Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5909

 1                           Tuesday, 22 June 2010

 2                           [Open session]

 3                           [Accused not present]

 4                           --- Upon commencing at 10.08 a.m.

 5             JUDGE ORIE:  Good morning to everyone.  Madam Registrar, would

 6     you please call the case.

 7             THE REGISTRAR:  Good morning, Your Honours.  Good morning

 8     everyone in and around the courtroom.  This is the case IT-03-69-T, the

 9     Prosecutor versus Jovica Stanisic and Franko Simatovic.

10             JUDGE ORIE:  Thank you, Madam Registrar.

11             Today a housekeeping session has been scheduled.  I observe that

12     the accused are not present.  Is this because they have chosen not to be

13     present because we have not received a waiver form yet?

14             MR. JORDASH:  I can indicate I've spoken to Mr. Stanisic and he's

15     happy to proceed without being present.

16             JUDGE ORIE:  Yes.  It was his choice to proceed without his

17     presence.

18             MR. JORDASH:  It was his choice.

19             JUDGE ORIE:  To be happy to accept something as a fact is

20     different from having expressed as his preference not to be present.

21     There's a slight difference.

22             MR. JORDASH:  I agree with both.

23             JUDGE ORIE:  Okay.  Then as far as Mr. Simatovic.

24             MR. BAKRAC:  [Interpretation] Your Honours, the same applies to

25     Mr. Simatovic.

Page 5910

 1             JUDGE ORIE:  Then we can proceed and we will proceed with the

 2     absence of the accused.

 3             We have today this housekeeping session because due to witness's

 4     unavailability we will not have normal hearings this week.  Yesterday's

 5     session was cancelled once it had become clear that the witness would not

 6     turn up, and for similar practical reasons we'll not sit tomorrow.  I add

 7     to this that this has happened a couple of times.  I'm not blaming at

 8     this moment the Prosecution for this to happen, and I also see the

 9     problems in having witnesses available on a stand-by basis.  And

10     nevertheless, I would urge, not saying that you didn't do your utmost

11     best until now, but I still urge you to see that all practical measures

12     are taken to avoid that we lose court time in the way we do this week.

13             MR. GROOME:  Your Honour, I do have some updated information as

14     to what happened with respect to JF-041, if the Court wishes me to inform

15     the Chamber.

16             JUDGE ORIE:  Yes, that could assist the Chamber.

17             MR. GROOME:  JF-041 contacted the Prosecution late yesterday

18     evening saying that he was present on the agreed meeting spot on the

19     Wednesday.  He believed that he had been instructed by Victim Witness to

20     be there on the Wednesday, Victim Witness believes that they had told him

21     on the Thursday, so it seems to have been some miscommunication between

22     VWS and the witness with respect to the precise day that he was

23     travelling.  We have worked with -- Victim Witness is still trying.  He

24     made attempts to call Victim Witness, they are having trouble finding who

25     he called or what message was conveyed.  We are still looking into that.

Page 5911

 1     We will reschedule him and we will take measures next time to be

 2     personally involved in either travelling with him or reconfirming the

 3     times of travel so that there is no misunderstanding between him and

 4     Victim Witness in the future.

 5             JUDGE ORIE:  Yes.  This is the type of moment where we always

 6     talk about lesson to the be learned about situation, apparently you are

 7     seeking what lessons can be learned from it.  That would be in line with

 8     what I just said.  This also means that most likely we will not -- after

 9     today we will resume on Monday the 28th at quarter past 2.00 in the

10     afternoon and not any earlier.

11             I move to my next item on my agenda.  There may have been some

12     lack of clarity as to whether D74 was admitted into evidence.  Sometimes

13     it's on the transcript not for the full hundred per cent clear.  D74

14     tendered through the witness Radic is admitted into evidence so that any

15     doubt in that respect is now removed.

16             I would for the next item I would like to briefly turn into

17     private session.

18                           [Private session]

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 5912

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 7   (redacted)

 8   (redacted)

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10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22                           [Open session]

23             THE REGISTRAR:  We are in open session, Your Honours.

24             JUDGE ORIE:  I would like to deliver a statement in relation to

25     the Prosecution's 15th motion for leave to amend its Rule 65 ter exhibit

Page 5913

 1     list and its 65 ter witness list.  Because the Chamber wishes to raise a

 2     matter in relation to that 15th motion, which was filed on the 13th of

 3     April, 2010.

 4             On the 25th of May, 2010, the Chamber granted the Prosecution

 5     leave to add seven documents to its 65 ter Exhibit list and instructed

 6     the Prosecution to identify the two witnesses it sought to add to its 65

 7     ter witness list within three weeks.  This can be found at transcript

 8     pages 5280 and 5281.

 9             On the 15th of June, the Prosecution identified in court, that

10     was in private session, the names of the two witnesses it seeks to add to

11     its Rule 65 ter witness list, and the Chamber requested the Defence to

12     make any further submissions in respect of the motion by the 17th of

13     June, 2010.  This can be found at pages 5689 and 5690.

14             The Stanisic Defence on the 18th of June informed the Chamber in

15     an informal communication that it will take no position in relation to

16     the Prosecution motion until and if a witness statement will be disclosed

17     for both proposed witnesses.  The Chamber notes that this communication

18     was received after the dead-line for responses given by the Chamber.

19             Given that the Stanisic Defence has considered it difficult to

20     take a position when it has not seen witness statements for the proposed

21     witnesses, and given also that the Chamber does not have the benefit of a

22     65 ter summary in relation to each proposed witness, the Chamber consider

23     that it would be preferable in this particular case to wait and decide on

24     the additions to the 65 ter witness list once both the Chamber and the

25     Defence have received 65 ter summary for each proposed witness as well as

Page 5914

 1     a witness statement if such a witness statement is available.  The

 2     Chamber therefore requests the Prosecution to provide a 65 ter summary in

 3     relation to each proposed witness, together with a witness statement if

 4     one is available and to do that well before the Chamber will resume after

 5     the recess, and the Chamber will resume its hearing after the recess

 6     during the week of 23rd August, 2010.

 7             The Stanisic Defence and the Simatovic Defence will then be

 8     granted an additional period of two weeks from the date of receipt of

 9     these documents, in which to indicate their positions in relation to the

10     proposed witnesses.  And this concludes the Chamber's statement.

11             I add to this that where the Stanisic Defence on the 18th of June

12     informs the Chamber that it will take no position in relation to the

13     Prosecution's motion until and if a witness statement will be disclosed,

14     that the Chamber understands this, that what the Stanisic wanted to

15     express, is that they had difficulties in taking a position in relation

16     to the Prosecution motion and that they requested a further time until

17     after they had received a 65 ter summary or a witness statement, and if

18     that then would have communicated within the time set for response, then

19     with a little bit of the different language, the same result would have

20     been achieved.

21             Because if a party takes no position where it's invited to do so,

22     the Chamber might decide without considering that, knowing that position,

23     therefore, I think the way in which I suggested the matter would have

24     been preferably addressed would have avoided risks and again would have

25     resulted in the same understanding for the difficulties the Defence was

Page 5915

 1     facing.

 2             Then I move to my next item, which relates to the Prosecution's

 3     motion for admission of evidence of witness B-1244 pursuant to Rule 92

 4     quater, and a request regarding protective measures for witness B-1244.

 5             On the 2nd of June, both the Stanisic Defence and the Simatovic

 6     Defence have asked to be allowed to file a renewed response after some

 7     discussions apparently have taken place in relation to this evidence.

 8     Leave is granted for a renewed response which the Chamber would like to

 9     receive, time-limit set at two weeks from today.  Important that the

10     renewed response does not contain any repetition of what has been

11     submitted before because the first response by the Stanisic Defence was

12     already some 4.000 words, and therefore, the Chamber considers that the

13     renewed response could be limited and should be limited to 2.000 words.

14             Mr. Jordash.

15             MR. JORDASH:  Your Honour, would it be possible to request that

16     we be allowed three weeks.  There are 280 documents underlying this

17     response dealing with the witness's background, et cetera.  We would like

18     opportunity to read them and incorporate that material, if possible, into

19     the response.  Two weeks is quite short.

20                           [Trial Chamber confers]

21             JUDGE ORIE:  Your request for three weeks is granted,

22     Mr. Jordash.

23             MR. JORDASH:  Thank you.

24             JUDGE ORIE:  That is the time-limit.  The remainder of the ruling

25     remains in force.

Page 5916

 1             The next item is a decision with regard to the Prosecution's 16th

 2     motion for leave to amend its Rule 65 ter exhibit list.  In its motion

 3     filed on the 14th of May, 2010, the Prosecution seeks to add 18 military

 4     notebooks allegedly authored by Ratko Mladic to its 65 ter Exhibit list.

