1 Wednesday, 28 October 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.19 p.m.
5 [The witness takes the stand]
6 JUDGE PARKER: [Microphone not activated] Good afternoon.
7 THE WITNESS: Good afternoon, Your Honours.
8 JUDGE PARKER: [Microphone not activated] The affirmation you
9 made still applies.
10 THE WITNESS: Yes, I understand, sir.
11 JUDGE PARKER: Thank you.
12 Mr. Djurdjic.
13 WITNESS: JOHN CROSLAND [Resumed]
14 MR. DJORDJEVIC: [Interpretation] Thank you, Your Honours.
15 Cross-examination by Mr. Djurdjic: [Continued]
16 MR. DJURDJIC: [Interpretation] Good afternoon, Colonel.
17 Before we go on, may I ask, Your Honours, in connection with
18 Exhibit D389 which was admitted yesterday, I omitted one fact, namely
19 that it was under seal in the Milutinovic case. Can I now ask you to
20 have that exhibit placed under seal in this instance as well. The number
21 being D389.
22 JUDGE PARKER: It will be under seal.
23 MR. DJURDJIC: [Interpretation] Thank you, Your Honours.
24 Q. Colonel, during your testimonies these days as well as in earlier
25 cases, you repeated time and again that you had met with the competent
1 members -- no, that you have acquainted competent members of the
2 General Staff with the disproportionate use of force and that you had
3 impressed that fact many times on General Dimitrijevic.
4 MR. DJURDJIC: Could we have Exhibit P1401.
5 THE INTERPRETER: Could counsel please slow down; the
6 interpreters are unable to catch the numbers.
7 JUDGE PARKER: You are well prepared, Mr. Djurdjic, with the
8 numbers ready, and you are giving them very quickly. On numbers and
9 dates and names, it pays to be just a little slower. Thank you.
10 MR. DJURDJIC: [Interpretation] I will repeat, Your Honours, I do
11 apologise. So can we see the Milutinovic case transcript, P1401,
12 page 26627, line -- lines 21 to 25.
13 Q. Colonel ...
14 [Trial Chamber and Registrar confer]
15 JUDGE PARKER: The question -- the transcript starts at 9.700 or
16 so, you did correctly mean 26.627, did you?
17 MR. DJURDJIC: [Interpretation] Yes. Yes, because
18 General Dimitrijevic was the last witness in the Milutinovic case, and he
19 gave his statement on transcript number 26627. That is the transcript
20 number which was in the Milutinovic case.
21 JUDGE PARKER: Ms. Kravetz.
22 MS. KRAVETZ: Your Honour, the transcript of the testimony of
23 Mr. Dimitrijevic is not an exhibit in this case, and I don't believe it's
24 listed in the list of the exhibits that the Defence intends to use with
25 this witness.
1 JUDGE PARKER: Mr. Djurdjic.
2 MR. DJURDJIC: [Interpretation] I have included it. It is on our
3 list, Your Honours.
4 JUDGE PARKER: It's always been on the list, has it?
5 MR. DJURDJIC: [Interpretation] Yes, yes. As the Milosevic case
6 transcript, I'm using Milosevic in cross-examining this witness.
7 JUDGE PARKER: Did you mean Milutinovic? You said Milutinovic
8 earlier, 26.000? You must have meant Milosevic. Milosevic 26.627.
9 MR. DJURDJIC: [Interpretation] General Dimitrijevic was not a
10 witness in the Milosevic case, only in the Milutinovic case.
11 Your Honours, in order not to lose time ...
12 [Trial Chamber and Registrar confer]
13 JUDGE PARKER: Exhibit P1401 may be the transcript that you want.
14 That is the exhibit in this trial.
15 MR. DJURDJIC: [Interpretation] Well, I'm not going to quote that.
16 Q. Mr. Crosland, General Dimitrijevic said that you spoke to him
17 about the excessive use of force and that you had a cassette and he asked
18 you to show that cassette, and that you never handed over that cassette
19 to him.
20 A. Sir, I don't recall giving a cassette to General Dimitrijevic. I
21 gave a cassette to General Ojdanic via the FLS. And as far as I
22 understand from the Foreign Liaison Service, they maintain they never
23 received it. So where it went to, I do not know.
24 Q. Colonel, in view of the fact that we have all that in the case,
25 the transcript of which is here, I'm not going to dwell on that. I'm
1 just going to say that you never gave any such cassette to
2 General Dimitrijevic, so we can move on.
3 JUDGE PARKER: It's not going to help us for you to say it. Are
4 you asking the witness whether he agrees that he didn't give a cassette
5 to General Dimitrijevic?
6 THE WITNESS: As far as I remember, Your Honour, I didn't give a
7 cassette to General Dimitrijevic. I said there were -- I showed him
8 photographs of the bodies from the Donje Prekaze area which was very
9 early on in 1998, and I told him that these original photographs were now
10 back in various NATO capitals as proof of a massacre that might then be
11 investigated at a later date. I don't know if that helps, Your Honours.
