1 Tuesday, 8 February 2011
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 10.16 a.m.
5 JUDGE MOLOTO: Good morning to everybody in and around the
6 courtroom. Let's hope that the technology will not disappoint us.
7 Mr. Registrar, will you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. Good morning to
9 everyone in and around the courtroom.
10 This is case IT-04-81-T, the Prosecutor versus Momcilo Perisic.
11 Thank you.
12 JUDGE MOLOTO: Thank you so much.
13 Could we have the appearances for the day, starting with the
14 Prosecution, please.
15 MR. HARMON: Good morning, Your Honours, counsel, everyone in the
16 courtroom. Mark Harmon, Barney Thomas, April Carter, and Carmela Javier
17 for the Prosecution.
18 JUDGE MOLOTO: Thank you.
19 For the Defence.
20 MR. LUKIC: [Interpretation] Good morning, Your Honours. Good
21 morning to everyone participating in the proceedings. Mr. Perisic today
22 is represented by Mr. Gregor Guy-Smith and Mr. Novak Lukic. We have
23 Deirdre Montgomery and Chad Mair, our assistants, with us today.
24 JUDGE MOLOTO: Thank you so much, Mr. Lukic.
25 May the record show that the Chamber is sitting pursuant to
1 Rule 15 bis today in Judge David's absence.
2 Let me just welcome you back all. We haven't seen one another
3 for a long time. I hope you are all okay and ready for about what you
4 are to do.
5 The Present hearing was really scheduled to solve all remaining
6 outstanding issues before formally closing the trial or before, I guess,
7 the Defence formally rests, more formal than the last time you did.
8 And I will now move to the attempts on the agenda. I believe you
9 all have a copy of the agenda. The first item that we really need to
10 talk about are the MFI
11 Trial Chamber, which was yesterday, issued an decision on the two pending
12 Defence motions related to MFI
13 motions, and the Trial Chamber was informed that there are still several
14 documents in the trial record which still have an MFI status. The
15 Chamber would like to know what the position of the parties is in this
17 Mr. Harmon, I think you have something to tell us on this point.
18 MR. HARMON: Yes, Your Honour. We will divide our submissions in
19 respect of each of these agenda items. Ms. Carter will address that
20 particular issue.
21 JUDGE MOLOTO: Madam Carter.
22 MS. CARTER: Thank you, Your Honour. In relation to the
24 been in continuous negotiations with the Defence to make sure we can cure
25 some of the translation efforts. That has actually been completed as of
1 yesterday. We will be filing a motion this afternoon. What that motion
2 will entail will be 20 documents that we will seek to just remove the
4 translations and upon that regulation we will seek to remove the MFI.
5 There's also a third category --
6 JUDGE MOLOTO: Let me understand. You said there's going to be a
7 motion filed this afternoon. And of the 28 documents which you seek to
8 regulate, are you still going to regulate after this motion or will they
9 have been regulated by the time the motion is filed this afternoon?
10 MS. CARTER: We have already uploaded all the appropriate
11 documents into e-court, and we have listed the document IDs in our
12 motion. And so once the Chamber orders the replacement of those document
13 IDs, then we can actually have the MFI removed. So everything is ready
14 and available upon the Court's discretion.
15 JUDGE MOLOTO: Thank you so much, Madam Carter. Yes.
16 MS. CARTER: There's a third series of documents, of
17 24 documents, those are documents that have actually already been
18 admitted into evidence; however, there has been a problem either due to a
19 translation, missing pages, something is wrong actually with the document
20 itself; we are seeking to regulate those documents as well. All 24 of
21 those documents and their cures have been uploaded into e-court and are
22 listed in detail in the motion that will be submitted today.
23 And there's a final two documents --
24 JUDGE MOLOTO: Just before we go to the two documents. Is it my
25 understanding that the 24 documents were admitted into evidence
1 notwithstanding those deficiencies?
2 MS. CARTER: Correct. They were already admitted into evidence.
3 The -- what has been happening, as the Defence and the Prosecution have
4 been drafting their final trial brief and going into detail in some of
5 these documents, we're noticing some deficiency. And so both the
6 Prosecution has identified some, the Defence has identified some, the
7 Prosecution has subsequently submitted them all back to CLSS for revise,
8 which has happened, and so we're asking just to change out those
9 translations where needed.
10 JUDGE MOLOTO: Okay.
11 MS. CARTER: Okay. And then the final two documents are ones
12 where they have been admitted; however, they contain extraneous pages
13 that we'll just be seeking to remove from the trial record; they don't
14 actually apply to the original document themselves.
15 So in total we will have 74 documents that will be regulated
16 through the Prosecution motion to be filed today.
17 JUDGE MOLOTO: Thank you very much, Madam Carter.
18 What does this mean? We really can't then formally say we have
19 rested until this motion is decided, these motions are decided?
20 MR. HARMON: Yes, and when we get to other business, there's some
21 other matters that need to be discussed.
22 JUDGE MOLOTO: Really.
23 MR. HARMON: Yes.
24 JUDGE MOLOTO: Are you saying that these motions are not really
25 holding us back -- they are not the only ones holding us back?
1 MR. HARMON: There's one, but I'll discuss it when we get to the
2 appropriate time. This matter should be resolved by today.