 5     The notebooks are pending English translation.  The Chamber considers

 6     that the Defence and the Chamber would be assisted by the English

 7     translation of the notebooks when considering the motion.  In particular,

 8     when assessing the extent to which the addition of the notebooks to the

 9     65 ter list creates an additional burden on the Defence.  Therefore,

10     pursuant to Rule 126 bis of the Rules of Procedure and Evidence, the

11     Chamber extends the time-period for Defence responses until no later than

12     two weeks after having received the English translation of all the

13     notebooks.  The Prosecution is also requested to notify the Chamber once

14     the Defence has been provided with these translations.

15             MR. GROOME:  Your Honours, I believe yesterday they were all

16     placed on EDS and are accessible to the Defence.  I will make

17     arrangements to have a copy provided to the Chamber as soon as possible.

18             JUDGE ORIE:  Yes, this is what we call anticipating decisions by

19     the Chamber.  You've done yesterday what we ask you to do today.

20             Mr. Jordash.

21             MR. JORDASH:  May I seek clarification from the Prosecution as to

22     whether that's all we will be receiving, that's the full -- the sum total

23     of the document?

24             JUDGE ORIE:  There are apparently two issues.  The first is

25     whether it's on EDS which is fine, that's where it should be, but at the

Page 5917

 1     same time you've asked to add it to your 65 ter list and, therefore, just

 2     putting it on the EDS, EDS is not the -- I would say that a clear moment

 3     of disclosure should be established.

 4             MR. GROOME:  I agree, Your Honour, we'll provide a disk with a --

 5     it may already have been done, but if it hasn't been done, we'll today

 6     provide a disk with a transmittal letter with respect to all 18

 7     notebooks.

 8             JUDGE ORIE:  Yes.  Mr. Jordash, in view of your 14 days being

 9     short in relation to the previous one, how short is 14 days for the

10     present one?  Which would start counting tomorrow, if --

11             MR. JORDASH:  I think extremely short.  I haven't seen the volume

12     of the translations, but I have been told the length of the B/C/S

13     document, I think ideally we would like six weeks.

14             JUDGE ORIE:  Yes.  We are only talking about adding it to the

15     65 ter list.  We are not talking about admission into evidence.  It's a

16     relatively limited, it paves the way, or at least opens the gate for

17     later admission, but at this moment not more is at stake.  I can imagine

18     that you need more time to take a position in general on every single

19     entry of those notebooks, whether it should be admitted or not, whether

20     there is any probative value in that specific item, but what about three

21     weeks for the position of the Stanisic Defence on it being added to the

22     65 ter list?

23             MR. JORDASH:  Could I suggest four, Your Honour, please.

24             JUDGE ORIE:  Yes.

25             MR. JORDASH:  Thank you.

Page 5918

 1             JUDGE ORIE:  Mr. Bakrac, five, six, seven?

 2             MR. BAKRAC:  [Interpretation] Your Honour --

 3             JUDGE ORIE:  You are less dependent on the translation, isn't it?

 4             MR. BAKRAC:  [Interpretation] Yes, that's right, Your Honours.

 5     We don't depend on translation.  If I understood you correctly, this

 6     first dead-line would be relating only to adding it to the 65 ter list.

 7     Therefore, I would reserve the right that if subsequently there is an

 8     attempt to have all this material admitted into evidence, we would

 9     request leave for additional time for us to review the document,

10     otherwise, I agree with Mr. Jordash that for putting and adding them to

11     the 65 ter list four weeks would be sufficient.

12                           [Trial Chamber confers]

13             JUDGE ORIE:  Mr. Groome, any position in relation to the request

14     by the Defence teams?

15             MR. GROOME:  Your Honour, the only thing that I would remind the

16     Chamber that on I think it was the 15th of April in a motion to postpone

17     the testimony of General Milovanovic, matter of these diaries was

18     mentioned in that motion and it seemed to indicate, at least to the

19     Prosecution, that there had been some familiarity and study of the

20     diaries already.  And, in fact, I believe the Stanisic Defence pointed

21     out what we believe to be one of the most significant passages from the

22     18 notebooks.  So -- but the Prosecution will defer to the Chamber with

23     respect to scheduling responses.

24             JUDGE ORIE:  Let me, before I give the ruling of the Chamber --

25     no, let's first give the ruling.  Four weeks is granted.  The Chamber

Page 5919

 1     does not expect that a great deal of work will be done by the Chamber,

 2     and perhaps also not by the Prosecution, prior to the recess.  At the

 3     same time, I already put a flag that where the Simatovic Defence now

 4     says, well, we are not dependent on translation but four weeks now for

 5     65 ter would be enough but, of course, we would claim more.  Let's be

 6     clear on this matter.  The more time you spend on studying the documents

 7     for the decision whether or not to add it to the 65 ter list, the less

 8     time is needed to get yourself acquainted with the content of the

 9     documents.  And since this is -- well, especially for the Simatovic,

10     already quite a while that they could have a look at it, they have

11     another four weeks now.  So to what extent the Chamber will grant

12     substantial more time to the study the documents if certain portions of

13     it are tendered into evidence at a later stage is still to be seen.  I

14     just put this flag already there.  So four weeks is granted.

15             Then on the 22nd of April, the OTP has filed outstanding witness

16     summaries to inform the public about the content of written evidence.  In

17     the submission it states that witness JF-006 testified in closed session.

18     Witness JF-006 testified, however, with voice and face distortion and

19     only partial testimony in private session.  Accordingly, the Prosecution

20     is requested to file a public summary for this witness, that means the

21     evidence this witness gave in public session also.

22             Next item relates to P166.  On the 19th of February of this year,

23     the Prosecution requested that Exhibit P166 be made a public exhibit.

24     P166 is a MUP report on the situation of Muslims and Croats in

25     Sanski Most, and it's dated the 10th of November, 1992.  The Defence was

Page 5920

 1     asked to present their positions by the 24th of February, 2010, and the

 2     Chamber has not heard anything from them.  The Chamber sees no reason to

 3     keep this document under seal.

 4             MR. JORDASH:  Your Honours, I understood we had informed the

 5     Trial Chamber.  If we haven't, I apologise, and our position is that we

 6     see no reason either.

 7             JUDGE ORIE:  Perhaps it's good if Chamber staff and that those

 8     who communicated with the Chamber just compare their information because

 9     if a mistake has been made on the Chamber's side, we should pay attention

10     to that and take care that the informal communication does not get lost

11     somewhere due to any mistakes we may have made.  So therefore, you are

12     invited, again lessons to be learned, to see whether it was our mistake,

13     and we don't need to have this further on the record.  It will be for

14     practical working experience.

15             I hear nothing of these matters.  The Registry is hereby

16     instructed to change the status of P166 into public.

17             The next item relates to P355.  On the 13th of April, the Chamber

18     noticed that there was a discrepancy between the words appearing

19     underneath the video and the words interpreted in court.  I refer you to

20     transcript page 4247.  The discrepancy there was "Serbian MUP" or

21     "Serbian 2nd Krajina Corps" and Mr. Hoffmann wanted to address the

22     Chamber about this on that same day, but we ran out of time and the

23     discussion was postponed.

24             Mr. Hoffmann, is there anything that you would like to bring to

25     the Chamber's attention as an update on this matter?

Page 5921

 1             MR. HOFFMANN:  No, Your Honours.  I would have to double-check

 2     again and come back to you after the break.

 3             JUDGE ORIE:  Then you are invited to come back to us after the

 4     break.

 5             Document D32 was admitted under seal on the 13th of April, 2010,

 6     but had not been uploaded yet.  The Registry has now received the

 7     electronic document and the Registry is hereby requested to link the

 8     uploaded document which is 1D252, to link it to D32 on e-court.

 9             The next item on my agenda relates to witness JF-033.  The

10     Prosecution stated on the 17th of May, 2010, that it would take the

11     initiative in an effort to liaise with VWS and see whether further

12     information about witness's JF-033's criminal record could be obtained.

13     And the Chamber wonders whether there are any updates on this effort?

14             MR. GROOME:  Your Honour, we had an update from Bob Parry of the

15     Victim Witness Services regarding this matter.  He has been in touch with

16     the embassy of the state where JF-033 now resides and has communicated

17     our need for additional information.  They have indicated that they will

18     provide that, although we do not have information about how long that

19     will take, but it is in the hands of the state and they are in the

20     process of fulfilling that request.

21             JUDGE ORIE:  Of being obtained.  Any comments from the Defence or

22     shall we just wait and see how it develops?  It remains on our pending

23     issue list.

24             Then I would like to move -- on to the -- to the MFI list.  I

25     sometimes even mentioned exhibits being MFI'd where we will not pay any

Page 5922

 1     attention to.  P18 is one example the Chamber has given the Defence a

 2     further time to respond, by the end of June, and since we are not yet

 3     there, we'll not further deal with P18.

 4             Then we have P53, P54, P55, P57, P58.  We -- I think we'll deal

 5     with them once the witness returns.  So I think we don't have to deal

 6     with the matter at this moment, we wait until he will return.

