1 Monday, 28 January 2002
2 [Open session]
3 --- Upon commencing at 9.05 a.m.
4 JUDGE AGIUS: Madam Registrar, could you please call the case?
5 THE REGISTRAR: Yes, Your Honour. This is case number IT-99-36-T,
6 the Prosecutor versus Radoslav Brdjanin and Momir Talic.
7 JUDGE AGIUS: [Microphone not activated]
8 [The accused entered court]
9 JUDGE AGIUS: Good morning, Mr. Brdjanin. Can you hear me in a
10 language that you can understand?
11 THE ACCUSED BRDJANIN: [Interpretation] Yes, I can.
12 JUDGE AGIUS: General Talic, good morning to you as well. Can you
13 hear me in a language that you can understand?
14 THE ACCUSED TALIC: [Interpretation] I can hear you.
15 JUDGE AGIUS: So good morning to everyone. Appearances for the
17 MS. KORNER: Your Honour, Joanna Korner and Andrew Cayley for the
18 Prosecution, assisted by Denise Gustin, case manager.
19 JUDGE AGIUS: And for Defence of Mr. Brdjanin?
20 MR. ACKERMAN: Your Honour, I'm John Ackerman and with me is Milka
21 Maglov, my co-counsel, and Milos Perec, my legal assistant. I have one
22 other legal assistant who just arrived in town on Saturday, who, among
23 other things, is here to translate my conversations with co-counsel. She
24 is not able to be in the courtroom because there is nobody to give her a
25 pass to get in the building. She's been working on that since 8.15 this
1 morning. I'm not suggesting that we wait. I think we can proceed without
2 her, unless I run into a problem where communication becomes absolutely
3 necessary, and then I think either way I can work that out. I just wanted
4 to advise you that she may be here at some point.
5 JUDGE AGIUS: Can you tell us her name, please?
6 MR. ACKERMAN: Her name is Tania Radosavljevic, and she's from
8 JUDGE AGIUS: Madam Registrar, could you just make sure that when
9 the necessary procedures are concluded, she would be given every facility
10 of access to this courtroom?
11 THE REGISTRAR: Yes, Your Honour.
12 JUDGE AGIUS: Thank you.
13 MR. ACKERMAN: Thank you, Your Honour.
14 JUDGE AGIUS: And Defence for General Talic?
15 MS. FAUVEAU-IVANOVIC: I am Natasha Fauveau-Ivanovic, from the
16 Court in Paris. I'm replacing Mr. de Roux and Mr. Pitron who are absent
17 today. I am General Talic's counsel. I also have an assistant who is in
18 the same situation as Mr. Ackerman's assistant. Her name is Fabien
19 Masson, and I would be very grateful if she could have access to the
21 JUDGE AGIUS: Madam Registrar, please, this is for your
23 I also wanted to be updated on the matter of the bullet-proof
24 vests that was mentioned sometime during the course of one sitting last
25 week. Are you now being supplied with bullet-proof vests that are less
2 MR. ACKERMAN: It's my understanding, Your Honour, that that is
3 done. Yes, it is.
4 JUDGE AGIUS: Okay. Thank you, because I was assured that it was
5 being taken care of and I wanted to make sure that it was. So before we
6 start - one moment, Ms. Korner - I wanted an update on the four motions
7 that Mr. Ackerman filed the last sitting or before the last sitting of the
8 Pre-Trial Conference. Is there any news that -- are you in a position to
9 update this Trial Chamber?
10 MR. ACKERMAN: Your Honour, some of the translations and missing
11 documents have been provided. I understand there are -- there remain
12 outstanding translations with regard to each witness. I could be
13 corrected by the Prosecutor about that because there are some papers that
14 I have not had an opportunity to get through, but I think there are some
15 outstanding translations. What I would propose, rather than take some
16 kind of a strict view about this, is that if there are -- there remain
17 outstanding translations, now that I have Ms. Radosavljevic here, we will
18 look at the documents that have not yet been translated and we may not
19 have a problem once we see what the content of those documents are. But
20 she'll be able to read them for me and get that straightened out.
21 JUDGE AGIUS: And while you are still on your feet, you also had
22 to inform -- give the necessary information to this Trial Chamber on the
23 newspaper article and the journalist question, whether you are going to --
24 I don't know. I mean, can you inform the Trial Chamber as to what
25 position are you going to take?
1 MR. ACKERMAN: Yes. I addressed a letter to Ms. Korner on
2 Saturday. It was sent to her by e-mail, it was either Friday evening or
3 Saturday, I think it was Saturday, and the position I'm taking after
4 consultation is that he must be brought here because there are some
5 matters that need to be fleshed out with him on cross-examination,
6 regarding interpretation issues primarily. But there are others, also.
7 JUDGE AGIUS: Yes, Ms. Korner.
8 MS. KORNER: Your Honour, I understand Mr. Ackerman sent an e-mail
9 to Ms. Gustin, the case manager. So I haven't seen it, but I'm perfectly
10 willing to accept that. In those circumstances, Your Honour, what we will
11 provide for Your Honour after the next break is a draft summons, if we can
12 do that. And if Your Honour would be kind enough to sign it, we'll deal
13 with it.
14 JUDGE AGIUS: It will be signed today.
15 MS. KORNER: Thank you very much.
16 JUDGE AGIUS: It will be signed today.
17 And with regard to the other four motions?
18 MS. KORNER: In respect of -- there were, I understand, on Friday
19 still a couple or so outstanding translations for the first witness as to
20 fact. But I understand they're ready now, and they will be given to
21 Mr. Ackerman today.
22 JUDGE AGIUS: That's very good. Thank you.
23 Ms. Fauveau.
24 MS. FAUVEAU: [Interpretation] Concerning the witness's article - I
25 think it's 7177 - as the Prosecutor said, that this Rule did not concern
1 General Talic, we don't question its admissibility, but on condition that
2 this is officially concluded that this Rule is not opposed or does not
3 oppose General Talic.
4 JUDGE AGIUS: [Previous translation continues] ... and more or less
5 made very clear during one of the previous sittings. Not the last
6 sitting, the sitting before.
7 So that clears the way for the most important part of today's
8 agenda, that is, the debate that you requested on aspects of admissibility
9 of evidence.
10 The position that will be taken by this Trial Chamber is the
11 following: There will be a debate now. We will hear submissions from
12 you, from the Prosecution, and also from the Defence.
13 Unfortunately, the documents that -- the memoranda that you filed
14 arrived on my desk barely five minutes before the beginning of this
15 sitting, so none of us have had time to read these memoranda, and I even
16 doubt whether my two colleagues have been given copies of these
18 You have? Yes.
19 And so after the debate is concluded, then we will suspend the
20 sitting for a while. And initially there will be an oral decision, to be
21 followed later on by a proper written decision, which will sort of
22 crystallise, then, the position once and for all, and also you would have
23 it in writing should any one of you later on need it either for purpose of
24 appeal or whatever.
25 MS. KORNER: Yes. Your Honour, can I tell Your Honour that I
1 understood that Your Honours' ruling about submissions would -- they'd be
2 held orally and no filing is required. What I provided to Your Honours,
3 as I said I would, whether it was a serious matter or a full legal
4 argument, is a skeleton argument plus a copy of the authorities on which I
5 intend to rely in the course of my submissions.
6 JUDGE AGIUS: So I would --
7 Yes, Mr. Ackerman.
8 MR. ACKERMAN: Your Honour, we're in the same position that you
9 are; we've had this for just a few minutes. It was given to us about ten
10 minutes before 9.00. I, of course, have not had a chance to read through
11 it. I think in the oral presentations that there would be a number of
12 things that I might have to say about this.
13 I just -- in glancing through it, I note, for instance, that one
14 of the authorities attached is a decision granting a request for evidence
15 in the Sikirica case. And all you have to do is look at it to see that
16 there was no objection raised by Defence counsel. So that's kind of an
17 easy decision for a Court to make if there's no Defence counsel
18 objection. It doesn't stand for anything in that event.
19 And there may be other things that I would like to point out to
20 the Court. So what I'm wondering is if the Court might think it might be
21 more efficient for us to take about a 30-minute break right now, have the
22 Court look at the documents, and give me a chance to look at the ones that
23 were submitted to us, and the Prosecution a chance to look at the one I
24 submitted at about the same time this morning, which I'm sure she hasn't
25 had a chance to fully digest either. But that's up to the Court. However
1 you want to handle it is fine with me.
2 JUDGE AGIUS: Are you in agreement with that, Ms. Korner?
3 MS. KORNER: Your Honour, I'm perfectly happy to take whichever
4 course Your Honours think is right. I imagined that Mr. Ackerman had done
5 the same research that we had over the weekend. But if he hasn't, then
6 I'm perfectly happy for him to read through and for Your Honours to read
8 JUDGE AGIUS: And also the Trial Chamber.
9 More or less the decisions that you both referred to here --
10 MS. KORNER: Your Honour, Mr. Ackerman doesn't refer to any
11 Tribunal decisions at all.
12 JUDGE AGIUS: Yes. But you -- the decisions -- but of course he
13 does refer to decisions in his book.
14 MS. KORNER: He does.
15 JUDGE AGIUS: Which this Trial Chamber consulted over the weekend
16 as well; not in B/C/S, as it will be in two weeks' time, but in the
17 English language. So more or less the Trial Chamber is very much prepared
18 on this very subject and will not take long to deliver its oral decision.
19 However, of course, I take up the suggestion as a positive one, and we
20 will break for half an hour, in which time we will have a look at the
21 documentation that you have filed. And you will -- you will have a look
22 to check.
23 MS. KORNER: Yes.
24 Your Honour, I can say to Your Honour what I intended to do was to
25 deal with the principles first and await the rulings from Your Honours,
1 then to interpose the lead investigator in this case just to explain the
2 basis of most of the documents that are in this case, so that before we go
3 back to Dr. Donia, we can -- Your Honours can see how we acquired the
4 documentation, and then to deal specifically with the ones that objection
5 was taken to, if the objection is still maintained.
6 JUDGE AGIUS: Yes. And before we break, you mentioned last time
7 that it was your intention to present a statement made by a person who is
8 now dead. And you had suggested to the Defence to react to your
10 MS. KORNER: [Microphone not activated] I'm sorry. Mr. Ackerman
11 doesn't object to the -- it's a transcript. He testified in Tadic. He
12 doesn't object, but counsel for Talic do. So at some stage -- but
13 Your Honour, that's not an urgent one, because he's dead, so it can be
14 dealt with at any stage.
15 What is more urgent is we still await a ruling from Your Honour on
16 the two other witnesses that we wished to put forward under the provisions
17 of Rule 92. If Your Honour orders them to attend, they have to be warned,
18 so we would at some stage - really as soon as possible - welcome a
19 decision on that. There's nothing further we want to say.
20 JUDGE AGIUS: So we'll now break for 25 minutes. We will resume
21 the sitting at quarter to 10.00 exactly, 9.45.
22 --- Break taken at 9.19 a.m.
23 --- On resuming at 9.50 a.m.
24 JUDGE AGIUS: I see that the missing persons are now present.
25 Welcome to this Tribunal, to this Trial Chamber. Perhaps, Mr. Ackerman,
1 you can introduce your new assistant.
2 MR. ACKERMAN: Yes, I wanted you to meet Ms. Tania Radosavljevic.
3 She is a lawyer from Belgrade, just recently sworn into the Bar, last
4 Friday, I think, and now a member of our team here.
5 The second thing I wanted to do, Your Honour, is apologise to --
6 JUDGE AGIUS: Yes, I know I'm not Judge Schomburg.
7 MR. ACKERMAN: This was an old form that I used.
8 JUDGE AGIUS: I anticipated that.
9 MR. ACKERMAN: I want to apologise to your colleagues for not
10 putting their names on. Some days start out kind of bad and this was one
11 of them.
12 JUDGE AGIUS: Ms. Fauveau?
13 MS. FAUVEAU-IVANOVIC: [Interpretation] I am assisted by Mr. Fabien
14 Masson who has just received his law diploma in France. He still hasn't
15 taken his oath, so this is why he is not wearing a robe, but he will be
17 JUDGE AGIUS: Thank you. So perhaps now we could --
18 MS. KORNER: Your Honour, the accused are not here yet.
19 JUDGE AGIUS: Oh, I didn't realise that. Please call in the
21 [The accused entered court]
22 JUDGE AGIUS: So we can proceed now, Madam Korner.
23 MS. KORNER: Your Honours now having had the opportunity to read
24 the skeleton argument we have presented, Your Honours, may I just take you
25 briefly through what we submit are the correct and relevant principles
1 that Your Honours should apply when dealing with the admission of
2 documentary evidence?
3 Your Honours, we have to start with the rule obviously. I notice
4 it's absent from Mr. Ackerman's skeleton argument. However Rule 89 starts
5 by saying, in terms, "A Chamber shall apply the rules of evidence set
6 forth in this Section, and shall not be bound by national rules of
7 evidence." And then it deals, after setting out the principle, with the
8 basis of admission. In Rule 89(C), "A Chamber may admit any relevant
9 evidence which it deems to have probative value." (D), "A Chamber may
10 exclude evidence if its probative value is substantially outweighed by the
11 need to ensure a fair trial." And then (E), "A Chamber may request
12 verification of the authenticity of evidence obtained out of court."
13 Your Honour, therefore our first submission is this: That Rule 89
14 establishes a presumption in favour of admission and places the burden on
15 the objecting party to articulate how the principles of fairness demand
16 that the evidence should be excluded under Subrule (D).
17 Your Honours, if I may digress just very briefly, we would submit
18 this: That the clear philosophy and the guiding principle of the
19 Tribunal's approach to the admission of evidence is an inclusive one,
20 without the regard for technical or procedural rules which are the
21 characteristic of some national systems, as Mr. Ackerman refers to those
22 -- he says the United Kingdom. I happen to know the Scots take a very
23 dim view of that. It's the principles in England and Wales, the Scottish
24 approach is very different. But one of the reasons, of course, for these
25 highly technical rules is because there and in the United States, it
1 operates largely on a jury system. Here, of course, as the Tribunal has
2 so often stated, one is dealing with professional Judges.