12 JUDGE PARKER: Thank you very much. The position you put to the
13 witness, he agrees with, Mr. Djurdjic, so please carry on as you were
15 MR. DJURDJIC: [Interpretation] Thank you, Your Honours.
16 Q. Colonel, is it the rule when talks are conducted in the
17 General Staff offices with the defence attaches for minutes of meetings
18 where records of those talks to be made as we saw yesterday as the one
19 that we saw yesterday has been made by Jovanovic who was a colonel at
20 that time?
21 A. Sir, I would understand that both sides would make a report. As
22 you know, I have indicated in reports that I had these meetings with
23 General Dimitrijevic, General Perisic, and General Krga, and they are
24 part of the reports that I filed during that period. And I presume the
1 Q. Thank you.
2 MR. DJURDJIC: [Interpretation] Can we have D390 on the screen,
4 Q. Colonel, we went through these other items yesterday. What I'm
5 interested in now is that the Colonel Jovanovic notes that is this talk
6 was conducted with you on the 25th of June, 1998, and that you informed
7 him that from the 15th of May to the 25th of June, you had had numerous
8 contacts in Great Britain with military personnel in the armed forces, in
9 the foreign ministry in NATO, with the chief of the military intelligence
10 services, with the chief of operations of the General Staff of Great
12 affairs in the Ministry of Defence and the commander of the NATO corps
13 for rapid interventions, General Jackson. And that you had informed them
14 about the situation in Kosova-Metohija, and then you also advanced the
15 positions that you advocated?
16 A. That's correct, sir.
17 Q. Colonel, at that time -- you have three daughters at that time,
18 did the wedding of one of your daughters take place as well?
19 A. The wedding of my eldest -- our eldest daughter, rather, took
20 place on the 8th of June, 1998.
21 Q. Thank you.
22 A. Sorry, 6th of June. I beg your pardon, I shall get slapped by my
24 Q. Colonel, you told us that you had sent a report to the Ministry
25 of Defence on the 28th of May, while at that time you were in
1 Great Britain so that you were in no position to send an [indiscernible]
2 report on the 28th of May, 1998.
3 A. I am sorry, I don't understand the question. If you are saying
4 that I couldn't have sent a report, I was still in touch with my -- the
5 person who was standing in for me in Yugoslavia, and if a report was sent
6 via me - because there was going to be a very senior meeting on the 8th
7 of June - that would have been an update to me before this very important
8 meeting on the 8th of June. But as I don't know which report you are
9 referring to, I'm a little bit lost, I am afraid.
10 Q. Colonel, that is Exhibit P1405. Asked by the Prosecutor whether
11 you had participated in the daily tour of western Kosovo, you replied,
12 "yes, I had." That is page 9162, pages 19 to 25. The Prosecutor asked
13 you, and to his question you replied, "There are houses burning in the
14 north of Decani."
15 "Can you tell us exactly what this part referred to, the houses
16 north -- in the north part of Decani?"
17 And you replied saying that you were there personally on the 26th
18 and 27th, whereas on those dates you were in Great Britain, so you were
19 in no position, you were unable to send a report on the 28th of May,
20 whereas you had told us that you -- you told us that you had sent a
21 report on the 28th of May.
22 A. Mr. Djurdjic, yesterday there were several mistakes in your
23 testimony. Perhaps I shouldn't be saying this, Your Honours, and I
24 respect your charges. If there has been a mistake, then I can assure you
25 it is not my intention to mislead the Court. You were asking me, as I've
1 said many times, to repeat my reports that were made 12 years ago. I
2 think in order to get things moving we need to go either back to the
3 original report, or we are going to go round and round in circles. And
4 it's not my intention to mislead anyone in this report -- or in this
5 court, rather, as I understand the implications that are concerned with
7 If there has been a mistake, I apologise, but I cannot recall
8 reports that you keep bringing up without seeing these reports. And I
9 ask that they go back to original report that was tendered.
10 JUDGE PARKER: Mr. Djurdjic, the Chamber has not been interfering
11 with your cross-examination, but it was a constant feature yesterday that
12 you would put to the witness a matter from a report without showing the
13 witness the report, and he almost went hoarse saying, well, I can't
14 remember in detail. If it's in my report, it is correct, or something to
15 that effect.
16 THE WITNESS: Thank you, Your Honour.
17 JUDGE PARKER: Now, if you feel that there's some error in what
18 he has said or in a report, you need to put that specifically to the
19 witness. And if it is an error in the report, you need to show him the
20 report, so that he can then answer with a clearer memory and recollection
21 than you just ask him about a report on some date in August 1998, and he
22 says, Well, I can't really remember that, but whatever is in there must
23 be right. I hope that will help you to proceed.
24 MR. DJURDJIC: [Interpretation] Thank you, Your Honours. I
25 believe that I was clear, but I should repeat.
1 Q. Colonel, in examination-in-chief you confirm that you personally
2 prepared Exhibit P1405 and that you had toured these parts of
3 Kosova-Metohija. In this report we see that two days were in question.
4 This is one fact. The second fact which I have just now presented to you
5 is that you were absent, that you were outside Yugoslavia from the
6 25th of June to the 22nd of June, that you were in Great Britain. And
7 I'm telling you that you could not have personally visited these places
8 that are contained in the report of the 28th and that you had not
9 dispatched that report.