 7             The next one is P107.  P107, the Chamber had to decide having

 8     heard the submissions of the parties which were focusing primarily on

 9     authenticity whether or not to admit the document, which is the

10     handwritten note with unsigned, with a code number under it.  The Chamber

11     admits into evidence P107 and in view of the further information it

12     received as to the author does not request further verification of the

13     authenticity as it could have done under Rule 89(E).  This, of course,

14     doesn't change that in giving weight to this evidence which will be done

15     in the context of the evidence in its entirety, that the concerns

16     expressed by the Defence are still on the back of our minds, but the

17     Chamber has decided to admit it and at this moment not to request the

18     verification of the authenticity, which, of course, does not prevent any

19     party to adduce further evidence either in support of or challenging the

20     authenticity of this document.

21             We leave the next one, P150 for a moment.  Next one on our list

22     is P179 which will be dealt with in a written decision.  Then the next

23     one on the list is P337.  We were at the point that we were waiting for

24     the position of the Simatovic Defence which we do understand is now that

25     there are no further objections against admission into evidence of P337.

Page 5923

 1             Mr. Bakrac, I see you nodding yes, that's now on the record.

 2             MR. BAKRAC:  [Interpretation] Yes, Your Honours.

 3             JUDGE ORIE:  It's hereby decided that P337, which was 65 ter 4581

 4     is now admitted into evidence.

 5             P378 is related to an item we earlier discussed today that is a

 6     diary.  Since we have granted additional time for the Defence, four

 7     weeks, to take their positions as to the adding those or that diary or

 8     those notebooks to the 65 ter list, P378 which is a chart which is

 9     related to that will wait for a while until we have dealt with the

10     underlying material.

11             Then the next item is P379.  379 is a list of intelligence

12     reports.  Here also we are still waiting for the underlying material, so

13     therefore no decision will be taken at this very moment.

14             Then I move to P380.  P380 is the first of the nine documents

15     which are covered by P379.  One second, please.

16                           [Trial Chamber and Legal Officer confer]

17             JUDGE ORIE:  Yes, for all of these documents, that's P380, P382,

18     P384, P385, P386, and P387, they have not been added yet to the 65 ter

19     list, the underlying documents, if I'm not mistaken, Mr. Groome.

20             MR. GROOME:  Your Honour, that's something that I would have to

21     check if it's --

22             JUDGE ORIE:  Okay.  Let's deal with the matter as if you are

23     seeking now them to be added to the 65 ter list and at the same time they

24     are tendered into evidence.  So you include both.

25             MR. GROOME:  Yes, Your Honour.  With that a written filing.

Page 5924

 1             JUDGE ORIE:  Yes.  Now, there is one of these documents which

 2     needs specific attention which is P386, which is in these series.

 3     Earlier, I have by mistake said that P386 was already admitted.  Due to

 4     this mistake - and I'm referring to transcript page 5310 - confusion

 5     might exist, but P386 was not admitted into evidence and therefore is

 6     still on our MFI list.

 7             Now, I have invited the parties to reduce the size of what should

 8     be admitted from this document and I think we already expressed that it

 9     still would be possible to add other portions at a later stage if that

10     would become relevant.  I'd like to hear from the parties whether any

11     discussion has taken place on the redaction of the size that is to leave

12     out some portions of it, and if such discussions have taken place, what

13     the result was.

14             MR. GROOME:  Your Honour, there have -- discussions have not

15     taken place yet, and one of the things the Prosecution was going to

16     invite both Defence counsel to do this afternoon and possibly tomorrow is

17     to use the time that we would have spent in hearings to discuss this and

18     a number of other pending matters that are down for us to have

19     discussions about.

20             JUDGE ORIE:  Then we leave out for the time being P386.  But for

21     the other documents, that is P380, P382, P384, P385, and P387, are there

22     any objections against adding them to the 65 ter list to the extent it

23     has not been done, and admission into evidence?  Sorry, I have excluded

24     P386.

25             MR. JORDASH:  For Your Honours' information, they have been added

Page 5925

 1     to the 65 ter list already.

 2             JUDGE ORIE:  And that was done.  Let me see, could you assist me?

 3             MR. JORDASH:  Sorry.

 4             JUDGE ORIE:  With our approval?

 5             MR. JORDASH:  Can I just --

 6             JUDGE ORIE:  Yes.

 7             MR. JORDASH:  One moment, please.

 8             MR. GROOME:  Your Honour, I wonder if there's some confusion.

 9     Mr. Hoffmann advises me that given the low 65 ter number, he is quite

10     certain that they've been on the 65 ter list for a number of years now.

11             JUDGE ORIE:  Let's keep matters short.  To the extent someone

12     believes that they are not on the 65 ter list and wants to make separate

13     submissions as to leave to add them to the 65 ter list, to the extent

14     they are not on that list yet, I'd like to hear.  And otherwise, we'll

15     deal with the matter in terms of admission, which would again, unless the

16     parties would indicate otherwise, would cover any flaws or shortcomings

17     in having those documents added to the 65 ter list.

18             Therefore, now, any objections against admission P380 up to P385

19     and P387?  No objections.  I hear of no objections.  Therefore, P380,

20     P382, P384, P385, and P387 are admitted into evidence and the Chamber

21     would like to be informed about any -- the outcome of any conversations

22     in relation to P386.

23             P395 is waiting for cameraman to be called as a witness.  P396

24     was provisionally admitted but had not at that time been uploaded yet.

25     Has P396 meanwhile been uploaded?

Page 5926

 1             MR. GROOME:  Yes, it has, Your Honour.  Your Honour, if I could

 2     return to the last item --

 3             JUDGE ORIE:  Yes.

 4             MR. GROOME:  -- before we get too far away from it.

 5             P379, which is MFI'd, is a chart summarising the witness's

 6     comments with respect to the exhibits that were just introduced or

 7     admitted by the Chamber, and I wonder would it not be a good time to

 8     resolve that matter as well.  I believe there would be no basis for not

 9     admitting that at this stage.

10             JUDGE ORIE:  Well, P386 is still pending.

11             MR. GROOME:  But 386 would be for Prosecution and Defence to

12     discuss what parts of 386.

13             JUDGE ORIE:  Yes.  But wouldn't it be appropriate to wait until

14     this has been finalised and then to go back to --

15             MR. GROOME:  That's equally acceptable, Your Honour.

16             JUDGE ORIE:  -- P379 so that we know that any comments is

17     comments on admitted documents or portions of admitted documents.

18             MR. GROOME:  Yes.

19             JUDGE ORIE:  I should say admitted portions of documents, so then

20     we have covered all the underlying material and then finally P379 will be

21     admitted.

22             MR. GROOME:  Yes, I think that's a reasonable approach, Your

23     Honour.

24             JUDGE ORIE:  Thank you.  Then I go back to P396, the issue at the

25     time when we provisionally admitted it was that the document had not been

Page 5927

 1     uploaded, which would be 65 ter 5294, number of 14 documents.  These are

 2     all intelligence reports marked by a witness.

 3             MR. GROOME:  Those charts are uploaded in e-court.

 4             JUDGE ORIE:  Then hereby the admission into evidence is

 5     confirmed.  Madam Registrar, the 65 ter 5294, has it already been linked

 6     to P396?  If not, you are hereby instructed to do so.

 7             Then I move on to the next one, P397, it is more or less the same

 8     apart from that at the time this chart was not yet provisionally admitted

 9     as was the previous chart.  P397, has the relevant 65 ter -- the

10     corresponding 65 ter number relating to this chart listing 14 documents,

11     has that been uploaded?  I do understand from Madam Registrar that it has

12     been uploaded as P5295.  As far as I remember, there were no objections

13     against admission once the document would have been uploaded.  Therefore,

14     P397 is admitted into evidence.  I add to this that both P397 and P396

15     are admitted under seal.

16             I also do understand just to avoid whatever confusion that to

17     these charts, the underlying documents are attached.  That is true both

18     for 396 and for P397 and therefore are included in the decision to admit

19     them, and when I said the underlying documents for P397, only 39 out of

20     the 40 documents are attached because one of them -- of one of them the

21     witness could not confirm the authenticity.

22                           [Trial Chamber and Legal Officer confer]

23             JUDGE ORIE:  I may have missed something.  One was withdrawn for

24     the reasons I just gave but it was a handwritten document which was

25     added.  I would like to invite the parties to look with great precision

Page 5928

 1     to what exactly is now covered under these exhibit numbers and to -- if

 2     there are any problems to report that within one week.  Mr. Groome.

 3             MR. GROOME:  I would say that I am unable to confirm that the

 4     composite exhibit is currently attached to the e-court file.  I will work

 5     with Mr. Laugel to see if I can remedy that, and I will notify the

 6     Chamber of our efforts and so the Chamber can, if necessary, amend its

 7     ruling here until we comply with that decision.

 8             JUDGE ORIE:  Yes, could we hear from you when -- my problem is

 9     that it usually takes some time before the admitted documents have

10     been -- let me just check.

11             MR. GROOME:  Your Honour, with respect to your query with respect

12     to when, if it hasn't already been done and is not readily available,

13     Mr. Laugel informs me that he will be able to complete that task by the

14     end of today.