3 JUDGE MOLOTO: Thank you so much, Mr. Harmon.
4 Mr. Lukic, do you have anything to say on what Madam Carter has
5 been telling us?
6 MR. LUKIC: [Interpretation] No, Your Honour. We have a full
7 correspondence with the Prosecution, and towards the end of that process
8 we will have all the results as reported to you by the Prosecution
9 concerning the removal of the MFI
10 to say on our part.
11 JUDGE MOLOTO: Thank you very much, Mr. Lukic. Okay.
12 Then the next item relates to the audio/video material related to
13 transcripts for which the confidentiality has been lifted. Throughout
14 the trial, the Trial Chamber has issued several decisions on the lifting
15 of confidentiality of transcripts of testimony. The Registry informed
16 the Trial Chamber that it is unclear whether the lifting of
17 confidentiality should also be extended to audio/video material
18 associated with those transcripts.
19 Just before we answer the Registry, we would like to hear what
20 the parties have to say on this point. I can guess what you are going to
22 MR. HARMON: Your Honour, if the confidentiality has been lifted
23 from the transcripts, it's from our point of view understandable that the
24 confidentiality should also be lifted from the video material.
25 JUDGE MOLOTO: And you would confirm that, I see, Mr. Guy-Smith?
1 MR. GUY-SMITH: Yes, we concur with that position.
2 JUDGE MOLOTO: Thank you very much. We'll advise the Registry
3 accordingly. Thank you so much.
4 The next item is Exhibit D666, a UN report on the Markale 1
5 incident, and it's in relation with the Sarajevo adjudicated facts from
6 the Galic trial judgement.
7 The Trial Chamber notes that in its decision of the
8 1st December 2010
9 United Nations report related to the Markale 1 incident. In its bar
10 table motion of the 5th of November, 2010, the Defence has indicated that
11 the purpose for having this document admitted into evidence is to rebut
12 the adjudicated facts related to that incident which were taken from the
13 Galic case in the decision on the Prosecution's motion for judicial
14 notice of adjudicated facts of Sarajevo
15 On the impact of the UN report on that adjudicated facts, the
16 Trial Chamber deems it important to raise the following issues with the
17 parties: The adjudicated facts concerning Sarajevo, in particular
18 Fact 248, reflect the conclusion of the Galic Trial Chamber about the
19 origin of fire in the Markale 1 incident. The Chamber notes that in the
20 Galic judgement, such conclusion is preceded by an extensive discussion
21 on the issue of the origin of the fire based on all the evidence of that
22 case, which also includes the very UN report which is now in this case.
23 Therefore, the Trial Chamber is of the view that the UN report cannot
24 rebut the conclusion of the Galic judgement, as that conclusion was
25 reached only after analysing the UN report and other evidence in that
1 case. Therefore, to avoid any ambiguity in the trial record, the
2 Trial Chamber is ready to -- well, first of all, the Trial Chamber would
3 like to hear the parties on this issue as to how they propose the
4 Trial Chamber should proceed.
5 And I think on this point I would like to ask the Defence to
7 MR. GUY-SMITH: Yes, it's the Defence position that this exhibit
8 is an exhibit which is important for the Chamber's consideration. It's
9 important for the consideration for two reasons: One is that it deals
10 specifically with a report that has a factual finding which is, as you
11 have pointed out, Your Honour, distinct from that which was found in the
12 Galic judgement. However, be that as it may, this Chamber has the
13 independent ability to make a determination of whether or not that
14 particular fact has any import with regard to the decision that you are
15 to make.
16 JUDGE MOLOTO: Mr. Guy-Smith, before -- we don't have control of
17 the screen, and before this what you have said disappears, I would like
18 to stop you and ask you a question. You say:
19 "One is that it deals specifically with the report that has a
20 factual finding which is, as you have pointed out, Your Honour, distinct
21 from that which was found in the Galic judgement."
22 Not quite sure I understand what you are saying.
23 MR. GUY-SMITH: Well, the report in D666 indicates in a number of
24 different places that the origin of fire is impossible to determine.
25 This is a statement that is made by a number of the different reporters
1 within that particular report. And since the origin of fire obviously is
2 an issue of some import with regard to that incident, we submit that the
3 report -- when I'm saying distinct, is the report has information in it
4 that is different from that which is contained in the Galic judgement.
5 That's what I meant by distinct.
6 JUDGE MOLOTO: Yeah, okay. But that much we understand,
7 Mr. Guy-Smith. But the point is, before adjudicating this fact, the
8 Galic Trial Chamber was presented with a variety of evidence, amongst
9 others this report. In considering the totality of that evidence as
10 regards the origin of fire, the Galic Trial Chamber, by majority, came to
11 the conclusion that it could make a determination about the origin of
12 fire. What I'm saying is, it did consider this report amongst other
14 Now, having the adjudicated fact from the Galic judgement and
15 part of the evidence that the Galic Trial Chamber considered, challenging
16 the adjudicated fact, it presents this Trial Chamber with a situation
17 which has caused us to come back to you and say: What do you want us to
19 MR. GUY-SMITH: What we want you to do in light of the totality
20 of the evidence that exists with regard to this particular issue is to
21 make an independent determination as to whether or not, after
22 consideration of all the evidence at this point in time, those reports
23 would impact your decision with regard to that issue. Understanding,
24 understanding, of course, what you've said. I understand what you've
25 said, but that's what we would like you to do.
