

10     the --

11             MR. LUKIC:  No, Your Honour.  Thank you.  That's all we had.

12             JUDGE ORIE:  Not to say that it's not enough in no way.

13             Then we briefly move into private session.

14                           [Private session]

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25                           [Closed session]


Page 36092

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13                           [Open session]

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

15             JUDGE ORIE:  Thank you, Mr. Registrar.

16             We'll take a break.  During the break, the Chamber will consider

17     the arguments raised by the parties in relation to protective measures

18     and we'll give our decision upon return, which will be at ten minutes to

19     11.00.

20                           --- Recess taken at 10.29 a.m.

21                           --- On resuming at 10.52 a.m.

22             JUDGE ORIE:  The Chamber has heard the submissions in relation --

23     and the request for protective measures for Witness RM383 and has decided

24     to grant the protective measure as requested; that is, face distortion,

25     voice distortion, and pseudonym.  The reasons will be given soon.


Page 36107

 1             Could we turn into closed session in order to allow the witness

 2     to enter the courtroom, and immediately after he has taken his seat we'll

 3     proceed in open session though with these protective measures.

 4                           [Closed session]

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20                           [Open session]

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

22             JUDGE ORIE:  Thank you, Mr. Registrar.

23             Witness, you'll first be examined by Mr. Traldi.  You find

24     Mr. Traldi to your right.  Mr. Traldi is, as I told you before, is

25     counsel for the Prosecution.


Page 36108

 1             Please proceed, Mr. Traldi.

 2                           Examination by Mr. Traldi:

 3        Q.   Good morning again, sir.

 4        A.   Good morning.

 5             MR. TRALDI:  Now could we please have 65 ter 32659, not to be

 6     broadcast.

 7        Q.   Sir, what you should see on your screen now is a pseudonym sheet

 8     which will have your name, your date of birth, and your pseudonym in this

 9     trial.  Please don't read any of the information out loud.  But if it

10     correctly reflects the information I just mentioned just now, if you

11     could please affirm that for the record by saying "yes."

12        A.   Yes.

13             MR. TRALDI:  Your Honours, I'd ask that this be admitted into

14     evidence as the next confidential Prosecution exhibit.

15             JUDGE ORIE:  Mr. Registrar.

16             THE REGISTRAR:  Exhibit P7415, under seal, Your Honours.

17             JUDGE ORIE:  P7415 is admitted, under seal.

18             MR. TRALDI:  Could we now have 65 ter 31081, not to be broadcast.

19        Q.   As it comes up, sir, did you give a statement to the Office of

20     the Prosecutor in 2014?

21        A.   I did not understand your question.

22        Q.   Did you give a statement to representatives of the Office of the

23     Prosecutor during an interview conducted in the year 2014?

24        A.   Yes.

25        Q.   Now, directing your attention to the right side of the screen,


Page 36109

 1     the English version, do you recognise the signature in the bottom

 2     right-hand corner?

 3        A.   Yes.

 4        Q.   Whose signature is that?

 5        A.   Mine.

 6             MR. TRALDI:  Can I ask that the court officer call up page 6 in

 7     the English version.

 8             JUDGE ORIE:  Before we do so, page 1 gives a wrong date, at least

 9     an incomprehensible date for the interview.  201 is not a year.  Could

10     that be corrected.  And let's now move to page 6.

11             MR. TRALDI:  Thank you, Mr. President.

12        Q.   And, sir, do you see on the right side of the page next to the

13     word "potpis," do you see a signature again?

14        A.   Yes, I do.

15        Q.   Whose is it?

16        A.   Mine.

17             MR. TRALDI:  Can we go for a moment into private session, please.

18             JUDGE ORIE:  We move into private session.

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23                           [Open session]

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

25             JUDGE ORIE:  Thank you, Mr. Registrar.


Page 36111

 1             MR. TRALDI:

 2        Q.   Sir, did you have an opportunity to review your statement in

 3     preparation for your testimony?