3 Your Honours, the manner in which the admissibility of evidence
4 has been treated, and the principles, are very similar also to those that
5 were dealt with in the Nuremberg trials. One has to remember that the
6 documents here, as they were in Nuremberg, were gathered as a result of
7 search warrants, of submission by interested parties, and Your Honour is
8 going to hear evidence about that shortly. But really, what one is
9 talking about is a situation of gathering material from a country that is
10 largely hostile - or great parts of it - to the aims -- or was hostile to
11 the aims of this Tribunal. And in Nuremberg, one of the things that was
12 clearly stated was this, that - this was in Article 7 of Ordinance number
13 7, and it's very similar to this Tribunal's rule. "The Tribunals shall
14 not be bound by technical rules of evidence. They shall adopt and apply
15 to the greatest possible extent expeditious and non-technical procedure
16 and shall admit any evidence which they deem to have probative value."
17 Now, Your Honour, if one moves on to the cases where these matters
18 have arisen, really one starts with the case of Delalic which was decided
19 on the 19th of January, 1998, in which Mr. Ackerman appeared, as Your
20 Honours have seen.
21 This was -- the basis of the application was to exclude the -- the
22 Defence applied to exclude documents that had been obtained by a search
23 conducted by the Austrian police in 1996, and in delivering their
24 judgement, having dealt with the arguments that had been raised, can I
25 draw Your Honours' attention, please, to the rulings which begin at page
1 7, paragraph 15, "Findings," where the principles are set out in paragraph
3 The question before the Trial Chamber is that of the admissibility
4 of evidence: A matter where the national legal systems of the world have
5 adopted diverging approaches, the procedure of the International Tribunal,
6 with its unique mixture of common and civil law features, does not conform
7 to any one tradition in this respect.
8 In contrast to the common law, where questions of admissibility
9 and exclusion of evidence occupy a prominent place in criminal procedure,
10 the ten provisions of the Rules which regulate all evidentiary matters in
11 the proceedings before the International Tribunal do not contain a
12 detailed set of technical rules relating to this issue.
13 The question of admissibility of evidence before the International
14 Tribunal is governed by Section 3 of the Rules, which is entitled "Rules
15 of Evidence." The approach adopted by the Rules is clearly one in favour
16 of admissibility, as long as the evidence is relevant and is deemed to
17 have probative value, Subrule 89(C), and its probative value is not
18 substantially outweighed by the need to ensure a fair trial,
19 Subrule 89(D). And then it deals with the other applications -- the other
21 Of these provisions, Subrule 89(C) is of particular pertinence to
22 the issue before the Trial Chamber. According to the plain text of this
23 provision, the two requirements for the admissibility of evidence are
24 those of relevance and probative value.
25 And then it goes on to say: "In relation of the question of the
1 substantive meaning of these requirements, the Trial Chamber notes that
2 evidence which is of probative value within the common law tradition has
3 been defined as evidence that tends to prove an issue. As concerns
4 relevance, it is often said that this concept in itself contains an
5 implicit requirement of probative value."
6 And it then deals with authorities, which at that stage - because
7 this was in the early stages of the Tribunal - were drawn from other
9 It then in paragraph 19 - I can move to that - effectively raise
10 doubt with the argument which is now being raised before Your Honours.
11 "The Defence contends, however, that a determination of
12 reliability should be seen as a separate first step in assessing a piece
13 of evidence offered for admission and argues that it is only if this first
14 hurdle has been passed that the Trial Chamber can proceed to consider the
15 relevance and probative value of the evidence."
16 And again, this is very much the issue that is raised by
17 Mr. Ackerman in his submissions to Your Honour.
18 This view of reliability as a separate requirement, independent of
19 those provided for my Subrule 89(C) has been rejected by the Trial Chamber
20 in the Mucic handwriting decision. As the Trial Chamber there noted, it
21 is a cardinal rule of construction of legislation that where the words of
22 a provision are clear and unambiguous, the task of interpretation does not
23 arise. So it is with Subrule 89(C), and it is therefore neither necessary
24 nor desirable to add to that provision a condition of admissibility which
25 is not expressly prescribed for by that provision.
1 "Whilst the importance of the Rules on admissibility in common law
2 follows from the effect which the admission of a certain piece of evidence
3 might have on a group of lay jurors, the trials before the International
4 Tribunal are conducted by professional Judges who by virtue of their
5 training and experience are able to consider each piece of evidence which
6 has been admitted and determine its appropriate weight.
7 As noted above, it is an implicit requirement of the Rules that
8 the Trial Chamber give due considerations to indicia of reliability when
9 assessing the relevance and probative value of evidence at the stage of
10 determining its admissibility. However, this terminology may leave some
11 room for misunderstanding and could possibly be misperceived as demanding
12 that a binding determination be made at this stage as to the genuineness,
13 authorship, or credibility of evidence. For this reason, the Trial
14 Chamber wishes to make it clear that the mere admission of a document into
15 evidence does not in and of itself signify that the statements contained
16 therein will necessarily be deemed to be an accurate portrayal of the
18 Factors such as authenticity and proof of authorship will
19 naturally assume the greatest importance in the Trial Chamber's assessment
20 of the weight to be attached to individual pieces of evidence. The
21 threshold standard for the admission of evidence, however, should not be
22 set excessively high, as often documents are sought to be admitted into
23 evidence not as ultimate proof of guilt or innocence but to provide a
24 context and complete the picture presented by the evidence gathered."
25 THE INTERPRETER: Can counsel read more slowly, please.
1 MS. KORNER: [Previous translation continues] ... and --
2 JUDGE AGIUS: Ms. Korner, my attention has been drawn to draw your
3 attention to go slower. According to me, you are slow enough, but you are
4 kindly requested to go slower.
5 MS. KORNER: I'm sorry.
6 JUDGE AGIUS: Thank you.
7 MS. KORNER: I haven't got the earphones on, so I can't hear the
8 interpreters saying slow down.
9 JUDGE AGIUS: That's why I intervened there.
10 MS. KORNER: Thank you very much.
11 JUDGE AGIUS: Please go on.
12 MS. KORNER: Paragraph 22: "It is clear from the relevant
13 provision of the Rules that there is no blanket prohibition on the
14 admission of documents simply on the ground that the purported author has
15 not been called to testify in the proceedings. Instead, the conditions
16 for admissibility are those contained in Subrule 89(C), which have been
17 discussed above."
18 And Your Honour, I don't think I need go any further because they
19 dealt then with the documents.
20 Your Honour, that decision was upheld by the Appeals Chamber.
21 Your Honours will find that decision behind - behind - divider 3. And
22 they simply upheld the decision that had been made.
23 Though if I can draw Your Honour's attention to paragraph 20,
24 which is at page 9: "It is to be noted that the Trial Chamber in this
25 case stated that a decision to admit a piece of evidence does not
1 influence in any way the weight it would later attach to that evidence.
2 The applicant appears to have confused a question relating to
3 admissibility with that as to weight. The implicit requirement that a
4 piece of evidence be prima facie credible, that it have sufficient indicia
5 of reliability, is a factor in assessment of its relevance and probative
6 value. To require absolute proof of a document's authenticity before it
7 could be admitted would be to require a far more stringent test than the
8 standard envisioned by Subrule 89."
9 Your Honour, allowing for the interpreters, perhaps we could just
10 have a quick canter, if that's the right word, or a slow trot through the
11 other authorities, all of which we submit are to the same effect.
12 In the Prosecutor against Blaskic, in which Mr. Cayley appeared,
13 there was a decision on the 30th of January, 1998, which is the second one
14 copied. And the Trial Chamber there decided, if I can take Your Honours
15 to the decision at page 10:
16 "Any documentary evidence produced by a party and identified by a
17 witness shall be admitted. Should a challenge to the authenticity of such
18 a document arise, the document will be admitted but that the weight to be
19 ascribed to it will depend on the additional elements which will have, if
20 necessary, been provided and which permit attesting to its authenticity."
21 Your Honour, if I may digress for a moment into this case, we are
22 asking Your Honours to admit evidence on the basis that we can show from
23 where that evidence has been obtained, and as the case goes on, it is
24 anticipated that witnesses will come and be able to add to the
25 authenticity of that document because they will have seen it in some form
1 or another. This is particularly true, for example, of the Variant A and
2 B document, about which Your Honours were not obliged to hear evidence
3 because the objection to authenticity was withdrawn, but Your Honours
4 would have heard how it had been referred to in speeches, how it had been
5 published in a newspaper and the like.
6 Your Honours, then dealing with the remaining authorities, which
7 we have provided copies of, the next case in time was the Kvocka case, the
8 Omarska case. The order of the 17th of March, 1999, where the only really
9 additional matter that I should draw your attention to in page 2 of the
10 very short decision, that the -- it was ordered that the documents listed
11 in annex 1 of the request -- I may say there were very many items in that
12 annex -- "that the Defence are at liberty to challenge the authenticity of
13 any of the documents during the trial and the Prosecution shall deal with
14 any issues raised as to the authenticity of the documents so admitted by
15 way of rebuttal."
16 Your Honour, the next case that we have referred to, again
17 involved the case against Blaskic. One can see how long it went on, on
18 the basis the first decision was in 1998 and this one was in March of
19 2000. We've only copied part of the judgement because other parts dealt
20 with other matters and this was the only part that dealt with
21 admissibility. In paragraph 34:
22 "The admissibility of the evidence presented at trial was also the
23 subject of decisions on several occasions. The principle embodied by the
24 case law of the Trial Chamber on the issue is the one of extensive
25 admissibility of evidence, questions of credibility or authenticity being
1 determined according to the weight given to each of the materials by the
2 Judges at the appropriate time."
3 And Your Honours, finally, we have copied for Your Honours the
4 three decisions in the case of Sikirica, which was the Keraterm camp
5 case. Your Honour, effectively, it just repeats what was said in the
6 earlier decisions relating to the case of Kvocka.
7 Your Honours, in summary, therefore, we make the submissions that
8 we've set out in the skeleton argument to Your Honours. We submit that
9 for a document to be admitted into evidence, the Prosecution must
10 establish relevance and probative value, but it need not establish
11 authenticity or authorship or even the source, according to some of the
12 decisions, of the document for such admission. We will, however, for Your
13 Honours, if required, establish - and for my learned friends - establish
14 the source.
15 Your Honour, we submit that the submissions made orally last
16 Friday and in writing by Mr. Ackerman are misguided, because they refer --
17 the whole of Mr. Ackerman's submission is based upon national rules, and
18 we submit that the rules which apply in national jurisdictions - for
19 example, as we heard in the former Yugoslavia, documents had to have a
20 date or a seal or a signature, or the stringent rules referred to in
21 England and Wales or in the United States, or in Your Honour's own
22 jurisdiction - may be of assistance when there has been no jurisprudence
23 from the Tribunal on the matter, and they are sometimes persuasive or help
24 Judges decide something which has not been decided before, but we submit
25 are of no relevance where there is clear and unambiguous authority on the
1 point and in this case, coming from the Appeals Chamber, not just other
2 Trial Chambers.
3 So we submit finally that unless the Defence raise the issue - we
4 do not suggest the burden lies upon them, but it is for them to at least
5 raise a credible issue that a document or a set of documents are
6 irrelevant or have no probative value, or that their probative value is
7 substantially outweighed by the need to ensure a fair trial - then we
8 submit, other than that happening, the document should be admitted into
10 Your Honours, those are the submissions we make on behalf of the
11 Prosecution in this matter. Your Honours, may I add that if Your Honours
12 think that the skeleton argument was of any assistance, I should say that
13 it was largely prepared - because I don't think that enough credit is
14 given - to an intern working here who did this over the weekend, and I
15 think he deserves credit for it.
16 JUDGE AGIUS: Thank you. Mr. Ackerman and Ms. Fauveau, is it all
17 right if I start with Mr. Ackerman or would you like to start yourself?
18 MS. FAUVEAU-IVANOVIC: [Interpretation] You may start with
19 Mr. Ackerman.
20 JUDGE AGIUS: Yes, Mr. Ackerman?
21 MR. ACKERMAN: Good morning, Your Honours, and thank you. It's
22 quite clear, I think, at this point that the Prosecutor has a fundamental
23 and basic misunderstanding of the issue and the objections that are being
24 made with regard to documents in this case. And given a few moments here,
25 I think I can probably clarify that and the Chamber -- give the Chamber
1 some indication of exactly where it is that we are trying to suggest that
2 matters need to be treated properly.
3 I want to first comment very briefly on Ms. Korner's initial
4 suggestion to you that things should be treated differently here in the
5 Tribunal because of the nature of the way the documents are gathered, that
6 they are gathered by search warrants, usually from persons who are hostile
7 to the Prosecution's position. In 30 years of trying cases, both as
8 counsel and as a judge in the United States, most of the documents that
9 come into criminal trials in the United States are gathered by search
10 warrant from persons who are hostile to the position of the Prosecution.
11 So there is not a large difference there.
12 The second thing, just as a preliminary matter, that I want to
13 point out is that the rules of evidence that exist both in England, Wales,
14 and in the United States that I have referred to do not have exceptions.
15 The rules of evidence in the United States do not have exceptions for
16 cases that are not being tried to a jury. The rules apply with the same
17 force in trials before a judge as they do to a trial by jury.
18 I want to begin, rather than with my memorandum, with the material
19 that was provided to you by Ms. Korner, because those cases are in
20 complete agreement, absolutely complete agreement, with what we are
21 arguing to you and have been arguing to you since the beginning of this
22 case. Since I was in the Delalic case, I can tell you some of the
23 background of how this issue came before the Court in Delalic.
