1 Friday, 29 May 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.06 a.m.
5 JUDGE AGIUS: So good morning, Mr. Registrar. Good morning,
6 everybody. Could you call the case, please.
7 THE REGISTRAR: Thank you, and good morning, Your Honours. This
8 is case number IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.
9 JUDGE AGIUS: Thank you. For the record, all the accused are
10 present. Prosecution is Mr. McCloskey and Mr. Mitchell. Defence teams,
11 I notice the absence of Mr. Ostojic, Mr. Bourgon, Mr. Lazarevic,
12 Mr. Krgovic, and I also notice the presence in the courtroom of -- I take
13 it is Mr. Simon Davis.
14 MR. HAYNES: Yes. As you know, Mr. President, it's not generally
15 my practice to introduce everybody who works for the team to the Court,
16 but I'm proud and privileged to introduce Mr. Simon Davis, who may of
17 course at some stage have to talk to you, so I ought to introduce him.
18 JUDGE AGIUS: Okay. Thank you. Yes. Thank you, Mr. Haynes.
19 For those of you who are not aware, Mr. Haynes for the Pandurevic Defence
20 team filed a document on the 25th of May in which he requests the Trial
21 Chamber to grant Mr. Davis full right of audience, including the right to
22 examine witnesses and make submissions pending his official appointment
23 as co-counsel. Permission is granted. Mr. Haynes and Mr. Davis,
24 subject, of course, to review -- immediate review, should your official
25 appointment as co-counsel be not forthcoming or takes longer than
1 expected, then we will need to discuss this matter further.
2 We will have in the course of the day various matters to discuss
3 and various matters to decide. Most of them are going to be decided
4 orally, but we have two particular decisions that we need to start with.
5 We are going to decide them orally now with reasons -- with reasons to
6 follow shortly, most probably in the course of today.
7 First is the Gvero motion seeking certification to appeal the
8 decision on the Prosecution's second motion to reopen its case. This was
9 filed on the 15th of May, 2009. The Trial Chamber decides on the motion
10 as follows:
11 First, it lifts the confidentiality of the motion, the Pandurevic
12 response and the Prosecution response, and proceeds to deny the motion in
13 all other respects. As I said, written reasons will follow shortly.
14 The second motion we are going to dispose of orally now before we
15 proceed with this sitting is the Popovic request for certification to
16 appeal the decision on the Prosecution's second motion to reopen its
17 case. This, too, was filed on the 15th of May, 2009. As with the
18 previous motion, as with the Gvero motion, first we order the lifting of
19 the confidentiality of the motion, the Pandurevic response and the
20 Prosecution response, and proceed to deny the motion in all its
21 respects -- all other respects.
22 All right. Our plan is to proceed now with the viewing of the
23 videos. That includes the ones you have indicated, Ms. Fauveau, or the
24 excerpts therefrom, after which there will be plenty of other issues that
25 we need to discuss and determine here.
1 Which one would you like to start with? Mr. Gosnell, yes. Good
2 morning to you.
3 MR. GOSNELL: Good morning, Mr. President. As you recall,
4 Mr. President, we did not oppose the introduction of the Potocari video
5 and -- but what we did do in the course of our submissions in response to
6 that motion is reserve the right to object in the event that there are
7 translation or transcription errors, and we have identified a certain
8 number of errors, and the Prosecution has, in fact, corrected some of
9 those errors, but there are others that are outstanding.
10 Now, in the interests of facilitating the proceedings, and I know
11 that the videos are going to be played with a -- subtitles of the video,
12 we are not going to object to the showing of the videos with those
13 subtitles, even though there are a certain number of errors. But what we
14 would ask, and I'm not sure if the Prosecution is going to agree to this
15 because they haven't agreed up until now, is that the disputed portions
16 be submitted to CLSS for an independent review as to the correctness of
17 the translations.
18 JUDGE AGIUS: Yes. Thank you, Mr. Gosnell. That's fair enough.
19 This is something that was in my mind; I mean the problem, not
20 necessarily the solution that you are suggesting. Let's hear
21 Mr. McCloskey first.
22 MR. McCLOSKEY: Yes. Good morning, Mr. President, Your Honours,
24 We have no problem with -- that's normal practice if there's a
25 dispute. We don't think there are any errors. We spent a tremendous
1 amount of time looking at this material, but be that as it may, that's
2 what we have CLSS for, and I think they can sort this out. So no problem
4 JUDGE AGIUS: Thank you, Mr. McCloskey. What I suggest, because
5 there are eight of you here, is that as we go along and as you identify
6 significant errors, I don't -- wouldn't like you to take any of the
7 Court's -- of the Court's time to indicate silly, stupid, insignificant
8 errors or grammatical errors which have no actual bearing on what we are
9 really concerned with. But if there is anything in particular which is
10 significant that you understand would eventually probably need
11 translation, you just indicate it, you ask for the video to stop,
12 indicate it so that at least we will have a -- a record of it.
13 MR. GOSNELL: Well, Mr. President, thank you for that suggestion.
14 I can just -- I can just indicate to you that our plan is not to pop up
15 and down --
16 JUDGE AGIUS: All right. Okay. Fair enough.
17 MR. GOSNELL: -- in respect of the objections, we don't think --
18 and we have complete faith that when a corrigendum, if a corrigendum is
19 in fact issued, that you'll take it into account and you'll be able to
20 judge it accordingly.
21 JUDGE AGIUS: Okay. Thank you. Have you chosen which one you
22 would like to start with, please, Mr. McCloskey?