15             JUDGE ORIE:  Yes.  Because the underlying documents at this

16     moment are not attached in e-court because it's a -- at least in the

17     English translation it's a four-page document listing 40 reports, but

18     they apparently are not attached to it.  Let me check the same for 369.

19     That is the same situation it appears.

20             Mr. Groome, do you think that it would be before we finish today

21     that you could provide us the final confirmation that the related

22     documents are attached, or if so, otherwise I'll just leave them on the

23     MFI list because then otherwise we get all kind of problems later,

24     uncertainty about what is in evidence, what is not in evidence.

25             MR. GROOME:  Your Honour, that might be best and I'll -- again

Page 5929

 1     I'll inform the Chamber as soon as its --

 2             JUDGE ORIE:  Okay.  So what we have now, P397 and P396, the only

 3     remaining matter is they both now have been uploaded, but the attached

 4     documents have not yet been uploaded and that's the one and only reason

 5     why they are still on our MFI list.  And as soon as we receive

 6     confirmation that the related documents have been attached, then the

 7     decision to admit will be taken.

 8             The next item on my agenda is P426, which is a document where we

 9     can read at the bottom that it was authored by Captain Dragan and

10     wherein, with the use of slightly different typing machine, typewriter,

11     or another ribbon or whatever, but that we find the name Vasiljkovic

12     added, we see a similar thing appear at the top of the document.  The

13     Chamber has carefully considered the matter.  The Chamber admits the P426

14     into evidence, but when giving weight and when interpreting what this

15     document exactly tells us, we'll consider all the issues that were raised

16     by the Defence.

17             Then I move on.  Next items are P444 up to and including P468.

18     Lists of per diem payments made to members of the RDB, JATD, over various

19     time-periods.  It was announced that these documents would be tendered as

20     bar table documents.  The Prosecution was invited to do so.  The Chamber

21     has not yet received the usual bar table format for those documents;

22     that, is relevance, specific attention, comments by the Defence.

23             MR. GROOME:  Your Honour, I'd want to double-check this, but I

24     believe this was all done in the November application that the

25     Prosecution made with respect to the original bar table.  If the Chamber

Page 5930

 1     recalls we attempted to introduce all of these en masse in a very

 2     detailed bar table motion in the fall.  The Chamber expressed its

 3     preference to do it in smaller amounts more directly related to

 4     witnesses.  I will check but my memory is that these are documents that

 5     form a part of that November submission.  I will be able to check that in

 6     the next few minutes.  I can confirm now, Your Honour, that they are.

 7             JUDGE ORIE:  Yes, matters sometimes seem to be more complex than

 8     at first sight.  I can't talk about it on the basis of my recollection

 9     because that would be insufficient to deal with the matter.  My staff

10     informs me that the Chamber expressed as its preference to have a real

11     bar table submission on those lists of payments that although -- that

12     there was a discussion about whether to have more of the same in the same

13     batch and then finally that the Defence positions were not present in the

14     bar table -- bar table list.

15             Now, if you say the matter has been dealt with in November, the

16     matter certainly has been revisited in May of this year.  May I invite

17     you to specifically pay attention to P5078 -- T-5078 up to 5084 and then

18     it later -- it was on page, transcript page 5151, the final invitation

19     appears and that's what we are talking about.

20             MR. GROOME:  Your Honour, I would ask -- I mean, this is a very

21     important issue for the Prosecution, and one that we've been a bit

22     troubled by in that we've tried a number of ways to try to get what we

23     think are very important documents into evidence.  Could I ask that we be

24     given an opportunity to review all that has been said and perhaps next

25     week that we devote perhaps 20 minutes to it.  Our position is that from

Page 5931

 1     last August we presented both Defence with a very detailed explanation

 2     about what we thought was the relevance and specific information about

 3     the documents and then made that part of the motion.  But I would ask an

 4     opportunity to study the transcripts myself rather than speak from my

 5     recollection, which will be faulty.

 6             JUDGE ORIE:  I would not even -- I don't know what is the

 7     position of the Defence is in this respect.  Perhaps it might be very

 8     practical that one of the staff members of Chambers who is dealing with

 9     this and, of course, you'll understand that the Chamber is assisted in

10     preparing, we try to verify a lot but not every single transcript page,

11     that you and perhaps with one of the team members of the Defence present

12     as well, go through all the relevant transcript pages and see where we

13     are now, what is tendered, how is it tendered, is it separately tendered

14     or not, was ever a decision taken on it so that we know exactly where we

15     are procedurally and, of course, we are not talking about substance, but

16     since we are just trying to establish where we procedurally are to do

17     that in a relatively short and informal meeting so that everyone can

18     report back to us either Defence team or for Chamber staff to Chambers

19     where we exactly are.

20             MR. GROOME:  The Prosecution would certainly welcome such an

21     opportunity.  Your Honour, I would make one request, however, is that

22     this is -- actually we don't -- all of the document that are in that

23     original bar table motion have not been used in court yet, but they will

24     be used with upcoming witnesses who appear on them.  It might make sense

25     to look at the entire body of evidence --

Page 5932

 1             JUDGE ORIE:  No problem with that.  So that the only thing we are

 2     doing is trying to establish exactly what is in evidence, what is not in

 3     evidence, and if it's not yet in evidence, why it is not yet in evidence,

 4     whether there are any outstanding issues which were an obstacle to

 5     admission so that we can get clarity in this respect.

 6             MR. GROOME:  Thank you, Your Honour.  The Prosecution is

 7     available at the convenience of the Chamber staff or the Defence staff to

 8     do this.

 9             JUDGE ORIE:  Yes.

10                           [Trial Chamber and Legal Officer confer]

11             JUDGE ORIE:  From Chamber staff, Mr. Schaeffer would available to

12     meet on short notice.

13             Then I move on to my next item which is P473.  P473 will be dealt

14     with in a written decision together with P179.

15             Then I move to P523 and P524, both of which were tendered on the

16     15th of June, 2010, through witness JF-048, and they are under seal.  The

17     Trial Chamber considers that P523 and P524, which were until now both

18     marked for identification and are under seal, are relevant and have

19     probative value.  The Trial Chamber acknowledges that the parts of these

20     documents addressing Kosovo are less relevant and have less probative

21     value.  However, since these parts are not deprived of relevance and

22     hence probative value in its entirety, and since reference to Kosovo was

23     part of the evidence, the Trial Chamber sees no reason to take a separate

24     decision on admission into evidence of these specific parts.  Therefore,

25     P523 and P524 are admitted under seal.

Page 5933

 1             The next item is P535, which is a video-clip.  As the parties

 2     will remember, it's about the -- about certain text being expressed by

 3     groups, either outdoors or in a canteen or a mess.  Mr. Petrovic has

 4     given some further information about the words spoken, but I think we are

 5     still waiting for translation and one of the obstacles to translation may

 6     be the audibility of the text.  Do we have any idea as to when we could

 7     expect any further information from CLSS in this respect?

 8             MR. GROOME:  I believe it was for us to submit.

 9             JUDGE ORIE:  Yes.

10             MR. GROOME:  It has been submitted to CLSS.  I can query them

11     about when they might expect it might be ready.  The Prosecution is

12     interested in knowing, it's unclear whether the Simatovic Defence still

13     maintains that it's a voice-over, that it's not the people actually

14     speaking, or whether they've -- now that they've had a chance to

15     carefully examine, whether they accept that the words spoken are the

16     words of the people on the video.

17             JUDGE ORIE:  Mr. Petrovic.

18             MR. PETROVIC: [Interpretation] Your Honour, we attempted to

19     review it and as we all recall, there seem to be two groups allegedly

20     stating the text.  First of all, I'd like to say the following:  When one

21     listens to it in good conditions one can make out the words.  The audio

22     part of that footage.  They can be transcribed and translated.  However,

23     the problem arises, at least in our understanding, with whether what we

24     can hear on the audio track is actually what is pronounced by the people

25     appearing on the footage at the very moment.  There are two groups, it

Page 5934

 1     seems to me - I stress it seems to me - that the first group that is

 2     outdoors, that those people seem to be opening their mouths exactly

 3     matching the text.  However, this does not apply to the second group.

 4     I'm not sure whether their facial expressions and movements correspond to

 5     the words we can hear.  In case of the first group this seems to be so

 6     and in the case of the second group, I am unsure of that.  Thank you,

 7     Your Honour.

 8             JUDGE ORIE:  Yes.  Now, for our understanding, Mr. Petrovic, do

 9     you say be very cautious in attaching weight and interpreting the,

10     especially the second part where people in this canteen or mess are shown

11     simultaneously with an audio stating a text that it may well be that

12     these are not the persons who are speaking these words, or is it -- then

13     it would go to weight and admission -- weight and interpretation of the

14     evidence, or do you -- is it your argument that it should not be admitted

15     for that reason?

16             MR. PETROVIC: [Interpretation] Your Honour, this does not seem to

17     me to be the reason not to be admitted.  I only wanted to express my

18     doubts as to the issue of weight that should be attached to it.  I don't

19     think the conditions for admission were not met, however, I do believe

20     that there is an issue of weight and interpretation because although I'm

21     no expert, but it doesn't seem to me that the people open their mouths

22     the way we can hear on the audio track.  And you, of course, will attach

23     appropriate weight to it as you deem appropriate.

