000225IT

Page 15066

1 MR. NICE: -- and I'm not sure how we're

2 going to deal with that.

3 JUDGE MAY: Yes. We have it in mind.

4 MR. NICE: Thank you.

5 There is now in place, I think, an

6 arrangement for the taking of videolink evidence from

7 three witnesses next Wednesday. I'm hopeful, indeed,

8 that we can accomplish three witnesses in the single

9 day. It may be necessary, of course, to have a full

10 day, and one's always got to have a certain anxiety

11 about the technical side of things going wrong, because

12 it sometimes breaks down. Obviously, I'll be dealing

13 with witnesses in as compact a way as I can by the

14 production of summaries which they will acknowledge and

15 so on.

16 I'm asked to have in mind at least the

17 possibility that there may be the need, for one reason

18 or another, to extend into Thursday, when it's known

19 that His Honour Judge Robinson wouldn't be available,

20 and I've been asked to at least give consideration to

21 the possibility of the Chamber, if necessary, dealing

22 with that evidence by just two of its members, if there

23 is an accidental spillage over. So I mention it now

24 rather than the matter arising later.

25 Then the only other outstanding matters until

Page 15067

1 we can deal with the village witnesses and exhibits is

2 just to notify you that in relation to the taker of the

3 statement of the deceased witness, we've had a couple

4 of inquiries which we've been able to respond to, and

5 we're going to be told next week if that witness is

6 required, and if not, she won't be called. She's only

7 available on a couple of days next week.

8 I think Mr. Lopez-Terres is in a position to

9 deal with the binder of Novi Travnik, if that would be

10 convenient.

11 JUDGE BENNOUNA: Excuse me. What do you mean

12 exactly by "deal with the binder"? That means what?

13 Because I would like to know the l'ordre du jour. The

14 problem of dealing with the binder exactly, what are

15 the questions concerned there?

16 MR. NICE: In each case, we have to be sure

17 that there is agreement about what material is in and

18 is not being objected to in the binder, because the

19 binder then becomes part of the record of the hearing,

20 that's all, and it's better for these things to be

21 dealt with --

22 JUDGE MAY: The binders should be in court.

23 Are they in front of us? Perhaps Judge Bennouna would

24 like one.

25 Mr. Lopez-Terres, let's deal with Novi

Page 15068

1 Travnik. I've got the index. There's mention of a

2 report, you haven't included that, obviously; there's

3 the census and the videos, which have already been

4 tendered; the statements, which presumably you're not

5 going to try and argue should be admitted; then we come

6 to the transcripts. Now, you'll have to help. These

7 are the -- I'm looking at number 5, transcripts, these

8 are the Kordic witnesses?

9 MR. LOPEZ-TERRES: [Interpretation] Yes.

10 JUDGE MAY: So they won't be in the binder,

11 presumably.

12 MR. LOPEZ-TERRES: [Interpretation] It's an

13 inventory of all the exhibits referring to the facts

14 committed in the municipality of Novi Travnik,

15 including exhibits concerning our case and which are

16 only there as a reminder.

17 JUDGE MAY: Then turning to the exhibits,

18 most have already been tendered --

19 MR. LOPEZ-TERRES: [Interpretation] Under the

20 category, paragraph 6, maps, there is Exhibit 1960 and

21 1962, which, until now, have not been presented to your

22 Chamber, and they do not appear to us to be

23 indispensable, in view of the large number of maps that

24 we have seen, to tender these new maps. They are there

25 simply as part of the inventory because we have tried

Page 15069

1 to be as exhaustive as possible and to identify all

2 those documents.

3 As regards the maps, I think that the Office

4 of the Prosecutor is no longer going to request that

5 they be admitted.

6 On the other hand, regarding Category 7,

7 there are several documents which have still not been

8 admitted. There is 7.1, 7.2.

9 Regarding 7.2, we have the first order,

10 signed by Anto Valenta. We have had no reaction of the

11 Defence regarding their position on this document. The

12 same applies to document 137 a little further on in

13 this paragraph, an ECMM report. Then there is a

14 document relating to Vlado Juric, Exhibit 201. Exhibit

15 241, 243 on which again we have no reaction from the

16 Defence.

17 As regards Exhibit 326, we have decided no

18 longer to include it in this document, the more so as

19 the witness mentioned in connection with this exhibit

20 is a witness that we are going to call to testify

21 before you shortly.

22 As regards Exhibit 396, that is also -- no

23 ruling has been made, as well as 577, 1035, 1148, 1208,

24 1151, 1263. We have still not received any comments

25 from the Defence regarding these documents.

Page 15070

1 JUDGE MAY: Yes. Very well. Mr. Sayers,

2 I'll turn to you first. We have, in these binders, on

3 the whole, following the Tulica decision, admitted the

4 exhibits. Is there any reason in this case why we

5 shouldn't follow the same practice?

6 MR. SAYERS: No, Your Honour. I don't

7 understand the comment made by the Prosecution that

8 there's been no reaction from the Defence. I thought

9 that we had provided copies of our objections to the

10 Prosecution with respect to each of these binders in

11 the format that we've regularly used throughout this

12 case, specifying the precise basis of any objection

13 that we do make to particular documents. Naturally,

14 most of them have either been admitted already or a

15 substantial number of them.

16 THE INTERPRETER: Mr. Sayers, could you slow

17 down, please.

18 MR. SAYERS: But there are objections to the

19 following documents, Your Honour -- may I just inquire

20 if our objections have actually been handed up to the

21 Court.

22 JUDGE MAY: No.

23 MR. SAYERS: They have not?

24 JUDGE MAY: We haven't got those.

25 MR. SAYERS: Well, it seems a sensible course

Page 15071

1 to have additional copies of these templates made and

2 distributed to the Trial Chamber.

3 JUDGE MAY: It certainly would be, but let's

4 try to get on so we don't waste any time.

5 MR. SAYERS: I can state the objections very

6 simply.

7 JUDGE MAY: Yes, state them.

8 MR. SAYERS: With respect to Z1960, we had

9 not been provided with that document. With respect to

10 Z2612.2B, we objected to that document because there is

11 no foundation for it and no authentication.

12 With respect to tabs 7.1 through 7.4, these

13 are untranslated documents. We have not received any

14 translations of them, and we are not, frankly, in a

15 position to evaluate whether there would be an

16 objection until we get the translation.

17 With respect to -- and I'll simply say --

18 recite the documents to which we have specific

19 objections.

20 JUDGE MAY: This is Novi Travnik.

21 MR. SAYERS: Yes. The objections that we

22 have are just to a few documents other than this, Your

23 Honour, and I'll just recite the Z numbers. Z2407.1, a

24 lack of authentication; the same thing for Exhibit

25 Z653.1; and the same things for Exhibit Z243, lack of

Page 15072

1 authentication. Exhibit Z345 has been provided to us,

2 and, finally, Exhibit 1208 contains -- we object to

3 that on the grounds of lack of foundation, lack of

4 authentication, and multiple levels of hearsay.

5 With respect to the other documents, as I've

6 said, they're either admitted already or we have no

7 objection to them.

8 JUDGE MAY: Thank you.

9 MR. MIKULICIC: [Interpretation] Your Honours,

10 fully respecting the principled position expressed in

11 your decision on Tulica, the Defence of the second

12 accused in most cases has no objection to the list of

13 exhibits in the index on Novi Travnik.

14 There are a few minor objections such as, for

15 instance, in relation to Exhibit number 1208, where in

16 the Croatian version a part of the text is illegible

17 relating to the Vitez Brigade.

18 As regards the other documents, with a few

19 objections of irrelevance, but, of course, that is for

20 the Trial Chamber to judge, the Defence counsel of the

21 second accused has no objections.

22 JUDGE MAY: Thank you.

23 Mr. Lopez-Terres, is there anything you want

24 to say?

25 THE INTERPRETER: Microphone, please.

Page 15073

1 Microphone. I'm sorry.

2 MR. LOPEZ-TERRES: [Interpretation]

3 Mr. President, you will remember that during the

4 testimony of a witness from Novi Travnik in September

5 last year, we produced a number of documents which were

6 police reports entitled "Official Reports." Those

7 documents were admitted by your Chamber, and the

8 Defence at the time contested their authenticity or

9 validity. I wish to indicate to the Chamber that in

10 the course of last year January, we identified a

11 certain number of people whose names appear on those

12 police reports, and statements were taken from those

13 persons who confirmed the truthfulness of the facts

14 reported in those reports. The statements appearing in

15 the Novi Travnik binder that has been produced to you

16 are, in many cases, the statements of those persons.

17 So we find ourselves in the following

18 situation: We have the official documents of the

19 police authorities in Novi Travnik, indicating the

20 names of the plaintiffs. The Defence contested those

21 documents. We then went on to interview those

22 plaintiffs, but if we produce those statements, we

23 would be violating the Tulica decision.

24 Therefore, unless there is an objection on

25 your part, and I doubt that you will accept those

Page 15074

1 statements as such, but we thought that we would

2 proceed in regard to those persons by the means of

3 affidavits, as we have done quite recently with others,

4 and that is why those statements appear in the binder.

5 We would then be in the second stage of

6 authentication of those reports.

7 [Trial Chamber confers]

8 JUDGE MAY: We can rule on these matters, and

9 we'll rule in the way that we have already. Of course,

10 as I've said, the witness statements are not

11 admissible, as we said in the Tulica decision.

12 Affidavits, of course, will be another matter. We'll

13 consider them when they're produced. As far as the

14 exhibits are concerned, clearly if there are problems

15 about translation and also non-provision, they should

16 be cleared up, but subject to that, we propose to admit

17 the exhibits. We have done it in the past.

18 The objections in terms of lack of

19 authentication and the like goes entirely to the weight

20 to be given to the exhibits, if any, and that's a

21 matter for us when we come to consider the case as a

22 whole, but it does not prevent their being admitted.

23 So we'll admit the exhibits, not the

24 statements or the transcripts.

25 Can we deal with another one now.

Page 15075

1 MR. LOPEZ-TERRES: [Interpretation] I can

2 refer to the binder on the municipality of Vitez, which

3 obviously includes Stari Vitez, which is covered by the

4 same binder.

5 JUDGE MAY: And now have the Defence

6 objections. Perhaps you could just go through it,

7 please, Mr. Lopez-Terres.

8 MR. LOPEZ-TERRES: [Interpretation] First of

9 all, regarding the exhibits, that is, documents,

10 paragraph 10. We have reviewed the various documents

11 from 221 until the next page, and we have noted the

12 positions of the Defence, which are not always

13 unanimous. There are some documents with which

14 Mr. Kordic agrees, others that only Mr. Cerkez agrees

15 with, and vice versa. There are cases when both of the

16 accused agree with the admission of those documents,

17 have no objection, in other words.