23 MR. McCLOSKEY: Mr. President, I think we might as well try to go
24 chronologically starting with Potocari and then the Vlasenica footage and
25 then the Boksanica footage. And just so you have the Exhibit numbers for
1 the record, Potocari is P04536, the Vlasenica is P04535, and Boksanica is
3 And for the material that Ms. Fauveau has submitted, we have
4 agreed with her on the -- the transcript and the translation, so that --
5 you shouldn't find any problem with those. Those -- there wasn't time to
6 put them on the subtitling, so I believe we have transcripts or
7 Ms. Fauveau is dealing with that and has transcripts for you.
8 And if -- could I put one more item on your -- on your review
9 agenda for today, very briefly. You may have received word on the e-mail
10 I sent yesterday to all Defence counsel, and that is a request for you to
11 consider extending the closing argument date one week, August 31st. It's
12 basically Mr. Thayer and Mr. Vanderpuye, and I will be doing the bulk of
13 the closing arguments, and Mr. Thayer had to schedule this surgery for
14 his 3-year-old many months ago, and if he could get that extra week it
15 would really enable him to be fully on board for his closing argument.
16 I've got a family wedding that I haven't seen some relatives for many
17 years in California
18 The Defence have -- I'm aware of no objections from the Defence.
19 In fact, many Defence counsel have told me that they would appreciate a
20 little extra time, and all I'm sure would be working very hard through
21 that -- that period to get ready for their closing arguments, and we
22 fully, you know, support any -- any requests they have to join us, of
23 course. So if you could take that into consideration, I would appreciate
24 it. Thank you.
25 JUDGE AGIUS: Okay. We'll come to that later on. Yes,
1 Mr. Josse.
2 MR. JOSSE: Yes. Just if the Chamber could reserve ten minutes
3 for a procedural application that our team wish to make at some juncture
4 later on.
5 JUDGE AGIUS: Okay. Thank you.
6 Let's start with the Potocari one.
7 [Video-clip played]
8 JUDGE AGIUS: Okay. Mr. McCloskey.
9 MR. McCLOSKEY: Just for your knowledge, Your Honour, the next
10 segment is 36 minutes, and the final segment is 35 minutes.
11 JUDGE AGIUS: All right. What my suggestion is is that we see
12 the next segment and we have a break after that, and then we see the
13 other segment after the break. All right? Thank you.
14 MR. McCLOSKEY: And so this Exhibit is P04535.
15 [Video-clip played]
16 JUDGE AGIUS: So as stated earlier, we'll have a 25-minute break
17 now, and soon after we'll resume with the next video. Thank you.
18 --- Recess taken at 10.32 a.m.
19 --- On resuming at 11.02 a.m.
20 JUDGE AGIUS: Welcome back. What's going to happen now is we're
21 going to see the next Prosecution video. I understand that there are
22 some technical problems that have to be solved before we can see the
23 other videos, and some time will be needed for that. Our idea is that in
24 the interim, after the next video, and while we are ready to start with
25 the subsequent ones, we receive your submission, Mr. Josse.
1 MR. JOSSE: That would suit me very well, Your Honour.
2 JUDGE AGIUS: Okay. Thank you.
3 Yes, Mr. McCloskey.
4 MR. McCLOSKEY: Ms. Stewart is hoping that she may be able to
5 play Ms. Fauveau's videos. She's trying to download them as we speak.
6 We were seeing if it would be possible to play Ms. Fauveau's Boksanica
7 footage because chronologically it's the 19th, and ours is later, on the
8 26th. Let me just check to see where we are, and that was Ms. Fauveau's
9 wish as well.
10 Ms. Stewart was able to download Ms. Fauveau's video, and I think
11 she's ready to play it. I don't know where the -- if you've got the
13 JUDGE AGIUS: Yes, Ms. Fauveau.
14 MS. FAUVEAU: [Interpretation] I would like to say that this is
15 document 5D1439, and I have just handed out the latest version of the
16 transcript of that video sequence. There were a few corrections last
17 night and this morning. This version will be put on the e-court as soon
18 as possible.
19 JUDGE AGIUS: [Interpretation] Thank you. [In English] Yes.
20 Just to make sure, this is Madam Fauveau's video, and it purports to show
21 us events which happened on the 19th of July. Is that correct?
22 MS. FAUVEAU: [Interpretation] Yes, absolutely.
23 JUDGE AGIUS: Thank you.
24 MR. McCLOSKEY: At the Boksanica check-point, I believe.
25 JUDGE AGIUS: Thank you.
1 [Video-clip played]
2 THE INTERPRETER: [Voiceover]
3 "RM: We agreed that in this situation, the best way to resolve
4 the question of Zepa is for the entire population to leave the Zepa zone
5 safely and securely.
6 "So I don't want to expose you to further suffering. Second, we
7 will enable, according to the free choice of the population, their safe
8 passage through our territory in the following order. I don't want to
9 use terms that would bother you.
10 "No, nothing. I wish to be fair. Just use the UNPROFOR
11 communication to communicate our own links.
12 "RM: The following order. Do you have wounded?
13 "HT: We do.
14 "RM: How many?
15 "BK: Well, approximately now somewhere around 30.
16 "RM: All men?
17 "BK: There are some women and children as well.
18 "RM: First the wounded.
19 "BK: Regardless of the ...
20 "RM: The wounded. And don't trick us because we're going to
21 control it. Don't try to pull a fast one on me because we're going to
22 check, all the wounded, under B, the women and small children, under C,
23 the elderly, and under D, the rest of the population. I am prepared to
24 enable your transfer by transportation means to Republika Srpska, buses
25 and trucks, escorted each time by two UNPROFOR vehicles at the front and
1 at the rear. The first convoy is to set off tomorrow at 10.00. Along
2 the route ...