24             JUDGE ORIE:  Certainly a number of them facing the camera with

25     their backs which makes it at least a bit difficult to find out whether

Page 5935

 1     they opened their mouth or not, because we needed a second camera in that

 2     respect.  Football matches are better recorded than these type of

 3     meetings.  Seven cameras.  Mr. Petrovic, you apparently formed an opinion

 4     about the words spoken and you say it in good conditions we were able to

 5     hear what was said and consider it possible to transcribe those text.

 6     Would you --

 7             MR. PETROVIC: [Interpretation] Absolutely, Your Honour.

 8             JUDGE ORIE:  Would you assist CLSS if others would have problems

 9     then to say this is what I hear, and I can imagine that a common effort

10     might lead to an agreement on the words -- the words that could be heard

11     on the audio, whether spoken by the persons shown or not.  Would you be

12     willing to --

13             MR. PETROVIC: [Interpretation] Of course, Your Honour.

14             JUDGE ORIE:  Mr. Groome.

15             MR. GROOME:  Your Honour, just in resolving the issue of who is

16     speaking and if it's the people that are depicted on the video.  I'm not

17     sure there's forensic expertise that would resolve that, but it seems to

18     me if the Defence did not oppose and the Chamber accepted the Prosecution

19     could take a short statement from the maker of the film and ask him how

20     it was he produced this particular clip, and if it would be admitted

21     under 92 bis, the Chamber would have some additional information that

22     would help it in deciding what weight if any should be placed on the

23     clip.

24             JUDGE ORIE:  Yes, if you want to, and -- if you don't have it, we

25     have to do with the evidence as its there.  If you want to add anything.

Page 5936

 1     Of course, apart whether there is any forensic expertise, of course we

 2     have some evidence that links those words spoken to meals, for example,

 3     that's not to say that this is the final evidence that those who are

 4     seated at tables and apparently having their meals did speak those words,

 5     but as I said before, evidence will be interpreted in its -- in the

 6     context of the entire evidence.

 7             MR. PETROVIC: [Interpretation] Your Honour, by your leave I'd

 8     like to add another sentence.  It seems to me that my learn friend

 9     Mr. Groome's idea is a constructive one, although I believe it is

10     important to see what the person editing the footage might want to say as

11     well as the person recording it.  I'm not sure whether Mr. Groome had in

12     mind the person recording the film in the mess or the one editing it.  I

13     think both would be useful, given that this footage will be an issue of

14     further discussion, not only in relation to this segment, but we will

15     also have additional questions in different stages of our case.

16     Actually, this should be the beginning of the process of shedding more

17     light on who recorded what and who edited what part and in that sense it

18     might come in handy.

19             JUDGE ORIE:  Yes.  As a -- Mr. Jordash.

20             MR. JORDASH:  Your Honour, I would only add that in our view that

21     should be done and in our view admissibility should be decided at that

22     point.  If what comes back from that investigation suggests that it is a

23     voice-over and it's a voice-over purely for, shall we say artistic

24     reasons, for impact, Your Honours may take the view that it should be --

25     it isn't admissible.

Page 5937

 1             JUDGE ORIE:  Yes.  Whether we subscribe to that is another

 2     matter, but both parties, both Defence teams are thinking, Mr. Groome,

 3     that it would assist the Chamber in reaching a decision on admissibility

 4     if that information would be known.  Now, it comes as a bit of a surprise

 5     because part of the video there seems to be no problem.  It would only

 6     cover the second part of the video.  And when Mr. Petrovic suggests that

 7     we should both hear the one who recorded it and the editor, I think the

 8     first and most important person would be the person who recorded it,

 9     because if he says what you see on your screen and what you hear is

10     exactly what I heard and saw when I made the recording, then to go into

11     further details as to what was edited on this video or not seems not to

12     be very important.  So the Chamber leaves it in the hands of the

13     Prosecution, but certainly understands the submissions by the Defence

14     teams as encouragement, encouragement which are quite understandable for

15     the Chamber.

16             MR. GROOME:  Yes, Your Honour.  Just a couple of points.  I had a

17     detailed conversation with the maker of this film, Philip Svarm about how

18     he produced the film.  His people did not record the original footage or

19     most of it.  He did record some interviews, so some of the interviews the

20     Chamber saw with respect to General Milovanovic, for example.  He was the

21     videographer.  But with respect to the archival footage, that was footage

22     that his investigation and his efforts was able to obtain, and it was

23     recorded by unknown people to him, but they were obtained from people who

24     had some connection with the units that are depicted there.  So I don't

25     believe I'll be able to produce the people that recorded those two

Page 5938

 1     excerpts in question, but I can produce Mr. Svarm.  Could I at this point

 2     solicit both the Defence and the Chamber's view on their position with

 3     respect to inviting Mr. Svarm to come as a witness and to answer any

 4     questions that the Chamber or Defence may have with respect to his

 5     documentary?

 6             JUDGE ORIE:  Well, much depends on what exactly his role was,

 7     what techniques were used.  For example, sometimes techniques are used

 8     where video and audio are an almost inseparable thing together, and where

 9     you start cutting and editing that you always cut and edit both the video

10     and the audio at the same time; whereas, sometimes these are separate

11     tracts where you could separate the audio from the video.  So there's --

12     it depends a lot on, of course, we -- if full information by the parties

13     would lead to an agreement on whether there's a possibility that the

14     words spoken, especially then in the canteen, would have been taken from

15     somewhere else and then pasted to that video, if you could agree on

16     whether that is a possibility or has not happened, then to inform the

17     Chamber about that.  Because if finally the matter would have to be

18     settled in this courtroom -- I'm not saying that I would not be delighted

19     to ask all the technical questions, but if there's no need to do that, we

20     should avoid spending time in court on it.

21             So therefore, what first should be done is that you fully

22     disclose all the information you have about recording, editing of this

23     video, and see whether this leads to a common interpretation of what we

24     see.  If not, then of course, you could consider if it is -- if you find

25     it important enough to also have the canteen or the mess part in evidence

Page 5939

 1     apart from the other part, or whether you can live with some uncertainty

 2     and put it in the hands of the Chamber to decide whether or not it will

 3     accept that portion of the video as depicting persons who are speaking at

 4     the same time the text.  It's finally up to you, Mr. Groome, to make

 5     those assessments, but I do understand that the Defence teams would be

 6     willing to participate in a further exploration of the matter that is

 7     telling you what in their view should be known in order to come to

 8     certain conclusions.

 9             MR. PETROVIC: [Interpretation] That's right, Your Honour, but

10     only there is a risk for us to stray a bit from the main topic that you

11     have raised, which is very important for this video.  One of the key

12     problems that arises there is what was used in editing this material,

13     what we are discussing here, there are two segments that each lasts 5, 6,

14     or 7 seconds.  The person who shot this film probably compiled this using

15     a larger volume of the material.  This larger volume of material can

16     provide a better key information and context and in view of the

17     importance attached to it by our learned friends from the Prosecution, it

18     is so important now to deal with this in great detail.  We need this

19     person to tell us what material he used when he was editing, which

20     original tapes he used, how he had obtained them, and I think that would

21     be a critical topic that we need to address as soon as possible.  Thank

22     you, Your Honours.

23             JUDGE ORIE:  First and foremost it is important for you as

24     parties to obtain that information and then to see how to procedurally

25     proceed with that information.  Also, whether you would like to call the

Page 5940

 1     editor if it ever comes to that to Defence case or whether -- I mean,

 2     there's of course, some margin of appreciation for each party, although

 3     it's always good that Prosecution listens well to the Defence and that

 4     the Defence listens well to what the Prosecution can tell us.

 5             I suggest that we -- what we have left is the D part of the MFI

 6     list and I take it that we need another half an hour for that after the

 7     break.  We'll have a break and we resume at five minutes past 12.00.

 8                           --- Recess taken at 11.36 a.m.

 9                           --- On resuming at 12.12 p.m.

10             JUDGE ORIE:  Mr. Hoffmann, I was informed that you could address

11     the Chamber in relation to the P355, that is the discrepancy between the

12     words appearing underneath the video and the picture of the video, and

13     what was translated to us in court.

14             MR. HOFFMANN:  Yes, Your Honour.  It seems that there had been a

15     misinterpretation or misrecording at the time in court, that is on

16     LiveNote on the transcript that has been in the meantime corrected, at

17     least in most part.  It reads now at transcript T-4239, there is now the

18     reference to the special units of the Republic of Serbian Krajina; in

19     brackets it says "realtime transcript read in error 2nd Krajina Corps."

20     I've checked the transcripts, we uploaded both in B/C/S and English, do

21     refer to the RSK MUP units.  The subtitles in the video-clip we played

22     and provided refers to the RSK special units.

23             The one thing which I have to follow up with CLSS is that the

24     current transcript on the record still misses the word "MUP," but the

25     main issue 2nd Krajina Corps versus the RSK units that has been already

Page 5941

 1     solved on the record.