18 So we have a list with all those objections

19 noted. I can go through the list, which might take a

20 bit of time.

21 JUDGE BENNOUNA: [Interpretation] Perhaps it

22 would be better to go the other way round; that is, to

23 refer to those that are objected to. That would be

24 quicker. Which are the problems that remain to be

25 addressed by one or other party? I see that there are

Page 15076

1 many cases where it says it is not in the binder. So

2 if you've updated the binder, there's no problem.

3 Perhaps it would be better to focus on substantial

4 objections if there are any.

5 MR. LOPEZ-TERRES: [Interpretation] There

6 seems to be a number of documents on which the Defence

7 of Mr. Cerkez has not stated its position, so we don't

8 know. Is it implicit admission or rejection? For

9 Exhibit 221, for example, 429, 547, the accused Kordic

10 had no objection, but we have no information from the

11 Cerkez Defence.

12 JUDGE MAY: Can we just go through the index

13 so that we can understand fully what is being sought to

14 be admitted.

15 The index begins with paragraph 1, paragraph

16 2, and paragraph 3, referring to various transcripts,

17 and I take it that there's no question of trying to

18 admit those, that you're merely putting that there for

19 the inventory, as you put it.

20 MR. LOPEZ-TERRES: [Interpretation] Indeed,

21 Mr. President.

22 JUDGE MAY: Then we go to 4, and we get to

23 the exhibits, some of which have already been tendered,

24 some not, and again, you have listed those under the

25 locations, and you've distinguished between those which

Page 15077

1 have been tendered and those which haven't. On the

2 second page, the only ones not tendered to start with

3 are some photographs. I can't imagine there's much

4 objection to them. But then there is -- yes. They're

5 all photographs.

6 On the third page, the Vitez exhibits not

7 tendered, again, photographs, a plan, various other

8 matters there.

9 Then we get to the documents which you've

10 listed, many having been tendered, some in the

11 outstanding exhibits which you have noted in each

12 case.

13 You're asking, Mr. Lopez-Terres, for all

14 these documents to be admitted, those that haven't been

15 already?

16 MR. LOPEZ-TERRES: [Interpretation] Yes. That

17 is our position, Mr. President.

18 JUDGE MAY: It may be simplest to hear from

19 the Defence next and then we'll call on you again,

20 Mr. Lopez-Terres, to answer.

21 MR. LOPEZ-TERRES: [Interpretation] Once

22 again, many of them have been admitted by both accused,

23 but for some documents, as I have said, we only have

24 the reaction of the accused Kordic and for others we

25 have no reaction at all.

Page 15078

1 JUDGE MAY: Yes. Well, thank you.

2 Mr. Sayers, can we deal, first of all, with

3 the exhibits, as they're called, photographs and

4 plans? Is there any objection to any of them?

5 MR. SAYERS: We have stated objections, Your

6 Honour, to the photographs or some photographs. As you

7 quite correctly point out, if there were -- if we knew

8 what they were of, obviously there would be no

9 objection. It's a little difficult for us to imagine

10 what the probative value of these photographs is when

11 the Court has no idea, for example, with respect to

12 Z2002 on page 2 of the exhibits. Apparently this is a

13 new photograph of a dead body; whose we don't know.

14 When it was taken we do not know. The circumstances

15 under which the person depicted died we don't know.

16 So we've just objected on lack of

17 authentication and lack of foundation grounds, but of

18 course it's for the Court to decide whether that

19 exhibit has any probative value on any point.

20 JUDGE MAY: Let's deal with that

21 immediately.

22 There are some of these photographs --

23 Mr. Lopez-Terres, some of these photographs appear not

24 to be in the binder.

25 MR. LOPEZ-TERRES: [Interpretation] Perhaps

Page 15079

1 these are photographs which have already been

2 produced. I think this binder contains all the

3 documents that are outstanding.

4 JUDGE MAY: Well, perhaps that's something

5 you could sort out. Would you look at that over the

6 adjournment and check, make sure either that they've

7 been presented before or that they are available and

8 copies distributed.

9 JUDGE BENNOUNA: [Interpretation]

10 Mr. Lopez-Terres, we have seen many photographs. We

11 don't have them all in our mind, of course. They have

12 been shown here in the Chamber to respond to the

13 objection of Mr. Sayers. For instance, let us take the

14 example that he gave, the photograph of a body on the

15 road. If it has already been produced, perhaps it

16 would be sufficient to attach a reference, because

17 obviously a photograph out of context has absolutely no

18 meaning.

19 JUDGE MAY: Yes.

20 Going on to the documents, Mr. Sayers. We've

21 now got your document which sets out the objections.

22 Is there anything you want to add to that?

23 MR. SAYERS: Not really, Your Honour. I

24 think the objections are self-explanatory. As you can

25 see, we've not objected to most things, and the only

Page 15080

1 documents to which we have objected are the ones which

2 we genuinely felt lack-of-foundation and

3 lack-of-authentication objections were appropriate.

4 But once again, it's a matter for the Court,

5 obviously. The weight to be accorded to those

6 documents is absolutely within the province of the

7 Court.

8 JUDGE MAY: Mr. Mikulicic.

9 MR. MIKULICIC: [Interpretation] Your Honour,

10 regarding the photographs that were mentioned, the

11 Cerkez Defence does not object to them being admitted.

12 Of course, it is up to the Trial Chamber to assess the

13 importance and probative value of those exhibits.

14 The Cerkez Defence would like to draw your

15 attention to a number of examples, for instance,

16 Exhibit 2158, it is a layout of the Vitez Hotel, the

17 Defence objects because simply we don't know who is the

18 author of that layout and what is the source of that

19 document. Also document 2204, which speaks about the

20 strength of combat units and where mention is made of

21 Cerkez, the Defence would like to obtain the original

22 document to be able to take a position on it. Document

23 2208, a list of victims by ethnicity, again, we don't

24 know the source, nor what it is based on. And we have

25 no objections regarding the rest of the exhibits.

Page 15081

1 As a matter of principle, the Defence objects

2 to the admission of press reports because the probative

3 value has already been ruled upon by this Trial

4 Chamber, of such a document.

5 JUDGE BENNOUNA: [Interpretation]

6 Mr. Lopez-Terres, I think that all these matters could

7 be resolved if there are references attached to the

8 documents, and this would take care of the observations

9 made by Mr. Mikulicic. I think it is a good practice

10 and a way of authenticating things by indicating the

11 references. So if we have references to these exhibits

12 at the bottom of the page of the relevant document, I

13 think that would address the concerns expressed.

14 MR. LOPEZ-TERRES: [Interpretation] We shall,

15 indeed, proceed with the authentication, and we shall

16 do all that we can in order to establish and include

17 the source of these documents.

18 JUDGE MAY: We shall admit these documents

19 for the same reason as we admitted the documents in the

20 Novi Travnik binder, but the authentication which has

21 been mentioned and the source in relation to those

22 binders, Mr. Mikulicic, who specifically asks for

23 source, that should be attended to.

24 MR. NICE: Can we move then, while

25 Mr. Lopez-Terres makes way, I hope, for Mr. Scott, to

Page 15082

1 the Ahmici binder, which is, I think, very

2 straightforward.

3 JUDGE MAY: My reading of it, correct me if

4 I'm wrong, is that it refers to witnesses who've

5 already testified --

6 MR. NICE: Correct.

7 JUDGE MAY: -- so we don't need anything from

8 them.

9 MR. NICE: And 1, 2, and 3 of the -- sorry, 1

10 and 2 of the witnesses who've testified in other cases

11 have been ruled in; witness 3, I think, has been

12 withdrawn by us; witness 4 is subject to a subpoena;

13 witness 5 is accepted on behalf of Kordic, but we await

14 a position to be stated on behalf of Cerkez. I'll come

15 to her in a second, without using her name, of course.

16 On the exhibits, the list of exhibits all

17 have already been produced and, therefore, are not

18 reproduced, save for Exhibit 1, which we can find at

19 the end of the binder. Number 2 is not there. Sorry.

20 Thank you. Number 1 has already been produced, and

21 it's number 2 that's in the binder. I'm grateful to

22 Ms. Verhaag. Coming from the same source. Otherwise,

23 the list of exhibits are simply a matter of history.

24 The binder then contains the transcripts to

25 be admitted, as already so decided, save that towards

Page 15083

1 the end there's Witness F in the Blaskic case, as I

2 say, accepted on behalf of Kordic, not yet announced so

3 far as Cerkez is concerned, and part of the

4 justification for her being allowed, as it were, to

5 give evidence by transcript is made out by the medical

6 report that follows and explains her present position.

7 JUDGE MAY: Would it be convenient to deal

8 with her transcript now?

9 MR. NICE: Yes. I don't know. It may be

10 that there's no objection at all. We were simply

11 waiting for a result.

12 JUDGE MAY: If we go to the transcripts, what

13 number is she?

14 MR. NICE: If you haven't got tags on them,

15 in the bottom right-hand corner -- the fifth witness,

16 then, if they've got tags on them. The fifth witness.

17 JUDGE MAY: Number 37 in the schedule of

18 transcript witnesses that we were given, perhaps,

19 Mr. Kovacic, you could tell us what the position is.

20 MR. KOVACIC: That was exactly the issue,

21 Your Honour, I mentioned a couple of times, because I

22 thought that I'm obliged to give that information. So

23 it appears that it is the proper time.

24 We have been given by your order time to

25 study the witnesses under items 25, 34, 37, and 39 --

Page 15084

1 JUDGE MAY: Could you just deal with 37 now,

2 please?

3 MR. KOVACIC: Okay. Number 37, we will not

4 object to have the transcript tendered into the case.

5 JUDGE MAY: Thank you. So 37 can be added to

6 the list of transcripts.

7 MR. NICE: In which case, I think that the

8 whole of this binder is now agreed. I don't think

9 there's any outstanding objection.

10 JUDGE MAY: You mentioned, amongst the

11 exhibits, number 2.

12 MR. NICE: Yes.

13 JUDGE MAY: "Inclusion from death

14 certificates." Has that been admitted?

15 MR. NICE: I don't think it's challenged, and

16 you will find at the end of the binder is the summary.

17 The Court will see it's a document that

18 summarises, or if you like, concludes, but really

19 summarises, the effect of the death certificates and

20 therefore renders the material more accessible.

21 JUDGE MAY: Can you tell us where it comes

22 from?

23 MR. NICE: It comes from, I think, the same

24 source --

25 JUDGE MAY: As 1583?

Page 15085

1 MR. NICE: I'm sorry. In-house, it's an

2 in-house summary.