24 The Prosecution had a number of documents. When I say a number of
25 documents, one must not confuse it in any way with the number of documents
1 we have in this case. It was a fairly limited number of documents. I
2 think they could all be put into two binders, as I recall. I could be
3 wrong about that. I think it's two binders of documents or less. These
4 documents were seized by search warrant by the Austrian police from a
5 business office in Vienna that was a place where one of the defendants in
6 the case, Mr. Delalic, worked and kept records and documents. So we start
7 with the proposition that they came from a place where there was some
8 indication that they belonged to and were kept there by one of the
9 defendants in the case. That in itself is indicia of reliability of the
11 We then had days of testimony - when I say "days," I think we may
12 have gone for a week - with Officer Moerbauer from the Vienna police, who
13 described in great detail the process by which these documents were
14 seized, the law under which they were seized, the regularity of the
15 process by which they were seized, and the way that they were marked by
16 the Austrian police and delivered to the Tribunal. So there was
17 significant evidence about the source of these documents, how they came
18 into the possession of the Prosecutor, and that the documents we had in
19 court were in fact the same documents that came from Moerbauer in Vienna.
20 As I say, that went on for days. We had in the case, representing
21 Mr. Mucic a gentleman by the name of Mr. Greaves from Great Britain and
22 Northern Ireland, and Mr. Greaves was arguing for what I have set out in
23 my memorandum to you as the English position regarding authenticity. He
24 was arguing that the Trial Chamber should adopt the English standard in
25 this Court which would require the Prosecutor to prove authenticity beyond
1 a reasonable doubt. That, the Trial Chamber did not agree with. And
2 Ms. Korner read to you a section of the decision where they said they
3 would not require absolute proof of authenticity, and that's what the
4 Chamber was referring to. It was the Greaves argument that the proof
5 should be beyond a reasonable doubt.
6 Now, if you go to -- there were two basic decisions that came out
7 of the Celebici Trial Chamber. One of them had to do with these documents
8 from Vienna. Another had to do with -- I believe it was some issue
9 regarding a statement or something with Mucic, but in any event what the
10 Chamber said, that reliability is necessary to be established, sufficient
11 indicia of reliability needs to be established as a condition to the
12 admissibility under Rule 89(C), not that it requires absolute proof but
13 there must be sufficient indicia of reliability with regard to the
14 document. And that's what I suggest to you in the memorandum that I gave
15 you this morning. Rather than arguing for the very strict British rule, I
16 suggest that what would be appropriate before this Tribunal, and what
17 seems to be already the law of this Tribunal, and that is simply a prima
18 facie case put forward that the document is reliable before it becomes
19 part of evidence.
20 Once it is shown to be reliable, then it is -- prima facie shown
21 to be reliable, then it could be admitted, I would suggest, unless it's
22 clear, at first blush, that it has no relevance or probative value to the
23 case. In other words, if the Prosecutor were to come in here for an
24 article from the New York Times regarding events in Panama that could not
25 possibly be related to this case, even though there was a showing that it
1 was reliable, the Court could say, "Wait a minute. This has no
2 relevance. There is no sense letting it come in, even at this point."
3 In page -- looking at the Celebici decision of 19 January, 1998,
4 paragraph 20, with regard to this issue of authenticity: "Factors such as
5 authenticity and proof of authorship will naturally assume the greatest
6 importance in the Trial Chamber's assessment of the weight to be attached
7 to individual pieces of evidence. The threshold standard for the
8 admission of evidence should not be set excessively high, as often
9 documents are sought to be admitted into evidence not as ultimate proof of
10 guilt or innocence but to provide a context and complete the picture" --
11 THE INTERPRETER: Counsel, slow down, please. The interpreters do
12 not have these texts.
13 JUDGE AGIUS: Please slow down.
14 MR. ACKERMAN: Yes, she just told me.
15 JUDGE AGIUS: Yes.
16 MR. ACKERMAN: What the Chamber is saying there, Your Honours, is
17 that if the document is being offered in the trial only as -- not as
18 ultimate proof of guilt or innocence, but only to provide a context and
19 complete a picture presented by other evidence gathered, then one need not
20 be quite so strict about the evidence regarding its reliability. But just
21 before that, the Chamber is very clear: "Factors such as authenticity and
22 proof of authorship will assume the greatest importance in the Trial
23 Chamber's assessment of the weight to be attached to individual pieces of
24 evidence." It's important. Now, this is a Trial Chamber decision. You
25 have the option to follow that decision or not.
1 The Blaskic decision of 30 January 1998 -- and I read it as
2 rapidly as I could, but it appears to me that this decision is not on
3 point at all in this sense: What was going on there was the Prosecutor
4 had provided the Defence with some Rule 68 exculpatory documents, and the
5 Defence was contending that the Prosecution had an obligation to also
6 provide them with the evidence necessary to allow them to authenticate the
7 documents, otherwise they would be deprived of the ability to use the
8 exculpatory evidence in court. And the Prosecution was resisting that
9 proposition and resisting the request that they provide that additional
10 information. So it's really not the same thing.
11 If one goes, then, to the Delalic appeal decision, which is
12 binding upon this Chamber, again it's very clear that what we are
13 suggesting is exactly what that case requires. "The implicit requirement
14 of reliability" -- and for reliability, you can also read authenticity,
15 and this is in paragraph 17: "The implicit requirement of reliability
16 means no more than there must be sufficient indicia of reliability to make
17 out a prima facie case," which is exactly what I am suggesting to you in
18 my memorandum. That's what it requires, sufficient indicia of reliability
19 to make out a prima facie case that the document is what the Prosecutor
20 says it is.
21 There is no way, Your Honours, that a document can be relevant or
22 have probative value unless it is what the Prosecutor says it is. If the
23 Prosecutor says, "I want to offer you a document that was authored by
24 Radoslav Brdjanin," and it is not a document authored by Radoslav
25 Brdjanin, it can't ever have any relevance or probative value. It
1 cannot. And until there is some showing, a prima facie showing, that it
2 is in fact what the Prosecutor says it is, you can't consider issues of
3 weight or relevance or probative value because you don't know what the
4 document is.
5 Now, frequently, you can look at the document on its face, you can
6 make a determination as to its reliability, because it has a stamp and it
7 has a signature, and it is a regular document, it's the original, it comes
8 from the place where that original should be. And sure enough, when you
9 look there, there it is. And it requires nothing more then. It
10 self-authenticates. And I understand it's the law of Yugoslavia that a
11 document that has a stamp and a signature self-authenticates; it doesn't
12 require any original proof of authenticity. But if that document that has
13 no stamp and no signature and just the typewritten name of an individual
14 on it, then something has to happen beyond just offering it to you. The
15 Prosecution has to give you a prima facie showing that it is what they say
16 it is. That's what was held by the Appeals Chamber in Celebici, that
17 there must be a sufficient indicia of reliability to make out a prima
18 facie case.
19 Now, you go to these other orders, following after the Celebici
20 appeal decision. Many of these orders you will see -- they are all
21 pre-trial. None of them are orders that were entered during the trial of
22 a case. Many of them involve situations where the Defence did not object
23 to any of the documents at all, and so they were just admitted without
24 Defence objection.
25 These are all cases where the world of documents that was being
1 considered is a small number. If we had five or six binders of documents
2 in this case, or ten in this case, then it could make sense that we simply
3 put them up here and begin to work with them as if they're evidence in the
4 case, and it's real easy then to sort out the issues of whether they are
5 reliable, whether the Court should consider them, because there are so
7 We are engaging here in a whole new era of this Tribunal's life.
8 This is the first case and will be followed by many more. I think of
9 Plavsic and Krajisnik and Milosevic and some of the others to come that
10 have this huge document base that the Tribunal has to figure out some way
11 to deal with. And what we cannot do in a case of that magnitude is what
12 is easier to do in some of the smaller cases. These cases involve maybe
13 one municipality or some prison guards, as to whom there are virtually no
14 documents. Rarely do you find a bunch of documents regarding prison
15 guards. We're talking about leader -- alleged leadership people over a
16 large area of Bosnia-Herzegovina, and we're talking about - I don't know,
17 I haven't even counted - I think a thousand or more exhibits that are
18 going to be offered to you in this case. We cannot adopt a way of
19 handling them that would allow them to come into evidence, allow witnesses
20 to testify as to their contents, on the proposition that somewhere, as
21 Ms. Korner says, in the case a witness will come along that will provide
22 some evidence of authenticity of that document. We will completely lose
23 track of what we're doing and get completely off track, so that when we
24 get to the end of the case, when we try to prepare our submissions to you
25 about what is evidence in the case and what isn't, when you try to
1 struggle with those documents and their relevance and their probative
2 value and their weight, you will find that you are facing an almost
3 impossible task. What has to happen is we have to limit this universe of
4 documents in this case to those as to which there can be a prima facie
5 case of reliability put by the Prosecutor.
6 I set out in my memorandum to you what I think is -- are some of
7 the ways. And I don't try to -- and I don't propose that these are all of
8 the ways that a document can be authenticated in a prima facie way, but
9 these are just examples of how I think it works. A witness with knowledge
10 can say, "Yes, that document is what Ms. Korner says it is. I know. I
11 was there. I saw it at the time it was issued." To some extent, that's a
12 little bit of what we had with regard to the A/B. We had people signing
13 other documents acknowledging the receipt of that particular document or
14 referring to it.
15 Identification -- number 2: "Identification of handwriting or the
16 signature by a witness personally familiar with it or by expert comparison
17 with known exemplar." So if you have a document that merely has a
18 signature with no stamp and there's some contest regarding the genuineness
19 of that document or the signature, then provide a witness. Chances are
20 that will happen rarely, very rarely, because what's happening right now
21 with regard to these documents is both parties are waiving foundation,
22 waiving the establishment of reliability with regard to documents that
23 have stamps and signatures on them. There's no sense challenging those.
24 They are prima facie reliable.
25 3: "Distinctive characteristics such as paper, print, identifying
1 marks, letterhead, seals, stamps which would ordinarily be associated with
2 the claim source of the document, or being found in a place" --
3 THE INTERPRETER: Could you please slow down. Could counsel
4 please slow down.
5 MR. ACKERMAN: I'm doing it.
6 -- "found in a place where documents of that kind would ordinarily
7 be kept."
8 And the fourth way that I suggest indicia of reliability can be
9 shown is by "reference to its content, where it contains facts which would
10 be known solely or particularly to the purported author or where it is
11 consistent with established events relating to it."
12 So for instance, if a witness comes here and says that on such and
13 such a day troops entered a particular city and were there for three days,
14 and then a document is presented later on which says on a certain day
15 troops entered that city and were there for three days, even though it has
16 no signature, it has indicia of reliability because it agrees with
17 testimony that we've already heard. And that's the -- a kind of document
18 that can be admitted without any further proof. But there has to be proof
19 with regard to some of these documents. There just has to be.
20 And when you see the documents, when you begin to look at them,
21 you'll begin to understand that what you have before you is a giant pile
22 of documents that came from a number of different places. You need to
23 know where they came from to make any kind of a judgement about them. And
24 many of them have nothing on their face to suggest that they have any
25 reliability whatsoever. There are documents that are just typewritten and
1 in capitals at the bottom, there is a name like "Milos," and there are
2 many, many, many of those. And until you know that there is some way that
3 those can be seen as reliable, then you can't give them any kind of
4 weight, you can't find them to be relevant, you can't find them to be
5 probative. A precondition to questions of relevance is that the document
6 is what the proponent says it is. If it's not what the proponent says it
7 is, then it can't possibly be said to be relevant or probative or given
8 any weight. And that's all we're suggesting. And I'm not suggesting the
9 English heavy burden of proof beyond a reasonable doubt, just a prima
10 facie case. And I think it's necessary. Thank you.
11 JUDGE AGIUS: Yes, Ms. Fauveau, please.
12 MS. FAUVEAU-IVANOVIC: [Interpretation] I'm going to be very brief,
13 Mr. President, Your Honours, because my colleague Mr. Ackerman has
14 presented his own conclusions, and I would like to associate myself to
15 everything he has said. I only have one or two things to add.
16 First, it is true that Rule 89 of the Rules of Procedure requires
17 for a document to be admissible that it should be relative and have
18 probative value. Nevertheless, it seems to me that a document that is not
19 credible can certainly not have probative value and cannot be relevant.
20 Also, in the decision which the Prosecutor gave us today, the
21 Celebici judgement, the Chamber said that if the evidence is not credible,
22 it cannot be -- it cannot have probative value. Consequently, evidence
23 which is not credible and which is not relevant and does not have
24 probative value is inadmissible.
25 Something else I would like to add refers to Yugoslav documents
1 with no signature or stamps. We are not contesting because according to
2 Yugoslav law they are inadmissible. We contest them because according to
3 Yugoslav national law, only a document that has a stamp and a signature is
4 an authentic document, and vice versa. All documents that do not have a
5 stamp or signature, there is a doubt, a suspicion, that this document may
6 not be authentic, and that is the only reason why we are contesting those
7 documents, because prima facie those documents are not authentic.
8 JUDGE AGIUS: Yes, Ms. Korner.
9 MS. KORNER: Your Honour, I think I have a -- we have a right of
10 reply, but I -- just two matters.
11 JUDGE AGIUS: Even if you didn't, I would grant it to you.
12 MS. KORNER: Thank you.
13 JUDGE AGIUS: Otherwise, I would never see the end.
14 MS. KORNER: Very simply, two matters. One raised by
15 Mr. Ackerman. He says that unless weight is established before
16 inadmissibilty, effectively Your Honours will not know how to deal with
17 documents at the end of the trial. We, in fact, put it the opposite way:
18 Unless a document is admitted, Your Honours will have great difficulty in
19 sorting out which documents have been admitted into evidence, which are
20 pending admission, and so on and so forth. Your Honours, at the end of
21 the day, will no doubt be reminded by either side of those documents to
22 which they attach weight.