 2             JUDGE ORIE:  Yes, so therefore the discrepancy doesn't require or

 3     relieve you of the video material, that's I think, important that MUP

 4     still to be -- "MUP" is still missing, is that -- that's a translation

 5     issue you'll --

 6             MR. HOFFMANN:  It's not a translation issue, it's simply missing

 7     on the record of that testimony on that day.  I just reviewed the video

 8     again, it's very clear in the question of the journalist that he does

 9     refer to the RSK MUP, just the word "MUP" is missing in the transcript in

10     LiveNote.  That's all.  It's in the transcript -- in the translations and

11     transcript that we uploaded for P355, it is included.  In the subtitle

12     it's included.  The only issue where it's missing is the LiveNote

13     transcript of that day.

14             JUDGE ORIE:  Yes.  Now, either we live with this small

15     imperfection which has then been put on the record by this discussion or

16     does any of the parties insist on having the transcript being reviewed

17     any further?  Parties are satisfied with Mr. Hoffmann's explanation.

18     Then I think it would be wise to leave it to that.  If it would be a

19     vital issue in the case, then of course, it would be different, but it

20     seems to be a really marginal matter.

21                           [Trial Chamber and Legal Officer confer]

22             JUDGE ORIE:  Yes, as far as whether or not the Defence had

23     communicated to the Chamber staff it's position in relation to P166, I do

24     understand that there has been a open and fruitful decision which doesn't

25     need any further reflection on the transcript.

Page 5942

 1             Then I'd like to move to the remaining items on the MFI list, and

 2     we start now with the Defence exhibits.  We start with D3.  On the 19th

 3     of February the Trial Chamber asked the parties to sit together and to

 4     see whether the admission of portions of the Milosevic transcript could

 5     remedy the objections that were raised.  On the 25th of May, the

 6     Prosecution reported that it had sent a proposal to the Simatovic

 7     Defence, and the Chamber then gave Simatovic Defence five days to report

 8     back.  Have we heard anything since then from the Simatovic Defence?

 9             MR. PETROVIC: [Interpretation] Your Honours, after a day or two,

10     we notified the Prosecutor about our position regarding D3, with respect

11     to both the transcript and the exhibit itself.

12             JUDGE ORIE:  Okay.  And then what is now the position?

13             MR. GROOME:  Your Honour, our position remains that the event

14     with respect to the witness speaking with this other person, the most

15     reliable evidence is his sworn testimony in the Milosevic case, and it's

16     our position that the prior statement that was tendered by the Defence is

17     unreliable on its face and also in light of the sworn testimony provided

18     by that witness about the matter in the Milosevic case.

19             JUDGE ORIE:  And that would -- the Chamber then, if it would not

20     be in evidence, would miss an opportunity to interpret both the Milosevic

21     evidence and this evidence in the context of all kind of other evidence

22     we still may receive.  So therefore the question is then, is it a reason

23     to -- you say it's unreliable --

24             MR. GROOME:  Perhaps Your Honour is right, it's a matter of

25     argument and how the Chamber is to interpret --

Page 5943

 1             JUDGE ORIE:  Yes, because we started, I think, as a matter of

 2     fact, with the authenticity issue, isn't it?

 3             MR. GROOME:  Yes, Your Honour.

 4             JUDGE ORIE:  Now, does the objection to admission stand or not?

 5             MR. GROOME:  Your Honour, the -- qualified -- if the Chamber is

 6     minded to admit both contradictory pieces of evidence on this, the

 7     testimony as well, then the Prosecution would withdraw its objection to

 8     the admission of the initial document.

 9             JUDGE ORIE:  Yes.  Now, isn't it true that the Milosevic

10     transcript wasn't admitted into evidence, isn't it?  Or have we -- and

11     then we still have to -- we'll consider the matter.  We take notice that

12     you -- the Prosecution says if the Milosevic evidence is admitted, then

13     you don't object to this, I would say, contradictory evidence in order

14     for us to evaluate what to believe and what not to believe.

15             MR. GROOME:  That's a fair characterisation of our position, Your

16     Honour.

17             JUDGE ORIE:  Yes.  One second.

18                           [Trial Chamber and Legal Officer confer]

19             JUDGE ORIE:  Yes, I was -- I'm now -- Mr. Petrovic, you gave your

20     position to the Office of the Prosecution.  Was there finally an

21     agreement on what portions of the Milosevic testimony should then be

22     selected for admission so that we have the full picture, is that --

23             MR. PETROVIC: [Interpretation] Yes, Your Honour.  Precisely the

24     portion mentioned in his letter by Mr. Groome.  That particular portion

25     from the Milosevic transcript is acceptable to us.  I don't have the page

Page 5944

 1     number in front of me, but we can easily establish that.  So that, and D3

 2     constitutes the solution to the whole problem that we are facing.

 3             JUDGE ORIE:  Yes.  Although has the Chamber been informed about

 4     what exact portion then, I think we don't have a letter identifying the

 5     relevant portion.  So what we need to know is at this moment what portion

 6     of the Milosevic the parties agreed that could be admitted, and then

 7     admit that together with D3.

 8             MR. GROOME:  Your Honour, I've just retrieved the e-mail, and if

 9     you give me a few moments we can return to this.  In a few moments I

10     should have that transcript page reference.

11             JUDGE ORIE:  Yes, but has it been uploaded?  I mean --

12             MR. GROOME:  I don't believe it has, Your Honour, because I don't

13     even have a record of Mr. Petrovic's response, but I take him at his word

14     that he has responded.

15             JUDGE ORIE:  May I suggest the following:  You make a joint

16     filing in which you set out that you have agreed on admissibility of

17     Milosevic transcript so and so and so and that under those circumstances

18     that any objections against the three do not any longer stand, and on our

19     next housekeeping session we'll admit both into evidence.  Meanwhile, you

20     take care that it -- the relevant portions are uploaded, Milosevic D3 is

21     uploaded.

22             MR. GROOME:  Yes, Your Honour.

23             MR. PETROVIC: [Interpretation] It's all right with us, Your

24     Honours.

25             JUDGE ORIE:  Then we'll resolve that.  D13, there was a issue in

Page 5945

 1     relation to the year of birth of the person that appears in the document.

 2     The Chamber has further looked into the matter and has compared, for

 3     example, the name of the father, previous occupation of that person, and

 4     at this moment, the slight inconsistency does not bring the probative

 5     value of this document below the required standards.  And, therefore,

 6     there seems to be no obstacle to admission any longer.  We do understand

 7     that D13 is now uploaded in its entirety, the missing page being added.

 8     Therefore, D13 is admitted into evidence.

 9             MR. JORDASH:  Your Honour.

10             JUDGE ORIE:  Yes, Mr. Jordash.

11             MR. JORDASH:  For Your Honours' information, that's been uploaded

12     at -- the official translation has been uploaded at 5931 to 5932.

13                           [Trial Chamber and Legal Officer confer]

14             JUDGE ORIE:  If the translation differs from the previous one,

15     Madam Registrar is instructed to replace the new translation -- to

16     replace the old translation by the new one referred to by Mr. Jordash.

17             For the next item we have to move into private session.

18                           [Private session]

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 5946

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23                           [Open session]

24             THE REGISTRAR:  We are in open session, Your Honours.

25             JUDGE ORIE:  I now move to D30, which was a document which was

Page 5947

 1     not at the time yet uploaded.  I do understand that the document has now

 2     been uploaded.  It was known under 65 ter number 1D186.  Since there were

 3     no objections against admission, this 1D186 now uploaded can be linked

 4     with D30 and D30 is admitted into evidence.

 5             We'll not deal at this moment with D40.  I move to D55.  D55,

 6     organisational principles for setting up an internal affairs service.

 7     One of the issues was whether the original version of that document could

 8     be found.  Has it been found?  Because it was a document which was

 9     provided by Mr. Stanisic and ended up in the electronic systems in that

10     way from what I remember.

11             MR. JORDASH:  Apologies, but we haven't advanced the matter as

12     yet.  I hope to travel to Belgrade very soon and hopefully be able to

13     assist Your Honours with some more information.

14             JUDGE ORIE:  Yes.  What about before the recess?

15             MR. JORDASH:  Yes, before the recess.

16             JUDGE ORIE:  And then you would include D56 as well, I take it,

17     which has a similar story.  Now, it seems that D56, that nothing at all

18     has been uploaded, so there we are still talking about a vacuum.  So what

19     is there apart from your search for a more original version, could you at

20     least upload into the system what we have at this moment.

21             MR. JORDASH:  I think, Your Honour, that D56 has been uploaded

22     and it's at 1D251.

23             JUDGE ORIE:  1D251.

24             MR. JORDASH:  Yes, Your Honour.

25             JUDGE ORIE:  And that seems, I'm informed, that this is related

Page 5948

 1     to, I can check that, to D58.

 2             MR. JORDASH:  No, I don't think that's right, Your Honour.  I

 3     think that exhibit concerned the Simatovic team who were going to provide

 4     a translation.