1 JUDGE MOLOTO: Thank you.
2 MR. GUY-SMITH: In addition, it also is germane to the issue of
3 notice at the time whether or not, whether or not, our client could
4 reasonably conclude based upon the information that was available at the
5 time whether or not there was any conclusion with regard to the issue of
6 the responsibles. So it has -- it has -- it also has --
7 JUDGE MOLOTO: You are flying far above me now.
8 MR. GUY-SMITH: Well, I certainly don't mean to be flying
9 anywhere but with you, Your Honour. I know it's been a long time --
10 JUDGE MOLOTO: Please -- please take me along.
11 MR. GUY-SMITH: It's been a long time since we've seen each
12 other, but that's -- I want to be with you; we want to be on the same jet
13 stream with you.
14 JUDGE MOLOTO: On this issue of notice, just ...
15 [Defence counsel confer]
16 JUDGE MOLOTO: Just explain what do you mean by notice here; who
17 is supposed to have got notice and at what?
18 MR. GUY-SMITH: There's -- there's this underlying question that
19 exists throughout the case as to what information -- what information may
20 have been available to or was available to General Perisic and with that,
21 how he would respond to that information obviously is one of the issues
22 that the Chamber is going to have to be confronted with and have to deal
23 with. So if you have conflicting reports with regard to a particular
24 incident or if you have a report that says, for example, it was possible,
25 and another one says it wasn't possible, impossible to make a
1 determination, and if there's a connection between that particular
2 information and our client, then obviously that would be something that
3 would be germane for your consideration.
4 JUDGE MOLOTO: I still don't understand notice.
5 MR. GUY-SMITH: Well, fine. Then let's --
6 JUDGE MOLOTO: Let's leave it like that.
7 MR. GUY-SMITH: Let me leave it alone. Let me leave it alone.
8 JUDGE MOLOTO: Yeah, leave it alone.
9 MR. GUY-SMITH: The other thing is -- the other thing is - and
10 I'm reminded by my colleagues - that what we have indicated is, this is a
11 collection of documents produced by UN officers following the shelling
12 incident known as Markale 1 on 5 February 1994, which is schedule
13 incident A3, and the documents repeatedly conclude that based on the
14 information available it's not possible to determine who was responsible
15 for firing the shell.
16 JUDGE MOLOTO: Thank you.
17 Mr. Harmon, any response?
18 Madam Carter.
19 MS. CARTER: Your Honour, the Defence rightfully points out that
20 based on adjudicated facts it has the opportunity to lead rebuttal
21 evidence, and we take no issue with that. However, in this particular
22 instance, we would like to remind the Court of the statements of the
23 Defence in relation to the scheduled incidents at the status hearing of
24 September 2nd of 2008, and it's those statements that the Prosecution has
25 seemingly detrimentally relied upon.
1 When Mr. Lukic was discussing the adjudicated facts at page 281,
2 beginning at line 10 and going through line 18, he indicated:
3 "The Defence understands fully the need to expedite proceedings.
4 We also understand the need to focus on what is essential to us in this
5 trial, and that, as we heard awhile ago, is what the Prosecution is
6 trying to prove. The Defence then, as now, has the following position:
7 We do not want crime based evidence led before the Trial Chamber as long
8 as any such crime based evidence can be seen to be a part of adjudicated
9 facts. Our position is that in relation to all three kind of crimes, in
10 cases where this is not led before the Trial Chamber, this has to be
11 based on adjudicated facts."
12 And it was with that understanding the Prosecution has led its
13 case on many of the incidents, including Markale 3. And so while Defence
14 is correct in law in relation to what can happen with relation to
15 adjudicated facts, we would just like to remind the Chamber of their
16 initial promises before this Court.
17 JUDGE MOLOTO: Thank you very much, Madam Carter.
18 Any reply? I guess, Mr. Lukic, you are going to be the one
19 rising this time.
20 MR. LUKIC: [Interpretation] Yes. I was quoted now. I don't want
21 to justify myself in any way, but that was 15 days after I was appointed
22 as lead counsel in this trial, as you know, so it was in the process of
23 the transition in the case. You know how we had to act during the trial,
24 you know that certain issues were debated, and I think that this
25 quotation of my words indicates, and it is a fact that what we indicated
1 in the request, that this document be submitted as a bar table document,
2 shows our intention which Mr. Guy-Smith mentioned in connection with
3 certain facts which have been contested in this case and have to do with
4 the awareness of Mr. Perisic of certain events which is an issue in this
5 trial and which has been contested from the very beginning.
6 JUDGE MOLOTO: What is this Trial Chamber supposed to do with
7 your words, "I don't want to justify myself in any way, but that was
8 15 days after I was appointed as lead counsel in this trial, as you know,
9 so it was in the process of the transition ..."? Surely you are not
10 suggesting you're retracting what you promised in the beginning, what you
11 say a minute after you've been appointed is what you say.