3 JUDGE MAY: Okay.

4 [Trial Chamber confers]

5 JUDGE MAY: Is there any objection to this

6 document?

7 MR. SAYERS: As you can see from our list,

8 Mr. President, there was a lack-of-authentication and a

9 lack-of-foundation objection. We have no idea where

10 the document came from. But since it appears to be

11 generated by the OTP, and assuming that it's accurate,

12 then obviously our concerns are addressed and the

13 objection would be withdrawn.

14 JUDGE MAY: Thank you.

15 Do you want to say anything, Mr. Kovacic?

16 MR. KOVACIC: We have about the same

17 position, Your Honour.

18 JUDGE MAY: Yes. Thank you. Very well. It

19 will be admitted.

20 MR. NICE: Thank you very much. That, I

21 think, concludes that binder. I'm sorry I was

22 uncertain about one or two matters, and I have to speak

23 for the efficient -- as a mouthpiece for the person who

24 prepared this particular one, I fail in the efficiency

25 that she would bring to the task. But there it is.

Page 15086

1 She doesn't have right of audience.

2 If Your Honour will just give me one minute

3 while Mr. Scott catches his breath.

4 [Prosecution counsel confers]

5 MR. NICE: I am reminded that there are

6 still, in relation to transcripts, outstanding

7 decisions from --

8 JUDGE MAY: Yes. Let's deal with the binders

9 and then come back to the transcripts.

10 MR. NICE: I think there are no more binders

11 to be dealt with at the moment. There's one more to be

12 dealt with --

13 JUDGE MAY: Kiseljak.

14 MR. NICE: Kiseljak, and I gather that's not

15 quite ready -- it hasn't yet been copied or something.

16 JUDGE MAY: Very well. Let's move on for the

17 moment.

18 MR. NICE: That's the only outstanding

19 binder.

20 On the transcript witnesses, we are awaiting

21 responses from Mr. Kovacic on 25, 34, and 39.

22 JUDGE MAY: Yes. Well, let's deal with them

23 next. Numbers 25, 34, and 39, are those the numbers?

24 MR. NICE: I think so.

25 JUDGE MAY: Yes.

Page 15087

1 Yes, Mr. Kovacic.

2 MR. KOVACIC: Exactly the numbers you have

3 mentioned, Your Honour, according to earlier discussion

4 about the transcripts, 25 -- I'm talking about the

5 numbers from the transcript list -- so 25, 34, 37,

6 which we just mentioned, sorry, and 39, we do not

7 object to have those transcripts tendered in the case.

8 Should I also now inform the Court about

9 witness number 10, which was in the group to be agreed

10 by the parties or negotiated by the parties?

11 JUDGE MAY: Let us just deal with those

12 three. There being no objection to those three

13 transcripts, they can be added to the list.

14 And then there were the matters, yes, which

15 were for discussion --

16 MR. NICE: Mr. Scott will deal with number

17 12, and I think number 10 is unresolved, but it may be

18 that Mr. Kovacic wants to add something to whatever the

19 present state of today is.

20 JUDGE MAY: Mr. Kovacic, shall we begin with

21 number 10.

22 MR. KOVACIC: Number 10, Your Honour, we

23 oppose to have this transcript introduced in our case

24 directly. We would like to hear that witness directly,

25 we would like to cross him. If you want me to explain

Page 15088

1 in a short way, I, of course, will.

2 JUDGE MAY: Is number 10 not a witness that

3 you're seeking to call?

4 MR. NICE: We are seeking to call him at the

5 moment.

6 THE INTERPRETER: Microphone, please.

7 Microphone.

8 MR. NICE: Yes, we are seeking to.

9 [Trial Chamber confers]

10 JUDGE MAY: Yes. Well, we think he's a

11 witness that should be called rather than the

12 transcript read, for the same reasons we gave last

13 time.

14 MR. NICE: Yes. Obviously if I'm unable to

15 succeed in securing his attendance, I may have to

16 return to the application but we'll proceed on the

17 basis that we'll try and get him.

18 JUDGE MAY: I would not encourage it.

19 MR. NICE: Number 12, Mr. Scott can deal

20 with.

21 MR. KOVACIC: If I just may, the situation

22 just dramatically changed now. I don't have to oppose

23 to that witness, obviously, because --

24 JUDGE MAY: Number 10.

25 MR. KOVACIC: For number 10, right. Because

Page 15089

1 the Prosecution will bring them.

2 JUDGE MAY: Yes.

3 MR. KOVACIC: Then we have another problem.

4 We, just this morning, received a batting order list, a

5 Prosecution list where there are witnesses which by the

6 Prosecution will be called in the next two weeks, and

7 that witness is not on that list.

8 JUDGE MAY: They're trying to call him.

9 We'll have to see how it happens.

10 MR. KOVACIC: It's confusing.

11 JUDGE MAY: At the moment the transcript we

12 rule inadmissible, and I've told them that they're not

13 encouraged to make further applications. If they want

14 the witness, they must call him.

15 Yes. Can we go on to 12, please.

16 MR. KOVACIC: Thank you.

17 MR. SCOTT: May it please the Court, Your

18 Honour, the position -- the Prosecutor's position or

19 the status, perhaps I should say, concerning number 12

20 is the Cerkez Defence is agreeable to the entire

21 Blaskic transcript being admitted with no redactions or

22 deletions.

23 The Kordic Defence has requested a number of

24 deletions. We -- the Prosecution, is not agreeable to

25 those deletions. We think the full transcript should

Page 15090

1 come in as did a number of transcripts last week, even

2 if it is over certain Defence objections. We believe

3 that the matters, the objections raised go at best to

4 credibility or weight, that there was cross-examination

5 of this witness in the prior case, and the transcript

6 of number 12 should be admitted in its entirety. We

7 are not agreeable to any deletions.

8 JUDGE MAY: There was some possibility of

9 calling that witness, Mr. Scott. What's the position?

10 MR. SCOTT: It does not appear, Your Honour,

11 that he is likely to appear. He's not expecting to

12 appear.

13 JUDGE BENNOUNA: No. Because I think we

14 dealt with this one. What is the reason he's not going

15 to?

16 MR. SCOTT: Your Honours, this raises matters

17 from the ex parte several days ago. He's simply -- for

18 these purposes I can only tell the Court that he's

19 unwilling to appear.

20 JUDGE BENNOUNA: Yes. Okay.

21 JUDGE MAY: I think it was mentioned in open

22 court. This was the witness that Mr. Kovacic

23 mentioned, who was the policeman.

24 MR. SCOTT: Yes.

25 JUDGE MAY: Who had not received promotion.

Page 15091

1 MR. SCOTT: That's correct, Your Honour, and

2 he's very angry about that, and he's not willing to

3 come to The Hague at this point.

4 JUDGE BENNOUNA: Did you try another way, by

5 videolink or -- no?

6 MR. SCOTT: Not at this time, Your Honour.

7 JUDGE BENNOUNA: No?

8 MR. SCOTT: In our judgement, any further

9 efforts would be futile.

10 JUDGE MAY: Yes, Mr. Sayers.

11 MR. SAYERS: I'm sure the Court has in mind

12 the previous discussion regarding this witness. We

13 attempted to accommodate the Prosecution by agreeing to

14 the admission of this transcript so long as the parts

15 that are specific, the specific testimony that he gives

16 about Mr. Kordic, are deleted, and in the absence of an

17 agreement to that effect, we are simply not willing to

18 agree to the admissibility of this transcript.

19 JUDGE MAY: You better remind us of your

20 argument.

21 MR. SAYERS: This witness -- I won't mention

22 his name -- he was the TO commander in Stari Vitez.

23 The Court indicated that it felt that his testimony was

24 significant. Our position is that the witness

25 essentially perjured himself on a number of occasions,

Page 15092

1 and we informed the Court that we did not accept any of

2 his testimony. Bearing in mind the Court's earlier

3 observations regarding matters of weight and things of

4 that variety, we were prepared to reconsider the

5 objection, but we're not prepared to reconsider the

6 objection in so far as this witness gives specific

7 evidence about our client, and apparently that's

8 unacceptable to the Prosecution.

9 It's about, I think, four pages of testimony

10 in a very substantial transcript that we objected to,

11 and the Prosecution's not amenable to our suggestion

12 that those passages be deleted. They're the only

13 passages that deal with our client specifically, I

14 believe. But in the absence of such an agreement, I

15 believe we are entitled to confrontation rights for all

16 the reasons previously articulated, Your Honour. Thank

17 you.

18 [Trial Chamber confers]

19 MR. SCOTT: Your Honour, if I might, before

20 the Court rules, just respond very briefly.

21 Your Honour, the problem with the deletion

22 that Mr. Sayers says, properly so, that he has offered

23 to make, that's a little bit like saying, "We agree to

24 all the evidence as long as you take everything bad for

25 us out." I understand that, coming from his position,

Page 15093

1 from where he sits, but it doesn't offer much to the

2 Prosecution to say that, "We'll agree to the transcript

3 as long as you take anything about our client out of

4 the transcript."

5 Your Honour, this particular witness, and the

6 particular part that Mr. Sayers objects to, and I'll

7 again speak in relatively general terms, regards or

8 concerns, the Court may recall a conversation with the

9 accused Mr. Kordic on one end and several people who

10 were at the other end, and which another witness has

11 described how he held the phone out and several people

12 in the room could hear Mr. Kordic, allegedly hear

13 Mr. Kordic on the other end.

14 This witness's story or description of that

15 event, which again is the only part of the transcript

16 that Mr. Sayers objects to, is broadly consistent with

17 that story, that it did happen, that there was a phone

18 call. It did happen. There are some discrepancies in

19 details. Those discrepancies on details can be fully

20 raised in any argument by the Defence. They can attack

21 the credibility. They can say the stories are

22 inconsistent, it goes to weight, it shouldn't be

23 regarded as true, et cetera, but it is broadly

24 consistent with testimony of at least, I think, two

25 other witnesses who touch on the existence of this

Page 15094

1 phone call. So there is corroboration in the record

2 that this event occurred.

3 As to the differences in details, Your

4 Honour, again we submit that it goes to weight. The

5 Court, last week, admitted a number of transcripts,

6 frankly, over Defence objection because, in the Court's

7 view, they did not go to matters that were absolutely

8 fundamental to have in court, cross-examination, and we

9 submit the same as concerning this witness, Your

10 Honour.

11 JUDGE MAY: If we were against you, I'm not

12 saying we are for the moment, we haven't yet considered

13 it, but would you want the rest of the transcript in

14 without that portion?