23 As to the point raised by Ms. Fauveau about Yugoslav national law,
24 if that's right, again we submit it doesn't apply here. But in any event,
25 we have to submit this to Your Honours, that in many cases, we're not
1 dealing with official documents. We are dealing with documents written,
2 we will be submitting, in furtherance of a criminal joint enterprise. And
3 it may not be surprising that witnesses don't sign, or sign with
4 pseudonyms. Your Honour, we say that the test is relevance, probative
5 value, and for these purposes we can establish the source for all the
6 documents that we wish to put before Your Honours.
7 JUDGE AGIUS: Yes, Mr. Ackerman. And after you, Ms. Fauveau, and
8 that will be the end, and we'll break.
9 MR. ACKERMAN: Very brief. I didn't argue to you that weight must
10 be established before admissibility, as Ms. Korner just said. And you
11 know that I didn't argue that. And that's all I have to say.
12 JUDGE AGIUS: Would you like to add or rebut something?
13 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, Your
14 Honours, the Prosecutor had told us that we are not working here with
15 official documents. But the documents that we are contesting do come from
16 the municipal authorities or other official organs, so these would be
17 official documents. They are the documents that bear no stamp or
18 signature and that we are contesting.
19 Secondly, if we don't know the source of a document, how can we
20 know that that document is authentic, that it is not false?
21 JUDGE AGIUS: Okay. That brings the debate on this issue to an
22 end, at least for the time being. We will now go in Chambers.
23 As I already explained to you, this is a subject that we had time
24 to think about and research over the weekend, like you did. So more or
25 less we are already very much prepared to come forward with an oral
2 As I explained to you, later on there will be -- the oral decision
3 will be incorporated in a written one, which would, for record purposes in
4 particular, incorporate also the various submissions that you have made.
5 Now, you will realise that the various submissions that you have made will
6 result from the transcript of this sitting. It doesn't mean to say that
7 you are excluded from filing in the records of the case the submissions
8 that you -- the memoranda that you have furnished the Chamber with this
9 morning. You are at liberty to do that or not to do that. I mean, there
10 is absolutely no requirement that you do. But irrespective of whether you
11 do that or not, the submissions that you have made will be incorporated in
12 the written decision which will be forthcoming in the next few days.
13 In the meantime, I suppose that if we break for -- if we break for
14 one hour, it should give us enough time to go through what we have already
15 prepared, plus/minus, and come back at quarter to noon, quarter to 12.00,
16 and give an oral decision.
17 Please, Ms. Korner, be prepared to bring forward the investigator
18 soon after, because I think it will be the case of proceeding immediately
19 afterwards. Thank you.
20 MS. KORNER: Your Honour, he will be available outside court.
21 JUDGE AGIUS: Thank you.
22 --- Recess taken at 10.45 a.m.
23 --- On resuming at 12.17 p.m.
24 JUDGE AGIUS: [Microphone not activated] I'm sorry for the delay
25 but we needed an extra 30 minutes. So here we are and the Trial Chamber
1 will proceed with its oral decision.
2 In the course of last Friday's sitting, following some
3 disagreement between the Prosecution and the Defence on various basic
4 issues related to the admission of several documents in evidence, and with
5 a view to delineating and setting down the rules which would be applied by
6 this Trial Chamber in admitting or excluding evidence, particularly
7 documentary evidence, learned counsel for the Prosecution asked for this
8 issue to be debated during today's sitting, following which this Trial
9 Chamber was then prayed to pronounce itself orally.
10 As you know, the relative debate took place earlier on this
11 morning and now that the Trial Chamber has been seized with this important
12 issue and having considered the oral submissions of the parties, decides
13 as follows:
14 1: In matters of admissibility of evidence, the procedure of this
15 International Tribunal, with its unique mixture of common and civil law
16 rules on procedure and evidence, rather than purporting to conform to any
17 particular system or tradition, is inspired by the need for a fair
18 determination of the matter before it.
19 2: The question of admissibility of evidence before this
20 International Tribunal is governed by Section 3 of the Rules, entitled
21 "Rules of Evidence." As explained in the Delalic Trial Chamber decision
22 referred to in the course of this morning's oral submissions, the approach
23 adopted by the Rules is clearly one in favour of admissibility, as long as
24 the evidence is relevant and is deemed to have probative value, this in
25 terms of Subrule 89(C), and also, as long as its probative value is not
1 substantially outweighed by the need to ensure a fair trial. Evidence may
2 further be excluded on the grounds given in Rules 95 and 96. Subrule
3 89(E) relates to the authentication of evidence out of Court. Finally,
4 Subrule 89(B), perhaps one of the most important rules of evidence,
5 contains a provision of a residual nature which, in cases not otherwise
6 provided for in the Rules, permits the application of such rules of
7 evidence as will best favour a fair determination of the matter in
8 question and which are consistent with the Statute and general principles
9 of law.
10 3: As already stated by the Trial Chamber in Prosecutor versus
11 Delalic, the same judgement that I referred to earlier and which was
12 referred to earlier on this morning by both parties, "In contrast to the
13 common law, where questions of admissibility and exclusion of evidence
14 occupy a prominent place in criminal procedure, the ten" - now actually
15 there are more - "provisions of the Rules which regulate all evidentiary
16 matters in the proceedings before the International Tribunal do not
17 contain a detailed set of technical rules relating to this issue."
18 4: It is therefore clear to this Trial Chamber that in the
19 context of Rules of Procedure and Evidence, the approach of the Statute of
20 this International Tribunal is to lay down a framework or a structure
21 conceived in the broadest terms, providing that in the determination of
22 the charges against him or her, the accused shall be entitled to a fair
23 and public hearing. The Trial Chamber is in duty bound and therefore has
24 the responsibility to ensure that the trial is fair and expeditious and
25 that the proceedings are conducted in accordance with the Rules, with full
1 respect for the procedural and substantive rights of the accused, due
2 regard being also had for the protection of witnesses and victims.
3 Rule 89(A) makes it clear that a Trial Chamber shall not be bound
4 by national rules of evidence, whether representing the common law or the
5 civil law. As held by the Appeals Chamber in Aleksovski, a judgement
6 delivered on February 16, 1999: "There is no reason to import such rules
7 into the practice of the Tribunal, which is not bound by national rules of
8 evidence ... The purpose of the Rules is to promote a fair and
9 expeditious trial, and the Trial Chambers must have the flexibility to
10 achieve this goal. This Trial Chamber believes that it should not
11 consider itself hindered by technical rules in its search for the truth
12 apart from those listed in Section 3 of the Rules.
13 In the opinion of this Trial Chamber, the most important rule in
14 this context is Rule 89 which lists the general evidentiary provisions,
15 and as already stated, in its Subrule (B) provides that 'in cases not
16 otherwise provided for in the Rules, the Trial Chamber shall apply rules
17 of evidence which will best favour a fair determination of the matter
18 before it and are consonant and in harmony with the spirit of the Statute
19 and the general principles of law.'"
20 The same rule permits the Chamber to admit any evidence with
21 probative value and exclude any if the probative value is substantially
22 outweighed by the need to ensure a fair trial. This confirms what has
23 already been pointed out, namely that in trial proceedings before this
24 International Tribunal, there seem to be no pre-established technical
25 rules for the admissibility of evidence. It is clear that the approach
1 adopted by the Rules is one which is definitely in favour of the
2 admissibility of evidence provided that this is relevant and has probative
3 value. Needless to say, irrelevant evidence needs to and will be excluded
4 in the most unequivocal way in the interest of a fair and expeditious
6 These considerations have resulted in a generally uniform tendency
7 of the various Trial Chambers of this International Tribunal towards
8 admitting evidence, in the first place, leaving its weight to be assessed
9 when all the evidence is being considered by the Trial Chamber in the
10 final elaboration of its judgement. This approach has also met with the
11 approval of the Appeals Chamber in more than one instance. This will
12 therefore, in principle, be the practice which this Trial Chamber will
13 adopt throughout these proceedings.
14 Another conspicuous practice that has been followed by the Trial
15 Chambers of this International Tribunal and which will be followed by this
16 one is that the common law general rules relating to the exclusion of
17 evidence will not be followed as a rule. The main reason for this is that
18 these rules were conceived in the context of a system of trial by jury
19 where there is the absolute need to keep away from the lay jurors
20 prejudicial material of little or no probative value which it may be
21 difficult for them to erase from their mind. Proceedings before this
22 International Tribunal, as very ably pointed out this morning, are instead
23 conducted by professional judges. This Trial Chamber attaches great
24 importance to this special characteristic of this International Tribunal.
25 The position was also made clear, very clear, by the Trial Chamber
1 in the Delalic decision referred to before, and I quote from paragraph
2 20: "While the importance of the rules on admissibility in common law
3 follows from the effect which the admission of a certain piece of evidence
4 might have on a group of lay jurors, the trials before the International
5 Tribunal are conducted before professional judges, who by virtue of their
6 training and experience are able to consider each piece of evidence which
7 has been admitted and determine its appropriate weight."
8 Having premised all this, this Trial Chamber will now spell out
9 some of the rules which will govern these proceedings and by which the
10 parties should be guided.
11 The first guideline is that the parties should always bear in mind
12 the basic distinction that exists between the legal admissibility of
13 documentary evidence and the weight that documentary evidence is given in
14 the courtroom.
15 The second guideline is that the fact that this Trial Chamber may
16 at some point in time in the course of these proceedings rule against the
17 admissibility of some particular document or other piece of evidence will
18 not prevent that ruling being reversed contrarily or at a later stage as
19 further evidence emerges.
20 The third guideline is that which was stated in the Delalic
21 decision I referred to earlier, namely that, "The mere admission of a
22 document into evidence does not in itself signify that the statements
23 contained therein will necessarily be deemed to be an accurate portrayal
24 of the facts. Factors such as authenticity or proof of authorship will
25 naturally assume the greatest importance before the Trial Chamber's
1 assessment and during the Trial Chamber's assessment of the weight to be
2 attached to the individual pieces of evidence." Also, this Trial Chamber
3 agrees that "the threshold standard for the admission of evidence should
4 not be set excessively high, as often documents are sought to be admitted
5 into evidence, not as ultimate proof of guilt or innocence, but to provide
6 a context and to complete the picture presented by the evidence in
7 general." This does not mean that either of the parties in pretending the
8 right to have a document admitted in evidence have also the right not to
9 have the reliability of that document questioned at the time of the
10 requested or pretended admission. As stated by the Appeals Chamber in the
11 Delalic decision of the 4th March, 1998, and as this Trial Chamber sees it
12 at the station of admission of evidence, the implicit requirement of
13 reliability means no more than that there must be sufficient indicia of
14 reliability to make out a prima facie case for the admission of that
15 document. This is, however, by far and large substantially different from
16 what counsel for the defence of the two accused are pretending, especially
17 since their submission would in the opinion of this Trial Chamber entail a
18 thorough, if not conclusive, examination not only of indicia of
19 reliability but of practically the absolute authenticity of the document
20 purported to be exhibited. This is not and would not be in accordance
21 with the case law of this International Tribunal.
22 The fourth guideline is that when, as has already happened in this
23 case, objections may be given and taken on grounds of authenticity, this
24 Trial Chamber will follow the practice that has generally been adopted
25 until now by this International Tribunal, namely, generally to admit
1 documents and video recordings and then decide what weight to give them,
2 having seen them, there being no lay jury to protect from prejudicial
3 matter or some other matter which in due course needs to be ruled
5 Always in the same context, the fifth guideline is that the
6 parties should remember that there is no blanket prohibition on the
7 admission of documents simply on the grounds that their purported author
8 has not been called to testify. Similarly, the parties are being reminded
9 that the fact that a document is unsigned or unstamped does not a priori
10 render it void of authenticity. In fact, as rightly pointed out by the
11 learned counsel for the Prosecution this morning, the absence of a
12 signature or of an official seal may sometimes in itself be indicative of
13 the pursuit of a criminal joint enterprise or possibly a way intentionally
14 devised to avoid having the paternity of that document directly
16 As already stated, factors such as authenticity and proof of
17 authorship will naturally assume the greatest importance in the Trial
18 Chamber's assessment of the weight to be attached to individual pieces of
20 This position was further crystallised by the Appeals Chamber in
21 the 4 March, 1998, Delalic decision where it was stated that, "To require
22 absolute proof of a document's authenticity before it could be admitted
23 would be to require a far more stringent test than the standard envisaged
24 by Subrule 8(C)."
25 The sixth guideline refers to an aspect that has already been
1 referred to extensively by the Presiding Judge in this Trial Chamber
2 during his initial address to the parties on the first day of this trial,
3 namely the issue of hearsay evidence. This is an issue which it is
4 anticipated will engage this Trial Chamber from time to time, especially
5 as either of the parties will seek to present statements of persons who
6 have died in the meantime or other similar items of evidence.
7 The position is being reiterated in the words of the Appeals
8 Chamber in the Aleksovski case decision of the 19th of January, 1999, and
9 I quote: "It is well settled in the practice of the Tribunal that hearsay
10 evidence is admissible. Thus, relevant out-of-court statements which a
11 Trial Chamber considers probative are admissible under Rule 89(C). This
12 was established in 1996 by the decision of Trial Chamber II in Prosecutor
13 versus Tadic and followed by Trial Chamber I in Prosecutor versus
14 Blaskic. Neither decision was the subject of appeal and it is not now
15 submitted that they were wrongly decided. Accordingly, Trial Chambers
16 have a broad discretion under Rule 89(C) to admit relevant hearsay
17 evidence. Since such evidence is admitted to prove the truth of its
18 contents, the Trial Chamber must be satisfied that it is reliable for that
19 purpose, in the sense of being voluntary, truthful and trustworthy as
20 appropriate and for this purpose may consider both the content of the
21 hearsay statement and the circumstances under which the evidence arose;
22 or, as Judge Stephen described it, the probative value of a hearsay
23 statement will depend on the context and the character of the evidence in
24 question. The absence of the opportunity to cross-examine the person who
25 made the statements and whether the hearsay is "firsthand" or further
1 removed, are also relevant to the probative value of the evidence, and to
2 these, this Trial Chamber will attach great importance. The fact that the
3 evidence is hearsay does not necessarily deprive it of probative value but
4 it is acknowledged that the weight or probative value to be afforded to
5 that evidence will usually be less than that given to the testimony of a
6 witness who has given it under a form of oath or who has been
7 cross-examined, although even this will depend on the infinitely variable
8 circumstances which surround hearsay evidence." This is the seventh
9 guideline, and later on the aspect of reliability will also be revisited.