12 MR. LUKIC: [Interpretation] I want to say that you can understand
13 that in that sense I do retract the statement which I gave at that point
14 in time because it was a product of the fact that I had just been
15 appointed lead counsel and I was faced at the moment with a series of
16 issues that had to do with the further trial. We were faced with a
17 series of issues that had to do with adjudicated facts and also with
18 agreed facts. You are very well aware of this and you know that we had
19 been conducting long negotiations about this with the Prosecutor's
20 Office, and my intention was probably at the moment something that had to
21 do with the course of the trial and what our expectations were. It was
22 at the very beginning of the trial and probably it had to do with the
23 pre-trial conferences at the very beginning and our wish to focus during
24 the trial on what is essential.
25 If at the moment I stated that adjudicated facts would not be a
1 subject in this trial, we mostly stuck to that during most of the
2 proceedings; but what is the issue that is being discussed right now and
3 what we believe is important has do with something that is being
4 contested in this case.
5 MR. GUY-SMITH: Excuse me. If I might, Your Honour, I'm going
6 back to the Halcyon days of yesteryear, specifically the parts of the
7 transcript that are being alluded to, and those words say exactly what
8 they say but they are unfortunately taken out of context. The context in
9 which this particular discussion was being had dealt with the fact that
10 there had been a document filed in which the Defence and the Prosecution,
11 without the permission or involvement of the accused, had reached an
12 agreement. And it was within the context of agreed facts that this
13 particular issue arose.
14 And I'm looking at page 280 of the self-same transcript in which
15 the matter is discussed. And as I'm sure the Chamber recalls, the issue
16 of the agreed facts that concerned this particular matter was something
17 that went on for quite some time and was an extremely sensitive issue
18 that took considerable time to work out as between the Prosecution and
19 the Defence.
20 So I think that it would probably be fair to say that although
21 the statement is being made, and I don't resolve from the words Mr. Lukic
22 uttered nor do I think that he does, I think that they are being
23 misinterpreted and being used in a global sense as opposed to being
24 interpreted and analysed within the context in which that conversation
25 had arose.
1 JUDGE MOLOTO: Now, I'm getting very worried. The more I hear
2 what you guys are saying, the more I get worried. You are telling me now
3 that you went and discussed and were -- and got into an agreement with
4 the opposition without the involvement and permission of your client.
5 That is a worrying position. But of course it is your responsibility.
6 Number one.
7 Number 2, I'm not quite sure -- because this is the context in
8 which you say this took place, I'm not quite sure whether you are now
9 saying you cannot be bound simply because you had not -- you did not have
10 the permission of your client. And if that is what you are saying, my
11 question would be: Did you tell your opposing number that in fact you
12 don't have instructions that whatever agreement you are getting into is
13 subject to approval by your client?
14 MR. GUY-SMITH: If I might, and I don't want to -- I don't want
15 to take you down a road which we really don't need to go down.
16 JUDGE MOLOTO: [Microphone not activated] -- we don't need to go
18 MR. GUY-SMITH: We absolutely don't need to go down this road.
19 But I think I can --
20 JUDGE MOLOTO: You either had --
21 MR. GUY-SMITH: I think I can --
22 JUDGE MOLOTO: You either had --
23 MR. GUY-SMITH: I think I can resolve the issue.
24 JUDGE MOLOTO: Yeah.
25 MR. GUY-SMITH: Okay. If you go to page 280 of the transcript,
1 it is very clear --
2 JUDGE MOLOTO: I'm technologically challenged, Mr. --
3 MR. GUY-SMITH: I'm sorry, well, on September 2nd -- and I guess
4 we'll have to go into private session because we were in private
5 session --
6 JUDGE MOLOTO: May the Chamber please move into private session.
7 [Private session]
11 Page 14605 redacted. Private session.
18 [Open session]
19 THE REGISTRAR: We are back in open session, Your Honours.
20 JUDGE MOLOTO: Thank you so much.
21 MR. GUY-SMITH: I ...
22 JUDGE MOLOTO: Just a second.
23 [Trial Chamber confers]
24 JUDGE MOLOTO: Okay. The Chamber will decide this matter. You
25 still wanted to say something on this matter?
1 MR. GUY-SMITH: Yeah, I just want to make sure that our point is
2 clear, which is that, independent of what is said here, no promises were
3 made by the Defence and there was never an assertion made by the Defence
4 that we would not be challenging, in the normal process that one does,
5 adjudicated facts. And I think that that interpretation of this
6 statement is a bit stretched.
7 JUDGE MOLOTO: Thank you, Mr. Guy-Smith.
8 [Trial Chamber and Legal Officer confer]
9 JUDGE MOLOTO: Okay. Thank you very much, Mr. Guy-Smith.
10 The next item was document ET 0469-3121 -- or 0469-3126,
11 Exhibit 303, in the Martic trial judgement. This Exhibit 303 in the
12 Martic judgement contains a list of victims for the Zagreb shelling and
13 it is not in this -- in evidence in this case. And the Trial Chamber
14 wanted to raise with the parties, just for the sake of completeness as to
15 the number of victims that were -- may have been involved in the Zagreb
16 shelling, whether the parties would have any comment about whether or not
17 this document would be admitted into evidence.
18 I'll start with the Prosecution.
19 MS. CARTER: Your Honour, as a court exhibit, the Prosecution
20 would have no objection. Obviously the Court is able to take into
21 evidence whatever it seeks to, and the Prosecution has no objection to
22 that. However, in transparency, we would like to note for the Court that
23 the Prosecution actually sought to add this document to its exhibit list,
24 to its 65 ter exhibit list, in a filing that was done on 30 June 2008 in
25 front of the Pre-Trial Chamber. However, the Pre-Trial Chamber denied
1 its addition to our 65 ter list. So we just want to make certain that
2 the Court understands that the Prosecution did seek but was denied the
3 same document in pre-trial.