10 JUDGE PARKER: Mr. Djurdjic, I think this sort of question is
11 just the point of my comment. You need first to bring up Exhibit P1405,
12 allow the witness to see it. Ask him then whether he made that report.
13 If so, how could he make it if he also said he was in the United Kingdom
14 at that time, and see whether he agrees with you or disagrees with you.
15 We start with Exhibit P1405.
16 THE WITNESS: Your Honours, excuse me. I believe I was in
18 now, it's gone. It was from the 15th to the 22nd of June. So I don't
19 know quite how the 28th comes into it, by which time I think I was
20 probably back in Belgrade
21 JUDGE PARKER: That is the document now back again before you.
22 You mention in the second paragraph -- or there it is a document not of
23 you, but of the --
24 THE WITNESS: From the FLS
1 JUDGE PARKER: Colonel Jovanovic.
2 THE WITNESS: That's correct, sir. He --
3 JUDGE PARKER: And he notes your absence from the 15th of May to
4 the 22nd of June.
5 THE WITNESS: That period covered our daughter's wedding, sir.
6 So if it's the 28th of June, I would suspect that I was back in Belgrade
7 JUDGE PARKER: Well, you referred to Exhibit D390. Now we go to
8 Exhibit P1405, which is your report. And this is the document of -- it
9 seems to be a document dated the 28th of May, not the 28th of June.
10 THE WITNESS: That is correct, sir, yes, in which case, I presume
11 I would have written this report, yes.
12 JUDGE PARKER: That was before you went to the United Kingdom?
13 THE WITNESS: That's correct, sir.
14 JUDGE PARKER: Yes. Now, Mr. Djurdjic, you followed that. What
15 more is it that you want to ask about it?
16 MR. DJURDJIC: [Interpretation] Your Honours, if the witness went
17 to Britain
18 he could not have sent a report on the 28th of May to the British
19 Ministry of Defence. And apart from that, in examination-in-chief --
20 JUDGE PARKER: We are going in circles, Mr. Djurdjic. Why do you
21 say the witness was in the United Kingdom on those dates in May?
22 MR. DJURDJIC: [Interpretation] He now confirmed that from the
23 25th of May to the 22nd of June he had been in Great Britain. From the
24 25th of May to the 22nd of June the witness was in Great Britain and not
25 in Serbia
1 JUDGE PARKER: Sorry, not to my understanding of the evidence.
2 You have asked him orally several times mixing the dates up in almost
3 every question. Now if you want to put to the witness that he was in the
4 United Kingdom, put it specifically.
5 MR. DJURDJIC: [Interpretation] Your Honours, is it true, and he
6 replied to you, the witness did, is it true that Colonel Jovanovic noted
7 that from the 15th of May to the 22nd of June the witness was in
8 Great Britain. This is what he confirmed to you. Namely, from the 25th
9 of June to the 22nd of June [as interpreted]. Then you present to him
10 the reports of the 28th of May --
11 JUDGE PARKER: You've done it again, Mr. Djurdjic, you've
12 switched months. This is where we are having trouble. It may be a
13 matter of interpretation, it may be that in your excitement to get a
14 point across that you are putting the wrong month. We go back to the
15 proposition that in the Exhibit D390, Colonel Jovanovic noted that the
16 witness was absent from the 25th of May to the 22nd of June. Right.
17 You now want to ask the witness about a report dated the 28th of
18 May; is that correct?
19 MR. DJURDJIC: [Interpretation] I apologise, not from the 25th of
20 May, from the 15th of May, 1998, to the 22nd of June, 1998, is the time
21 when the witness was in Great Britain. And this is what he has
23 JUDGE PARKER: Can we go back, please, to Exhibit D390. Yes, the
24 recording there is the 15th of May to the 22nd of June. Right.
25 THE WITNESS: Can I help, Your Honours. When I was in England
1 covering my -- our daughter's wedding, there was a delegated stand-in or
2 deputy defence attache which was sworn in and through the FLS to cover my
3 absence. Now, if this is where the supposition is that a report sent by
4 BRITMILREP, that would have been covered by my deputy in my absence in
5 the full knowledge of the FLS
6 misinterpretation or juxtaposition is, that may be where it's come about.
7 And I know that they were touring in western Kosovo in the Decani area
8 where there was considerable trouble. But if that's where the confusion
9 has happened, Your Honours, then again I apologise, but the FLS would
10 have been informed that a properly recognised deputy was standing in
11 during this absence of mine.
12 JUDGE FLUEGGE: May I ask just a question. Perhaps there is a
13 problem with the interpretation again or translation of this document.
14 Have you been in Great Britain for that time one week or for five weeks,
15 if you recall?
16 THE WITNESS: Your Honour, the date is as on the document now on
17 the screen. I was there for approximately three weeks or four weeks,
18 15th of May to the 22nd.
19 JUDGE FLUEGGE: This is approximately five weeks. But if you
20 look to the original document in B/C/S, I can't -- think it's quite
21 illegible, but it could be the 16th of June to the 22nd of June.