10 The eighth guideline is that since it is the responsibility of the
11 Trial Chamber to seek and apply the best rules in its determination of the
12 matter before it, the so-called best evidence rule will be applied. This
13 essentially means that the Trial Chamber will rely on the best evidence
14 available in the circumstances of the case and parties are being directed
15 to regulate the production and the presentation of their evidence along
16 these lines. What is the best evidence will, of course, depend on the
17 particular circumstances attached to each document and to the complexity
18 of this case and the investigations which preceded it. The Trial Chamber
19 will exercise its discretion in the spirit which lies at the basis of the
20 Statute and the Rules.
21 With the ninth guideline, the Trial Chamber draws the attention of
22 the parties to Rule 95 which provides for the exclusion of improperly
23 obtained evidence and declares that no evidence shall be admissible if
24 obtained by methods which cast substantial doubt on its reliability or if
25 its admission is antithetical to, and would seriously damage, the
12 Blank pages inserted to ensure pagination corresponds between the French
13 and English transcripts. Pages 965 to 966.
1 integrity of these proceedings. Accordingly, the Trial Chamber makes it
2 clear at the very outset that statements which are not voluntary but are
3 obtained from suspects by oppressive conduct cannot pass the test under
4 Rule 95, the burden being on the Prosecution to prove beyond reasonable
5 doubt that the statement was voluntary and not obtained by oppressive
6 conduct. As stated in the Delalic case, to which I made reference earlier
7 on, it is extremely difficult for a statement taken in violation of Rule
8 42 to fall within Rule 95, which protects the integrity of the proceedings
9 by the exclusion of evidence obtained by methods which cast substantial
10 doubts on that integrity.
11 The tenth guideline which this Trial Chamber wishes to draw the
12 attention of the parties to relates to the notion of reliability already
13 mentioned and one that has been emphasised in the course of the oral
14 submissions of this morning. In matters of hearsay evidence, it seems
15 that the Rules implicitly require that reliability be a component of
16 admissibility, and, indeed, following previous case law of this Tribunal
17 on the matter, this Trial Chamber agrees that reliability is an inherent
18 and implicit component of each element of admissibility. This is so
19 because if the evidence offered is unreliable then it cannot be either
20 relevant or of probative value. Therefore, such evidence will be
21 inadmissible in terms of Subrule 89(C). The Trial Chamber, however,
22 wishes to make it clear that it certainly does not agree that the
23 determination of the issue of reliability in this context of hearsay
24 evidence, when it arises, should be seen as a separate, first step in
25 assessing a piece of evidence offered for admission. This has already
1 been decided by the Trial Chamber in the Delalic decision mentioned by me
2 earlier on, and as also illustrated in the Mucic handwriting decision and
3 will be followed by this Trial Chamber. Furthermore, the position was
4 confirmed by the Appeals Chamber, as I explained earlier on, and therefore
5 the notion of establishing indicia of reliability ought not to be confused
6 with having admissibility predicated on the extent of proof of reliability
7 as suggested by counsel for the Defence. That would be tantamount to
8 finding a way round the previous decisions of the Trial Chamber and the
9 Appeals Chamber, which this Trial Chamber is not prepared to do.
10 Last but not least, this Trial Chamber emphasises what it
11 considers to be an overriding principle in matters of admissibility of
12 evidence. The Trial Chamber is, in terms of the Statute, the guardian of
13 the procedural and substantive rights of the accused and has, in addition,
14 the delicate task of striking a balance in seeking to protect also the
15 rights of victims and witnesses.
16 A trial, as we all know, is a delicate and often complex journey
17 in search of the truth, and the Trial Chamber strongly believes that
18 questions of admissibility of evidence do not arise and do not depend
19 solely when one of the parties raises an objection to a piece of evidence
20 sought to be brought forward by the other party. Naturally, when there is
21 no objection, when the authenticity of a document, for example, is not
22 contested, the task of admitting evidence will be made easier, but this
23 Trial Chamber has an inherent right and duty to ensure that only that
24 evidence which under the Rules may be admitted will be admitted, and for
25 this purpose, will, as may turn out to be necessary from time to time,
1 intervene ex officio to exclude from these proceedings those pieces of
2 evidence which, in its opinion, for one or more of the reasons laid down
3 in the Rules, ought not to be admitted in evidence. In other words, this
4 admission of the Prosecution that for a document to be admitted into
5 evidence the Prosecution must establish relevance and probative value is
6 very much in accordance with what the Rules in effect require from either
7 party seeking to introduce a document in evidence. The Prosecution is
8 also right in submitting that it need not establish authenticity or
9 authorship or even the source of a document for such admission, but the
10 Prosecution, as well as the Defence, should always keep in mind that they
11 may be called upon by the Trial Chamber to provide a minimum of proof that
12 would be sufficient to constitute a prima facie indicia of reliability
13 when on the face of it the particular document so warrants, or warrants
15 There is a final note that this Trial Chamber would like to make
16 in relation to one of the submissions made by the learned counsel to
17 accused Brdjanin. It is undoubtedly true that this case involves an
18 unusually large number of documents, but the need for specific attention
19 to be given to each document which he suggests and lays emphasis upon,
20 cannot be accepted as a precondition for the admission of these
21 documents. As stated, saving where this Trial Chamber deems it fit to
22 intervene ex officio, the practice will be in favour of admissibility,
23 with other aspects related thereto such as those of relevance and
24 probative value following during the course of the trial.
25 This oral decision, as explained to you earlier on by me, will be
1 incorporated in a properly drawn-up written decision which will be handed
2 down in due course.
3 So now, I think, Ms. Korner, unless there are other matters which
4 you would like to raise at this point, you can proceed with bringing
5 forward your witness.
6 MS. KORNER: Your Honour, before I do that, in the light of Your
7 Honour's ruling, can I make sure that I understand how the procedure will
8 go. What I propose to do now is to call the lead investigator to explain
9 in general terms the sources of documents. And Your Honour should have
10 got a copy of his statement, plus the various annexes which relate to
11 those documents, which were disclosed to the Defence some time ago.
12 Your Honour, there are a number of documents contained within the
13 binder that Dr. Donia will be referring to which have been objected to,
14 and I was proposing to take the investigator through each of those
15 documents. But it may be, in the light of Your Honour's ruling, that
16 those objections will now be withdrawn. There are a large number of
17 documents, and some of the criteria for the objection, as I say, are
18 slightly obscure. Although some were not signed or whatever, others were,
19 and others are stamped.
20 For future -- not convenience, to make the trial run more
21 smoothly, the suggestion that I was going to make was that if objection is
22 raised to documents that appear in the municipality binders, before we
23 start the evidence on each municipality, the investigator will return, and
24 those objections can be dealt with through the evidence that he can give.
25 However, if no objection is raised to any particular document,
1 then we would suggest that the document is deemed to be agreed to be
2 admitted with all the caveats that Your Honour has gone through. So
3 really what I'm asking at the moment, before I call the investigator, am I
4 required to deal with all the documents that are objected -- that were
5 objected to last Friday?
6 JUDGE AGIUS: Mr. Ackerman.
7 MR. ACKERMAN: Your Honour, I'm still kind of working out the
8 Court's ruling and decision. I believe I understand it. I think for
9 purposes of the record that I am still required if I have an objection to
10 a document to lodge that objection, and then the Trial Chamber, as time
11 goes on, can keep revisiting that document to see if they've proved
12 anything more about it that might make it possible for you to decide that
13 it has some relevance or weight or authenticity or anything like that. I
14 think -- I think what Your Honours were saying is that we're just not
15 going to deal with this as a separate matter upfront before we go into the
16 documents. And that's fine. Well, I shouldn't say it's fine. I tend to
17 object to it, because it's different from what I had suggested, and I
18 don't want to give up the position I have on the record that I think it's
19 not possible -- not proper.
20 JUDGE AGIUS: Unless the document itself on the face of it makes
21 it almost compulsory, obligatory, on this Trial Chamber to seek more
22 information from the Prosecution -- or from the Defence, because what
23 applies to the documents of the Prosecution applies also to the -- all the
24 documents that you will be asking to bring in evidence later on.
25 MR. ACKERMAN: Yes.
1 JUDGE AGIUS: So you are exactly in the same position.
2 MR. ACKERMAN: I think so. And I think I'm in the same position
3 with regard to my objections to the documents. And it appears to me that
4 what must happen at this point is whether or not the Prosecutor puts on
5 any evidence at this point regarding a particular Donia document that I
6 have objected to would depend on whether the Trial Chamber requires
7 additional evidence at this point on that document, it seems to me, rather
8 than as some kind of a rule that that has to happen.
9 So my proposal is that Ms. Korner proceed as she planned to
10 proceed, with the understanding that those documents that I've objected to
11 remain objected to. And if the Court does not see any particular reason
12 to require any additional evidence from her regarding it at this point,
13 then we go forward. And if you do, then she'll have to put it on.
14 I think that's where we are. And maybe I'm wrong, but I think
15 that's where we are.
16 JUDGE AGIUS: Yes, more or less we are.
17 I mean, actually, Ms. Korner also preferred to have you go a step
18 further and say, "Okay. There is no need to sustain the -- some of the
19 objections raised earlier, in view of the decision of the Trial Chamber."
20 For example, I mean, one of the objections that you had raised,
21 and also Defence for General Talic, refers to unsigned, unsealed,
22 unstamped documents. I mean, the position which has been explained by the
23 Trial Chamber is at variance with the position that you had taken
24 earlier. And more or less what Ms. Korner wants to know is whether in
25 view of the decision of this Trial Chamber, you are now going to make her
1 life or her task a little bit easier or lighter than it would have been
3 MR. ACKERMAN: I can't at this point --
4 JUDGE AGIUS: I read you well, don't I?
5 MS. KORNER: Your Honour reads me very well indeed. And I was
6 merely trying to move things along a little faster.
7 MR. ACKERMAN: I can't at this point change my position, Your
8 Honours, because it's not merely it has no stamp or signature but because
9 it could have been -- those documents tend to have a character to them
10 that you could conclude either that they are real or that somebody typed
11 them in the back room a month ago or six months ago or whenever, because
12 there's nothing on them to indicate that they're anything but a
13 manufactured document. And I think the Court has to look at them and
14 decide with regard to each one, as you suggested this morning, whether you
15 want more evidence from the Prosecutor about it or not. But I wouldn't --
16 I'm not going to waive objection to documents that I can't tell by looking
17 at them have any kind of authenticity at all.
18 JUDGE AGIUS: Okay.
19 Ms. Fauveau.
20 MS. FAUVEAU-IVANOVIC: [Interpretation] We also maintain our
21 objections for the same reasons presented by my learned colleague.
22 JUDGE AGIUS: So Ms. Korner, now you know exactly what is expected
23 from you.
24 MS. KORNER: I do, Your Honour. In that event, some time ago the
25 Defence were given a copy of the index and indeed -- I'm sorry, a copy of
1 the index to the Banja Luka selection of documents. They will be given
2 today the list that the first fact witness is going to refer to. Before
3 we start the Banja Luka evidence, I would ask again that we be supplied
4 with a list of the documents which are objected to, and we will go through
5 the same procedure as today.
6 May I say that Mr. Ackerman has already provided me - I'm not sure
7 if it's complete - but certainly with a list of those documents, which
8 he's doing the other way round, for which, as he puts it, he waives
10 Your Honour, in that event, I now call Mazhar Inayat.
11 [The witness entered court]
12 JUDGE AGIUS: Good morning, Mr. Inayat.
13 THE WITNESS: Good afternoon, Your Honours.
14 JUDGE AGIUS: Good afternoon. You will now be handed a sheet of
15 paper containing a statement you are required to make before you start
16 your testimony.
17 THE WITNESS: I solemnly declare that I will speak the truth, the
18 whole truth, and nothing but the truth.
19 JUDGE AGIUS: You may sit down.
20 THE WITNESS: Thank you.
21 WITNESS: MAZHAR INAYAT
22 JUDGE AGIUS: I would imagine you are familiar to this Tribunal.
23 THE WITNESS: Your Honours, this is the first time I am
24 testifying, but yes, I do know the procedures here.
25 JUDGE AGIUS: If you need any clarification, the Chamber will give
1 it to you. We are the Judges composing this Chamber. You have been
2 summoned here as a witness for the Prosecution. The Prosecution is to
3 your right. And Ms. Joanna Korner will be conducting her
4 examination-in-chief of yourself.
5 And on your left are two Defence teams, for each of the accused
6 respectively. To the extreme left, your left, is Defence team for
7 General Talic, and to the right, it's the Defence team for Mr. Brdjanin.
8 Mr. Brdjanin is at the back on the -- your left, and General Talic
9 is on your right at the back.
10 So you can proceed with your examination-in-chief.
11 MS. KORNER: Thank you very much, Your Honour.
12 Examined by Ms. Korner:
13 Q. Mr. Inayat, is your name Mazhar Inayat?
14 A. That's correct.
15 Q. For the purposes of the record, your surname is spelled
17 A. That is correct.
18 Q. For how long have you been working as an investigator with the
19 Office of the Prosecutor?
20 A. The Office of the Prosecutor employed me as an investigator on 9th
21 of August, 1995.
22 Q. Subsequently, were you promoted to the position of team leader in
23 charge of a number of investigators?
24 A. That is correct. In December of 1997, I was promoted as
25 investigations team leader, and since then, I have held this position.