4 JUDGE MOLOTO: Thank you, Madam Carter.
5 Yes, Mr. Lukic.
6 MR. LUKIC: [Interpretation] Defence does not object to the
7 admission. However, we want to state that according to the number checks
8 we carried out, the numbers do not tally with those provided in the
9 indictment concerning the Zagreb
10 wanted to say.
11 JUDGE MOLOTO: Okay. What is the difference, Mr. Lukic? What
12 are the numbers?
13 MR. LUKIC: [Interpretation] Bear with me. We checked that
14 yesterday. In relation to incident -- the incident of the 2nd of May, in
15 this document it is stated that four people were killed and there were
16 146 people injured. In Schedule C, under 1, you see that the figures are
17 different. As for the adjudicated facts in relation to Zagreb
18 the fact number 38 where the figures do not compare.
19 JUDGE MOLOTO: What does fact 38 say?
20 MR. LUKIC: [Interpretation] It is from the Martic judgement,
21 Adjudicated Fact 38: Five people were killed, they are stated by their
22 first and last name, and that there were at least 160 injured.
23 I believe the same situation concerns the incident of the
24 3rd of May.
25 JUDGE MOLOTO: Are you saying the incident of the 3rd of May also
1 the figures don't tally?
2 MR. LUKIC: [Interpretation] Precisely.
3 JUDGE MOLOTO: Okay. I guess obviously the Chamber will have to
4 go back on that and look at it again.
5 [Trial Chamber and Legal Officer confer]
6 JUDGE MOLOTO: The Trial Chamber will revisit this problem and
7 see what the problems are, and we'll advise the parties accordingly.
8 Item 7 relates to documents P2197 and 65 ter 7680,
9 page 0622-0429. At page 14491 of the transcript, during the
10 cross-examination of Mr. Ivan Djokic, the Prosecution quoted from Exhibit
11 P2197, pages 0618-7722 and 0618-7723. While this entire exhibit has been
12 admitted, the pages that the Prosecution cited have not been translated
13 and uploaded into e-court. I don't know whether this was a deliberate
14 intention on the part of the Prosecution.
15 I see, Mr. Thomas, you are standing.
16 MR. THOMAS: Yes, sir, I can deal with this matter.
17 JUDGE MOLOTO: Thank you.
18 MR. THOMAS: The translation -- it has been translated. There is
19 an English translation of that page. It wasn't uploaded in e-court at
20 the time that Mr. Djokic was cross-examined. It is available and
21 uploaded into e-court but it's not connected to the exhibit, and that,
22 presumably, Your Honour, is because at the time P2197 was tendered, only
23 certain portions were -- English portions were tendered with the complete
24 B/C/S copy.
25 This is a matter that we've discussed with our learned friends
1 and there's agreement, as I understand it, between the parties that
2 there's no problem with that English translation being available and
3 uploaded into e-court and attached to the exhibit as it's presently
5 JUDGE MOLOTO: I see Mr. Guy-Smith.
6 MR. GUY-SMITH: Yes, with regard to the exhibit as it stands,
7 it's 2197, there are no difficulties with that occurring.
8 JUDGE MOLOTO: Thank you so much. Then the Trial Chamber will
9 ask the Registry to have the translation of these pages uploaded into
10 e-court and attached to the exhibit. Thank you so much.
11 Further, at page 14493 of the transcript, the Prosecution quoted
12 from a document that has not been admitted, namely, 65 ter 7680,
13 page 0622-0429. The document concerns another statement from Mr. Perisic
14 regarding Mr. Djokic.
15 What is the position of the parties?
16 MR. THOMAS: Well, sir, by way of explanation, this was a
17 document which Mr. Djokic could not lay the appropriate foundation for.
18 So at the time that Mr. Djokic was being cross-examined, the Prosecution
19 was not in a position to be able to tender that document through him and
20 so the document remains untendered. The Prosecution, therefore, didn't
21 at that point feel that it had the ability to apply itself to tender that
22 document as an exhibit.
23 JUDGE MOLOTO: Thank you so much, Mr. Thomas. [Microphone not
24 activated] -- I am sure -- sorry, I was speaking without my mike on. My
25 apologies to the stenographer.
1 I was saying I believe that brings the matter to a rest. I don't
2 know whether you have anything to raise, Mr. Guy-Smith.
3 MR. GUY-SMITH: I would agree with Your Honour.
4 JUDGE MOLOTO: Thank you so much.
5 Before we come to this last point, let me raise an issue which is
6 not on the agenda and my apologies for it. It was brought to my
7 attention this morning by Mr. Registrar. Mr. Registrar has brought to
8 the attention of the Chamber the fact that in the decision on
9 Ivan Djokic's expert report supporting materials admitted on, I think,
10 the 3rd of February, 2011, a document, 65 ter number 07017D, which is
11 Exhibit D805, document ID 140944, is part of the documents tendered. And
12 Mr. Registrar notes that that document has a stipulation that all rights
13 are reserved. And he says that once it goes into the database of the
14 Tribunal it's available to all in sundry. And we wanted to just check
15 with the parties whether the author's permission to publish had been
16 obtained. This is a concern from the Registry.