3 "HT: I apologise, but I did not manage to write this down.
4 "NN: No, of Republika Srpska with an UNPROFOR escort --
5 "NN: Two UN vehicles.
6 "RM: -- one at the front, one vehicle at the rear. We will also
7 give you fuel for that and everything ... We will cover all the costs.
8 The people may take whatever they want with them.
9 "HT: When is the first convoy?
10 "RM: The first convoy, tomorrow at 10.00. We will agree on
11 where it suits you ... Are your wounded in Zepa?
12 "HT: Yes.
13 "RM: Then we will come with trucks. We will take these from the
14 UN and several of our own trucks for the wounded to go first. Where is
15 the best place for you for the people to gather?
16 "BK: I don't know. If it's not a problem for you, perhaps it
17 would be best in Zepa.
18 "RM: Where are the people now? Are they up on the mountain?
19 "BK: No.
20 "RM: Where are they?
21 "BK: The people, believe me, I mean...
22 "HT: In the villages.
23 "BK: In the villages, believe me there is no reason ...
24 "RM: Do you want them to gather in Zepa?
25 "BK: That would be the best solution for us that you ... but now
1 it depends... you are dictating the place.
2 "RM: To Zepa. Like this, to Zepa, so that all the people who
3 want to go out gather in Zepa, and on the way out of Zepa, we will meet
4 them here at the check-point, up there at that first ...
5 "BK: At Brezova Ravan?
6 "RM: At the Brezova Ravan, wherever it suits you.
7 "BK: Well, all right.
8 "RM: Down there, they will organise for you...
9 "Down there, just a minute, for the sake of security, because
10 they have not even been disarmed, I don't want to bring either them or
11 their people or us into a situation ... there must be no mistakes here.
12 I have evacuated all the civilians who wanted to, very safely in
13 Potocari, and everyone who came here, got through safely.
14 "Everyone got through safely. Outside the area that I say, there
15 is no safety, outside there is no life, only there one can survive, just
16 so you understand that. That means, it needs to be organised, you will
17 organise, 2nd lieutenant, with Lieutenant-Colonel Dudnjik for the
18 civilian population to be received down there at Brezova Ravan, but first
19 that the convoy of vehicles go tomorrow, you will send the Major.
20 Dudnjik, this... What's your major's name, Kalesnjik, to go down there
21 with my drivers, that they safely ... that you guarantee the safety of
22 the drivers and that you give me the wounded. In the first round, you
23 will give me Private Mrdjan, Mrdja, Private Mrdja.
24 "NN: Velimir Mrdjan.
25 "RM: You will give him to me in the first round. That will make
1 it easier here so that no one touches you. Is he alive and well? Do you
2 have any other prisoners?
3 "BK: No. Trust me, there aren't.
4 "RM: All right. That means when Mrdja comes at the helm, it
5 will be equal to my giving you my word. That means a lot for you. So, a
6 check-point will be organised down there. We will give you the vehicles
7 tomorrow. How many vehicles will be enough for those wounded? Are they
8 seriously wounded?
9 "NN: There are also those who are seriously wounded.
10 "RM: As a doctor, in your estimate, how many vehicles are
12 "BK: I don't know. It depends on which vehicle, type of vehicle
13 is involved.
14 "RM: Like this. I will give you a vehicle like this one and
15 around two of the TAM
16 "BK: And later we will ...
17 "RM: And you go too ... and I propose like this, that you go out
18 with the wounded, that you escort the wounded. Can you give UNPROFOR
19 vehicles for the wounded to go directly to Kladanj?
20 "DUDNJIK: "Vehicles?
21 "RM: Your vehicles, all the way from down there, that they are
22 loaded in to the UNPROFOR vehicles, that you come with my Private Mrdjan
23 and escort your convoy with the wounded to Kladanj, and from there come
24 ... I guarantee you, if necessary, I will transport you with my
25 helicopter there. You will be here the whole time, and he will be on the
1 other side, so we can lead the entire operation so that there are no
2 problems. Do you trust this?
3 "BK: I personally do.
4 "RM: Excellent. Accordingly, you, Lieutenant-Colonel, you will
5 give your vehicles down there, that they load the wounded at 10.00
6 tomorrow, and the doctor will come with the wounded, and you will hand
7 them over here to my lieutenant-colonel our prisoner, this young Mrdja,
8 and you will continue with my officers, with the gentlemen, to Kladanj.
9 And you will ... Don't you go to Kladanj, to their territory, you go
10 straight to Kladanj and hand over the wounded. From Kladanj, the convoy
11 will return. You, Mr. Heljic, will prepare --
12 "HT: Hamdija, Hamdija.
13 "BK: Hamdija Torlak, Torlak.
14 "RM: Hamdija, you will prepare the people. Let them gather in
15 Zepa and establish where would be the easiest down there for you, up to
16 the front line.
17 "BK: We can do that tomorrow, tomorrow when the wounded set off.
18 We can tell you that ...
19 "RM: Don't you worry about anything. I will order the buses
20 come immediately ...
21 "BK: No, no, but maybe we misunderstood each other ... that I
22 tell you the place where it would be best for civilian population who are
23 category B to gather, and that I tell you that row when we set off with
24 the wounded.
25 "RM: Whatever you wish. I have halted operations. There must
1 not ..."