1 Q. And can you tell us, are you now working with what is called
2 Team 1?
3 A. Team 1 is the one that I'm heading, yes.
4 Q. And could you just tell Their Honours what is Team 1's area of
6 A. From the very beginning, Team 1 has been investigating war crimes
7 that were committed in the northwestern region of Bosnia, which is also
8 sometimes referred to as Bosanska Krajina, and in 1992, this region also
9 became to be known as the Autonomous Region of Krajina.
10 Q. And I think it's right that you have dealt, or the team and you
11 also, have dealt with the investigations and subsequent prosecutions in
12 the case of Tadic, Kvocka and Sikirica?
13 A. That is correct. But I just need to clarify that although my team
14 did investigate the case against Sikirica, but it was then -- before it
15 was prosecuted in the Court, it was transferred to another team.
16 Q. Now, the purpose of your testimony today, Mr. Inayat, is to deal
17 with the question of the document seizures in this case. Were you asked,
18 in December of last year, to go through the exhibit list which had been
19 handed to the Court and the Defence, and asked to ascertain the source of
20 each of the documents listed?
21 A. That is correct, that I spent almost several weeks reviewing the
22 documents which had been listed in the exhibit list, which I believe are
23 over 3300 documents, and I did try to locate the sources of each and every
25 Q. And did you supply, with your statement, the exhibit list
1 annotated with the source, as you were able to establish it, of each of
2 the exhibits?
3 A. That is correct.
4 Q. And also a guide to the annotations you used to show where each
5 document came from?
6 A. Yes. I did create a legend and I did describe that legend in
7 Annex B in my report.
8 Q. Now, can we deal, please, with the source of the major document
9 collections? I think it's right that the team conducted search and
10 seizure operations in the field.
11 A. There were three search and seizure operations conducted by the
13 Q. Were there two in the town of Prijedor and one in the town of
14 Banja Luka?
15 A. That is correct.
16 Q. Now, can you deal first of all, please, with the seizure that took
17 place first of all in the town of Prijedor? When did that happen, the
18 first one?
19 A. The first Prijedor search and seizure took place on 12th of
20 December, 1997.
21 Q. And at which locations was the operation conducted?
22 A. The team searched four locations in Prijedor town. Those
23 locations were the municipal building, the police station, the SDS
24 offices, and finally the radio station building which also housed the
25 premises for Kozarski Vjesnik.
1 Q. Now, on the board, you will see there is a plan of Prijedor.
2 MS. KORNER: And it may assist Your Honours - I hope you can see
3 it - if Mr. Inayat were to point out the various locations.
4 JUDGE AGIUS: Before you point out, is the map visible on your --
5 can you see it from there? And is it visible on your monitors?
6 Mr. Ackerman, can you see it?
7 MR. ACKERMAN: [Microphone not activated]
8 THE INTERPRETER: Microphone, please.
9 JUDGE AGIUS: Can we have a blow-up of the map?
10 MS. KORNER: Your Honour, I think that was as large as we could
11 get it. We could -- what we could probably do -- [B/C/S interpretation]
12 -- not in court. Oh, they are in court. Thank you very much.
13 JUDGE AGIUS: That makes it easier, because otherwise it will be
14 difficult from any distance to follow what you will be showing on that map
15 in any case.
16 MS. KORNER: Your Honour, I think probably it's easier -- we can
17 distribute copies if necessary, but it's easier at the moment if we
18 perhaps put it on the ELMO and then we will distribute copies thereafter.
19 If we put that on the ELMO and --
20 JUDGE AGIUS: I think we can work that way.
21 JUDGE AGIUS: Yes, please go ahead.
22 THE WITNESS: Thank you. Your Honours, this is the --
23 MS. KORNER:
24 Q. Mr. Inayat, I think you have to indicate it actually on the ELMO
25 itself and point to it, and that should come up.
1 A. I'm afraid the details --
2 Q. If you can point first of all to the municipal building?
3 A. Yes. I'm sorry, I don't know how to point this out. I mean, can
4 I do it on the map perhaps, on the big one? And I can give the numbers,
5 in fact, on the big map, which perhaps would be easier for you to follow
6 on the ELMO?
7 JUDGE AGIUS: I think it will be difficult also for us to follow,
8 because that map is at quite a distance. Can't you use the document on
9 the ELMO?
10 THE WITNESS: Okay. Your Honours, this is a town map of Prijedor
11 town, and Prijedor -- on the top of the page, you can see Prijedor which
12 is the northern direction. Bosanska Dubica is in that direction. On the
13 east of Prijedor town is Banja Luka, and there is a road coming from Banja
14 Luka into Prijedor, Banja Luka being about 48 kilometres from Prijedor.
15 This main road goes right through the centre of the heart of Prijedor, and
16 Prijedor town is in the centre, in the built-up area. This is where most
17 of the government buildings are located. I don't know if you can see
18 number 11. That's the municipal building. The number 11 is in red.
19 JUDGE AGIUS: One moment. Ms. Korner, I think it is high time we
20 have those maps distributed.
21 MS. KORNER: Yes.
22 JUDGE AGIUS: Since the witness is going to refer to specific
23 points from that map, I think we ought to have them.
24 MR. ACKERMAN: Your Honour, if he simply draws a circle around it
25 with a pencil, we can probably then see it on the monitor.
1 THE WITNESS: Yes, I think I can do that.
2 MR. ACKERMAN: [Microphone not activated]
3 THE WITNESS: Your Honours, I don't know if this pointer is
4 showing on -- yes, it is. This is the Banja Luka road which is coming
5 into Prijedor and we have just passed Keraterm camp which is to the right
6 of this road. And this road goes right through the heart of Prijedor town
7 and then south towards Sanski Most. Now, this area that we are looking at
8 is where all the government buildings are located and this is also the
9 centre of Prijedor. Building number 11, which is this, Your Honours, is
10 the municipal building which is three storeyed, and the police station is
11 right opposite this road. In fact, this road, which is the main Banja
12 Luka-Prijedor road at this point is also called Jovan Raskovic Road. It
13 is at this location that the municipal building and the Prijedor Police
14 Station are located. Then we have the radio station which is, Your
15 Honours, this building here, and probably if you can see this number 23
16 written beside this building. This is where the Kozarski Vjesnik offices
17 were also located and the radio station. Your Honours, this road here,
18 which I am pointing out with my pointer, is the Vozd Karadjordje Road and
19 the street address, Vozd Karadjordje 16, is the place where the SDS
20 offices were located, and in fact there are too many small dots here. One
21 of these buildings, I would say. Here, Your Honours, is where the SDS
22 offices were located. So, Your Honours, these were the four locations
23 where we went on 12th of December, 1997.
24 MS. KORNER: Thank you very much, Mr. Inayat.
25 Your Honour, I think that probably ought to be marked as an
1 exhibit now, that document. Perhaps that could be made Prosecutor's
2 Exhibit number 1.
3 THE REGISTRAR: That will be entered as P1.
4 MS. KORNER: Thank you.
5 Q. Now, Mr. Inayat, the search and seizure operation --
6 THE INTERPRETER: Microphone please. Microphone, Ms. Korner.
7 MS. KORNER: Thank you.
8 Q. The search and seizure operation that was carried out, was that
9 pursuant to a search warrant that had been issued by this Tribunal?
10 A. Yes. On 8th of December, Judge Fouad Riad issued the search
11 warrants, and pursuant to those search warrants, these four locations were
13 Q. Now, I think we can deal with the operation itself fairly
14 quickly. There was a team consisting of investigators, lawyers, analysts
15 and language staff?
16 A. That is correct. We, in fact, had four teams simultaneously going
17 into these four locations.
18 Q. And I think you personally were involved in the search of the
19 municipal building.
20 A. I personally was involved in the search of the municipal
21 building. But once it was concluded in the evening, I also went and
22 searched premises in the police station then.
23 Q. And I think the operation itself lasted one full day.
24 A. That's correct. We also started at about 9.30, 10.00, searching
25 these locations. And by 7.00, 7.30, we had collected the evidence we
1 wanted to receive.
2 Q. And the documents, which in total I think you estimated numbered
3 about 40.000, were those sealed in boxes?
4 A. I'd just like to correct myself, because I think I did say this to
5 you once, that there were 40.000 documents. But actually, I'd like to
6 clarify that. It was 53.000 pages of documents that were seized from
7 those four locations, of course the major chunk coming from the police
8 station. And yes, they were sealed into cardboard boxes.
9 Q. Before we deal with the other searches and seizures, can you just
10 explain the system of how these documents were seized and placed into
12 A. Yes. What we did before the searches commenced was that each
13 search party had an investigator assigned as the custodian officer, and
14 that person was supposed to sit in a central location and receive
15 documents which had been brought by other investigators and lawyers.
16 For example, I was the custodian for the municipal building search
17 and seizure, and we searched three rooms of the office of the mayor, which
18 is on the first floor, room number 21; the office of the president of the
19 executive board, room number 29; and their secretary's office; and another
20 archive's room.
21 As the documents were being brought to me, I was filling out
22 evidence register forms of procedure that we have to adopt when we are
23 seizing material. In the evidence register form, I was identifying the
24 material -- mainly -- I have to point out that when we had started this
25 search and seizure, we had expected that hopefully we will be able to
1 describe in detail each and every piece of document that we are going to
2 lift. But by midday, we had realised that the sheer amount of documents
3 that we were going to seize will not make that possible. So as the
4 folders and the books and the documents were being brought to me, I would
5 register them on the evidence register form, and I would take custody.
6 And the cardboard boxes which were lying right next to me, I placed
7 those -- that material in the cardboard boxes.
8 Once this had been done by about 4.00, 5.00 in the evening in the
9 municipal building, we took those boxes with us to the base where we were
10 staying. And this is a procedure that was also followed at the other
11 three locations.
12 Q. Now, before the boxes were transported, were those boxes sealed?
13 A. I believe so, that the boxes were sealed. But the proper
14 procedure of sealing the material was carried out later in the base.
15 However, let me point out that at no point the boxes were out of my sight
16 or out of my reach. I mean, I was the custodian. And if I had to leave
17 the boxes even for a minute, I would make sure that an OTP staff,
18 especially an investigator, is present at the site where the boxes are.
19 Q. Now, they were taken to the base from which you were working and
20 properly sealed there. What was actually done?
21 A. Once again, at the -- at the base, what we did was we checked the
22 evidence register forms to make sure that everything we had seized was in
23 the boxes. So the custodians then went through the material once again.
24 Once that had been done, the cardboard boxes were sealed with adhesive
25 tape, I guess, and then it was secured from all sides so that it cannot be
1 tampered with during its shipping to The Hague Tribunal.
2 Q. And from the base in which you were operating, were the boxes
3 taken to the offices of the UN, the Office of the Prosecutor in Zagreb?
4 A. Yes. Once we had completed the packing of the boxes, the boxes
5 then were handed over to one specific investigator of the Office of the
6 Prosecutor who had gone with us on this mission, and he transported the
7 material to the Zagreb field office, where they were put into diplomatic
9 Q. And from there, were they sent to the Tribunal?
10 A. From there, the same investigator who transported the material to
11 the Zagreb field office then accompanied the material with the Tribunal's
12 driver and a UN vehicle provided by the Zagreb field office all the way to
13 The Hague.
14 Q. All right. And thereafter, I think it was dealt with by other
15 members of the staff employed here.
16 A. That's correct.
17 Q. Thank you. So that was the first search in Prijedor in December
18 1997. Was the second search in Banja Luka?
19 A. The second search was conducted in Banja Luka.
20 Q. And was that on the 27th of February of 1998?
21 A. That is correct.
22 MS. KORNER: I'm going to ask again -- obviously, these ones don't
23 work on the board -- if plans of Banja Luka could be handed out, and again
24 one placed on the ELMO.
25 Q. Just before we deal with that, Mr. Inayat, I've got to ask you one
1 matter. When you were conducting the search in Prijedor in 1997, were you
2 assisted by any outside agency other than the Office of the Prosecutor?
3 A. That is correct, that the Office of the Prosecutor was assisted by
4 other organisations, such as the SFOR and the IPTF.
5 Q. And their role being what?
6 A. In 1997, the situation in Prijedor was still volatile, and I
7 remember that in 1996, even some of our staff members were going to be
8 arrested by the local police there. So there seemed to be some threat
9 that we would not be able to carry out our work without SFOR support. So
10 a request was put in, and the SFOR and IPTF accompanied us to all these
11 positions. And their support was merely to ensure that we are given the
12 protection, and in case of any untoward incident, we are evacuated
13 immediately from the area. That was the only support that they gave us.
14 Q. So they didn't actually take part in the searches themselves?
15 A. That was all in black and white made very clear to us and to the
16 SFOR that that assistance was not being sought, and they did not provide
17 us with any such assistance.
18 Q. Now, Banja Luka, in February 1998, again had a search warrant been
19 issued by this Tribunal enabling you to carry out searches at five
21 A. That is correct that on 13th of February a search warrant was
22 issued again and signed by Judge Fouad Riad. And pursuant to that search
23 warrant, these five locations were searched in Banja Luka city.
24 Q. Can you tell Their Honours which were the five locations that were
1 A. Yes.
2 Q. And point them out at the same time.
3 A. For orientation purposes, I'd just like to point out that this is
4 the north of Banja Luka city. Bosanska Gradiska is to the north. And we
5 have Celinac here to the east and Kotor Varos and Sipovo to the
6 south-east, Milana Vrhovica to the south and Prijedor to the west.
7 This, Your Honours -- this, Your Honours, this road that I am
8 indicating is the Mladen Stojanovic -- I ask for forgiveness if my
9 pronunciation is not correct. But this is the Mladen Stojanovic street.
10 And at this point, this street is renamed into Kralj Petar
11 Karadjordjevic. It is in fact at this location where the municipal
12 building, which I'll mark now, and the presidential palace or what is also
13 known as Banski Dvor are located.