17 I can show you the hard copy for ease of -- and then you can also
18 show the Prosecution, if they have not found it yet, in their -- in the
19 electronic system. You'll see the highlighted portion of the document;
20 it was highlighted by the Registry.
21 [Trial Chamber and Registrar confer]
22 MR. GUY-SMITH: Thank you for that. And the answer is, no, it
23 was not. I will make inquiry and report back to the Chamber within --
24 safely within -- by Friday, as to whether or not we can obtain such
25 permission or not.
1 JUDGE MOLOTO: And what shall we do with this in the meantime?
2 We don't want it to go to all in sundry before you come back to us.
3 MR. GUY-SMITH: Right. Under seal.
4 JUDGE MOLOTO: Okay. It will be under seal in the meantime.
5 Now, the Register advised that he saw this quite by chance.
6 There hasn't been a concerted effort to check each and every document to
7 see whether it does not fall under the same restrictions. Not only
8 yours, everybody's. And the question is: Are we happy that our
9 documents are okay in that respect?
10 MR. GUY-SMITH: I commend the Registrar for his eagle eyes, but I
11 would hazard a guess that there are probably quite a few documents like
12 this. And not only in our case but at the Tribunal. I'm not really sure
13 how best to proceed, but I think we probably -- I think it would be fair
14 to say we are happy. I think we should be relatively content that the
15 situation that we've been, in the manner in which we've tendered
16 documents and accepted documents, is appropriate.
17 JUDGE MOLOTO: Okay.
18 Mr. Harmon?
19 MR. HARMON: I'm in the same position. I haven't gone back and
20 reviewed all my documents, but I'm content to proceed, Your Honour.
21 JUDGE MOLOTO: Okay. Thank you so much.
22 Finally -- not finally. Penultimate. The Trial Chamber would
23 like to hear the parties before scheduling the submission of the final
24 brief and the hearings of the closing argument what the parties want to
25 suggest. We would like to have those final briefs, like, yesterday.
1 Mr. Harmon.
2 MR. HARMON: Your Honour, the parties have met and discussed
3 these issues. We have reached agreement on all of these issues with one
4 exception. I was advised by Mr. Lukic that there's a slight deviation
5 from the first. We had agreed to propose to the the Court that closing
6 briefs be due at the end of February. I know Mr. Lukic approached me
7 before court and said he would like to change that proposal from the
8 Defence's point of view to the --
9 JUDGE MOLOTO: -- 15th of February.
10 MR. HARMON: Slightly the other direction, Your Honour. To the
11 4th of March. So there's a difference in view between the two parties.
12 In respect of the closing oral submissions, the parties agreed to
13 propose to the Court that those be at the end of March. And there was a
14 discussion in respect of the word limitation and the parties suggested
15 to -- would like to suggest to the Court that there be a 100.000 word
16 limit to each of the briefs. Those were the agreements and the
18 JUDGE MOLOTO: And 100.000 would be what? Something like ... a
19 lot of pages.
20 MR. HARMON: It would be a lot of pages, Your Honour. There's no
21 question about that. But this is a document-rich case. And I think
22 because there are so many documents we were of the view that it merited
23 an expansion.
24 So those are the proposals that we have for the Chamber.
25 JUDGE MOLOTO: And, Mr. Lukic, you confirm that you have moved
1 now from end of February to 4th of March?
2 MR. LUKIC: [Interpretation] Yes.
3 JUDGE MOLOTO: Okay.
4 MR. LUKIC: [Interpretation] Yes, Your Honour. Just a few words,
5 if I may.
6 JUDGE MOLOTO: You may.
7 MR. LUKIC: [Interpretation] Because I wanted to put our arguments
8 to you.
9 When we discussed the limit of 100.000 words, both sides were
10 faced with the fact that we have been working on these briefs for quite
11 some time and it is for this reason that we are aware of the amount of
12 documents and topics we both need to cover. As Mr. Harmon said, this is
13 first and foremost a paper document trial, and many of them have barely
14 been mentioned during the proceedings. This is our only opportunity to
15 comment on such a great amount of documents which are in evidence. This
16 is our first and most important document -- argument, for asking for
17 100.000 words.
18 What we agreed on, as our joint wish, was to submit them by the
19 28th of February, which is a Monday, and we are now asking for a mere
20 four days extra, that is to say, the 4th of March, because in the
21 technical sense of editing the entire document, those four days would
22 mean a lot to us.
23 Another to bear in mind is that we are drafting a document in
24 parallel in two languages because we keep informing Mr. Perisic
25 constantly, which requires considerable effort and resources of the
1 Defence. The same applies to our closing arguments. It is our wish, and
2 I believe we are in agreement with the Prosecution, that after the briefs
3 had been submitted, four weeks should be granted for the close of --
4 closing arguments, and we also need that time to translate for
5 Mr. Perisic their entire brief, which will be as sizeable as ours, and we
6 need that time to prepare ourselves for the final arguments -- closing
8 I believe both sides also agree that one day each is sufficient
9 for both parties to present their closing arguments. Those are our
10 requests. And should you need any further information, we are at your
12 JUDGE MOLOTO: Mr. Harmon had convinced me on your behalf
13 actually already, so I was going to grant all those requests. But thank
14 you for the arguments. Thank you so much.