2 MR. McCLOSKEY: Now we have Prosecution 4537. This should be
3 Boksanica, July 26th.
4 [Video-clip played]
5 JUDGE AGIUS: Yes, Madam Fauveau.
6 MS. FAUVEAU: [Interpretation] I have just been informed that the
7 problem has been solved, but since we're talking about a video that
8 comprises three parts, there might be a break of about ten seconds
9 between each portion.
10 JUDGE AGIUS: That's not a problem, Madam Fauveau. Let's proceed
11 if we can. If not, we will hear oral submissions from Mr. Josse.
12 MS. FAUVEAU: [Interpretation] This is Exhibit 5D1441. This is a
13 speech made by General Mladic on the 1st of January. I don't know
14 whether it was the 1st or 13th of January, 1996.
15 JUDGE AGIUS: Thank you. Before we start, I mean, just a
16 question. Why would it be either the 1st or the 13th? Is there an
17 explanation for that?
18 MS. FAUVEAU: [Interpretation] Yes, I do. It's a celebration of
19 the new year. I don't know whether it's the traditional new year or
20 whether it's the Orthodox new year. So if it was the Orthodox new year,
21 that would have been the 13th of January.
22 JUDGE AGIUS: That's what I thought, too, but I prefer to have
23 off it on record. Thank you.
24 Let's proceed.
25 [Video-clip played]
1 JUDGE AGIUS: I don't think we have a transcript of this,
2 Ms. Fauveau. We had of the previous one, which we were following, but I
3 don't think we have of this one.
4 MS. FAUVEAU: [Interpretation] It may not have been handed out,
5 but it certainly does exist and is on the e-court. Perhaps I can help
6 you. I have two paper versions, but I know it is on the e-court as well.
7 JUDGE AGIUS: All right. Yes, let's have it on the e-court,
9 [Trial Chamber and register confer]
10 MS. FAUVEAU: [Interpretation] 5D1441.
11 [Video-clip played]
12 THE INTERPRETER: "[Voiceover] I think that the credit for what
13 we have today goes to the Serbian people as a whole and particularly to
14 the Serbian people of the West of the Drina River. Sure, I have also
15 made a small and modest contribution to it. If, God forbid, it were to
16 happen again, I would not make some of the mistakes that I have made.
17 Very complex and very difficult decisions had to be made within a very
18 short period of time, sometimes even several decisions in one day. I was
19 able to do so only thanks to all of you respective of when each of you
20 joined the Main Staff and thanks to the exceptional fighting spirit of
21 our people and our army. Those who helped me most were definitely my
22 closest associates, and now I can tell you only a part of it as a part of
23 it cannot be told about yet.
24 "The most important decisions were taken by a group of five
25 people. This was the inner core of the Main Staff which in addition to
1 myself included General Milovanovic, my deputy and the Chief of Staff,
2 and Generals Djukic, Gvero, and Tolimir. This was the inner corps. The
3 other generals also participated in a very difficult, very often in all
4 decision-making, General Jovo Maric, and General Tomic, and General
5 Grubor at that time, and General Skrbic. Important decisions which could
6 have been reached in a certain period of time that could wait were made
7 at the commander's expanded collegiums, which were attended by corps
8 commanders. My associates and I were very often consulted and -- by many
9 people both within and outside the army.
10 The most complex decisions were taken by me and the Chief of
11 Staff with one of my assistants and after consultations. The most
12 difficult ones when lives were put at risk were often made by me alone.
13 I made most of them sitting on the stump next to that bridge. The Chief
14 of Staff knew. He knew that I must not be disturbed when I was on my
15 own, when I was there because he knew that something big was gestating in
16 me at that moment. The same happened when I stood up and walked around
17 my office. And now when you see me walk like this, I will also say this
18 now, when you see me walk I'm not walking because of the stone which I
19 fortunately seems have discharged. It's because I'm in the grip of
20 ideas. There were very difficult moments when Mane visited me and I did
21 not know what to do. I just went away. I said I'm sorry, but I had to
22 take a shower. We might come up with something in the meantime. This
23 happened when we listened to the news that one or several Serbian
24 villages had been torched."
25 [Video-clip played]
1 THE INTERPRETER: "[Voiceover] Once again, a special thank you to
2 you, General Milovanovic, my right hand, who very successfully stood in
3 for me at all difficult moments and helped enormously. I think we were
4 good pair, complementing each other. I also want to thank the rest of my
5 assistants and associates: General Djukic, General Gvero,
6 General Tolimir, General Maric, General Skrbic, and all my colleagues,
7 all the way down to the ordinary soldier.
8 Let me say one more thing. I do not think that the highest rank
9 is the one that I am wearing. The highest rank is that of the honest
10 Serbian soldier. All glory and gratitude be to him and to all of us with
11 him. Long live the Serbian army."
12 MS. FAUVEAU: [Interpretation] It is finished now.
13 JUDGE AGIUS: Okay. No more videos? No. All right.
14 Yes. Mr. Josse.
15 MR. JOSSE: Your Honours, this in effect is an application
16 seeking reconsideration or a variation to paragraph (B) of the Trial
17 Chamber's order of the 27th of May. That paragraph, in effect, ordered
18 the Defence to file any motions responding to the evidence that we've
19 just seen, in fact, by the 3rd of June of this year.
20 Your Honours, there are really two ways that I could put this. I
21 have prepared a submission, which will take a few minutes, and perhaps
22 I'll go through in a moment's time, but I'm really going to go to my
23 second approach first of all, and my second approach is to say to you, we
24 simply can't manage it by that date. There is no prospect of the
25 Gvero Defence filing that motion by that day. We are in the process of
1 carrying out various investigations, we are contemplating what we're
2 going to do, and we simply can't do it by that date.