14 And I also believe that this road before the war was probably also
15 known as Marshal Tito Street.
16 And this, Your Honours, this red area - I'm going to draw a circle
17 - is the CSB building.
18 Q. Well, first of all, you searched the municipal building, did you?
19 A. I personally went to the municipal building, but the searches at
20 all locations were conducted simultaneously.
21 Q. All right. So -- sorry, not you personally. A search was
22 conducted at the municipal building.
23 A. Yes, that is correct.
24 Q. And the presidential palace?
25 A. That is correct. Because the presidential palace housed the
1 offices of the SDS on the ground floor, they had two rooms. And on the
2 first and second floor of the presidential palace were the offices of SRT,
3 the Serbian Radio and Television located. Although the television studios
4 and administration building was in the presidential palace, but the radio
5 station -- the physical premises of the radio station were located outside
6 on Kralj Petar Karadjordjevic, very close to the centre.
7 Q. All right. So --
8 THE INTERPRETER: Could the counsel and witness please be asked to
9 slow down and to make pauses between answer and question.
10 JUDGE AGIUS: Yes --
11 THE WITNESS: I'm sorry.
12 JUDGE AGIUS: Okay. You heard the message.
13 MS. KORNER:
14 Q. Sir, just to make sure that we're all following this, the
15 municipal building was searched?
16 A. Yes, the municipal building was searched.
17 Q. The presidential palace, because it contained SDS offices and
18 offices of Serbian Radio and Television.
19 A. They were also searched.
20 Q. And the next circle that you drew.
21 A. Yes.
22 Q. Was for the -- which building?
23 A. CSB building.
24 Q. That being the police --
25 A. The police station, yes.
1 Q. Is that the regional --
2 A. That is the regional.
3 Q. And any other buildings?
4 A. Your Honours, this road that I'm pointing out is the road called
5 Aleja Svetog Save, and it runs right here where the 1st Krajina Corps
6 headquarters are located. It's a massive eight-storey building. And I'll
7 draw a circle. This is where the 1st Krajina Corps headquarters were.
8 This was another building that was searched on that same day.
9 Q. Any other buildings that day?
10 A. I did point out that the radio station, although we pointed out,
11 was in the presidential palace. But actually we found out later that it
12 is not, so we searched that building also, which is on Karadjordjevic,
13 which I've just pointed out.
14 Q. Okay. Again --
15 MS. KORNER: Your Honours, that should then be marked, please,
16 Prosecution Exhibit number 2.
17 THE REGISTRAR: P2. That will be number P2.
18 MS. KORNER:
19 Q. I think again, Mr. Inayat, the investigation was conducted by a
20 large team of investigators, lawyers, analysts, and language staff.
21 A. That is correct.
22 Q. And were you, as you've told us, involved personally in the search
23 of the municipal building?
24 A. I was personally involved, but I was also the custodian of the
25 evidence that was seized. And later in the evening for a very brief time,
1 I also went to the 1st Krajina Corps headquarters to assist the
2 investigation team there.
3 Q. I think in fact the search of the 1st Krajina Corps headquarters
4 went over into the next day, whereas the search of the other buildings was
5 completed in one day.
6 A. That is correct. The search of the Krajina Corps headquarters
7 concluded on 28th, around about 10.00 in the morning.
8 Q. And were the same procedures followed in respect of how the
9 documents were dealt with, as you described to us in respect of Prijedor?
10 A. This time around, I would believe that even more care was taken
11 when filling out information on the evidence register forms to try to give
12 as much information as possible. So if anything, we were being more
13 cautious of seizing evidence and trying to register as much detail as
15 Q. But again, eventually was the material taken to Zagreb and from
16 there to The Hague?
17 A. Yes, it was. And if I -- although I was not asked, but I'd just
18 like to point out that the evidence seized from the 1st Krajina Corps
19 headquarters consisted of almost 35.000 pages. The evidence seized from
20 the municipal building and the police headquarters, regional police
21 headquarters, was almost 145.000 pages of documents.
22 And of course, from SRTV, the Serbian Radio and Television, we
23 also seized reel-to-reel tapes and some transcripts of announcements that
24 were made, and yes, all this material was transported after properly being
25 bagged in cardboard offices to the Zagreb field office.
1 JUDGE AGIUS: Yes, Ms. Korner, when it's convenient for you TO
2 pause a little bit, I would like to ask something out of the witness, but
3 I don't want to interrupt the flow of questions.
4 MS. KORNER: Your Honour, certainly not. I've finished that
5 particular seizure so ...
6 JUDGE AGIUS: I thought so.
7 Mr. Inayat, I would like you now to mark with your own handwriting
8 the place names that you have circled. In other words, in each of these
9 maps where you have put those circles, please indicate what those circles
10 are supposed to represent.
11 THE WITNESS: Your Honours, you want me also to write the names?
12 JUDGE AGIUS: Yes. For example, in this last map that we are
13 dealing with, the Banja Luka one, you circled four places, et cetera,
14 because, later on, since this is being -- this is becoming an exhibit, one
15 would not be in a position to know which circle -- what each circle
16 represents what, unless you mark it now.
17 THE WITNESS: Your Honours, the first --
18 JUDGE AGIUS: Just write it on the document itself. That's what
19 is being required of you.
20 THE WITNESS: Yes. The first circle where I'm pointing is, Your
21 Honours, the CSP building, or the regional police headquarters. I have to
22 admit my handwriting is not that good.
23 Your Honours, the second circle I'm pointing at is the municipal
24 building. "MB" for municipal building.
25 Your Honours, the third circle I'm pointing to is the presidential
1 palace, also known as Banski Dvor, so maybe I'll just put "Banski Dvor."
2 Your Honours, the fourth circle I'm pointing to is the 1st Krajina
3 Corps headquarters.
4 JUDGE AGIUS: And you said that the TV station, in actual fact,
5 was not located inside the BD, the presidential palace, but it was located
7 THE WITNESS: Your Honours, the --
8 JUDGE AGIUS: You mentioned the street.
9 THE WITNESS: Yes, Your Honours. The television station was
10 located on the first and second floors of the presidential palace.
11 However, the radio station was located outside, very close to these two
12 circles that I've drawn, which is --
13 JUDGE AGIUS: Will you point that out?
14 THE WITNESS: Well, I can generally make a line here.
15 JUDGE AGIUS: Yes. Okay.
16 THE WITNESS: Very close to the municipal building and the
17 president palace, and I can give you the address. It is Kralj Petar
18 Karadjordjevic 127 and 129. This is the street address of the radio
20 JUDGE AGIUS: Will you just put "RS," meaning radio station,
22 THE WITNESS: [Marks]
23 JUDGE AGIUS: Thanks. Are you happy with that? Ms. Korner?
24 MS. KORNER: Yes. Thank you very much, Your Honour.
25 JUDGE AGIUS: I would like you to do the same with the previous
1 document. And I would like you to do the same with the first document,
2 P1, the Prijedor one.
3 MS. KORNER: Your Honour, it may be as well if Mr. Inayat were to
4 initial and sign the document that he's -- so we know, in case a map has
5 to be produced again.
6 JUDGE AGIUS: Go ahead. Do the same procedure, please.
7 THE WITNESS: Your Honours, Your Honours, this circle that I'm
8 pointing out is the SDS offices, so I will write "SDS." Your Honours, in
9 fact, I should have drawn two circles here, but I've drawn one circle
10 around both the police station and the municipal building, which in fact
11 are within a hundred metres of each other. So if you want, I can just say
12 municipal building and police station.
13 JUDGE AGIUS: Yes.
14 THE WITNESS: So this, Your Honours, is the municipal building and
15 the police station.
16 Your Honours, the third circle that I am indicating is where the
17 radio station Prijedor and the Kozarski Vjesnik offices were located.
18 Radio station and Kozarski Vjesnik.
19 JUDGE AGIUS: So suggest to you now to initial -- put your
20 initials against those entries so that --
21 THE WITNESS: On the map?
22 JUDGE AGIUS: No, no. It's where you have -- where you have
23 actually entered a circle and a --
24 MS. KORNER: Your Honour, may I suggest that he just signs -
25 because we can always get another copy of the map - if he just signs that
1 -- one place on that map to show those are his --
2 JUDGE AGIUS: Will that be acceptable with you?
3 JUDGE JANU: Yes.
4 JUDGE AGIUS: Okay. You can just sign and that should be okay.
5 Both documents, please.
6 THE WITNESS: [Marks]
7 MS. KORNER:
8 Q. Again, Mr. Inayat, were you accompanied on this particular search
9 by other agencies?
10 A. Again, the same procedures were adopted. SFOR and IPTF
11 accompanied us to all these locations, and their primary purpose was to
12 give us protection and not to search alongside with us.
13 Q. All right. Then the third seizure, was that again at Prijedor,
14 conducted between the 27th and the 29th of October, 2000?
15 A. That is correct.
16 Q. On this occasion -- I'm sorry, again, on this occasion, was there
17 -- were there searches conducted at six locations?
18 A. That is correct.
19 Q. And could you just tell Their Honours which locations?
20 A. Your Honours, we went to the police station once again in
21 Prijedor, and we also went to the police station in Omarska, which you
22 will not be able to see on this city map, which is almost like 15 to 20
23 kilometres east of Prijedor, in the direction of Banja Luka. We also
24 visited and searched the Omarska Iron Ore Mines, where the detention
25 centre was operating in the summer of 1992. The fourth location, we went
1 to the medical centre in Prijedor city, a place which we can see on this
2 map. And the fifth place we went to was the health centre, which is
3 different from the medical centre, in a separate building. And the sixth
4 place we went to was the Ljubija Iron Ore Mines offices, because the
5 Omarska Iron Ore Mines was supervised by the Ljubija Iron Ore Mines, so we
6 went to their offices in Prijedor city. So these were the six sites we
7 went to.
8 Q. And I think, in effect, these searches were carried out relating
9 to matters that had arisen in the trial of those charged with the camp at
10 Omarska, Kvocka and others?
11 A. That is correct.
12 Q. And on this occasion, I think they were conducted by means of
13 what's called a Prosecutor's Summons for Assistance, as opposed to a
14 search warrant?
15 A. I think the Prosecutor's Directive, yes.
16 Q. Directive, right. And again, I think documents were recovered.
17 How were they dealt with on this occasion? In the same way as on the
18 previous occasions?
19 A. This time, we had the advantage of three days at our disposal, and
20 we were really very focused on what we were going to be seizing, and after
21 a three-day search of these locations, we were able to gather about 2300
22 pages of documents from these six locations.
23 Q. And how were they dealt with?
24 A. Because the collection was very small in comparison, the
25 investigators who actually seized the material filled out the evidence
1 register forms and brought this material with them to the Tribunal.
2 Q. So on this occasion, one is able to identify which investigator
3 found a particular document and where?
4 A. Exactly.
5 Q. Thank you. Now, I want to move, then, from the seizures of major
6 document collections to other sources of documentation, and I think you
7 have listed in your -- the annex to your statement, the various sources -
8 and indeed, in your statement - the various sources of information. And
9 if we can -- sorry, the various sources of supply of evidence.
10 First of all, if we can deal with --
11 MS. KORNER: And Your Honours, I am looking now at the annex, and
12 I propose to go through that because I think it's simpler.
13 Q. In the index to documents, you have identified the short form that
14 you've used, the numbers, A-1, A-2 and so forth. The first category, you
15 say Evidence Submitted by the Embassy of Bosnia and Herzegovina, The
16 Hague, in the Netherlands. How is that evidence provided?
17 A. The BiH government appointed a liaison officer to the Tribunal in
18 early 1995, and that person has been first using the premises in the
19 Bosnian embassy in Brussels and then later moved to The Hague. So the
20 liaison officer who sits in the Bosnian embassy receives requests from us
21 to get the documents and occasionally, when he comes to the Tribunal, he
22 hands over the material here.
23 Q. And on occasions, is material supplied without a request, that
24 they think may be of interest to the Tribunal?
25 A. That has happened also.
1 Q. Then could we move to the next category, your A-2, the Minister of
2 -- the Ministry of the Interior in Sarajevo, Bosnia-Herzegovina? How is
3 that material acquired?
4 A. Maybe I need to just give a little bit of a background here, that
5 in May of 1992, when the Serbian government moved its headquarters to Pale
6 from Sarajevo, many offices that were left with a lot of material were
7 reviewed by the Ministry of Interior and they were seized and brought to
8 the Ministry of Interior. And in late 1994, we were informed about this
9 collection. In February of 1995, members of the Office of the Prosecutor
10 reviewed that material in the Ministry of Interior, which consisted of
11 over 100.000 pages and documents -- 23.000 pages were identified and they
12 were recovered from the Ministry of Interior, first by scanning but in
13 later years they even gave us the hard copies.
14 Q. Next category, 2nd Military District, Sarajevo. How did those
15 documents come into our possession?
16 A. There is a very little collection of these documents that are
17 mentioned in the exhibit list, and these documents also came to us from
18 the headquarters of the 2nd Military District, where they were reviewed
19 and taken into possession.
20 Q. The CSB Sarajevo, that being the Security Services Centre?
21 A. Yes. Again, there have been many missions by the Office of the
22 Prosecutor staff to this building, where documents have been made
23 available to us and we have taken possession of those documents.
24 Q. Then next, AID in Sarajevo, and you've explained that stands --
25 the initials stand for the Agency for Investigation and Documentation?
1 A. Since January of 1996, when this agency was created, since that
2 point, our main sources of documents have come from them in Sarajevo.
3 Q. Then we can see that the State Security Service in Bihac has
4 provided documents?