 4        A.   I can't remember.

 5        Q.   Did you --

 6             JUDGE ORIE:  There's -- there was B/C/S on the English channel.

 7     There still is, but now I think it has been repaired.

 8             If you put your next question to the witness, Mr. Traldi.

 9             MR. TRALDI:

10        Q.   Did you have an opportunity to read your statement this weekend

11     and make any corrections you wished to make?

12        A.   Yes, yes.

13        Q.   Aside from the correction we discussed a moment ago, if I were to

14     ask you questions similar to those you were asked in the taking of your

15     statement, would you give the same answers, in substance?

16        A.   I would give the same answers.

17        Q.   And now that you've taken the solemn declaration, do you affirm

18     the truthfulness and accuracy of the information you've provided in this

19     statement?

20        A.   Yes.

21             MR. TRALDI:  Your Honours, I tender 65 ter 31081, under seal.

22             JUDGE ORIE:  Mr. Registrar.

23             THE REGISTRAR:  That will be Exhibit P7416, under seal,

24     Your Honours.

25             JUDGE ORIE:  P7416 is admitted, under seal.


Page 36112

 1             MR. TRALDI:  Your Honours, I will now provide a very brief

 2     summary of the witness's evidence.  I've explained to him that it is for

 3     the public and not part of his evidence and confirmed with him that the

 4     limited information contained therein will not give rise to his security

 5     concerns.

 6             RM383 gives evidence about one instance of the collection,

 7     transport, and burial in the Tomasica mass grave of persons killed in

 8     Prijedor municipality.

 9             And I'll --

10             JUDGE ORIE:  Any further questions for the witness?

11             MR. TRALDI:  Yes, Mr. President.  Before I do, I'd tender as well

12     the limited map book that we have made associated with the Tomasica

13     reopening, 65 ter 32662.

14                           [Prosecution counsel confer]

15             MR. TRALDI:  And the Court Officer has hard copies for

16     Your Honours, and the Defence has been provided a hard copy this morning.

17     We'd propose it be admitted on the same basis as the municipalities and

18     Sarajevo map books, and I've been told that with that understanding the

19     Defence has no objections.

20             JUDGE ORIE:  Which means that any markings or whatever are not --

21     not accepted by -- not objecting to the admission.

22             MR. TRALDI:  Yes, Mr. President.

23             JUDGE ORIE:  Thank you.  Then the Chamber would like to receive

24     those copies, hard copies.

25             Mr. Stojanovic, you received a copy already?


Page 36113

 1             MR. STOJANOVIC: [Interpretation] That's correct, Your Honours.

 2     We received it earlier today.

 3             JUDGE ORIE:  Yes.  Mr. Stojanovic, and I do understand there's no

 4     objection against having it admitted into evidence but that that does not

 5     mean that you do not challenge any of the markings, the layout.  Whatever

 6     interpretation could be given to that, you'll keep your hands free in

 7     that respect?

 8             MR. STOJANOVIC: [Interpretation] That's correct, Your Honours.

 9             JUDGE ORIE:  Mr. Registrar, number to be assigned to the Tomasica

10     court binder.

11             THE REGISTRAR:  Which is 65 ter number 32662 is Exhibit P7417,

12     Your Honours.

13             JUDGE ORIE:  Admitted into evidence.

14             Mr. Traldi, I saw that there are some -- even some signatures.

15     Any reason to have it partly under seal or not at all?  Because I don't

16     know whose they are.

17             MR. TRALDI:  If we could put it tentatively under seal and I'll

18     come back to Your Honours within the next hour.

19             JUDGE ORIE:  Provisionally it's put under seal.  And I'm mainly

20     focusing, for example, at pages 3 and 4.

21             Yes, provisionally under seal.

22             Please proceed.

23             JUDGE MOLOTO:  Mr. Registrar, could you please repeat the 65 ter

24     number.