22 THE WITNESS: Yes, you are quite correct, sir. I think that's
23 where the mistake has come.
24 JUDGE FLUEGGE: Perhaps that is the reason for this
25 misunderstanding. Can we zoom in that perhaps a little bit. The second
1 paragraph of the document.
2 THE WITNESS: Yes, it says 15/06 to 22/06 of --
3 JUDGE FLUEGGE: 15th of May. Now it's very clear. Thank you.
4 MR. DJURDJIC: [Interpretation] I apologise, but it's quite clear
5 that in this document it is written 15th of May until the 22nd of June,
6 and this is exactly how it was translated, so both linguistical versions
7 are quite okay. There is no mistake in translation here, therefore, I
8 would like to point out the following: Colonel --
9 JUDGE PARKER: Just a minute, Mr. Djurdjic, we are going to sort
10 this through. There has been too much confusion about it to leave it as
11 it is. Thank you for that. Could the Court Officer now bring up
12 Exhibit P1405. Mr. Crosland, this is a report which I think you see,
13 appears to be dated the 28th of May, 1998.
14 THE WITNESS: That's correct, sir.
15 JUDGE PARKER: And this appears be to a report in the period in
16 which, according to the previous exhibit, you were in the United Kingdom.
17 THE WITNESS: That's correct, sir, and it would have been done by
18 my deputy.
19 JUDGE PARKER: So this report here you see from the BRITMILREP,
20 is a report prepared by your deputy rather than yourself.
21 THE WITNESS: Because I would have been in England at that time.
22 Correct, sir. So if that is where the confusion it, my apologies.
23 JUDGE PARKER: Right.
24 Now, Mr. Djurdjic, you've understood that so far? The witness
25 tells us this report here on the screen was prepared by his deputy, not
1 by him. Now, do you want to question then something about the content of
2 the report or the witness's knowledge of it?
3 MR. DJURDJIC: [Interpretation] Your Honours, my initial position
4 was exactly this, and now we've confirmed it was correct. And I asked
5 how come that in direct examination he stated that he personally visited
6 Kosovo on the given two dates, and that he personally wrote this report.
7 This is what he stated when questioned by the Prosecution.
8 JUDGE PARKER: The transcript reference?
9 MR. DJURDJIC: [Interpretation] The reference is 9162, lines 19 to
10 25. Actually, the pertinent lines are 24 and 25.
11 "Sir, did you participate in the two-day visit to Kosovo on the
12 two given dates?"
13 "A. Yes, I did."
14 So this is page 9162, lines 24 and 25.
15 JUDGE PARKER: Can you help us there, Mr. Crosland?
16 THE WITNESS: Your Honours, as I've already stated this report -
17 my error - it was done by my deputy. He was travelling with two very
18 experienced other defence attaches, the American and the Canadian. So I
19 would -- the author of the report, forgive me, that is a mistake, I've
20 admitted to that. The actual content, I would suggest, is true because
21 there were two experienced other observers in this particular tour. But
22 I apologise again if I've made a mistake over a report.
23 MR. DJURDJIC: [Interpretation] Thank you.
24 Q. Colonel, you told us that you were in Kosovo and Metohija between
25 the 12th and 14th of January, 1999. This was on page 9184 of our
1 transcript, lines 16 to 18, and you gave an affirmative answer in lines
2 19 to 22. And I would like to put to you D005-0321.
3 MR. DJURDJIC: [Interpretation] If we could see it, please.
4 Q. This is a transcript in the Milosevic case.
5 MR. DJURDJIC: [Interpretation] If I could kindly see page 8.000.
6 I apologise, 8.005, lines 11 to 12.
7 Q. You answered in lines 13 to 15:
8 "I believe I was in Belgrade
10 A. Yes, that's correct. I've already informed the Court, I arrived
11 on the afternoon of Racak, the incident you are talking about presumably.
12 Because of the serious nature, I was asked to go down immediately to
14 Q. Yes, but you said that you arrived to Belgrade on the 14th, and
15 here in this -- that's what you stated here in this transcript. And you
16 told us that you were, in fact, in Kosovo and Metohija between the 12th
17 and the 14th.
18 A. Mr. Djurdjic, if we are going to get into a hammering match about
19 dates, then I would ask you, please, to go back to the original
20 documents. Yesterday you produced two undated videos, one showing
21 Ambassador -- the American ambassador - I've forgotten his name - going
22 to Junik, where on that visit he sat with a representative of the Kosovo
23 Liberation Army, which quite naturally upset the Yugoslav
25 You then switched to Malisevo, and you showed another undated
1 video. Into that film came an old gentleman with a shopkaron [phoen], a
2 classical Albanian hat, outlining the snows of the mountains, a normal
3 Albanian hat. That gentleman lived in the black and white house that was
4 showed on the video where I was personally interrogated twice.
5 I think if there are mistakes in my transcripts, some of it,
6 which the Court has admitted, came about by cutting and pasting, which is
7 a problem with computers. If I've made an error, Your Honours, I
9 Q. General, I put to you what you told us during the direct
10 examination by Madam Kravetz, that between the 12th of the 14th of
11 January of 1999 you were touring Kosovo and Metohija. And after that I
12 put on the screen a part of the transcript from the Milosevic case where
13 you stated that on the 14th of January, 1999, you came back from the UK.