3 Your Honours, we are in effect imploring the Court to vary that
4 particular order. We believe that we can file the relevant motion by the
5 12th of June. That is Friday -- today, two weeks, in fact, about ten
6 days after the date that's already been set.
7 I'm also aware that circumstances to some extent may perhaps have
8 helped us by what Mr. McCloskey said earlier, and I simply ask you to
9 bear what he said so far as time-tabling is concerned in mind because
10 that may be of assistance in pushing things back by a week or so, but
11 that's really a side issue because as far as we're concerned, the date
12 that we're concerned about is the 3rd of June.
13 Now, Your Honour, I will develop it a little more, if I may,
14 because in many respects this is a difficult application to make because
15 the order of the 27th of May recites the submissions of the parties sop
16 far as this particular issue is concerned, but it doesn't give any
17 reasons as to why the Trial Chamber have chosen the date of the
18 3rd of June.
19 The order, if I may respectfully say, gives the distinct
20 impression that the overriding concern of the Trial Chamber, perhaps
21 understandably, is the schedule, the schedule in the sense of the final
22 brief, the closing arguments, and the closing of this trial. So far as
23 the Gvero team is concerned and our need to file this motion by the
24 3rd of June, that, we strongly submit, is a totally erroneous and unfair
25 approach. The only question the Trial Chamber should be asking itself is
1 have we given the Defence enough time to respond to the new evidence,
2 evidence which the Prosecution certainly contend is significant and
3 important, and evidence which the Trial Chamber have thought significant
4 and important enough to allow the Prosecution the -- to reopen its case
5 and, indeed, in effect extend this case almost inevitably. And not to
6 put too fine a point on it, if I could almost end where I began, we do
7 contend that what we're being asked to do by the 3rd of June is both
8 absurd and totally unreasonable, and I repeat what I said when I started:
9 We simply cannot manage it. There is no prospect of it happening by that
10 particular date.
11 Now, Your Honours, I'm glad that I've had an opportunity to raise
12 this matter now because we obviously need an urgent answer to the
13 application that I'm just making because consequentially to the decision
14 the Chamber makes, either to extend the time or not to extend it, we need
15 to make urgent logistical arrangements within our team to respond
16 accordingly. But I do repeat that we simply cannot meet that particular
17 date, and we would urge you to move the deadline to the 12th of June when
18 we are confident we will be able to file something.
19 JUDGE AGIUS: Thank you, Mr. Josse.
20 Mr. McCloskey.
21 MR. McCLOSKEY: Yes, Mr. President. I won't comment on his
22 conclusion about any orders being absurd. I don't know why counsel felt
23 a need to go there. I don't see any of the orders meeting that category.
24 However, having just stood before you and made a similar request, I
25 understand his -- his situation, but I can also offer him, perhaps we can
1 help. Basically his motion is to request the Court to put on more
2 evidence. I may very well have no objections to that. If he would like
3 to -- and I won't have an objection to the extension, certainly not if he
4 can outline for us what evidence he intends to put on, and then his
5 arguments developing it, he may need a little more time for. But, for
6 example, if he wants to call certain witnesses, we may not object at all,
7 and we can get on with it. Instead of filing a motion, we can hear from
8 the witness. So if he would like to tell us what he has in mind, we may
9 not have reason to file any motion, or we can argue right now.
10 JUDGE AGIUS: Thank you, Mr. McCloskey. Anyone else wishes to
12 Mr. Josse.
13 MR. JOSSE: Well, if only it were that easy, Your Honour. Part
14 of it is investigation, which I can assure the Court is now ongoing,
15 ongoing at this very moment, but part of it is important tactical and
16 strategic decisions once those investigations are concluded as to who we
17 do wish to apply to have recalled and who we wish to call ourselves.
18 Now, Your Honour, I'm prepared to go some way to what
19 Mr. McCloskey is suggesting, and it may be possible that at the point
20 that we're going to file the motion we can tell him and -- or shortly
21 before filing the motion say we've definitely decided to do X, Y, and Z,
22 and then he can respond accordingly in a very short period of time. So
23 shortening the -- shortening the matter at the other end, i.e., after the
24 motion has been filed, is a distinct possibility and something we would
25 welcome. But at this particular juncture, I simply can't get up and
1 respond to the question he's asking. With all due respect to him, and I
2 mean this, I don't think that's reasonable bearing in mind what we're
3 asking for at this particular juncture. We're still considering the
4 matter in a fully mature way.
5 JUDGE AGIUS: Thank you, Mr. Josse.
6 [Trial Chamber confers]
7 JUDGE AGIUS: All right. So, Mr. Josse, Mr. McCloskey, and the
8 rest, let's start from here, Mr. Josse, and forgive the unorthodoxy of
9 the way we are deciding this matter since you presented it orally and we
10 are deciding it orally.
11 The date of our decision in which basically we communicated to
12 you a dead-line for any possible motions on your part, we view as
13 relatively incidental in the sense that you, like everyone else, had at
14 your disposal from quite earlier the -- at least the three videos of the
15 Prosecution, and you also had an indication from the Trial Chamber that
16 those were going to be admitted. I'm not that sure in relation to
17 Ms. Fauveau's videos. There, I certainly cannot say exactly when you may
18 have had these available, but I concede that that could have been
19 relatively recently.
20 MR. JOSSE: I'm going -- though they do come into the equation,
21 let's ignore them for the purpose of this argument.