15 4th of March then it will be. And 28th to 31st of March it will
16 be, closing arguments. Okay. It is then so ordered that the parties
17 will file their closing briefs by no later than the 4th of March, 2011
18 and that closing arguments will be scheduled for hearing on the
19 28th to the 31st of March. Parties are granted 100.000 word limit each
20 and are granted a day each to present their argument. Thank you so much.
21 Is there any other item that any of the parties would like to
22 raise which was not on the agenda? Or which was on the agenda but you
23 are not satisfied with.
24 MR. HARMON: Your Honour, I have two items to raise. The first
25 is -- in agreement with the Defence as well, Ms. Carter mentioned it
1 initially, as we go through these documents and prepare these briefs, we
2 note occasionally that there are translations that are incorrect,
3 inaccurate. And we want to reserve the right to upload corrected
4 versions. We think it's important that the Chamber have the corrected
5 translations; we think it's important that the parties have corrected
6 translations and that we operate off as accurate a record as we can. So
7 the first item is: We would request the opportunity to substitute
8 documents with accurate translations should we find some documents that
9 need to be modified and retranslated. That's the first request we have.
10 And we propose to proceed in the manner in which we have worked
11 previously, that is, if the Defence finds a document or if the
12 Prosecution finds a document, that we'd identify an error in the
13 translation, we would discuss it with the other side, we'd reach an
14 agreement, and then we would request the Trial Chamber's permission to
15 upload that accurate translation into the trial record.
16 JUDGE MOLOTO: And this accurate translation is by an agreement
17 between the parties without the involvement of CLSS?
18 MR. HARMON: Yes, we would submit them to CLSS for revisions, and
19 then once we got that we would discuss it amongst the parties. And once
20 we reach the agreement, we would seek to upload the accurate translation.
21 JUDGE MOLOTO: Okay.
22 MR. LUKIC: [Interpretation] Yes, I agree fully and I support what
23 Mr. Harmon just said. And there's something that we already established
24 in practice, and I wanted to ask for a change in the files already:
25 Exhibit P191 is the Law on the Army of the Republic of --
1 JUDGE MOLOTO: Have you moved away from correcting translations?
2 Are you now on a different issue? Okay. The Law on the Army exhibit,
3 P191 ...
4 MR. LUKIC: [Interpretation] P191, the Law on the Army of
5 Republika Srpska. While working on the brief, we noticed that Article 4
6 of the law is problematic and that the English translation does not match
7 the Serbian original. We asked for official translation from CLSS, we
8 discussed this with our colleagues from the Prosecution --
9 JUDGE MOLOTO: Slow down. Go ahead.
10 MR. LUKIC: [Interpretation] They agree that Article 4 as it is
11 should be substituted by a new translation. We have uploaded it into
12 e-court with 1D21-0221; that is the new number. And we would just ask
13 for the existing new translation to be substituted only in terms of
14 Article 4. So Article 4 should be substituted from the previous
15 translation with the new one.
16 JUDGE MOLOTO: Any comment, Madam Carter?
17 MS. CARTER: No, Your Honour. I agreed with the Defence this
18 morning on that specific exhibit.
19 JUDGE MOLOTO: Thank you so much .
20 Mr. Harmon, you had mentioned the first of two items you wanted
21 to raise.
22 MR. HARMON: I have two items. I should be more robust in my
23 description. Mr. Thomas has one item and Ms. Carter has one item. But
24 let me -- I need to go into private session to discuss my second item.
25 JUDGE MOLOTO: May the Chamber please move into private session.
1 [Private session]
11 Pages 14619-14621 redacted. Private session.
20 [Open session]
21 THE REGISTRAR: We are back in open session, Your Honours.
22 JUDGE MOLOTO: Thank you.
23 Madam Carter, I guess this is going to be your turn.
24 MS. CARTER: Yes, Your Honour. On 7 February 2011, the Chamber
25 issued its decision on Mr. Perisic's second and third motions regarding
2 because the Prosecution had noted that it anticipated a stipulation. I
3 believe the stipulation has now been agreed upon, and I'd like to read it
4 into the record.
5 The stipulation in regards to D510 is that the parties stipulate
6 that the initials noted after the first handwritten note in the top-right
7 corner of Exhibit D510 are "MP" which corresponds to Momcilo Perisic.
8 With the agreement of the Defence, if that stipulation has been
9 reached, the Prosecution no longer has any objection to D510 and would be
10 happy for the MFI
11 JUDGE MOLOTO: Yes, Mr. Lukic.
12 MR. LUKIC: [Interpretation] Yes, we have agreed to this
13 stipulation, Your Honours.
14 JUDGE MOLOTO: Thank you very much.
15 Mr. Registrar, may the MFI
16 removed and be given an exhibit number. I guess the exhibit number would
17 be D510.
18 THE REGISTRAR: Your Honours, this document becomes Exhibit D510.
19 Thank you.
20 JUDGE MOLOTO: Thank you so much, Mr. Registrar.
21 Is that all? Any outstanding --
22 MR. HARMON: Yes, Your Honour.
23 JUDGE MOLOTO: Any outstanding -- thank you very much,
24 Mr. Harmon.
25 -- outstanding items on your side, Mr. Lukic?