15 MR. SCOTT: Well --

16 JUDGE MAY: Or perhaps we could leave that

17 matter for you to decide.

18 MR. SCOTT: I guess we'd want to make a final

19 decision, Your Honour. If that's the Court's position,

20 I guess we'd have to make one last final assessment.

21 JUDGE MAY: Yes. Well, we'll consider that.

22 [Trial Chamber confers]

23 JUDGE MAY: We've thought about this, and we

24 think that this witness comes within the category of

25 those who give significant and important evidence, at

Page 15095

1 least as far as this conversation is concerned, which

2 would require his presence and cross-examination on the

3 point, and it would not be right, in those

4 circumstances, to rely purely on the transcript.

5 In those circumstances, we are not going to

6 admit this transcript unless there are some other

7 matters which are not particularly in dispute.

8 MR. NICE: I think our position -- we've been

9 discussing it while the Court's been making its mind

10 up -- our position is that we would seek to put in the

11 balance of the transcript subject to the pages

12 identified in the latest letter by Mr. Sayers and

13 subject to our having one last effort to see if we can

14 persuade the witness. If that's -- that means it's in

15 subject to, as it were.

16 JUDGE MAY: Yes. Subject to the objected

17 part.

18 MR. NICE: We can, in due course, add that to

19 the binders of transcripts if it's appropriate, taking

20 out the objected passages.

21 MR. KOVACIC: Your Honour, if I may add. If

22 that part of the transcript is admitted, then we are in

23 a different picture, because you remember that events,

24 what was here presented by --

25 JUDGE MAY: We're not going to admit that

Page 15096

1 part.

2 MR. KOVACIC: But the idea, if I understood

3 correctly, the latest idea of the Prosecutor is that he

4 might omit this part which is disputed by the Kordic

5 Defence. Then probably you can decide to have the

6 transcript introduced but without that part.

7 JUDGE MAY: Yes.

8 MR. KOVACIC: But that changes my position

9 then, because my client was also mentioned being

10 present on that meeting. So it puts him in a different

11 shape, I guess. I mean, I'm a little bit caught off

12 guard on that, I have to admit, but --

13 JUDGE MAY: Consider the position and

14 consider it with the Prosecution. If necessary, you

15 can refer it back to us --

16 MR. KOVACIC: Yes, sir.

17 JUDGE MAY: -- once you've found out what

18 they want to do.

19 MR. KOVACIC: Thank you so much.

20 JUDGE MAY: Can we deal with the -- oh, no.

21 It's 11 o’clock. We'll adjourn now.

22 MR. NICE: There are a few more witnesses to

23 be dealt with specifically from the transcript list.

24 I'm going to go and see if I can physically lay my

25 hands on the affidavits or copies of the affidavits

Page 15097

1 so-called that we've obtained so that we might deal

2 with the remaining affidavit witnesses. Mr. Scott can

3 then deal with exhibits generally, and I'd like to

4 touch on the question of videos before we adjourn

5 today.

6 JUDGE MAY: Yes. We too would like the

7 batting order for the next two weeks.

8 MR. NICE: Certainly.

9 JUDGE MAY: We'll adjourn until 20 past

10 today. We'll come back rather early.

11 --- Recess taken at 11.02 a.m.

12 --- On resuming at 11.27 a.m.

13 MR. NICE: Mr. Scott will deal with a couple

14 of witnesses in detail.

15 JUDGE MAY: Number 21, 26, and 38, am I right

16 in those numbers?

17 MR. SCOTT: Yes, Your Honour. There is one

18 other additional matter to raise with the Court.

19 JUDGE MAY: Yes.

20 MR. SCOTT: Concerning number 26, Your

21 Honour, that witness will now testify live, so there's

22 no transcript issue at this juncture.

23 Concerning number 38, we have communicated,

24 in this instance, to the Defence that we are agreeable

25 to only a very small number of pages. In fact, I think

Page 15098

1 the pages submitted by the Prosecution, in round

2 numbers, is something like ten pages of transcript, a

3 very limited portion of this witness's Blaskic

4 testimony dealing specifically with one village in the

5 Lasva Valley. There is no specific reference in that

6 excerpt to either of the accused. So we proceed to

7 offer that portion of the transcript in lieu of calling

8 that witness.

9 JUDGE MAY: All right.

10 MR. SCOTT: I don't know if it is the Court's

11 pleasure to take the Defence's response right now or to

12 continue through the other --

13 JUDGE MAY: Let's deal with them one by one.

14 Number 38.

15 MR. SAYERS: Yes, Mr. President. I received

16 a letter late yesterday concerning witness number 38,

17 and the position articulated by the Prosecution was

18 that they only wanted a limited portion of his direct

19 examination. They informed us that they had redacted

20 materials relating to Mr. Kordic specifically, but the

21 very first passage that we looked at contained a

22 reference to Mr. Kordic. So that's a matter of

23 concern.

24 The Court will have in mind that this witness

25 was originally intended to be called live, we had

Page 15099

1 prepared for him, and then we were instructed that he

2 was not going to be called; and then subsequently, the

3 Prosecution wanted to add his transcript to the list of

4 transcripts to be admitted into evidence; and now they

5 only want a piece of it to be admitted into evidence.

6 Then the letter that we received says as

7 follows: "We have not identified any cross-examination

8 to include because we have been extremely narrow in

9 designating the direct testimony. We do not believe

10 that it is fair or appropriate for us to include only a

11 handful of pages than have the entire cross-examination

12 included."

13 It seems to me, Your Honour, that this falls

14 exactly within the scope of your earlier ruling, that

15 bits and pieces of transcripts can't be added, it's

16 either all or nothing. We have, in principle, no

17 objection to the admission of this witness's testimony,

18 provided the passages that relate specifically to

19 Mr. Kordic, and there are only a few of them, are

20 deleted. Otherwise, we would like to have the witness

21 present for cross-examination on those issues, as we

22 were prepared to cross-examine him just a few weeks

23 ago.

24 That's the position.

25 JUDGE MAY: If the reference to your client

Page 15100

1 were excluded, would you have any objection to the

2 transcript going in in the redacted form the

3 Prosecution seek to put it in?

4 MR. SAYERS: Well, just for context, Your

5 Honour, this witness gave about 200 pages of testimony,

6 and I believe only ten pages are offered. With the

7 Court's permission, I'd have to go and take a look

8 specifically at those pages. I have not had the

9 opportunity to look at the specific passages that the

10 Prosecution wants to have added. And I can update the

11 Court on Monday morning, first thing, if that's

12 acceptable.

13 JUDGE MAY: Although it's right, it's a

14 matter of principle, that we should have all the

15 testimony in, I mean, it may be with that amount, a

16 saving of 190 pages would be welcome.

17 MR. SAYERS: To all of us, Your Honour, yes.

18 JUDGE MAY: You're not in a position to deal

19 with that, but you want the reference to your client

20 out.

21 MR. SAYERS: Correct.

22 MR. KOVACIC: [Interpretation] We did not

23 object to the admission of this witness, but it is also

24 our position -- actually, we slightly differ. I think

25 that the testimony should be admitted as a whole or not

Page 15101

1 at all. And when I say "as a whole," I mean the direct

2 examination, the cross-examination, and all parts of

3 the transcript.

4 JUDGE MAY: Why do you say that, Mr. Kovacic,

5 in this particular case?

6 MR. KOVACIC: [Interpretation] It seems to me

7 that, out of a total of some 200 pages, and if at the

8 end, we admit some 20 pages, then that is certainly out

9 of context, and one doesn't get the whole picture if

10 you just read the 20 pages.

11 JUDGE MAY: This is so in this case, is it?

12 MR. KOVACIC: [Interpretation] That is what it

13 looks like to me because on the basis of what I have

14 just heard, on the outcome of these discussions.

15 MR. SCOTT: Your Honour, I'm not going to

16 belabour the point, but I must say that this kind of

17 back and forth is not helpful. The Kordic Defence

18 objected to the transcript; it was on the chart that

19 they did some weeks ago. They objected; we responded

20 by attempting to delete the objectionable material; and

21 then we come this morning and, to some extent, are

22 taken to task for only offering a part of the

23 transcript which is directly responsive to the Defence

24 position.

25 So I object to that basic taking of position

Page 15102

1 here. We've tried to be exactly responsive to the

2 dialogue that's gone on in this courtroom over the past

3 ten days. And we earlier represented to the Court that

4 we'd make a good-faith effort to limit the testimony of

5 this particular witness to that particular item which

6 was not cumulative concerning a particular -- in large

7 measure, a particular village, Kazagici, and that's

8 exactly what we did. And we --

9 JUDGE MAY: Sorry to interrupt --

10 MR. SCOTT: No. That's fine, Your Honour.

11 JUDGE MAY: -- but is there reference to

12 Mr. Kordic in it?

13 MR. SCOTT: There is some reference and

14 that's the part we've taken out.

15 JUDGE MAY: You've taken that out?

16 MR. SCOTT: We've taken that out. And no

17 reference, as I know, to Mr. Cerkez. So I don't

18 understand the objection.

19 JUDGE MAY: No reference to Mr. Kordic, no

20 reference to Mr. Cerkez.

21 MR. SCOTT: No, Your Honour. That's

22 correct.

23 [Trial Chamber confers]

24 JUDGE MAY: Well, we accept what Mr. Scott

25 says about this. It's right that there was one part

Page 15103

1 which was of importance. We do not want to overburden

2 the record in this case which is overburdened enough as

3 it is. We will admit the ten pages.

4 MR. SCOTT: Thank you, Your Honour. It

5 leaves two, then, witness matters before Mr. Nice deals

6 with the affidavit.

7 Number 21, which is also outstanding -- and

8 I'll pause for everyone to refer to the list -- who

9 will now come and testify live. So that is not a

10 transcript issue.

11 The final matter, Your Honour, to raise in

12 this regard, and we alerted the legal officer to this

13 and a copy of the same letter went to Defence counsel,

14 we do have one final proposal on this matter, Your

15 Honour. We had earlier, the Court will recall,

16 withdrew, as part of this process, the transcript of

17 number 42, which again I will pause. We had withdrawn

18 that completely voluntarily, Your Honour, when the

19 Court had requested, some weeks ago, to see if we could

20 go back through the transcripts and possibly eliminate

21 a few. Again, mindful of the President's comments just

22 now not to burden the record more than necessary.

23 That decision was made, Your Honour, as so

24 many decisions at this point in the case, on the basis

25 of rolling information as to the availability of other

Page 15104

1 witnesses. We withdrew number 42 completely on the

2 notion or premise that another witness would come live,

3 which in our view, frankly, would have been a better

4 witness on this issue and, therefore, we withdrew

5 number 42.