25             THE REGISTRAR:  32662, Your Honours.


Page 36114

 1             JUDGE MOLOTO:  Thank you.

 2             MR. TRALDI:  Could we move into private session briefly,

 3     Your Honours.

 4             JUDGE ORIE:  We move into private session.

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13                           [Open session]

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

15             JUDGE ORIE:  Thank you, Mr. Registrar.

16             MR. TRALDI:

17        Q.   Sir, I'm going to ask you now about when you were at the site

18     itself.  Without mentioning how you got there or where you came there

19     from, can you just tell us what it was like when you got to the

20     grave-site the first time, what you were able to see, hear, and smell?

21        A.   I saw some earth that had been dug up near the grave, and I saw

22     an excavator.

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 5     soldiers unloaded the bodies into the grave.

 6        Q.   And the last time you were at the site before you left, were you

 7     or anyone there at the time instructed to close the grave, to put all the

 8     disturbed earth back in and cover it up?

 9        A.   No one said anything.  While we were there, there was no one else

10     at the location except for the group that had brought the corpses and

11     unloaded them.

12        Q.   And are you aware of any discussion with members of your group

13     about closing the site, covering it up, filling the pit?

14        A.   Well, yes, we did speak among ourselves, but we couldn't make any

15     decisions.  No one asked us anything.  The superiors were supposed to be

16     involved in that.

17        Q.   Did any of those superiors ever issue an instruction to close the

18     site to anyone in your group?

19        A.   No.

20             MR. TRALDI:  Your Honours, that completes my examination.  I'd

21     ask that we very briefly move into private session.

22             JUDGE ORIE:  We move into private session.

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10                           [Open session]

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

12             JUDGE ORIE:  Thank you, Mr. Registrar.

13             Before I give an opportunity to the Defence to cross-examine the

14     witness, Judge Fluegge would have one or more questions for the witness.

15             JUDGE FLUEGGE:  Witness, you said in answering a question of

16     Mr. Traldi that "the superiors were supposed to be involved in that."

17             Who were your superiors you're referring to?

18             THE WITNESS: [Interpretation] I had in mind those who were

19     responsible, those who were more senior in terms of rank.

20             JUDGE FLUEGGE:  To which institution did they belong?

21             MR. TRALDI:  Your Honour, I'm sorry to interrupt.  If we might

22     address that in private session.

23             JUDGE FLUEGGE:  That's a good session.

24             JUDGE ORIE:  We turn into private session.

25                           [Private session]


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 5                           [Open session]

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

 7             JUDGE ORIE:  Thank you, Mr. Registrar.

 8             Rather than to start with the next witness I'd like to deal with

 9     a few procedural matters.

10             MR. TRALDI:  Yes, Mr. President.  If I might deal with one

11     leftover from this morning that I'd undertaken to get back to the Chamber

12     about, P7417, the Tomasica court binder.  I've been assured by my

13     colleagues that it can be a public exhibit.

14             JUDGE ORIE:  Can be a public exhibit.  Therefore, P7417 which was

15     provisionally put under seal is now a public exhibit.

16             I'd like to deal with a few matters.  The first deals with the

17     request to replace the current the e-court version of P2508.

18             On the 9th of December, 2013, document bearing Rule 65 ter number

19     2382a was admitted into evidence as Exhibit P2508, and I refer to

20     transcript page 20453.

21             On the 7th of April of this year, the Prosecution, following an

22     informal agreement with the Defence, requested via an e-mail that the

23     Chamber replace the current version of Exhibit P2508 with the document

24     bearing Rule 65 ter number 2382b.

25             The Chamber hereby instructs the Registry to replace the current


Page 36160

 1     version of P2508 in e-court with the new version.

 2             I move one further down in my agenda in order to avoid that we

 3     have to move into and then again out of private session.

