THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA SLOBODAN PRALJAK S PRELIMINARY RESPONSE TO THE PROSECUTION MOTION TO REOPEN

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1 THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA IT T D D June 2010 SF TRIAL CHAMBER III Case No. IT T Original: English Before: Judge Jean-Claude Antonetti, Presiding Judge Arpad Prandler Judge Stefan Trechsel Reserve Judge Antoine Kesia-Mbe Mindua Registrar: Mr. John Hocking Filed: 3 June 2010 THE PROSECUTOR v. JADRANKO PRLIĆ BRUNO STOJIĆ SLOBODAN PRALJAK MILIVOJ PETKOVIĆ VALENTIN ĆORIĆ BERISLAV PUŠIĆ - PUBLIC - SLOBODAN PRALJAK S PRELIMINARY RESPONSE TO THE PROSECUTION MOTION TO REOPEN The Office of the Prosecutor Mr. Kenneth Scott Mr. Douglas Stringer Counsel for Jadranko Prlić Mr. Michael G. Karnavas Ms. Suzana Tomanović Counsel for Bruno Stojić Ms. Senka Nožica Mr. Karim A.A. Khan Counsel for Slobodan Praljak Mr. Božidar Kovačić Ms. Nika Pinter Counsel for Milivoj Petković Ms. Vesna Alaburić Mr. Nicholas Stewart Counsel for Valentin Ćorić Ms. Dijana Tomašegović-Tomić Mr. Drazen Plavec Counsel for Berislav Pušić Mr. Fahrudin Ibrišimović Mr. Roger Sahota

2 SLOBODAN PRALJAK S PRELIMINARY RESPONSE TO THE PROSECUTION MOTION TO REOPEN I. INTRODUCTION 1. Slobodan Praljak, by and through counsel, ( Praljak Defence ), respectfully submits this preliminary response to the Prosecution Motion to Reopen Its Case- In-Chief (Mladić Materials) 1 ( Motion ). The Praljak Defence respectfully suggests that the Motion should be denied and the Prosecution should be invited to resubmit the request to reopen: a. After full disclosure, transcription, and translation of the entire document or documents that the Prosecution intends to tender and any related documents; b. Properly employing the Rules governing written statements and transcripts by tendering the Mladić Diaries pursuant to Rules 92 bis, 92 ter, or 92 quater; c. Submitting all relevant excerpts of the Mladić Notebooks in the interests of justice; and d. Providing additional information regarding the authenticity and reliability of the Mladić Notebooks. 2. The Praljak Defence notes that requests for an extension of time for the Response are outstanding. The Praljak Defence 2 and the Petković Defence filed requests for an extension of time allowed for response to the Motion (collectively, Tolling Requests ). 3 The Praljak Defence fully stands behind both Tolling Requests, particularly the submission that the Praljak Defence believes that a full and informed response can only be taken after the transcribed, translated, and verified 1 Filed 21 May Slobodan Praljak s Request for Tolling of Time for Response to the Prosecution Motion to Reopen and Notice for Potential Reopening, 2 June 2010 (A courtesy copy was supplied to all parties and the Trial Chamber on the date signed, 1 June 2010) ( Praljak Request for Tolling of Time ). 3 Response of Milivoj Petković to 21 May 2010 Prosecution Motion to Reopen Its Case-In-Chief (Mladić Materials), 3 June 2010 (signed 2 June 2010).

3 Mladić Materials are disclosed in full. 4 Out of an abundance of caution, the Praljak Defence respectfully files this submission in order to ensure the Trial Chamber is timely informed of the procedural problems with the Motion at the outset. 5 This in no way constitutes a waiver of the Praljak Defence s right to provide a full and informed response after the transcribed, translated, and verified Mladić Materials are disclosed in full. The Praljak Defence respectfully submits that this filing reinforces the Tolling Requests, particularly with respect to Sections III.A (regarding disclosure) and III.C (regarding comprehensiveness) infra. II. APPLICABLE LAW 3. Rule 6 89 (C) states A Chamber may admit any relevant evidence which it deems to have probative value. 4. Rule 89 (D) states A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial. 5. Rule 89 (E) permits the Trial Chamber to request verification of the authenticity of evidence obtained out of court. 6. Rule 89 (F) expresses the preference at the Tribunal for oral evidence, allowing evidence of a witness in written form only where the interests of justice allow it. 7. Rule 92 bis governs evidence of written statements and transcripts in lieu of oral testimony. 8. Rule 92 ter governs other admission of written statements and transcripts. 9. Rule 92 quater governs evidence of a person in the form of a written statement or transcript who can no longer with reasonable diligence be traced, whether or not the written statement is in the form prescribed by Rule 92 bis. It allows that such evidence may be admitted if the Trial Chamber is satisfied of the person s 4 Praljak Request, para The Praljak Defence acknowledges that it has objected to the Prosecution filing a preliminary response in the past. The Praljak Defence seeks to be consistent in its legal stances, but cannot agree with any suggestion that the approach of filing a preliminary response is barred to the Praljak Defence after the Trial Chamber has ratified the use of preliminary responses when used by the Prosecution. Further, the Praljak Defence respectfully submits that this instance varies from the instance in which the Praljak Defence objected to the use of a preliminary response as the deadline for response remains unclear in this instance, unlike the previous instance. 6 All Rules refer to Rules of Evidence and Procedure.