6 As the Court knows, there's been virtually

7 day-to-day if not hour-to-hour contact with many of

8 these witnesses over the past ten days. The particular

9 witness that we had hoped to call in this particular

10 regard, I don't know that his name was particularly

11 sensitive but, on the other hand, there's probably no

12 reason to spread it on the record, it would be -- I'm

13 just seeing if there's a document that the Court has in

14 front of it. If the Court still has the chart that was

15 used some days ago, the categories of the dead and

16 unwilling argument. I'm not sure we need to get

17 heavily bogged down in this, but -- so the record is --

18 well, at least that the Court is more advised, it was

19 one of the Category D witnesses. The witness was

20 number 9.

21 We had proposed to call witness number 9 on

22 that list in place of the transcript of number 42.

23 Number 9 -- I will say Mr. H -- is now no longer

24 desirous of coming to The Hague. Because of that, Your

25 Honour, we have reconsidered the state of the evidence

Page 15105

1 on the points covered or to be covered, and in lieu of

2 pressing Mr. H further, we simply think we can

3 accomplish the same and, in fact, we can accomplish it

4 with one less live witness over the next two weeks, by

5 instead renewing our offer of the transcript of number

6 42. That's our position.

7 I am reminded, Your Honour, if it's a factor

8 in the Court's thinking, that a subpoena did go out

9 to -- as been applied for to Mr. H, but we're not sure

10 the effect -- what the ultimate effect of that might

11 be.

12 Simply put, Your Honour, the Prosecution

13 seeks to simplify the matter at this juncture by using

14 the transcript of number 42 in lieu of the other

15 witness.

16 JUDGE MAY: Very well. That's the

17 application.

18 MR. SCOTT: Yes, Your Honour.

19 JUDGE MAY: We have the Defence position set

20 out, the objection being, on behalf Mr. Kordic, a

21 question of credibility because the witness lied under

22 oath, which was demonstrated during cross-examination.

23 The witness, as you say, should, therefore, be called

24 live. He gives evidence about Kiseljak and Rotilj and

25 about two of the HVO units. He gives no direct

Page 15106

1 evidence as far as either of accused is concerned.

2 Anything you want to add to that?

3 MR. SAYERS: Just one point, Mr. President,

4 and that is that apparently the exhibit with which the

5 witness was confronted on cross-examination was

6 sealed. We have not seen it. If the Court is of a

7 mind to permit the introduction of this transcript,

8 then we would certainly like to see the exhibit.

9 JUDGE MAY: Yes.

10 MR. KOVACIC: [Interpretation] We have no

11 position because these are witnesses outside the

12 indictment for Mr. Cerkez.

13 JUDGE MAY: Mr. Scott, is there any

14 difficulty about the sealed exhibit?

15 MR. SCOTT: No, Your Honour. We think that's

16 a fair request and we can provide it to counsel.

17 JUDGE MAY: All right.

18 [Trial Chamber confers]

19 JUDGE MAY: In our ruling on the transcripts,

20 we set aside a category which we call generally

21 "Village Witnesses." This witness comes into that

22 category, and we shall admit the transcript. The

23 sealed exhibit must obviously be provided, produced,

24 and the objection relating to credibility relates to

25 weight and that would be a matter for us to determine.

Page 15107

1 MR. SCOTT: Thank you, Your Honour.

2 MR. NICE: Before I turn to the next topic of

3 affidavits, I'm sure the Court will appreciate that a

4 lot of the sorting out that we've been attempting over

5 the last couple of weeks is sorting out to ensure that

6 every element of the confirmed indictment is covered by

7 an on-the-ground witness but that not too much material

8 is provided for each of those individual on-the-ground

9 crimes. We hope indeed that we would have covered

10 every such element.

11 If by any reason there is a shortfall,

12 through oversight or through some event that happens at

13 the very last minute in relation to witnesses we're

14 expecting to call, I observe simply in advance that

15 it's always going to be open to the Trial Chamber

16 itself, under Rule 98, to request us to produce more

17 evidence in relation to such particular topics.

18 The affidavit witnesses, the Chamber will

19 remember, were listed at the foot of the list of

20 witnesses headed "Argument on Dead and Unwilling." If

21 the Chamber has that list, I can inform you that we

22 have now what we loosely term affidavits in respect of

23 the following witnesses: Numbers 14, 17, 20, 21, 22,

24 and 23.

25 Before I turn to the format of the affidavits

Page 15108

1 and just so I don't forget the point, because it's a

2 general institutional matter for no doubt this Chamber

3 and other Judges to consider in due course, we've

4 finally achieved what we wanted and what the Chamber

5 rightly from the beginning of this trial was

6 encouraging us to look at under its Rules. It's, at

7 the moment, necessary to do that because of the

8 arguments raised about not necessarily evidence raised

9 about investigators' statements, arguments we reject.

10 The exercise has brought terrific cooperation

11 from the local Judge, as you can hear, but it is

12 extremely time-consuming. Obviously more

13 time-consuming as is anything at its pilot stage, the

14 first time it's attempted and achieved, but it's a very

15 time-consuming exercise.

16 Now, I have before me the product of the

17 recent mission to get these affidavits. I can't make

18 them available in their present form to the Defence,

19 because in each case, as you would expect, the Judge

20 has obtained not just the name but the addresses of the

21 witnesses concerned, and that is material that

22 typically does not go to the Defence.

23 That apart, I think the documents could be

24 shown for their general format to the Chamber, although

25 again the name of individual witnesses is probably

Page 15109

1 something that shouldn't be put on an ELMO.

2 So I'm in this position: If the Defence

3 don't object at this stage, I could simply show to Your

4 Honour and Your Honour's colleagues the precise format

5 of these documents, and then in due course, I hope over

6 the weekend or within a couple of days getting, with

7 the Chamber's leave, the redacted versions served on

8 the Defence excising the addresses of the witnesses,

9 but at least you'll know straightaway the format of the

10 documents that we've produced.

11 Mr. Guariglia, who was the lawyer who

12 attended, with an investigator, and a Judge, is here to

13 explain the process that was gone through and not as a

14 witness but I hope from counsel's row, and I'm going to

15 ask the Chamber to say in principle, subject to any

16 arguments, and of course subject to production of

17 redacted and translated versions of these documents,

18 that they may be admitted.

19 The first step, therefore, is whether the

20 Chamber's prepared to see these, as it were, ex parte,

21 but in court because of the references to addresses.

22 JUDGE MAY: Yes. I don't see how we could

23 possibly determine the matter without hearing what the

24 Defence have got to say about it, but no harm in our

25 seeing them.

Page 15110

1 MR. SAYERS: Just as a matter of principle,

2 Your Honour, it seems to me that if in the Trial

3 Chamber sees them then we should to, and the Trial

4 Chamber should see them at the same point that we do,

5 when they've been reduced to a form for everyone's

6 consumption, shall we say.

7 [Trial Chamber confers]

8 JUDGE MAY: We're concerned about the notion

9 of seeing these documents without the Defence having

10 seen them, but speaking for myself, I would like to see

11 the format in which they are without seeing any of the

12 details. Can you perhaps describe it and then we'll

13 hear exactly how they were taken?

14 MR. NICE: Yes. I think probably without --

15 THE INTERPRETER: Microphone, please,

16 Mr. Nice.

17 MR. NICE: Rather than do it secondhand, I

18 think the best thing is Mr. Guariglia, who is a lawyer

19 within the Office of the Prosecutor and who is of grade

20 to have rights of audience, rights of audience explains

21 it to you.

22 JUDGE MAY: Yes, but I'd like you to work out

23 how we can see on the ELMO the relevant parts which

24 will indicate what the authentication or whatever it is

25 is.

Page 15111

1 MR. NICE: Very well. I think if I can find

2 one witness who is unlikely to have selected any form

3 of protection, I'll just deal with that.

4 With the usher's cooperation -- sorry.

5 [Trial Chamber confers]

6 MR. NICE: With the usher's cooperation, I

7 will lay two sheets on the ELMO for a witness who, I

8 understand, expressed no desire for protection, and

9 Mr. Guariglia will be able to assist you with what

10 happened.

11 MR. GUARIGLIA: Your Honour, what you see is

12 a statement taken by an investigative judge in the

13 Cantonal Court in Zenica, pursuant to a request for

14 assistance made by the Office of the Prosecutor,

15 channelled through the Ministry of Justice, and treated

16 by the investigative judge and by the Cantonal Court in

17 Zenica, under the applicable provisions in the domestic

18 law dealing with international assistance and

19 cooperation.

20 The procedure was very simple and

21 straightforward, although long and time-consuming.

22 Witnesses were summoned by the national authorities,

23 pursuant to the applicable domestic provisions, and

24 then appeared before the investigative judge in the

25 Cantonal Court in Zenica.

Page 15112

1 There, witnesses were shown, by the

2 investigative judge, their previous statement given to

3 investigators of the Office of the Prosecutor for the

4 purpose of confirming that those statements were their

5 statements, confirming their signature in those

6 documents, and confirming further the accuracy and

7 truthfulness of the contents of those documents.

8 Witnesses were shown either the French or English

9 version of the statement, which is the one that they

10 had previously signed, for the purposes of confirming

11 their signature, and they were also shown versions of

12 their statement in their language, for the purposes of

13 confirming the truthfulness of their contents.

14 Witnesses were invited to make any

15 corrections, amendments, that they wished to, and two

16 of them, to my recollection, made some minor amendments

17 that were placed in the record by the investigative

18 judge.

19 What you have on the screen before you is the

20 record of that hearing before the investigative judge

21 in which witnesses confirmed the documents that were

22 shown to them, and if they wished to make any

23 amendments, those amendments, those corrections, were

24 placed in this very document that you have before you.

25 JUDGE BENNOUNA: Excuse me. The person

Page 15113

1 concerned was assisted by somebody? Was the person

2 concerned, the witness, assisted by somebody, or was he

3 or she alone?

4 MR. GUARIGLIA: Your Honour, the witness was

5 on his or her own before the judge. Our presence in

6 the courtroom, as well as the presence of a translator,

7 this was for the purposes of -- since there had to be

8 documents that had to be shown and identified and

9 confirmed by the witness that were not in his or her

10 language, we were there and the interpreter was there

11 in order to allow the documents to be shown and

12 explained to the witness and to the judge, although the

13 judge already had the documents in advance as

14 attachments to our request for assistance.