14 So it is either or; you could not have been both in the UK and in -- or
15 rather, in Belgrade
16 is my question.
17 A. Thank you for the promotion to general, but I never made general.
18 I repeat, I arrived, as far as I can remember, in the evening or the late
19 afternoon of the 14th in Kosovo. What are you trying to prove? I beg
20 your pardon, Your Honours.
21 Q. Well, this means that you weren't touring Kosovo between the 12th
22 and the 14th, as you previously stated because you only arrived to
24 A. Well, okay, I may have missed the 12th. I seem to recall I went
25 straight, because the seriousness of the situation, down to Kosovo.
1 Yesterday, we had years missing between your dates of various things that
2 happened. We've got one day missing here, so I apologise for that.
3 Q. All right. Colonel, you told us that you came back to Racak on
4 the 16th of January, 1999.
5 MR. DJURDJIC: [Interpretation] I would kindly ask the same
6 exhibit, page 7945, lines 20 to 25.
7 Q. You were asked by the Prosecutor:
8 "I would like to go back to the 15th of January, 1999, the
9 incident known as Racak." And then you started your answer. And on page
10 7949 in lines 6 and 7 when asked whether you were there at the time of
11 the conflict itself, you answered in lines 8 and 9:
12 "I arrived just after the major conflict, but there was
13 considerable activity ongoing that afternoon and throughout that day."
14 A. Mr. Djurdjic, yes, I've shown there in lines, 12, 13, 14, 15,
15 et cetera, this area around Stimlje, Racak incident area was where the
16 road was blocked by the KLA at a place called Crniljevo. In military
17 terms the Serbs had a very strong force deployed in that area for, I
18 would think months probably. So there was always an interest in that
19 area as to how the situation was progressing. This situation just didn't
20 flare up. As I've told the Court, I think three MUP were killed and the
21 Racak incident took place. But the forces were there in place for quite
22 some time. I think you are trying to make -- as I've said yesterday on
23 many occasions, it was a very fluid situation. And to take a particular
24 incident and try and scrutinize that down, I would suggest, is not the
25 way to get to the bottom of the problem. And I'm not quite certain which
1 way you are going, to be quite honest.
2 Q. Colonel, on the 15th of January, 1999, were you present in Racak
3 during the combat activities when the artillery guns were fired?
4 JUDGE PARKER: Ms. Kravetz.
5 MS. KRAVETZ: Your Honour, I believe the witness has already
6 answered this question. It has been put to him in different ways. He
7 has already indicated when he arrived back in Kosovo, and indicated that
8 was after the incident. It's been covered in cross-examination --
9 JUDGE PARKER: Well, it may be clear to you; it's not quite yet
10 clear to me, Ms. Kravetz. I think Mr. Djurdjic should continue.
11 THE WITNESS: So as far as I can remember, the incident happened
12 and was over by the 14th. Quite rightly the Yugoslav authorities were
13 not allowing people into the area because it was not declared a safe
14 area. So there was an ongoing military incident in that area, which was
15 observable, and quite rightly, they weren't allowing us any closer other
16 than the OSCE/Kosovo Verification Mission, KVM.
17 MR. DJURDJIC: [Interpretation]
18 Q. Colonel, the core issue here is that in these quotations that I'm
19 putting to you now, and I have more of them, you did state that on the
20 15th of May you were in the immediate vicinity of Racak during the time
21 of conflict. So is that right what is written in these transcripts? And
22 as I said I have more of these if you want me to show them to you.
23 MS. KRAVETZ: Your Honour --
24 THE WITNESS: Sir, I've just told you that an ongoing military
25 incident is not an area that you allow outsiders into for very obvious
1 reasons. Now, "within the immediate vicinity of the area" could be
2 within a couple of kilometres, et cetera. So, yes, I was there.
3 JUDGE PARKER: Now, Ms. Kravetz.
4 MS. KRAVETZ: The witness has already responded.
5 JUDGE PARKER: Thank you.
6 Could I ask something very direct. Are you able to recall now
7 whether you were in Racak on the 15th of January?
8 THE WITNESS: Your Honour, in Racak is not possible because it's
9 a village off the main road. So in the area or the vicinity of Racak, I
10 would suggest, is a more general term.
11 JUDGE PARKER: The point is, were you there in your recollection
12 on the 15th, or was it on the 16th that you arrived, or is it unclear to
14 THE WITNESS: To be honest, it is unclear, sir. But if you say
15 "in Racak," that is not accurate. It is in the vicinity of Racak. A
16 military incident covers a big area, and as I've said before quite
17 obviously, they would not allow other people into the area until they
18 declared it safe.
19 JUDGE PARKER: Thank you.
20 Yes, Mr. Djurdjic.
21 MR. DJURDJIC: [Interpretation]
22 Q. Colonel --
23 MR. DJURDJIC: I would kindly ask the Exhibit D005-0649,
24 paragraph 15. This is page 5 in English.