5 A. Yes. If you want, I can give some background here also, that --
6 Q. Mr. Inayat, I think if anybody wants to ask you further questions,
7 they can. We are just establishing --
8 A. Yes. SDB Bihac has also provided us with a lot of material.
9 Q. Then we see the same agency AID in Bihac, in Sanski Most, in
10 Bugojno and in Tesanj have also provided documents?
11 A. Yes. And let me point out that SDB Bihac became AID Bihac in
13 Q. So that's -- the A-6 and A-7 category relate to the same
15 A. Yes.
16 Q. Then we -- the Office of the Prosecutor has received --
17 MS. KORNER: Well, Your Honour, I note the time. I don't think I
18 can unfortunately finish this list today if, as Your Honours said, we have
19 to adjourn so the next case can come in. So it may be an appropriate --
20 JUDGE AGIUS: [Microphone not activated] Madam Registrar, is the
21 other Trial Chamber --
22 THE REGISTRAR: I'm checking on that. Your Honour, this
23 afternoon, Courtroom I will be available. There is no second trial this
25 JUDGE AGIUS: Can we go on for another 15 minutes? Madam
2 MS. FAUVEAU-IVANOVIC: [Interpretation] [Microphone not activated]
3 JUDGE AGIUS: Please proceed.
4 MS. KORNER: Your Honours, the interpreters?
5 JUDGE AGIUS: Ah, yes, the interpreters.
6 MS. KORNER: Who have been going now for an hour and a half.
7 JUDGE AGIUS: That would leave us no option. Can we go on for
8 another 15 minutes?
9 THE INTERPRETER: We can manage, Your Honour.
10 JUDGE AGIUS: I very much appreciate that. Thank you. So we go
11 on for another 15 minutes.
12 MS. KORNER: Yes.
13 Q. Then can we move to the next category, the Police Administration
14 in the Municipality of Kljuc, "police administration" meaning what,
15 Mr. Inayat?
16 A. Because Kljuc does not have an AID office, the section in the
17 police station which deals with material that has to be handed to us is
18 called the Police Administration.
19 Q. The 5th Corps headquarters in Bihac, that being the 5th Corps
20 headquarters of the Bosnia-Herzegovina army?
21 A. That is correct.
22 Q. The Basic Court in Sanski Most, that speaks for itself. Then the
23 next category are those covered -- I'm sorry, recovered during the search
24 and seizure operation in Banja Luka?
25 A. That's correct.
1 Q. And B-2 is -- specifically relates to the documents that were
2 seized from the 1st Krajina Corps headquarters?
3 A. That is correct.
4 Q. Next we have some documents supplied by Croatian authorities and
5 television archives in Zagreb, who provided, I think, video; is that
7 A. Yes, that is correct, yeah.
8 Q. Then the next category that is on the list is evidence of the
9 exhumations -- or from the exhumations which were carried out by the
10 Office of the Prosecutor in this Tribunal?
11 A. That is correct.
12 Q. Then the next category, evidence recovered as a result of
13 exhumations conducted by the Bosnian State Commission for Missing Persons?
14 A. That is correct.
15 Q. "M" is the catch-all one, miscellaneous, but I think, if required,
16 you can deal with where the miscellaneous come from?
17 A. Well, basically any documents that are not from any of these other
18 legends are given the word "miscellaneous" for it.
19 Q. The next category is self-evident, open-source material. In that,
20 you include, do you, newspaper articles, books and the like?
21 A. That's correct.
22 Q. Anything that is available to the public at large?
23 A. Yes.
24 Q. The next category, P-1, relates to evidence recovered as a result
25 of the seizure operation in Prijedor on the 12th of December, 1997, and
1 the category after that, the second search in Prijedor in October, 2000?
2 A. That is correct.
3 Q. Then we come to documents obtained from the Republika Srpska
4 liaison officer to the ICTY. Perhaps you could just give us a little
5 detail about how this works?
6 A. The liaison officer for the Republika Srpska was appointed in
7 June, 1996, and since then we have had three liaison officers, and they
8 occasionally visit the Tribunal. The Office of the Prosecutor submits a
9 request for assistance and which are then taken back by the liaison
10 officer to Republika Srpska and served on relevant departments from whom
11 the material is being requested. In a few cases, we have received
12 documents from the liaison officer of the Republika Srpska.
13 Q. I think it can be summarised in this way: That in some cases,
14 requests have resulted in documents; in other cases, they have not?
15 A. I would say in the majority of the cases we have not received
17 Q. And then the second category, R-2, I don't think we need go
18 through the names but a number of officials in the Republika Srpska who,
19 in one form or another, have provided documents?
20 A. That is correct.
21 Q. Then I think there are a very few where documentation does not
22 reveal what the source of the documents is?
23 A. I'd like to add here that when I prepared this list, there were a
24 couple of documents where I could not find any information on the
25 sources. However, since then, I have located the sources. And there is
1 one particular document that, if you want, I can point out, we know the
2 source. So really, there might still be just one document where the
3 source is unknown, which, if we make more efforts, hopefully we can find
4 the source there also.
5 Q. And I think the last two categories are obvious again, transcripts
6 and judgements of the Courts here and the witnesses themselves who have
7 supplied documents?
8 A. That is correct.
9 MS. KORNER: Yes. Your Honours, I now intend to turn to the
10 particular documents which are the subject of dispute, so I don't know
11 whether Your Honours wish me to start now. I know we've been given --
12 JUDGE AGIUS: Well, I think considering our decision, the response
13 that was forthcoming from the Defence teams, I think it makes more sense
14 to stop now so that you can go through this whole list and identify them
15 with more precision and limit yourself to those. I think it will be
17 MS. KORNER: Your Honour, I have.
18 JUDGE AGIUS: You have already?
19 MS. KORNER: Yes. As I say, we were supplied, as a result of Your
20 Honour's order, with the actual documents, at least I think. It was
21 sometimes difficult to work out because Madam Fauveau gave us the
22 documents they disputed, Mr. Ackerman let us know which ones he didn't
23 dispute. So it was occasionally complicated.
24 JUDGE AGIUS: If you can proceed then for the next ten minutes, we
25 can go ahead and -- provided that after ten minutes we stop.
1 MS. KORNER: Yes. Your Honours, before I do that, may I deal --
2 in case I forget, there is an application which I should have made
3 earlier, but the first is Mr. Inayat clearly won't be finished giving
4 evidence today. He's still in chief. He's my lead investigator. I would
5 again like permission to speak to him after the Court.
6 JUDGE AGIUS: I wouldn't imagine -- okay, permission granted.
7 MS. KORNER: I'm grateful. The other - and I was reminded of this
8 - is that under Rule 90(D) of the Rules - and perhaps I can read it to
9 Your Honour: "Notwithstanding paragraph (C)" - that's witnesses shall not
10 be present when other witnesses testify - "upon order of the Chamber, an
11 investigator in charge of a party's investigation shall not be precluded
12 from being called as a witness on the ground that he or she has been
13 present in the courtroom during the proceedings." Now, although
14 Mr. Inayat hasn't in fact been present, he will clearly from what's
15 happened today be coming and going. There are facilities for him to watch
16 the proceedings. As Your Honour may know, there are cameras. And
17 effectively, although he isn't present, he will be from time to time
18 watching, and I'd like Your Honour's permission for that. The reason is
19 quite simply this: If something arises on which I need to have an
20 investigator investigate immediately, it takes much longer if the
21 investigator knows nothing about it.
22 JUDGE AGIUS: Yes, Mr. Ackerman.
23 MR. ACKERMAN: Well, Your Honour, this matter has become kind
24 of -- I don't know what word I'm looking for. But now that we're
25 broadcasting the proceedings on the Internet so that anybody in the world
1 can watch what's going on, I don't think it makes much difference. The
2 witnesses who are coming here can sit in their homes and watch our
3 proceedings, and if they want to, they will know what everybody has
4 testified before got here, which is what we were trying to prevent, but
5 now we can't do that anymore, so I don't care what you do with it.
6 JUDGE AGIUS: Ms. Fauveau.
7 MS. FAUVEAU-IVANOVIC: [Interpretation] I have no objection, Your
9 JUDGE AGIUS: Permission granted, in any case.
10 MS. KORNER: And Your Honour, can I invite Your Honours to turn to
11 the binders that relate to Dr. Donia. Your Honours, I understand that the
12 first document that is objected to Your Honours will find behind
13 divider 3, headed "Excerpts from the Minutes of the Sixth Session of the
14 Bosanska Krajina Community of Municipalities."
15 Q. And that document, Mr. Inayat, I think bears the Serbo-Croat
16 version as the numbers 00403850251. Can you tell Your Honours where that
17 was obtained from?
18 A. This document was given to one of our investigators who has left
19 this Tribunal now, Mr. Grant MacIntosh, on 25th of April, 1996, by
20 Mr. Boro Blagojevic who was the former secretary of the ARK assembly.
21 That was given, as I said, on the 25th of April in 1996 in Banja Luka in
22 the municipal building.
23 Q. As you point out, he was the secretary to the regional assembly of
24 the Autonomous Region?
25 A. And also the Crisis Staff.
1 MS. KORNER: Then if we move to the next document, which Your
2 Honours, as I understand it -- and this is why I say I'm quite confused
3 about the criteria that's being applied. It's behind divider 7. It
4 appears to be a signed, stamped document, bearing the number -- I'm not
5 sure what's happened to the translation here. It may be one of the
6 ones -- yes, I think it's one of the ones, if you'll recall, there was no
8 Q. But the number, Mr. Inayat, is 00403790.
9 A. Yes.
10 Q. Can you tell us --
11 A. Yes, 00403790.
12 JUDGE AGIUS: [Microphone not activated] Yes, Mr. Ackerman.
13 MR. ACKERMAN: The objection is that there's no translation. I
14 can't figure out what the document says. And it may be that once there's
15 a translation, I won't have an objection.
16 JUDGE AGIUS: But in any case, let the witness give us the
17 information as to the source. That's not going to change depending on the
18 translation. And we will visit that later.
19 Yes, Mr. Inayat.
20 THE WITNESS: Yes, Your Honours, the document 00403790 was once
21 again given on the 25th of April, 1996 in the Banja Luka municipal
22 building to our investigator Mr. Grant MacIntosh by the former secretary
23 of the Crisis Staff and the assembly, Mr. Boro Blagojevic.
24 MS. KORNER: [Microphone not activated]
25 THE INTERPRETER: Mike, please. Microphone, please.
1 JUDGE AGIUS: Microphone again, please.
2 MS. KORNER: The next document is the one following after divider
3 8, "Minutes of the Second Session of the Assembly, the Community of
4 Municipalities." The Serbo-Croat version beginning at 004 -- I'm sorry,
5 the number beginning at 00403806.
6 Q. Mr. Inayat, where do the records show that came from?
7 A. I'm trying to find this ERN number on this list. Did you say
9 Q. Yes.
10 A. This document was also given by Mr. Boro Blagojevic on the same
11 date, that is, 26th of April, 1996, to Mr. Grant MacIntosh in the
12 municipal building of Banja Luka.
13 MS. KORNER: Your Honours, would that then be a convenient --.
14 JUDGE AGIUS: Yes, Mr. Ackerman.
15 MR. ACKERMAN: I think we are developing a record problem with
16 regard to these documents, Judge. What we're doing is we're creating a
17 record of where they came from and something that -- you know, some of the
18 basis upon which the Court can make a decision as to the reliability and
19 so forth by reference to numbers that are going to disappear. At some
20 point, these are going to be called "P" something or other. And I don't
21 know how in the world we can cross-reference back in the transcript from a
22 document that is admitted as P10 to a discussion we had about the document
23 behind tab 8, because it's just going to be lost in the transcript.
24 You'll try to search -- if you search for Exhibit P7, you'll find --
25 JUDGE AGIUS: I agree it may create problems. But obviously here
1 we have a binder with -- a folder with I don't know how many documents.
2 The options are very simple: We can either have them exhibited now en
3 bloc and the Trial Chamber will admit them en bloc obviously without
4 prejudice to what -- all the caveats that we mentioned earlier, and they
5 will be numbered, and then we can take it up. We have only covered three
6 documents, in any case, and therefore the problem is not that serious for
7 the moment.
8 I appreciate your remark, because actually it was something which
9 I had on my mind. I didn't quite know how we are going -- we were going
10 to go through this. But I think your suggestion and my suggestion will
11 make things easier.
12 MS. KORNER: Your Honour, I'm happy with that.
13 JUDGE AGIUS: So if you can therefore please ask for these
14 documents, this folder, to be exhibited.
15 MS. KORNER: Your Honour, I do. I formally ask that these
16 documents be exhibited with the following numbers --
17 JUDGE AGIUS: Yes, exactly. And these documents are being
18 admitted in evidence and will be marked by the registry as P3 and or "P"
19 whatever. And then do it in whichever way you do it usually. And we'll
20 take it up from there tomorrow morning, and there will be more specific
21 reference then to the various documents.
22 Mr. Inayat, you will come here again tomorrow morning, please, at
23 9.00 sharp.
24 THE WITNESS: Yes, Your Honours.
25 JUDGE AGIUS: And the Prosecutor will continue with her
1 examination-in-chief. Thank you.
2 In the meantime, there is a dispensation from the usual
3 restriction, and she can consult with you.
4 MS. KORNER: Your Honour, I'm grateful. Can I also say that we've
5 also handed to Your Honour's legal officer a draft of the summons that
6 we'd ask Your Honour to issue.
7 JUDGE AGIUS: I will deal with that today. That's for the
8 journalist, you mean?
9 MS. KORNER: That's for the journalist.
10 JUDGE AGIUS: Yes, okay.
11 MS. KORNER: And if I could just remind Your Honour if we could
12 have a decision on the Rule 92 witnesses.
13 JUDGE AGIUS: We'll try to work on that.
14 MS. KORNER: Thank you very much.
15 JUDGE AGIUS: I thank you. I thank the interpreters for their
16 patience. It's very much appreciated.
17 We'll resume our work tomorrow morning at 9.00 sharp. Thank you.
18 --- Whereupon the hearing adjourned
19 at 2.02 p.m., to be reconvened on Tuesday,
20 the 29th day of January, 2002, at 9.00 a.m.