15 One thing that I want to make clear to Your

16 Honours is that before the witness was shown the

17 documents, in order to make a statement as to their

18 accuracy and truthfulness, the witnesses were

19 identified by the investigative judge, and they took an

20 oath to speak the truth, pursuant to the applicable

21 domestic provisions, and they were warned about the

22 applicability of the national provisions dealing with

23 perjury if they failed to speak the truth in front of

24 the judge in the Cantonal Court in Zenica.

25 Finally, the document that you see before you

Page 15114

1 was signed -- all of them were signed by the witnesses,

2 with the exception of one who was illiterate, and she

3 had to sign with a cross, but then it was also placed

4 in the record by the investigative judge, all documents

5 were signed by the investigative judge and then further

6 authenticated with the seal of the Cantonal Court in

7 Zenica, which is the seal that you have here at the

8 lower end of the document.

9 Can we have the other sheet of paper,

10 please.

11 There is finally a third document, Your

12 Honours. It is a document certifying the turnover of

13 all certified copies of these statements to me and to

14 Mr. Terry Cameron from the Office of the Prosecutor,

15 and that is also certified with the seal of the court,

16 all of these documents.

17 JUDGE MAY: Can we see the top of the

18 statement? We've seen the bottom. Can we see the top

19 of it? There must be a first page.

20 MR. NICE: The typed sheet is the first

21 page. If we look at the typed sheet, that's the first

22 page which has the name -- the other sheet, please. It

23 has the name, and it's the bottom bit that has the

24 address that I've turned over.

25 JUDGE MAY: I see.

Page 15115

1 MR. NICE: That's the first sheet of A4, and

2 then the second sheet is the statement itself.

3 MR. GUARIGLIA: Basically, Your Honours, that

4 was the procedure that we took. It proved to be very

5 efficient, although, as I already said,

6 time-consuming. The national authorities were

7 extremely cooperative, and in the end, we managed, with

8 their assistance, to collect a number of these

9 statements.

10 [Trial Chamber confers]

11 JUDGE BENNOUNA: Mr. Nice, I think you are

12 aware of Rule 94 ter. That means that the affidavit is

13 admissible only as far as it is a corroboration of --

14 it's given to prove a fact, first, and it is a

15 corroboration of the testimony in lieu of a witness.

16 Is it the case for this evidence? Do they correspond

17 to the Rule 94 ter?

18 MR. NICE: So far as is possible, they do.

19 The regime of 94 ter is arguably unworkable in this

20 case, I think, because of its detail, arguably

21 unworkable generally, but that's for another place and

22 another time. But, yes, these witnesses were chosen on

23 the grounds that, so far as possible, they amount to

24 corroborative material.

25 JUDGE BENNOUNA: On facts.

Page 15116

1 MR. NICE: Yes.

2 JUDGE BENNOUNA: Thank you.

3 MR. NICE: I hope that adequately explains

4 the present position.

5 [Trial Chamber confers]

6 JUDGE MAY: Looking at 94 ter, the Defence

7 have seven days in which to object once the affidavits

8 are served.

9 MR. NICE: Yes.

10 JUDGE MAY: Well, we'll have to hear those

11 objections.

12 [Trial Chamber confers]

13 MR. NICE: Subject to comparatively minor

14 corrections and amendments, the affidavits confirm the

15 accuracy of the OTP statements, and we would ask for an

16 abbreviation of time. Frankly, we would ask for a

17 substantial abbreviation of time because they've been

18 on notice from the service of this document, at the

19 very latest, and from, indeed, earlier documents months

20 ago, that these affidavits were going to be sought,

21 because, indeed, in the amended overview of our

22 witnesses, pursuant to the general inclination of the

23 Court to indicate its favour of affidavits, we

24 identified those witnesses that we would seek to deal

25 with by affidavit.

Page 15117

1 The things come as late as they do simply

2 because of the intractable problem, until recently, of

3 finding any document that could merit the description

4 "affidavit" or "formal statement," and the Chamber

5 will recall that there has been, and maybe there still

6 will be, root-and-branch objection by the Defence on

7 the grounds that no document can qualify as an

8 affidavit or formal statement.

9 But they've been on notice that we want these

10 witnesses dealt with in this convenient way for

11 months.

12 [Trial Chamber confers]

13 JUDGE MAY: When are the Defence going to get

14 these documents?

15 MR. NICE: I can't, as you know, impose

16 priorities on translation. I will do my best to ensure

17 that these documents are translated, if not by the

18 official translation unit, by a language assistant for

19 a draft translation, if that's the only thing I can

20 achieve, in a few days. But I can't make promises; I

21 don't have those resources. It will be -- it's

22 obviously --

23 JUDGE BENNOUNA: Excuse me. You just said

24 that they received the statements. They are just a

25 reproduction, these affidavits are a reproduction of

Page 15118

1 these statements. The statements were translated.

2 MR. NICE: They've had the original

3 statements, which are verified by these affidavits, for

4 months or years. And further, I'm just going to find

5 the document --

6 [Trial Chamber confers]

7 MR. NICE: Can I just amplify it --

8 JUDGE BENNOUNA: Is it the same?

9 THE INTERPRETER: Microphone to Judge

10 Bennouna, please.

11 MR. NICE: Yes. Let me just finally make the

12 position. On the 10th of November, the Chamber will

13 remember, in response to a request, I think, initiated

14 by His Honour Judge Bennouna, we provided a list of

15 statements identifying those which should be by

16 affidavit. I can't say that all these are exactly on

17 that list, but I think all, or the majority of them

18 are.

19 The statements that are effectively being

20 offered in evidence have been with the Defence for

21 months or years because they are the OTP statements.

22 The affidavit statements, and in particular,

23 the one we looked at, and I can just put it back on the

24 ELMO with the usher's assistance, because I think I

25 understand it to this degree, only contain a few

Page 15119

1 corrections in a few places, and although I don't --

2 [Trial Chamber confers]

3 MR. NICE: For example, if you look at this

4 same affidavit, you can pick up the format of a

5 correction -- and this was one, I think, of the two

6 affidavits where there were any corrections -- and if

7 you look about halfway down the screen, you'll see some

8 references to what we know to be "ERN" or something

9 numbers; five lines down, you'll see 00793565.

10 Now, at that point of the statement, as I

11 understand it, the witness was making a correction or

12 amplification of what he'd said before, and so this

13 witness had a few amplifications or matters of detail

14 to correct, but otherwise he was adopting his original

15 statement. Now, these corrections or amplifications

16 will have to be translated and made available, and I'll

17 do that at the earliest possibility. But as I

18 understand it, there was no significant or radical

19 departure of any kind from the earlier statements, and

20 the Defence have been on notice since November that

21 these witnesses were witnesses we hoped to deal with in

22 this way.

23 JUDGE MAY: Clearly, the earlier that this is

24 served, the better.

25 MR. NICE: Yes.

Page 15120

1 JUDGE MAY: There has been notice. We have

2 heard what the Prosecution say about the matter, and we

3 have now in mind how the affidavits were taken. But we

4 can't rule until we've heard what the Defence have to

5 say.

6 Speaking for myself, I would be minded to

7 shorten the period that you'll get, since you've had

8 the statements for some time, but we'll rule on that

9 when these matters are served.

10 MR. NICE: Thank you very much. That leaves,

11 I think, as a substantial issue for today, the position

12 on outstanding exhibits.

13 As the Chamber knows, we have been concerned

14 to achieve -- I'll come back to that in 30 seconds.

15 One other thing about affidavits. The

16 Chamber will recall that in relation to the Novi

17 Travnik binder, Mr. Lopez-Terres spoke of statements

18 taken by the ICTY in relation to cross-examination that

19 went to the suggestion that recorded crimes may not

20 have been committed, I think, so dealing with some

21 detailed matters that were raised in

22 cross-examination.

23 He said that we'll get affidavits if we can,

24 and it is possible that we will get them within a

25 fortnight. It seems to me equally possible that they

Page 15121

1 may be outstanding on the day when we're required

2 formally to close our case, and I simply say that if

3 they are outstanding at that stage, we would

4 nevertheless seek to have them put in out of time.

5 We've only just known of this process of

6 affidavit, and it wouldn't have been possible to have

7 dealt with them any earlier. But if I give notice of

8 that now, then it can't be said I haven't thought of

9 it. And it's really a peripheral matter. I would have

10 thought, frankly, that the crimes might themselves not

11 have been challenged, but apparently we've been put to

12 proof that they --

13 THE INTERPRETER: Would you slow down,

14 please, Mr. Nice.

15 MR. NICE: Exhibits. We've been attempting

16 two things with the exercise on exhibits, handled

17 substantially by Mr. Scott.

18 On the one hand, we have to ensure that all

19 potentially relevant exhibits are before you in a

20 library form, although you won't be referred to

21 everything, of course not, at the end of the day, but

22 we don't know now what the issues are. We know

23 something of the issues from the cross-examination, but

24 until we hear Defence evidence, we can't know what the

25 real issues are, and it's important that exhibits we

Page 15122

1 can produce are available.

2 On the other hand, we don't want to weary you

3 by any further extended production of exhibits that

4 needn't be dealt with in that way, and so we've

5 collected them, served them, and listed them.

6 Our application is that all those documents

7 should be admitted in evidence, subject to good reason

8 to the contrary; obviously weight being a matter for

9 later determination and in the light of argument.

10 What's happened is that there's been a

11 response by the Defence. Mr. Scott has collated, for

12 your assistance, and all our assistance, the objections

13 by categories, and I'll ask him to deal with it. But

14 our basic position is that subject to quite specific

15 attacks on specific documents, that really documents

16 should go in at this stage -- I think Your Honour said

17 something about many documents really speaking for

18 themselves -- and matters of detail to be resolved more

19 when they arise than in the generality at this stage.

20 I'll leave Mr. Scott to deal with that, and

21 with your leave, I will withdraw for a few minutes,

22 because I may want to say something about videos before

23 we separate today, and I may need to speak to somebody

24 else outside of court about that.

25 MR. SCOTT: If they haven't been already, if

Page 15123

1 I can ask the usher's assistance to provide this

2 one-page chart, I suppose.

3 What this represents, Your Honour -- and

4 before starting any further treatment of it, let me

5 explain it. This is a review of the first

6 approximately 150 pages of an exhibit list. It is not

7 complete in the sense that the exhibit list goes beyond

8 page 150, but for purposes of this morning's

9 presentation and to give the Court an overall feel, if

10 I can say that, for the overall situation where we are

11 at the moment, I felt we probably would not get more

12 than 150 pages into these items in the time allowing in

13 any event, but I think this makes the points that the

14 Prosecution would hope to make about these outstanding

15 matters, Your Honour.

16 What we have done is go through the various

17 correspondence and exchanges with the Defence and

18 indicated in rough categories the nature of the

19 documents being objected to. I will come -- well, I'll

20 come to it now.