25 Q. This is your statement from December 1992, Colonel. Which says
1 the following:
2 "In Racak there was also KLA with a small headquarters. In the
3 attack on 15th of January, 1999, which I witnessed from my arrival
4 sometime in the afternoon to about 1400 hours involved element of
5 Colonel Jelic's 243rd Mechanised Brigade and included BOV-3s, T-55
6 mortars, and D-30 Howitzers."
7 A. If I have written that report, then that is a correct example.
8 But as I say, I would suggest you are saying "in Racak." It's not
9 possible to be in Racak. It's in the vicinity of that area.
10 Q. Thank you. I accept that. But the point is that you claim both
11 in the Milosevic case and here in this statement that you were present
12 and that you observed from that place where you were on the 15th, that
13 you observed the fighting. You even described some details here.
14 Whereas to us here, you said that you arrived to Racak on the 16th, after
15 the incident had already taken place.
16 A. We are now getting back to dates again.
17 Q. Not, sir. It is one thing to be present during the event and
18 witness it, and it is another thing to arrive afterwards.
19 A. Mr. Djurdjic, I have just tried to explain you cannot witness an
20 action going on when there is heavy firing going on, because the
21 military, quite rightly, do not want outsiders looking over their
22 shoulders. You can be in the area which could be as far away as
23 10 kilometres away when heavy gun-fire would be falling in areas, and you
24 can observe the gun-fire from a considerable distance as has been proven
25 with Lord Ashdown in the Suva Reka area. Now, you are not physically in
1 the vicinity. You are quite some way away.
2 MR. DJURDJIC: [Interpretation] I would kindly ask the usher to
3 see once again D005-0321, page 8.005, lines 11 and 12.
4 Q. Colonel, when asked:
5 "Given the events in Racak given that you were there on January
6 the 15th, did you report on that?"
7 You answer in line 18:
8 "I sent -- there is a written report, as I think had been
9 explained to you, and I used to be in communication by other means back
10 to both Belgrade
11 A. Sir, that is exactly correct. Some reports I sent by secure
12 communication direct to the Ministry of Defence, particularly if they
13 were of such a serious nature as was currently going on in the Racak
14 area. There may well not have been a written report, because there was
15 not time to write a report.
16 Q. Colonel, but you told us here during the direct examination that
17 you only came to Racak after the event on the 16th and 17th of January,
19 A. Well, we are back to dates again, Your Honour. And if there's
20 been confusion, there's been confusion. What was quite obvious, was that
21 there had been a very serious incident in the Racak area which was
22 covered by OSCE and KVM. If I came a day later, then I apologise. What
23 are you inferring, my integrity? I want an answer, please.
24 JUDGE PARKER: That will do. That will do, Mr. Djurdjic.
25 Mr. Crosland, the evidence that you have given leaves me quite
1 unclear about two subject matters relating to Racak. The first is this:
2 Do you have a clear recollection of when you arrived and how long you
3 were there? If so, what is that recollection?
4 THE WITNESS: Sir, I don't have a clear recollection, no. Twelve
5 years ago, and I am afraid things have moved on. But my initial reports,
6 I believe, are the true reports. I've been questioned, as you know,
7 Your Honour, many times by this court. I've seen many reports be cut and
8 pasted and mistakes have been made. And as we saw yesterday,
9 Mr. Djurdjic had the same problem. Now, if that has happened, I'm sorry,
10 but I can't be held responsible for that. If there is an error of a day
11 or two days, I apologise.
12 JUDGE PARKER: The content of the written reports appear to have
13 been made by you relating to the Racak incident; are those contents,
14 contents that you vouch for?
15 THE WITNESS: Sir, I'd have to recheck. I think I've been asked
16 about Racak on several occasions. I would have to recheck that. Under
17 oath I can't tell you definitely which way, sir.
18 JUDGE PARKER: Were you there in the area of Racak at any time
19 when the conflict was actually occurring?
20 THE WITNESS: No, I've said that the conflict -- the incident at
21 Racak was over by the time I got there. I arrived for the aftermath of
22 that particular incident. And the forces concerned were then still
23 deployed in and around the Racak area.
24 JUDGE PARKER: You reported on those forces as you saw them?
25 THE WITNESS: I reported on those forces as I'd seen them, and as
1 I stated to Your Honours, these forces had been in position for quite
2 sometime, and occasionally I used to go through their -- or many times I
3 used to go through their check-points on further into the KLA area as
4 part of my normal touring in this area.
5 JUDGE PARKER: Yes, Mr. Djurdjic.
6 MR. DJURDJIC: [Interpretation]
7 Q. Colonel, at the beginning of your direct examination when asked
8 by my learned friend, Madam Kravetz, you said that you stand fully behind
9 your statement given on 31st of October, 2006, and the transcript from
10 the Milutinovic case. In that statement, and also in your answers to
11 questions asked by Madam Kravetz, you stated that you came to Racak on
12 the 16th and 17th of January, 1999. In the evidence I put to you from
13 the Milosevic case and in your statement that you gave in the year 2000,
14 you stated that you were present during the conflict in Racak on January
15 the 15th, and this final report that you just talked about was not
16 included into evidence by the Prosecution, and the Defence doesn't have
17 it. All we know is that you stated that you were present in Racak on the
18 15th during the fighting.