22 JUDGE AGIUS: Okay. Okay. That's good to know as well.
23 So in our minds when we fixed the date of the 3rd of June, we
24 were assuming that already you were working, you and your team, and
25 having brain storming sections, you and Mr. Krgovic, and your client and
1 investigators as to whether you could come forward -- or what to do faced
2 with this situation.
3 MR. JOSSE: Can I answer that, Your Honour?
4 JUDGE AGIUS: Yes.
5 MR. JOSSE: We -- the Chamber decided to admit the evidence on
6 the 8th of May. We filed our certification application, and more to the
7 point, the adjournment application seven days later on the 15th of May.
8 In that adjournment application, we made plain that as far as we were
9 concerned, we really couldn't deal with hypotheticals, and apart with
10 everything else, we in common with every other party to this case had to
11 meet our primary obligation of filing our final brief by the end of June,
12 and it was not until two days ago that we became aware that we had been
13 granted an extension on the final brief, which I am bound to say is
14 almost incidental to all of this. That -- that extension may be of
15 assistance to us and to others, but it is incidental to this. Our real
16 concern relates to the filing of this particular motion, and we had to
17 continue concentrating our efforts on getting a final brief together for
18 the 30th of June, and that is the problem.
19 JUDGE AGIUS: All right. So the consequence of -- you may sit
20 down, Mr. Josse, please. The consequence of all this is that we
21 certainly reject the allegation that you made in no uncertain terms that
22 in any way by establishing the 3rd of June as the dead-line for the
23 filing of the motion was in any way unfair. It may be seen objectively
24 as posing a problem for your defence, but that does not translate itself
25 subjectively -- objectively, it does not translate itself in any undue
1 pressure or unfairness on the par of the Trial Chamber.
2 However, the way we have conducted the trial these past three
3 years or almost three years has been that we have most of the time or
4 almost always operated on an understanding of trust. The Trial Chamber
5 has always trusted your word, and we believe you when you say that you're
6 finding difficulties and that you will not be able otherwise to file a
7 motion before the 12th of June.
8 We encourage you, we enjoin you to try and do your utmost to file
9 it even before the 12th of June, and in our mind we are sure that with a
10 little bit more effort, you can do so. At the end of the day, you're not
11 working alone. You have a team, and that team should be concentrating
12 and dividing the work according to the exigencies that the time schedule,
13 overall time schedule imposes.
14 So we have decided to grant you the extension that you have
15 requested, namely by amending our previous order extending the dead-line
16 from the 3rd to the 12th of June, in the hope that not only you will
17 conclude this exercise and file whatever motion you may end up filing,
18 but filing it even earlier if possible.
19 Our concern, also, is that this is not considered by you, or
20 anyone else for that matter, as a further reason for further requests of
21 extensions of the filing of the final briefs and the new dates for the
22 closing arguments that we will be announcing shortly following the
23 request of Mr. McCloskey.
24 So those dates you ought to consider as staying, binding, and to
25 be observed by you irrespective of the fact that we are giving you these
1 few days extension for the filing of the motion. I hope that it's clear
2 enough and that it meets with your exigencies, with your problems.
3 MR. JOSSE: First of all, thank you very much. The Trial Chamber
4 is aware, having heard me address the Court over a 3-year period, that I
5 sometimes express things what I will describe as cultural reasons in a
6 rather forthright way. If I was at all rude, I withdraw any rudeness and
8 JUDGE AGIUS: I'm used to that, Mr. Josse. In my study in my
9 summer house in Malta
10 title "A Blunt Judge." So we are fine-tuned on that. We don't need to
11 expand any further.
12 Which brings me --
13 [Trial Chamber confers]
14 JUDGE AGIUS: Now, I beg you to bear with us for a few more
15 minutes. The option is to have a break now and continue afterwards, but
16 we don't have much time that we need to dispose of the matters that we
17 wanted to dispose of, so my suggestion is if there is agreement,
18 particularly from the staff, technical and translators and interpreters
19 and everything, if we could stay maybe for another 10 minutes, 15
21 MR. McCLOSKEY: Yes, the Prosecution would prefer that.
22 JUDGE AGIUS: The staff? Twenty minutes for the tape. Okay.
23 Let's start with a matter that came to the notice of the Trial
24 Chamber the last couple of days following our consolidated decision on
25 the motion on behalf of Milan Gvero seeking an adjournment and Popovic's
1 request for an extension of the dead-line for the final brief.
2 You would have realised that we were dealing there with two
3 Defence motions which we granted -- or one which we dealt with. The
4 question arose in the mind of the Prosecutor whether the variation of the
5 dead-lines for the filing of the final briefs left their dead-line for
6 their final brief as it was in the previous decision, and obviously the
7 practice has always been that all final briefs are filed simultaneously,
8 so we are varying that order and making it clear that the parties and not
9 just the Defence teams shall file their final trial briefs by not later
10 than the 20th of July.
11 Earlier on we heard Mr. McCloskey plead for a delay of oral
12 arguments, the closing arguments, until -- from the 24th of August until
13 the 31st. We have discussed this, and we grant the request, and an
14 amended order will be issued to that effect shortly.
15 Anyway, we'll decide whether we need to have it in writing or
16 not. However, the scheduling of the closing arguments will be moved from
17 the 24th to the 31st of August.
18 Now, the Trial Chamber is also seized of the confidential Nikolic
19 motion seeking leave to amend its Rule 65 ter list of exhibits filed on
20 the 25th of May, in which the same Defence team also request that two
21 stipulations, namely those contained in Exhibits 3D584 and 3D585 be
22 admitted into evidence. The motion states that the Prosecution does not
23 object and that the requirements for admission are met.