21 The nature of the vast majority of these

22 exceptions or objections -- and I would say that only

23 the very smallest number of variation, in fact, I think

24 in the first 100 pages, you could count them perhaps on

25 one hand -- the objections are to lack of foundation or

Page 15124

1 authentication. They are not necessarily to such

2 things such as relevance or that they are material or

3 immaterial. But the vast majority, I would say

4 something like 95 per cent of the objections go to lack

5 of foundation or authentication as stated in the

6 materials provided to us by the Defence.

7 I'm going to come back to the first category,

8 Your Honour. If I can take the list somewhat out of

9 order.

10 There is a category about the middle of the

11 chart. One is "BBC," the Court will see, and the other

12 is "Other Media." These are various either newspaper

13 articles or newspaper summaries, Your Honour, put out,

14 in the instance of the BBC, obviously, by the BBC. We

15 think this evidence, Your Honour, is entirely relevant

16 to the Court.

17 We remind the Court, as the Court knows well

18 by now, the accused Mr. Kordic was a public figure. He

19 was, among other things, a political figure. He was --

20 I think, even in his own trial brief considered himself

21 something as a press spokesperson on behalf of the

22 Bosnian Croat entities.

23 It is obvious and logical in the process of

24 carrying out those functions, he made, in the course of

25 two years or so, a number of public statements, whether

Page 15125

1 they were by press release, press conference,

2 statements to journalists, et cetera.

3 Your Honour, we think it's highly relevant,

4 as would be the case with any public figure, that this

5 information, their statements, their public statements,

6 their statements to the press are indicative and

7 relevant to not only their personal positions but also

8 the positions of the entities that they represent.

9 We understand that there is a hearsay aspect

10 to this, as with any press material, and the Court can

11 certainly take that into consideration as to weight.

12 We would certainly not argue to the contrary.

13 All of us probably in the courtroom, Your

14 Honour, have had various dealings or experiences with

15 the press in one fashion or another, professionally or

16 otherwise, and I think we can all make judgements

17 accordingly.

18 But these are the recorded statements or the

19 statements of, in particular -- not always, but

20 particularly Mr. Kordic, making various statements

21 about the HVO's position or about the HVO policy, about

22 certain acts or events in Central Bosnia, and we think

23 they should be admitted for their -- and considered for

24 their weight, Your Honour.

25 In regard to the BBC summaries, I don't

Page 15126

1 think, Your Honour, I don't even think the Defence

2 would say, I hope, that there's any reason to believe

3 that they were somehow falsified or manufactured in

4 some way. They are what they say they are. And as to

5 the rest of it, Your Honour, we believe it goes to

6 weight. We think that these two categories of

7 material, subject to those conversations, should be

8 allowed.

9 As to moving down the list, Your Honour,

10 there are still -- there were still a few, eight -- the

11 Court will see from the format of the chart the

12 individual exhibits are listed by number, and then the

13 first number in each box is simply the number of items

14 in that box. Obviously some of them, it's very

15 evident, but some of the larger categories such as the

16 first one, we've indicated that there are 155 exhibits

17 in the first category. I should have probably

18 explained that earlier.

19 Going back to ECMM, there are some eight

20 outstanding documents at least in the first 150 pages

21 of the list. Here again, Your Honour, we see no reason

22 why, given the amount of ECMM material that's come into

23 the case -- we think for good reason, we think entirely

24 reliably, the Court has heard from many ECMM witnesses

25 firsthand -- we see no particular reason why these

Page 15127

1 exhibits should be doubted in terms of their

2 authenticity or foundation any more than the others

3 that have come into evidence.

4 The same can be said, Your Honour, for the

5 UNPROFOR or BritBat documents in the next category.

6 Some approximately 38 items, again in the first

7 150 pages of the list. We'd make the same -- these are

8 milinfosums, statements or reports from the main

9 headquarters in Kiseljak, again, all the materials that

10 the Court has seen time and time again in the course of

11 the past ten months. We simply see no reason, Your

12 Honour, and no specific reasons have been tendered by

13 the Defence, why these particular 38 documents are less

14 reliable than the others that have been admitted.

15 Very quickly, Your Honour, the other

16 international documents, there are objections to a

17 document indicating the European Community's

18 recognition of the independence of Croatia. It's not

19 clear to us why that's objectionable. There's also a

20 document indicating the Republic of

21 Bosnia-Herzegovina's succession to the Geneva

22 Conventions. I'm not sure why that should be

23 objectionable.

24 There are 13 items of videotape, Your

25 Honour. Again, the videotape basically speaks for

Page 15128

1 itself, in the absence of some specific indication that

2 a particular tape has been falsified or manufactured in

3 some way. Other than that, Your Honour, the tapes

4 basically speak for themselves. They show what they

5 show.

6 As an example, if it's a press conference by

7 Mr. Kordic, the Court can look at the tape itself. It

8 looks like Mr. Kordic. It sounds like Mr. Kordic.

9 Absent some allegations specifically and support that

10 that was somehow falsified, Your Honour, which there's

11 been no suggestion of that to date, then again, the

12 evidence should come in subject to, I guess, further

13 attack, specific attack if the Defence cares to,

14 sometime between now and the close of the entire

15 evidence.

16 Finally, just on that one specific other

17 miscellaneous item, the Narodni List, that is a matter

18 of public record, legislation, if you will, or notice

19 of governmental business. It's not clear to us why

20 that should be objectionable.

21 That then takes us back, Your Honour, to the

22 top part of the chart. There are approximately 155

23 outstanding or objected-to exhibits in this category,

24 which we've characterised essentially HVO, HDZ,

25 Herceg-Bosna, or Bosnian-Croat documents. There is no

Page 15129

1 specific indication as to any of these -- well, strike

2 that. There are a very small number, literally, I

3 think, maybe three or four, where something might be

4 said beyond simply lack of foundation. But there's no

5 specific reasons as to why these documents should be

6 viewed as unreliable.

7 The Court well knows from other litigation

8 before the Court concerning binding orders in that

9 matter that the Prosecution has a limited ability, if

10 any, to bring to you an HVO custodian of record,

11 someone who could come and say, "I was a high official

12 with the HVO and here's our documents." The Court

13 knows that in the past several years, no official has

14 come forward to produce such documents to this Court.

15 Nonetheless, the documents have been gathered

16 in the course of the Prosecutor's investigations from a

17 number of different sources, and we simply again

18 submit, Your Honour, that at this point in the trial,

19 they should come in, subject to any further specific

20 attack the Defence may care to make in the Defence

21 case, or at some other time if it can make it specific

22 other than -- as opposed to a general showing.

23 That leaves us with two relatively small

24 categories, Your Honour, at this particular stage, in

25 terms of the HV or HDZ; that is, the political party in

Page 15130

1 Croatia as opposed to Bosnia, or to Republic of Croatia

2 documents. I suspect, Your Honour, in fairness, that

3 that number will grow as we get beyond the first

4 150 pages, especially as to international armed

5 conflict. So again, I don't want anyone, especially

6 the Court, to be confused that this represents a total

7 figure. This is the first 150 pages, and I suspect

8 there will be more Croatian documents, many more,

9 before the process is completed.

10 That's our position, Your Honour. We think

11 that objections as to foundation or authenticity,

12 absent some specific showing that a particular

13 document -- there are some articulated grounds for

14 thinking that some particular document has been

15 falsified in some way. We certainly expect the Court

16 to hear that, but there's no such allegation as to

17 these documents, and we think they should be admitted,

18 Your Honour. Thank you.

19 MR. SAYERS: Mr. President, speaking for

20 myself, this discussion takes us a little by surprise,

21 if I may say so. I thought we were dealing with the

22 village binders today, and we had prepared to deal with

23 those, but apparently we're not going to deal with all

24 of those today. Instead, the Prosecution prefers to

25 deal with the matter of exhibits.

Page 15131

1 I might also point out that we were told at

2 about 9.30 last night that the Prosecution was going to

3 have a witness here from the Agency for Investigation

4 and Documentation about whom we had never heard before

5 and who's not on the witness list. So we spent some

6 time preparing as best we could for that too.

7 Just thinking on my feet with respect to the

8 matter of exhibits, let me just say this: As I

9 understand it, there are six batches of exhibits that

10 have been supplied to us and, I guess, to the Court as

11 well. There are many thousands of exhibits in those

12 batches. We have prepared and filed with the Court a

13 response to each one of these batches. The responses

14 are fairly detailed. They speak for themselves, Your

15 Honour.

16 I've not seen this document that was handed

17 to us before, but just taking a look, as one example

18 from the UNPROFOR documents, which we generally do not

19 object to, looking at Exhibit 313, if you turn to our

20 responses to batch one on page 4, there's no objection

21 to Exhibit 313. So I don't know that it makes -- I

22 mean, if that's representative of what we see on this

23 list, and I don't know the methodology that's been used

24 in selecting particular exhibits to put on this list,

25 but if that's representative, it doesn't seem to make a

Page 15132

1 whole lot of sense going through these things until

2 we've had the opportunity to verify that, in fact,

3 these materials are objected to. That one, and I just

4 chose it at random, is not.

5 If I could just address the particular topics

6 here. Once again, just thinking on my feet. With

7 respect to the HVO documents, the HDZ, HZ HB documents,

8 our general policy has been not to object to those

9 documents that are signed and when they're in a format

10 that is broadly consistent with other documents of the

11 same type. We do object to documents that are not

12 signed, documents generated by who knows who and who

13 knows when and who knows whether they were, in fact,

14 generally generated within the time periods that they

15 appear to have been. I think our lack of foundation

16 and lack of authentication objections with respect to

17 those are valid.

18 But I must say, and I don't know exactly how

19 to address this, I mean, these are document-by-document

20 objections, and I would imagine that that's the last

21 thing that the Court wants to do, to go through these

22 mass of documents --

23 JUDGE BENNOUNA: Can you wait?

24 [Trial Chamber confers]

25 JUDGE BENNOUNA: [Interpretation] Mr. Sayers,

Page 15133

1 you yourself have just received this list which has to

2 do, in fact, with the objections that you made as we

3 went along. Perhaps you don't have the details of

4 those objections document by document. This is a list

5 where documents are grouped into categories. Wouldn't

6 it be more practical, perhaps, to have from your side a

7 table, at a certain point in time, which would,

8 category by category, remind us of the nature of your

9 objections, and then we can rule on the basis of that

10 table. This way, we're talking in general terms. We

11 cannot make any practical conclusions.

12 So if you could provide a kind of

13 retrospective similar to that made by the Prosecution.