1 MR. LUKIC: [Interpretation] Two more items, Your Honour.
2 In P1196 there's something that should be added. We need to add
3 the English translation to it, which is why in transcript T-13073/5 it
4 was decided to wait until translation is submitted, so we propose that
5 the doc ID be 1D21-0220. During the testimony of Witness Novakovic, it
6 was requested that an official translation be submitted. It is
7 Article 36 of the Law on Defence of the Republic of Serbian
8 Article 34. Article 34 is what I said.
9 JUDGE MOLOTO: Now -- sorry about that. Do we have the
10 translation now? Thank you so much. And now all you want is the
11 translation to be added? That's all.
12 MR. LUKIC: [Interpretation] Yes, that is all.
13 JUDGE MOLOTO: Okay.
14 I guess there's no objection from the opposite side?
15 MR. HARMON: There is no objection, Your Honour.
16 JUDGE MOLOTO: Thank you so much. The translation may be added.
17 MR. LUKIC: [Interpretation] And another issue that the Defence
18 would propose. We have discussed it with our colleagues from the
19 Prosecution. The Law on the Serbian Army of Krajina, as opposed to the
20 Law on Army of Republika Srpska and the Law on the Army of Yugoslavia
21 which have been admitted in entirety both in B/C/S and in English, this
22 Law on the Serbian Army of Krajina has only been admitted in terms of
23 several paragraphs during the testimony of a witness. And while working
24 on the final brief, we propose that as D170 includes the entire law in
25 B/C/S, it's already uploaded, that what could be added to the English
1 translation would be certain articles from the law. Not the whole law,
2 because the law has around 300 articles and is not essential for this
3 trial, but roughly around 60 or 70 articles which we believe are relevant
4 in various ways for this trial is what we have received in translation
5 officially through CLSS. We have of informed the Trial Chamber about
6 this, and we would like to add this translation to the existing
7 Exhibit D170 because we wish, during our final brief and final arguments,
8 use certain elements from this law. We believe that it's very relevant
9 because as you can see the other two laws have been admitted in their
10 entirety because of relevance.
11 Therefore, we have uploaded this in e-court, and it's ready to be
12 included as one of the exhibits. I mean all of the English translation
13 that we have now.
14 Let me just also note, without confusing matters, Exhibit D1 --
15 D85 and D90 are specific articles of this same law. We believe - and I
16 think we have discussed this with the Registrar - that the entire Law of
17 the Serbian Army of Krajina, just like the Law on Army of
18 Republika Srpska and the Law on the Army of Yugoslavia, should be given
19 one single number and we suggested it should be D170. And then it would
20 include both the B/C/S and English translation of all the articles which
21 would then be matching and all included in one document.
22 JUDGE MOLOTO: Any comment from the Prosecution?
23 MS. CARTER: Your Honour, at this time the Prosecution is in
24 agreement with the Defence that that is the appropriate course of action;
25 however, it's been unable to have the opportunity to actually look at the
1 three exhibits to ensure that the final exhibit, D170, does in fact
2 contain all of the specific articles.
3 JUDGE MOLOTO: Articles D85, D90.
4 MS. CARTER: Exactly. So in principal we are in agreement.
5 However, we would like the opportunity to have a look after court to make
6 sure that we do have a complete document.
7 JUDGE MOLOTO: Have you seen the English translation of the
8 articles that the Defence proposed to upload?
9 MS. CARTER: It was sent to me last night.
10 JUDGE MOLOTO: And you are happy with that, that they haven't
11 left anything that you would have wanted to translate?
12 MS. CARTER: No, it's simply a matter of that there are a number
13 of different documents that are outstanding and then they wanted to merge
14 all into one single document, and I just want to make sure, again, that
15 we have actually picked up all the appropriate laws.
16 JUDGE MOLOTO: Can I suggest that when you have picked up all the
17 appropriate laws you give a note to the Registrar so that the Registrar
18 can do the necessary.
19 MS. CARTER: Absolutely, Your Honour.
20 JUDGE MOLOTO: Thank you so much.
21 Mr. Registrar.
22 [Trial Chamber and Registrar confer]
23 JUDGE MOLOTO: Mr. Registrar is asking what then do we do with
24 D85 and D90. I would imagine that once we have a consolidated exhibit we
25 can withdraw those two.
1 MR. LUKIC: [Interpretation] I think that would be the best thing
2 to do. On the other hand, however, once you go back to the transcript,
3 where, for example, reference is made to those exhibits, what conclusions
4 you would eventually draw? I don't think it would be any hindrance to
5 leave the previous two in addition to the consolidated one. Perhaps just
6 retain the exhibit numbers.
7 [Trial Chamber and Registrar confer]
8 JUDGE MOLOTO: Thank you so much. Mr. Registrar will deal with
10 Is that all, Mr. Lukic?
11 MR. LUKIC: [Interpretation] Yes, I believe so.
12 JUDGE MOLOTO: And that's all also from the Prosecution side.
13 Okay. Thank you very much. And at this stage that brings us to
14 the conclusion of our session today. And Chamber stands adjourned sine
16 --- Whereupon the hearing adjourned at 11.35 a.m.
17 sine die.