24 Mr. McCloskey, we just need a confirmation from you that you
25 don't object.
1 MR. McCLOSKEY: That's -- that's correct, Mr. President.
2 JUDGE AGIUS: Thank you. And we want to make sure that there are
3 no objections from any of the other Defence teams.
4 Hearing the Prosecution's declaration and there being no
5 objection from other Defence teams, taking this into account and
6 considering that no prejudice will be caused to the co-accused, the
7 Trial Chamber grants accused Nikolic leave to amend his Rule 65 ter list
8 of exhibits and formally admits these two stipulations.
9 Next, on the 11th of May, accused Nikolic filed a motion seeking
10 admission of written evidence provided by anybody Nebojsa Jeremic in view
11 of his viva voce testimony, and this pursuant to Rule 92 bis.
12 On the 14th of May, accused Pandurevic filed a response, and the
13 Prosecution filed theirs on the 25th of May, both not opposing the
15 We have considered this and also the interests of judicial
16 economy, and pursuant to that we provisionally admit the statements given
17 by Nebojsa Jeremic pursuant to Rule 92 bis without requiring him to
18 appear for cross-examination, provided that the statement is presented to
19 the Trial Chamber in a form which fully satisfies the requirement of
20 Rule 92 bis.
21 Next, on the 11th of May, accused Pandurevic filed a motion for
22 admission of documents from the bar table; and on the 14th of May, a
23 corrigendum followed. In it, Pandurevic requests the admission of a
24 number of documents as identified in the annex to his motion.
25 On the 14th of May, the Prosecution filed its response, not
1 objecting to the motion but suggesting that one document, namely
2 65 ter 3389, which Pandurevic sought to withdraw in his corrigendum,
3 should be in fact admitted. The Prosecution further submitted that
4 16 documents be withdrawn from the motion because they are already
5 admitted into evidence.
6 Yesterday, the Pandurevic Defence team replied, stating that it
7 would not make further submissions with regard to the Prosecution's
8 submissions or response.
9 The Trial Chamber finds that the documents are prima facie
10 relevant and have probative value. It grants, therefore, the motion and
11 the orders that the documents identified in the annex to the original
12 motion as amended by the corrigendum and excluding those listed in para 3
13 of the Prosecution response be admitted into evidence.
14 As regards 65 ter 03389, withdrawn in the Pandurevic corrigendum,
15 our decision is that this document is nonetheless admitted.
16 We do want to raise with you for your possible immediate feedback
17 matters related to document 65 ter 7D870, which the Prosecution suggests
18 was already admitted into evidence and should, therefore, be withdrawn.
19 We've examined this document like all the others, and it appears
20 to us that this document is not completely identical to Exhibit P1221 in
21 that 7D0870 has additional pieces of intercepted communication registered
22 at 1230 hours, 1244 hours, and 1249 hours, which do not appear in
23 Exhibit P1221, and there is also no English translation of it except for
24 a few lines in Exhibit P01221.
25 Consequently, if you are in a position to answer us now, we would
1 like to know whether you can reach an agreement as to the need to admit
2 both or stay with Exhibit P01221.
3 Mr. McCloskey, you're the one who suggested that they were
5 MR. McCLOSKEY: Mr. President, as you know, those print-outs have
6 more than -- sometimes more than one intercept on them, and the
7 description, it's my understanding, that the Pandurevic people put on was
8 a particular intercept at 1346 hours, and that was the one that we're
9 talking about is already in evidence, and I'm not sure the Pandurevic
10 team meant to have the ones on either side of it, and my guess is they
11 wouldn't want those in, but --
12 JUDGE AGIUS: Yes, but --
13 MR. McCLOSKEY: I think that's where we are.
14 JUDGE AGIUS: Thank you. You understand we cannot decide this
15 issue unless we've heard both of you, actually.
16 Mr. Haynes.
17 MR. HAYNES: Well, the short and simple fact of the matter is I'm
18 sure we can agree very quickly. The double difficulty for both
19 Mr. McCloskey and I is that the additional passages are not translated as
20 you've said, so we may need to go away and have a little look at them,
21 but my first glance at them indicates to me that there is nothing
22 conditional to P1221 that we want in evidence.
23 JUDGE AGIUS: All right. Thank you.
24 [Trial Chamber confers]
25 JUDGE AGIUS: So our decision, having heard both of you, is not
1 to admit 7D870 for the reasons stated. If after having reconsidered the
2 matter you wish us to change our position, Mr. Haynes, you'll come back
3 to us.
4 MR. HAYNES: Absolutely.
5 JUDGE AGIUS: Thank you.
6 Next, the Trial Chamber notes that there are three documents
7 marked by the Beara expert Mr. Gogic that had not been formally tendered
8 by the Beara Defence team at the time of the gentleman's testimony and
9 are, therefore, still not admitted. These are IC0214, please refer to
10 e-court page 123; IC0215, please refer to e-court 124; IC0216, e-court
11 126, of Exhibit P00377.
12 The Trial Chamber has been informed by the Beara Defense team
13 that neither the Prosecution nor the accused object to their admission.
14 I need a confirmation from you, Mr. McCloskey, that this is so, in which
15 case I will proceed immediately to admit them into evidence.
16 MR. McCLOSKEY: Mr. President, I don't recall speaking to
17 Mr. Ostojic. I haven't spoken to him for a while about things. If I
18 could have one second to refresh my recollection.