 5                           [Trial Chamber and Legal Officer confer]

 6             JUDGE ORIE:  Some mistakes were made at our side as well.  As far

 7     as D55 and D56 is concerned, the search continues, and you check what is

 8     uploaded and what is not uploaded.  Don't have to pay attention to it

 9     now.  Then we move to D58 which is the Simatovic, that is 2D62, I take

10     it.  Has that been uploaded and has a translation been uploaded?

11             MR. BAKRAC:  [Interpretation] Your Honour, I think we do have a

12     translation, and we are now in touch with our associates.  Yes, it's all

13     been uploaded and the translation of D58 has been received.  It is 2D192

14     and not 2D62, Your Honour.

15                           [Trial Chamber and Legal Officer confer]

16             JUDGE ORIE:  Yes.  D58 is not yet admitted into evidence because

17     there seems to be great confusion about what document we are actually

18     talking about.  This will be sorted out out of court until the parties

19     agree what was at the time uploaded, what was at the time discussed which

20     was at that moment described as one of the patriotic war documents of the

21     Republic of Croatia found in the office of the Croatian president, which

22     is not a very precise description.  The parties should sit together and

23     to see what was discussed at that time in court, what was tendered,

24     whether that is -- which at the time was 2D62.

25                           [Trial Chamber and Registrar confer]

Page 5949

 1             JUDGE ORIE:  Yes.

 2             MR. BAKRAC:  [Interpretation] Your Honour, by your leave perhaps

 3     I may be of assistance.  There was an error in translation.  It was

 4     marked as 2D62 instead of 2D122, perhaps this may help resolve the

 5     matter.

 6             JUDGE ORIE:  Yes.  The problem was that at the time you had

 7     tendered it, that although the number D58 was reserved for that document,

 8     and there apparently were no -- we only had hard copies.  So we have to

 9     verify first whether the hard copy that you distributed in court and

10     which was assigned number D58, whether that is the same document as the

11     document which is now uploaded as 2D122.  Madam Registrar will do this

12     verification out of court and will report back to the Chamber.  It may be

13     clear that the document which was discussed at the time and distributed

14     in hard copy is the only document that could now under D58 be admitted

15     into evidence under whatever 65 ter number it is uploaded but it should

16     be the same document, nothing else.  And we leave that until

17     Madam Registrar has verified that.

18             For D60, D61, D62, D63, D64, D65, and D66, which are all

19     documents dating from 2006 to 2008, the parties would be given an

20     opportunity to make further submissions as to relevance.  That's the

21     issue in relation to all these documents, Mr. Groome.

22             MR. GROOME:  Your Honour, exhibits D60 to D66 marked for

23     identification contain internet articles and medical records related to

24     the witness Dejan Sliskovic.  Mr. Sliskovic and at least 20 other

25     employees of the Petrokemija factory were engaged in the chemical

Page 5950

 1     processing of mercury during their employment.  As a result of their

 2     duties, the employees sustained mercury poisoning.  The Prosecution was

 3     given the English translations of these documents which include expert

 4     materials at the start of court on the 19th of May.  This was not an

 5     adequate opportunities for materials of an expert and technical nature to

 6     be reviewed; however, based on the cursory review that the Prosecution

 7     was able to do, we did not see any record of any permanent defect or

 8     disability which would have been relevant to the Trial Chamber's

 9     assessment of Mr. Sliskovic's reliability as a witness.  The Prosecution

10     sought to be heard on its objection and maintained that the entire line

11     of questioning and these exhibits should not be allowed at transcript

12     page 5232.

13             The Chamber indicated that the parties would have an opportunity

14     to further address the relevance, and so I would it now.  As a general

15     matter, it's the Prosecution's position that private medical information

16     of witnesses should not be needlessly thrust into the public domain

17     simply because they are called as a witness.  Even if the witness is

18     willing to discuss this information, as Mr. Sliskovic was, this

19     willingness does not equate to the medical information being relevant to

20     this case.  Furthermore, this type of medical evidence has little

21     probative value without proper context and expert testimony.

22             With respect to the examination concerning exhibits D60 to D66,

23     the Prosecution notes that some of the questions put to the witness in

24     relation to these documents had little or nothing to do with the

25     substance of the exhibits themselves.  As an example, the first document

Page 5951

 1     displayed and publicly broadcast was Exhibit D60 on which is a 9th of

 2     June, 2008, internet article entitled "Hypertension, Headaches, Dizziness

 3     and Sterility," all purporting to be conditions suffered by the witness.

 4             On page 5233, the Simatovic Defence begins its entire line of

 5     examination by confirming that the photograph of the witness -- the

 6     photograph of the witness depicted on the first page under the title of

 7     the article.  The initial reports appear to indicate that the witness did

 8     suffer from temporary and treatable anxiety and depression as a result of

 9     the mercury poisoning in 2006.  This temporary condition and treatment

10     was portrayed out of context during examination.  As an example, the

11     witness had a severe reaction to his initial medication which was changed

12     to a much less powerful and common over-the-counter drug.  The Defence

13     asked about the witness finding himself at different locations on pages

14     5239 and 5240, but did not elicit evidence that this was caused by this

15     medication.  The witness also contested the journalist account of the

16     medical reports without the referenced reports being tendered.  There

17     does not appear to be any indication that any of these psychological

18     effects of the mercury poisoning or treatment were permanent.

19     Accordingly, none of the --

20             JUDGE ORIE:  [Overlapping speakers]

21             MR. GROOME:  My apology to the French booth.

22             Accordingly, none of this evidence appears relevant to the

23     Chamber's assessment of Mr. Sliskovic's reliability as a witness.

24             The Prosecution believes that the confidential medical documents

25     from a court file and internet articles containing characterisations of

Page 5952

 1     medical treatment by lay journalists are needlessly discussed in court.

 2     The Prosecution submits that it would only be proper at this stage for

 3     the Simatovic Defence to articulate what it was the specific reason and

 4     the relevance with respect to the value of these exhibits.

 5             JUDGE ORIE:  Mr. Bakrac.

 6             MR. BAKRAC:  [Interpretation] Your Honour, I apologise.  We did

 7     not have the agenda for today.  I see that Mr. Groome had already

 8     prepared himself to speak on this topic.  I can only speak from my memory

 9     based on what I can recall about my cross-examination and based on our

10     general position.

11             JUDGE ORIE:  Mr. Bakrac, in the response, Mr. Groome asked for

12     the Simatovic Defence to articulate what was the specific reason and the

13     relevance with respect to the value of these exhibits.  Your answer

14     starts more or less by saying, well, we may not be fully prepared,

15     Mr. Groome was.  Well, of course, he has the agenda as you had it, that

16     is to go through the MFI list, and whatever is on the MFI list is

17     therefore on our agenda.  So at the same time I don't want to force you

18     now into the matter, I suggest that you prepare --

19             MR. BAKRAC:  [Interpretation] Your Honour, I can certainly speak

20     on that and should there be any further necessary comments, I can ask for

21     your leave to put it in written form.  The witness was brought here who

22     was supposed to testify of certain events which took place 20 years ago.

23     In the meantime, he fell ill and we showed the medical certificates to

24     you.  He did not contest that.  Inter alia, we concluded that he had an

25     obsessive disorder, such was the finding of the treating physician.  I

Page 5953

 1     cannot be any more precise than that.  And the witness confirmed himself

 2     that he frequently simply tried to reach a certain location and find

 3     himself three hours later at another location without any memory of how

 4     he got there.

 5             JUDGE ORIE:  Mr. Bakrac, Mr. Groome and you are talking about two

 6     different matters.  You are arguing what your conclusions are and what

 7     your interpretation of all that is, whereas Mr. Groome challenges the

 8     admissibility of the evidence on a bit more technical grounds.

 9             The main issue being to what extent what was established at that

10     moment in various sources from journalistic to court reports whether that

11     needs further expert interpretation or needs further elaboration, that's

12     one.  And the second, and that seems to be the more important one, is to

13     what extent what was established at the time, and let's just assume that

14     you give the Court always the detailed information and not the

15     information which is, well, a bit coloured perhaps in favour of the case

16     you are bringing before that Court, but to what extent that information

17     would still be valid at this moment.  How long does such an intoxication

18     have effect, you need expert evidence for that.  That's what Mr. Groome

19     is saying.

20             So apparently you are talking at least for -- well, let's say for

21     60 per cent about different problems, and the Chamber is assisted by two

22     parties discussing the same problem and not different problems.  I

23     suggest, and perhaps we could then, Mr. Groome, would it be an excessive

24     burden for you to put what you already prepared in a short written

25     submission.

Page 5954

 1             MR. GROOME:  No, Your Honour.

 2             JUDGE ORIE:  And then you could respond in also a short written

 3     submission.  We don't need all details and a lot of background, just

 4     enough to identify what we are talking about.  Then --

 5             MR. BAKRAC:  [Interpretation] Thank you.

 6             JUDGE ORIE:  The next one on my list is D68.  You had not seen

 7     that document because it was disclosed to you only minutes before it was

 8     tendered, Mr. Groome.  Has the Prosecution formed its opinion about it?