 4                           [Trial Chamber confers]

 5             JUDGE ORIE:  Then the next item deals with comment chart for

 6     Witness RM382.

 7             On the 15th of June of this year, the Prosecution requested the

 8     Chamber's leave via e-mail to use a comment chart for five to ten

 9     documents to be used with Witness RM382.  The Chamber granted this

10     request on the 18th of June and informed the parties of its decision, and

11     this decision is hereby put on the record.

12             And the next item addresses the Defence.  The Defence has

13     indicated that it intends could call a number of its witnesses pursuant

14     to Rule 92 bis, and the Chamber wonders whether the Defence could

15     indicate when it will file its Rule 92 bis motions.

16             Mr. Lukic, when do you think you could respond to this question?

17             MR. LUKIC:  You really caught me by surprise, although probably

18     we'll have it already.

19             JUDGE ORIE:  Yes, that's the reason why I give you time to find

20     out.  Later this week?

21             MR. LUKIC:  Maybe it would be a good idea to have a weekend.

22             JUDGE ORIE:  A weekend.  Okay.  Then we'll hear from you not

23     later than --

24             MR. LUKIC:  Monday.

25             JUDGE ORIE:  Monday.  That's fine.  That would be Monday, the


Page 36161

 1     29th of June.

 2             The next item deals with the verification of translation of

 3     documents bearing 65 ter numbers 19777, and the admission of document

 4     bearing 65 ter number 19777e.

 5             During the testimony of Nenad Davidovic on the 11th and the 12th

 6     of February of this year, the Chamber invited the Prosecution to seek

 7     verification from CLSS of the translation of the pages 13 and 22 of

 8     document bearing 65 ter number 19777, which is the witness's diary.  I

 9     refer to transcript pages 31.610 and 31.579.

10             On the 26th of February, the Prosecution advised the Chamber via

11     an e-mail on the translation of the word "ljekara" on page 22 and advised

12     that the corrected page 13 forms part of an excerpt of the diary which

13     has been uploaded under 65 ter number 19777e.

14             Perhaps I spell the word "ljekara" because my pronunciation may

15     be wrong.  It's l-j-e-k-a-r-k.  Yes, the last -- it ends last three --

16     last four letters are k-a-r-a.  Yes, there we are.

17             The Chamber requested the Prosecution file this e-mail.  On the

18     29th of March, the Defence advised the Chamber via an e-mail that it has

19     no objection to the admission of the excerpt and the Chamber hereby

20     admits the document bearing 65 ter number 19777e into evidence.

21             And, Mr. Registrar, you're invited to assign an exhibit number

22     for that 65 ter document.

23             THE REGISTRAR:  Will be Exhibit D1081, Your Honours.

24             JUDGE ORIE:  Is it a D number?

25             THE REGISTRAR:  No, I stand corrected.  It's P7418.


Page 36162

 1             JUDGE ORIE:  P7418 is admitted into evidence.

 2             I deal with one final matter; that is, the clarification on the

 3     status of Exhibit P7198.

 4             On the 22nd of May of this year, P7198, an intercept, was

 5     admitted into evidence and placed under seal.  The Trial Chamber notes

 6     that the Prosecution did not request P7198 to be placed under seal, but

 7     that most of the submissions and filings relating to this document were

 8     confidential.

 9             The Chamber considers that the status of P7198 should be public

10     and wonders whether there's any objections from the parties.

11             MR. TRALDI:  Not off the top of my head, Your Honour, but we can

12     discuss it overnight.

13             JUDGE ORIE:  Yes.  Of course, the same question to the Defence,

14     but if we hear from you tomorrow or the day after tomorrow, then we can

15     give further instructions to the Registry about the confidential status

16     of P7198.  I leave it to that for the time being.

17             We adjourn for the day, and we'll resume tomorrow, Tuesday, the

18     23rd of June, 9.30 in the morning, in this same courtroom, I.

19                            --- Whereupon the hearing adjourned at 2.14 p.m.,

20                           to be reconvened on Tuesday, the 23rd day of June,

21                           2015, at 9.30 a.m.

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