19 JUDGE AGIUS: All right. In the meantime, we move to our last
20 point, and hopefully this will be the last time we will have to raise
21 this, and there will be consequences if our instructions are not
23 I'm addressing the Beara Defence team. We refer you to our
24 decision of the 10th July, 2008, which related and dealt with your
25 Rule 92 bis motion, in the absence of Mr. Ostojic. There, we
1 provisionally admitted 25 statements, 11 of which your team has never
2 submitted to the Trial Chamber in a form which satisfies the requirements
3 of Rule 92 bis (B). We would have easily come here today and given you
4 the surprise that you would never expect, namely to say, forget it, now
5 these 11 documents are out.
6 However, we prefer not to give such surprises. We are ordering
7 you instead to file the 11 outstanding statements in the form required by
8 Rule 92 bis (B) no later than the 12th of June, failing which the
9 Trial Chamber will not deal with this issue any further except that it
10 will make an entry into the records that these 11 statements are not
12 Mr. McCloskey.
13 MR. McCLOSKEY: Your Honour, if I could have -- the first
14 document that popped up is something that comes at me out of context, and
15 I'm not sur where it came from, and I don't recall speaking to anybody
16 about this, so -- we'll be able to sort it out very quickly, though.
17 JUDGE AGIUS: All right. Unless I hear any disagreement from my
18 colleagues, we will MFI
19 [Trial Chamber confers]
20 MR. McCLOSKEY: To try to simply my it, I do see one that's
21 IC214, which is a document marked up by the witness on the stand, so
22 there's no problem with that. And if it's all the same thing, then it's
23 not a problem.
24 [Trial Chamber confers]
25 JUDGE AGIUS: All right. I'm giving you the possibility to check
1 further. We will admit these on the usual temporary basis, MFI'ing them.
2 They will be regularly -- automatically regularly admitted if you do not
3 communicate to the Trial Chamber and to the parties your opposition.
4 MR. McCLOSKEY: I'm just seeing 215 and 216, and there's no
6 JUDGE AGIUS: All right. Then they are permanently admitted.
7 That disposes of all that we needed to dispose of. One moment.
8 [Trial Chamber confers]
9 JUDGE AGIUS: Not exactly. I was going to forget one very
10 important matter.
11 Mr. Josse.
12 MR. JOSSE: Well, could we go into private session for a moment?
13 JUDGE AGIUS: For how long?
14 MR. JOSSE: I hope literally a moment.
15 JUDGE AGIUS: Okay. Let's go into private session for a short
17 [Private session]
8 [Open session]
9 JUDGE AGIUS: The memorandum of service and medical reports have
10 been officially filed yesterday or these last few days. Kosoric accepted
11 service but said he is unable to testify for health reasons, as he has
12 been receiving medical treatment at a particular department of the
13 military hospital in Belgrade
14 a condition that is stated and is on medication. In his last medical
15 examination on 13th May, it was advised that he needed hospitalisation,
16 and according to the memorandum, he also does not possess, does not hold
17 a passport.
18 Now, Mr. Zivanovic, you have had an opportunity to examine these
19 documents and to assess the situation much more -- much better -- in
20 better circumstances than the Trial Chamber has. Are you going to insist
21 on this witness, or are you going to withdraw him?
22 MR. ZIVANOVIC: I have to double-check these documents received
23 from the witness yesterday and to see his real medical condition and his
24 ability to appear as the witness in this case.
25 JUDGE AGIUS: Yes, but I am sure you are sensitive to the need
1 that this be cleared up and decided once and for all without further
2 delay. This person can either come or not come depending on whether
3 you're going to insist or not.
4 MR. ZIVANOVIC: Okay.
5 JUDGE AGIUS: And we will not say more than that. I am sure that
6 with your experience as a lawyer, you know what would be more
7 advantageous for you given the circumstances, how they have developed. I
8 see that your assistant is drawing -- wishes to draw your attention.
9 [Defence counsel confer]
10 MR. ZIVANOVIC: I'm not able to tell you this right now, so I
11 would need some time to check it again and to get back to you on Monday.
12 JUDGE AGIUS: All right. Monday is a public holiday. You will
13 communicate your decision on Tuesday.
14 MR. ZIVANOVIC: Thank you.
15 JUDGE AGIUS: Thank you. Mr. Josse.
16 MR. JOSSE: Can we be assured that it will not be in the next
17 nine working days, in other words, before the 12th of June that we will
18 hear from him? That is --
19 JUDGE AGIUS: Hear from whom?
20 MR. JOSSE: Mr. Kosoric.
21 JUDGE AGIUS: I think first Mr. Zivanovic needs to consider
22 whether it pays him to continue insisting on him at this stage, and then
23 we'll see.
24 Mr. Haynes.
25 MR. HAYNES: I'm conscious that I'm hard up against the end of
1 tape, but I need to play some record pursuant to what you said earlier,
2 that we have two issues with the transcript, P4537. They are two missing
3 lines of conversation at English page 5, B/C/S page 4, and a line of
4 conversation attributed to the wrong speaker on page 7 of both versions.
5 JUDGE AGIUS: Thank you.
6 So that concludes our session. I need to put on record the
7 Trial Chamber's gratitude to you all, interpreters, technicians,
8 recorder, and all others, not excluding, of course, the parties and our
9 staff, for having made it possible for us to finish now.
10 We'll hear from you on Tuesday. You will communicate your
11 decision to the Trial Chamber, and we take matters up after that.
12 Thank you.
13 --- Whereupon the hearing adjourned at 12.53 p.m.