 9     You are supposed to have given your opinion on the 27th of May.  My

10     report says that you didn't do that, perhaps there was no time, I don't

11     know, but what is your position as far as admission of D68 is concerned?

12     Any objections?

13             MR. GROOME:  Your Honour, could I have just a few minutes.  I

14     apologise for being caught off-guard with that particular exhibit.  See

15     if I can get information as soon as possible.

16             JUDGE ORIE:  Yes.  Meanwhile, I move on to D69.  D69 is a

17     document where we had no translation when it was given to witness JF-035

18     to read parts of it.  It was then asked whether what was stated in the

19     document, whether that was consistent with his knowledge.  First of all,

20     do we have a translation by now?

21             MR. PETROVIC: [Interpretation] Your Honour, yes.  Excuse me, we

22     asked for a translation but it is still pending.

23             JUDGE ORIE:  Okay.  Once that translation is there, of course the

24     OTP should have been opportunity and same for Stanisic Defence to look at

25     the document and apart from that, then also to see whether the whole of

Page 5955

 1     the document should be admitted or just the portions read or whether they

 2     would have any suggestions for further portions to be admitted into

 3     evidence.  We'll wait until the translation is there and then further

 4     discuss admission.

 5             Mr. Groome.

 6             MR. GROOME:  Your Honour, with respect to D68, the Prosecution

 7     has no objections.

 8             JUDGE ORIE:  D68 is admitted into evidence.

 9             Now, we are at D70.  There the question was whether the original

10     version of that document was found because there was an authenticity

11     issue.  D70 is an order, one of the problem was the dates on it, there's

12     a stamp on that document with the date of 11th of July, 1992, although

13     the document dates 1995.  That's the reason why the Chamber would very

14     much like to learn more about the original version of this document and

15     where it comes from and how it was obtained, because that's an

16     inconsistency which is not easy to overcome.  Could the Simatovic Defence

17     inform us any further about these inconsistent dates on the document and

18     provenance of the document?

19                           [Trial Chamber and Legal Officer confer]

20             JUDGE ORIE:  Now, perhaps to -- it was tendered by the Simatovic

21     Defence and they apparently took it from the documents that came from the

22     Prosecution, but the Prosecution says the origin was Mr. Stanisic, so

23     therefore whether it's you, Mr. Bakrac and Mr. Petrovic, or whether it's

24     you, Mr. Jordash, who could help us out to find a solution for a clear

25     intrinsic contradiction in this document.  You are nodding.

Page 5956

 1             MR. PETROVIC: [Interpretation] Your Honour, we will of course do

 2     our utmost to try and ascertain the issue in question.  With all due

 3     respect, however, this document does not appear to me to be one of the

 4     documents that have to do anything with Mr. Stanisic.  I stand to be

 5     corrected, though.

 6             JUDGE ORIE:  The only thing -- I'm not saying -- I do understand

 7     that the origin as recorded by the Prosecution was that it initially came

 8     from Mr. Stanisic.

 9             MR. GROOME:  That's correct, Your Honour.  During an interview.

10             JUDGE ORIE:  So therefore whether it has to deal with him or not

11     or whether it was a private collection or whether he had found it

12     somewhere, I've got no idea, but that's apparently how it came into the

13     disclosure system in this court.  And with this rather obvious

14     inconsistency within the document, we'd like to know more about where it

15     comes from and if possible, to be provided with an original version.

16             MR. JORDASH:  Could we have a little more time to look into that.

17     We've --

18             JUDGE ORIE:  Yes.  Well, first of all, it's not your duty to do

19     that because -- but of course, it's appreciated that you want to assist

20     the Simatovic Defence in this because they are tendering it.  Prosecution

21     says don't ask us any further because it comes from Mr. Stanisic, and you

22     therefore may be the key player to resolve the matter, Mr. Jordash.

23     Please inform the Chamber as soon as you have any news about that.

24             D75 is the last one on my list.  There was no objection but there

25     was no translation yet of this registration form used for displaced

Page 5957

 1     persons.

 2                           [Trial Chamber and Legal Officer confer]

 3             JUDGE ORIE:  Yes.  Perhaps I should have said and there is no

 4     official translation yet, there is kind of a draft translation.

 5             MR. JORDASH:  Your Honour, we have e submitted the document for

 6     translation and we await.

 7             JUDGE ORIE:  Okay.  Then we'll wait until that's ...  That

 8     concludes what was on my agenda.  Any other matter?  Mr. Hoffmann.

 9             MR. HOFFMANN:  I would just briefly like to come back to Exhibit

10     D58.  I think I can actually facilitate the solution of that issue.

11             JUDGE ORIE:  Yes.

12             MR. HOFFMANN:  It was used by the Defence on 13 May this year, it

13     was witness JF-038.  And it can be found at transcript 4965.  I think the

14     Defence already indicated that at the time the wrong 65 ter number was

15     used.  On that page we can find the reference to 65 ter 2D62, while in

16     fact it should be 2D122.  For the latter 65 ter number, a translation is

17     it now available in e-court.  I reviewed that.  I think the Prosecution

18     has no objection to the admission of that particular document.  Any other

19     matters we had with that document is something that goes to the weight.

20             JUDGE ORIE:  And was that the document that was produced in hard

21     copy in court?

22             MR. HOFFMANN:  Yes, that's the hard copy that I think three pages

23     from a book that was presented in hard copy.  I can verify that what I've

24     seen in ringtail here is what was used during cross-examination.  But

25     again it's 2D --

Page 5958

 1             JUDGE ORIE:  What you say is -- what you say is the following:

 2     You say 2D122 is the uploaded document which is the same as the hard copy

 3     that was shown in court and which was assigned D58.

 4             MR. HOFFMANN:  Yes.  I think that was what the Defence said and I

 5     can verify that.  And having seen the translation in e-court as well just

 6     now, I can say that the Prosecution has no objection to the admission of

 7     this document.

 8             JUDGE ORIE:  Yes.  Mr. Petrovic.

 9             MR. PETROVIC: [Interpretation] Your Honour, I think that my

10     learned friend Mr. Hoffmann is right.  It is the document.  I used the

11     document myself and I said -- I gave the number in B/C/S and it was

12     correct, but it was transcribed wrongly and hence the confusion.  It is a

13     document that Mr. Hoffmann just referred to and the document that was

14     distributed to everyone in hard copy.

15             JUDGE ORIE:  Yes.  Now, D58 is admitted into evidence and D58 is

16     the document which was distributed in court.  I think it was on the 25th

17     of May, if I'm not mistaken.

18             MR. HOFFMANN:  If I may, it was 13 May.

19             JUDGE ORIE:  13th of May.

20             MR. HOFFMANN:  JF-038.

21             JUDGE ORIE:  Yes.  So therefore, D58 is the document which was

22     shown on the 13th of May in court, and is uploaded now under 2D122.  It

23     is admitted into evidence and Madam Registrar is instructed to verify the

24     accuracy of the statement that 2D122 corresponds with the hard copy which

25     was on the 13th of May distributed in court.  If this verification would

Page 5959

 1     lead to anything else than a positive result, we'll further discuss the

 2     matter.

 3             Then finally, there's one other matter which I'd not like to deal

 4     with at this moment, but the P540 up to P547, there may be -- they have

 5     been admitted into evidence already, there may be some uncertainty about

 6     what 65 ter numbers they correspond to.  Madam Registrar, would you

 7     please -- I invite you to make that in a short -- to set that out in a

 8     short table, submit it to the parties so that they can verify.  Perhaps

 9     you already briefly need P540 would be?

10             THE REGISTRAR:  65 ter 5001.

11             JUDGE ORIE:  P541 would be.

12             THE REGISTRAR:  65 ter 5002.

13             JUDGE ORIE:  P542.

14             THE REGISTRAR:  5003.

15             JUDGE ORIE:  P543.

16             THE REGISTRAR:  5005.

17             JUDGE ORIE:  P544.

18             THE REGISTRAR:  5008.

19             JUDGE ORIE:  P545.

20             THE REGISTRAR:  5117.

21             JUDGE ORIE:  P546.

22             THE REGISTRAR:  5118.

23             JUDGE ORIE:  P547.

24             THE REGISTRAR:  5119.

25             JUDGE ORIE:  Thank you, Madam Registrar.

Page 5960

 1             The Chamber meanwhile received the forms absent from court which

 2     says due to illness, although the explanation says that it's not due to

 3     illness, both accused have stated that it's not due to illness but

 4     there's no necessity to go to court, and we have this put on paper and we

 5     have received it.  Any other matter?

 6             Then we will adjourn, and as matters stand now we will resume on

 7     the Monday, the 28th of June, quarter past 2.00 in the afternoon in this

 8     same Courtroom II.

 9                           --- Whereupon the hearing adjourned at 1.08 p.m.

10                           to be reconvened on Monday, the day of 28th day

11                           of June, 2010, at 2.15 p.m.