19 So the things are very clear. You could not have been in Racak
20 on the 15th during the event if you came there on the 16th and the 17th.
21 So your statements in two cases are entirely different.
22 JUDGE PARKER: Ms. Kravetz.
23 MS. KRAVETZ: Your Honour, the witness has just clarified this
24 matter when responding to questions from the Bench.
25 JUDGE PARKER: Carry on, Mr. Djurdjic. It may have been dealt
1 with sufficiently, but is there any further comment, Mr. Crosland, you
2 want to put to what has just been put to you by Mr. Djurdjic?
3 THE WITNESS: Thank you, Your Honour. I think there may have
4 been a mistake in translation or interpretation, for which again I
5 apologise. This incident, as I've attempted to explain, the nature of
6 the incident, I would suggest, is slightly more serious than actually
7 questioning which date is the actual date. I've said that I arrived
8 after the incident had happened. I have detailed knowledge that I've
9 indicated to you about which units were involved in that particular
10 incident because of my more or less daily touring in the area. Now, I
11 apologise if I've made a mistake on that to the Court. But what I've
12 said I would hope is accepted.
13 MR. DJURDJIC: [Interpretation]
14 Q. Colonel, I accept your explanation, but you also gave an oath in
15 the Milutinovic case when you gave a different statement, so this is why
16 I put this to you. And you also gave such a statement in the year 2000
17 because it is very relevant whether you directly witnessed the incident
18 or not. I apologise for your answers [as interpreted] if they in any way
19 were hurtful to you. This was certainly not my intention.
20 MR. DJURDJIC: [Interpretation] Your Honours, thank you, I have no
21 further questions for Colonel.
22 JUDGE PARKER: Thank you very much, Mr. Djurdjic.
23 Ms. Kravetz, would you think it convenient to have a break now
24 before you re-examine, or would you wish to go straight into
1 MS. KRAVETZ: I have very few questions. I think I can finish
2 before the break. I hope so.
3 JUDGE PARKER: We were giving you an opportunity to collect your
4 notes or your thoughts, but we are happier to carry on.
5 MS. KRAVETZ: Yes, I'm happy to have a break if that's what the
6 Court wishes.
7 Re-examination by Ms. Kravetz:
8 Q. Sir, I would like to direct your attention first to your
10 MS. KRAVETZ: If we could have that up on the screen. It's 65
11 ter 02645. I don't know if you have it before you still or not. I would
12 like for page 8 to be displayed, and it's page 10 in the B/C/S.
13 Specifically I'm looking for paragraph 35. I think that's there.
14 Q. You were asked some questions about your whereabouts in the
15 period of May or June 1998, And I think that specific issue has been
16 clarified. But I just wanted to direct your attention to this paragraph
17 which refers to one of the sitreps that was shown to you which the
18 Defence. And it is referred in the statement as Exhibit 00687, and in
19 these proceeds it's Exhibit P10 -- 405.
20 I just wanted to ask you a question. In your statement you
21 indicate that that sitrep and the next one of 5th of June was produced --
22 were produced by Nick Slinger. Could you explain to the Court who he
24 A. That was my authorised deputy during my absence in the
25 United Kingdom.
1 Q. So that's the person you spoke about earlier during your
3 A. That's correct, ma'am, yes.
4 Q. And in your statement you say that to your position of DA, you
5 can sponsor the contents of this report. And do you still stand by that?
6 A. As I explained to the Court, Colonel Slinger, was in the company
7 of both an American -- senior American and a senior Canadian defence
9 Q. Thank you for that.
10 MS. KRAVETZ: Now if we could have Exhibit D331 up on the screen:
11 And I would like page 2 to be displayed for the witness.
12 Q. This is a daily combat report that you were shown of the 3rd Army
13 to the General Staff of the VJ that you were shown yesterday during
14 cross-examination by my learned colleague from the Defence. And my
15 learned colleague referred you to item 3 which is an item called --
16 entitled "Situation in Army Units" and referred you to the sentence that
17 says, It is stated that army units, [indiscernible] units in accordance
18 with a decision on engagement. And you agreed that that's what the
19 report stated. And then you made the comment, I just draw the Court's
20 attention to the amount of ammunition fired. And -- which is -- we see
21 displayed in -- on the screen at the bottom of this page. And I just
22 wanted to ask you about that comment, if you could elaborate why you wish
23 to draw the Court's attention to the amount of ammunition fired according
24 to this report.
25 A. In this particular instance the amount of ammunition fired, just
1 indicates, as I've said all along, the amount of wanton damage that was
2 done throughout Kosovo, most of it due to firing from the Yugoslav
4 JUDGE PARKER: Mr. Djurdjic.
5 Sorry, I thought you had finished.
6 MS. KRAVETZ: And I should have indicated, Your Honours, that
7 this answer was given at transcript page 9243.