14 I personally, of course, cannot remember, and I must

15 say fortunately, because if my memory wasn't selective,

16 I don't know where we'd be. So you have your own

17 memory registered somewhere in a computer from which

18 you could derive a table and then we could discuss it.

19 I don't know whether you agree with that

20 suggestion of mine or whether you wish to deal with the

21 matter now.

22 MR. SAYERS: Well, Your Honour, I certainly

23 respect what you say, but I thought we had done that.

24 We had actually provided the Court with a very detailed

25 list. The list is in numerical order. We have

Page 15134

1 rearranged the documents that were delivered to us in a

2 higgledy-piggledy, hodge-podge fashion by the

3 Prosecution. I'm the first to confess. I have

4 absolutely no idea what logic underlies the numbering

5 system that the Prosecution uses, but whatever logic it

6 is, there is a systematic -- there's a sequential

7 numbering, and we've actually filed that with the

8 Court, the Z numbers. Z4 is the first exhibit --

9 JUDGE MAY: Does it cover all the documents

10 which the Prosecution are seeking to admit?

11 MR. SAYERS: There are two categories of

12 documents, as I understand it, Mr. President. The

13 first is the batches of outstanding exhibits that are

14 general in nature that have been delivered to us, and

15 we have responded to all of those, yes, Your Honour.

16 Then there's a second category dealing with

17 international armed conflict documents, and we have

18 responded to all of those as we were required to do by

19 the Court.

20 I'm sure the Court has in mind that we were

21 required to go through each of these exhibits and

22 produce our position with respect to each of them.

23 JUDGE MAY: Well, time is getting on. We'll

24 have to consider this over the weekend. It may be that

25 you will wish to respond to this document, the most

Page 15135

1 recent one, in a general or a particular way. It's a

2 matter for you whether you do or not. The suggestion

3 is that you might like to look at the categories, see

4 how accurately you say the objected documents are set

5 out, and if you wanted to say anything about the

6 categories, say it.

7 MR. SAYERS: We will certainly do our best,

8 Mr. President, but I hope the Court bears in mind, as

9 the last two weeks this case comes to a close, the

10 preparation obligations upon us are tremendous, and the

11 last thing that -- well, actually, let me just make one

12 point in 30 seconds, if I may, along those lines.

13 It can't -- I think it's fairly obvious to

14 everybody what's going on here. We're being deflected

15 with just short-notice matters. It seems to me that it

16 would be helpful for everybody if we knew exactly, in

17 an organised and logical way, what it is that we're

18 supposed to deal with, when we're supposed to deal with

19 it, so that --

20 JUDGE MAY: Well, look. We have some

21 sympathy with the position you are in, but what is

22 happening is that you have a list of witnesses. If we

23 think you're being treated unfairly, we shall say so,

24 but there are pressures on everybody to get this case

25 finished --

Page 15136

1 MR. SAYERS: Absolutely.

2 JUDGE MAY: -- and we must ask everybody to

3 respond. If the timetable is not what it was said to

4 be then, of course, if you need more time on a point,

5 of course you shall have it.

6 MR. SAYERS: I appreciate that, Your Honour,

7 and I won't belabour the point. I think the point's

8 been made. But we'll give some thought, if we can,

9 over the weekend to the preparation of a category list

10 like this and see if it's feasible and update the Court

11 on Monday.

12 JUDGE MAY: Thank you. We will consider the

13 matter.

14 Mr. Kovacic, unless there's anything to say,

15 we will consider the matter. If need be, we'll ask for

16 further argument and then we'll rule on it.

17 MR. KOVACIC: But I understand that we'll

18 have opportunity on Monday to say what we think about

19 that approach.

20 JUDGE MAY: Yes.

21 MR. KOVACIC: Thank you.

22 JUDGE MAY: Yes, Mr. Nice.

23 MR. NICE: It's quite right we have a witness

24 here who is a witness who would be in a position to

25 deal with the generality of the process of transmission

Page 15137

1 of large quantities of the documents to us. Indeed, I

2 think that the method he would describe would be

3 broadly similar to the method the same person would

4 describe if giving an account of how documents are

5 produced pursuant to a court order from the body he

6 represents. The problem, of course, is if there's a

7 challenge to the authenticity of some specific

8 document, in the nature of things, you've got to

9 possibly move from that witness back a generation or

10 back a couple of generations.

11 His evidence will, of course, be admissible

12 under our Rules because it's not excluded on any

13 grounds of hearsay, but in the nature of things, he can

14 give general useful evidence. He's actually available

15 today, but it may be that it's too early to call him,

16 but he will, of course, be available to be called in

17 due course.

18 JUDGE MAY: Yes. Now, what's the --

19 MR. NICE: Probably not that witness today

20 then but he'll be available for later. I quite

21 understand everybody is under pressure at the moment.

22 We've done our best to serve documents as early as we

23 can. The sequential numbering system, by the way, is

24 chronological, as we explained at the beginning, so far

25 as possible.

Page 15138

1 Now, videotapes are another category. I

2 think Mr. Scott was dealing with them, while I was out

3 of the room, to some degree, but there's been

4 negotiation between the parties -- can I hand in

5 schedules that are already, I think, available in a

6 present form. I've already sent the present form to

7 the Defence, but copies for them, just in case they're

8 not and for the Chamber.

9 The reality of the difficulties of the

10 videotape material available to us comes from various

11 sources, sometimes arrives in the form of a

12 compilation, sometimes arrives as a single feature.

13 Where something arrives as a compilation,

14 although it might be desirable in a perfect world to

15 break every element of the compilation down and to

16 serve a single four-hour tape with two minutes on it

17 for ease of reference, it's beyond our resources to do

18 that.

19 The consequence is that there have been

20 difficulties, which we quite understand, in being sure

21 that videos are correctly identified by numbers and

22 that where transcripts exist, for example, if there's

23 an example of only one segment of a compilation, the

24 balance of the compilation not being relevant, why

25 there's sometimes, I think, difficulties in associating

Page 15139

1 the transcript with the appropriate part of the

2 compilation.

3 There's been a lot of negotiation between the

4 parties, and I think leading to a substantial measure

5 of agreement as to what is what.

6 If you look at this list, this is, I think,

7 the irreducible minimum that the Prosecution would seek

8 to have available as exhibits. Some, I think, for

9 reasons that Mr. Scott may have touched on effectively,

10 produced themselves, but we don't seek to take a lot of

11 your time with the remaining videos.

12 The format of the document is, I hope,

13 clear. If we look at the first sheet, the second entry

14 relates to a video that was produced by the named

15 witness through the identified advocate on the

16 particular date. That takes care of those next few.

17 The remaining ones haven't been played for

18 the time being, but we would want them to be produced

19 as part of the exhibits in the case for later

20 reference, if necessary. We might seek to trouble you,

21 before the close of our case, with playing

22 number 255 -- I think it's 255 -- but none others on

23 that page.

24 On the second sheet, you'll see that 50 per

25 cent of them have already been produced and, again, we

Page 15140

1 wouldn't seek to play the tapes to you of the others

2 probably. We might ask you to have a look at one or

3 two transcripts of press conferences. I need hardly

4 say that press conferences, once you've seen one,

5 you've seen them all in terms of format, and what's of

6 materiality is not the people sitting around the table

7 in the television studio but what is said. So there

8 will none to be played, I think, from the second

9 sheet.

10 On the third sheet, I think the first three

11 are likely to be produced by the first witness on

12 Monday morning, and number 1 -- towards the bottom of

13 the page, 1428, is one we might seek to play to you.

14 The next sheet, nearly all have already been

15 played, as you can see, and I don't think we're going

16 to trouble you at this stage, save to produce them with

17 playing them. Likewise for the last sheet.

18 So that, subject to one or two bits of

19 fine-tuning, is our final position on videos. We've

20 asked them to be produced, a few more to be played, but

21 otherwise, that's it. I hope that's a swift way of

22 getting through that as a problem. There may be

23 objections, there may even be objection to the notion

24 that they don't produce themselves, but I think, for

25 the most part, they do. They certainly produce

Page 15141

1 themselves as to the participants, and if there's any

2 question about the date, because the item doesn't date

3 itself, well, then the Chamber can take that into

4 account as a matter of weight.

5 JUDGE MAY: Very well.

6 Mr. Sayers, is there anything you want to say

7 about this? I mean, we have to consider this,

8 presumably, with the other exhibits.

9 MR. SAYERS: Precisely. We had prepared a

10 list of the outstanding videotapes -- I do not know

11 whether this has been filed with the Court; if it has

12 not, then we will -- and this sets out all of our

13 objections.

14 JUDGE MAY: Very well. We'll consider those

15 too. Perhaps you could let us have that document as

16 soon as possible.

17 MR. SAYERS: Yes, Your Honour.

18 JUDGE MAY: Yes, Mr. Nice.

19 MR. NICE: I think that's probably as far as

20 I can go today, I'm sorry to say.

21 We have, as the Chamber will see, made good

22 use of this week, because by and large administrative

23 matters have now been swept aside -- not swept aside,

24 but they have been dealt with or they are in the

25 process of being dealt with.

Page 15142

1 Despite the reduced time available to us,

2 below what we had forecast and until very recently

3 known about, I'm hopeful that we can get through all

4 the witnesses that we wish to get through.

5 On Monday, we have a full day, for sure;

6 indeed, I think we're going to have full days Monday,

7 Tuesday, and Wednesday of next week. But what I will

8 attempt to do is to take the witnesses, for example,

9 starting with Landry, as briefly as I can in chief,

10 getting them to adopt, so far as is permissible and

11 necessary, the balance of any summary as an accurate

12 narrative of matters broadly covered elsewhere, and

13 that should, I hope, enable us to deal with those two

14 witnesses on Monday, probably not even spilling over

15 into Tuesday. That's my hope.

16 JUDGE MAY: Yes, Mr. Sayers.

17 MR. SAYERS: Your Honour, Mr. Stutt and

18 Mr. Landry are going to be substantial witnesses.

19 Mr. Landry, for example, testified in Blaskic for about

20 five days. Now, we don't intend on spending anywhere

21 near that amount of time, but I should alert the Court,

22 I think, of all the witnesses that are lined up from

23 here on in, to the end of the Prosecution's case, those

24 two will probably be the most substantial from the

25 cross-examination perspective. Everyone else, as far

Page 15143

1 as I can tell, will be relatively short, but not those

2 two.

3 JUDGE MAY: Very well. We'll adjourn now

4 until Monday morning. I'll return the Rules to the

5 legal officer, please.

6 --- Whereupon the hearing adjourned at

7 12.43 p.m., to be reconvened on Monday,

8 the 28^th day of February, 2000, at

9 9.30 a.m.