4 unavailability 7 and finds from the circumstances in which the statement was made and recorded that it is reliable 8. However, if the evidence goes to proof of acts and conduct of an accused as charged in the indictment, this may be a factor against the admission of such evidence, or that part of it. 9 III. DISCUSSION A. The Entire Mladić Notebooks and Related Materials Should Be Disclosed, Transcribed, and Translated Prior to Reopening. 10. The Praljak Defence incorporates by reference the submissions put forth in the Praljak Request for Tolling of Time. In short, the Praljak Defence respectfully submits that until the proper disclosure of the Mladić Notebooks and related material (including apparently audio recordings of the events) is complete, including transcription and translation, the authenticity, reliability, and import of the material the Prosecution intends to tender cannot be properly and fully addressed. B. The Mladić Notebooks Are Best Tendered Pursuant to Rules 92 bis, 92 ter, or 92 quater. 11. The Rules do not ban hearsay outright, but they are far from silent on the issue of hearsay. Materials that constitute out-of-court utterances offered as proof of the truth of what is stated therein come under certain restrictions. This is a matter of elementary justice, because inter alia such statements cannot be subject to proper cross-examination. 12. The Praljak Defence respectfully submits that the Mladić Notebooks are, according to the Prosecution s own estimation, primarily Mladić s written assertions as to the contents of meetings, commonly known as a rough transcript of those meetings. The Prosecution is tendering these materials in order to try to prove the truth of the matter asserted within the Mladić Notebooks. 7 Rule 92 (A)(i). 8 Rule 92 (A)(ii). 9 Rule 92 (B).

5 The Mladić Notebooks are hearsay. Particularly given the discretionary nature of a request for reopening, these notebooks should be tendered through the appropriate rules. If the evidence tendered goes to proof of acts and conduct of an accused as charged in the indictment, it is entirely possible that the Prosecution should modify their request to reopen in order to avoid the injustice implicit in publicly proffering such evidence. C. All Relevant Excerpts of the Mladić Notebooks Should Be Included in the Motion to Reopen. 14. The Praljak Defence respectfully submits that the responsibility and duty of the Prosecution entails presenting a comprehensive picture before the Trial Chamber in order that the Trial Chamber can make accurate findings. The Prosecution s duty is not merely to try to convict the accused. The existence of defence counsel does not remove the obligation of the Prosecution to put forward the comprehensive truth before the Trial Chamber. Should the Trial Chamber be misled by the presentation by the Prosecution of only allegedly inculpatory excerpts of a document, the Prosecution would have failed in its duty to the Trial Chamber and its responsibility as an organ of the Tribunal, regardless of the response of other parties to the trial. This obligation is particularly pressing in an instance such as this, where the Prosecution is requesting an exceptional discretionary act from the Trial Chamber in the interests of justice. 15. The Praljak Defence respectfully submits that not all of the relevant excerpts of the Mladić Notebooks are included in the Motion. All references in the Praljak Request for Tolling of Time, particularly in paragraph 21, are incorporated by reference to support this respectful submission. The Praljak Defence respectfully acknowledges that certain evidence may not yet have come to the attention of counsel of the Prosecution, and indeed, the Praljak Defence is in a similar situation. This only underlines the importance of the discussion raised in Section III.A, supra, that the Motion is premature. D. The Prosecution Should Provide Additional Information Regarding the Authenticity and Reliability of the Mladić Notebooks. 16. The Praljak Defence also respectfully submits that the Trial Chamber should order the Prosecution to produce additional evidence pursuant to Rule 89 (e) to verify

6 the rather extraordinary story that these documents have just been discovered in the possession of Ratko Mladić s family. 17. The Praljak Defence does not claim at this point, before the completion of disclosure, that the evidence tendered in inauthentic or suffers from a fatal lack of reliability. However, the Praljak Defence respectfully submits that the known efforts made thus far by the Prosecution are remarkably spare for the evidence tendered. No statements from the custodians of this document have been proffered. No explanation of whether the document is complete has been put forth. There is precisely no evidence regarding the chain of custody of this material. At present the Praljak Defence lacks any method of verifying whether the scan of the document made by the Serbian authorities is identical to the original in the possession of the Prosecution. IV. CONCLUSION 18. For the reasons set forth above, and in accordance with Rules 54, 68, 89, 92 bis, 92 ter, and 92 quater, the Praljak Defence respectfully submits through this preliminary response, necessitated by the current uncertainty regarding the deadline for a response, that the Motion should be denied and the Prosecution should be invited to resubmit the request to reopen: a. After full disclosure, transcription, and translation of the entire document or documents that the Prosecution intends to tender and any related documents; b. Properly employing the Rules governing written statements and transcripts by tendering the Mladić Diaries pursuant to Rules 92 bis, 92 ter, or 92 quater; c. Submitting all relevant excerpts of the Mladić Notebooks in the interests of justice; and d. Providing additional information regarding the authenticity and reliability of the Mladić Notebooks.

7 Word Count: 1626 Respectfully submitted, By Božidar Kovačić and Nika Pinter Counsel for the Accused Slobodan Praljak