8 JUDGE PARKER: We've interrupted the witness.
9 Yes, Mr. Djurdjic.
10 MR. DJURDJIC: [Interpretation] If this answer has been completed,
11 and I believe it has, I object because this is an opinion that has been
12 uttered here, and the witness was not present and he could not have been
13 aware about the nature of the operations.
14 JUDGE PARKER: I think the factual foundation for his evidence is
15 sufficient, Mr. Djurdjic.
16 Carry on, Ms. Kravetz.
17 MS. KRAVETZ:
18 Q. And just to follow up on the answer that you just gave since we
19 have -- we did interrupt you, you say in this particular incidence the
20 amount of ammunition fired just indicates what you said all along, the
21 amount of wanton damage. Why specifically when you saw this report that
22 came to mind? I mean, what was specific information in this report that
23 made you want to draw the Court's attention to this issue?
24 A. All the way along, the questioning has been doubting the amount
25 of damage that was done throughout Kosova-Metohija during the 1998 to
1 1999. I don't understand why the Defence doesn't either understand that
2 or accept it. But I, as I've stated, I saw a huge number of villages
3 that were destroyed, and this was viewed by both the Trojka group, the
4 G8, Lord Ashdown, and many other international agencies. And as I've
5 said, if you go and destroy the houses of he local population --
6 Q. Sir, if I may interrupt you there, I'm just asking specifically
7 about this report. If there was something specific about this report
8 that made you want to draw the Court's attention to the amount of
9 ammunition fired that's indicated there.
10 A. If we are looking at specific calibres, then the 20-millimetre,
11 the 30-millimetre rounds are anti-aircraft shells, which as I said, were
12 used to flatten houses which is not really a peacekeeping type of weapon.
13 That's just a personal comment.
14 Q. Thank you. And just one final point, you have been asked several
15 questions about the Racak incident, and if you were there when it
16 occurred and the dates that you arrived back to Kosovo in January. In
17 response to a question of Judge Parker today, and this is at page 21 of
18 the transcript, you were asked if you were there in the area of Racak at
19 any time when the conflict was actually occurring, and you said:
20 "No. The incident of Racak was over by the time I got there. I
21 arrived for the aftermath of that particular incident."
22 Do you recall or have any information as to when - and I'm
23 referring at what time of the day - or the actual incident or the attack
24 on the village of Racak
25 A. No, because I wasn't present when the attack took place. So I
1 can't help you on that.
2 Q. Okay.
3 MS. KRAVETZ: Thank you. Your Honours, I have no further
4 questions for this witness.
5 JUDGE PARKER: Thank you, Ms. Kravetz.
6 Well, you'll be pleased to know that that concludes the questions
7 for you, Mr. Crosland.
8 THE WITNESS: Thank you, Your Honour.
9 JUDGE PARKER: The Chamber would like to thank you for your
10 further attendance here, and the assistance that you've been able to give
11 us over now two and a half days. We are sorry that you have delayed --
12 been delayed longer than you had anticipated, but it has been necessary
13 to conclude your evidence satisfactorily. We thank you, you may of
14 course now return to your normal activities.
15 THE WITNESS: Thank you, Your Honour.
16 MS. KRAVETZ: Your Honour, before we break --
17 JUDGE PARKER: The witness.
18 MS. KRAVETZ: The witness may be excused. Yes, it's not related
19 to this witness.
20 JUDGE PARKER: Thank you, indeed.
21 [The witness withdrew]
22 JUDGE PARKER: Ms. Kravetz.
23 MS. KRAVETZ: I have a very small matter to raise, that I wish to
24 deal with before we break.
25 And this concerns an oral application to change the status of
1 portions of the transcript of the testimony of a previous witness,
2 Mr. Phillips, from confidential to public, and also change the status of
3 an exhibit that was tendered through this witness from under seal to
4 public. Since this witness gave evidence, the Rule 70 provider has
5 reviewed the transcript of this testimony. And portions of the testimony
6 were given in private session in order to protect the confidentiality of
7 certain documents that had been provided to the Office of the Prosecution
8 under Rule 70. Having reviewed the transcript, the Rule 70 provider is
9 now happy to release these portions of the transcript to the public, and
10 I can indicate the transcript pages which are concerned, just for
11 reference. And these are transcript pages 8713 to 8737, 8790 to 8793,
12 8799 to 8823, and 8831 to 8840. So these are the pages of the transcript
13 which were in private session, and we would ask for those to be released
14 to the public.
15 There's also one exhibit. This is Exhibit P1312 which was
16 admitted under seal and again the Rule 70 provider has authorised us to
17 make that a public exhibit. So we would ask -- it's a double motion for
18 those two issues to be granted by the Chamber.
19 JUDGE PARKER: Is there any observation, Mr. Djurdjic?
20 MR. DJURDJIC: [Interpretation] Well, in order to waste too much
21 time here today, I would kindly ask for you to allow us some time to
22 consider this. I'm rather surprised with this move by the Prosecution.
23 I would have expected them to consider this issue before the witness came
24 to testify, so to consider the possibility to remove the confidentiality.
25 But now it seems that after the testimony was given, they have thought
1 about the possibility to remove the confidentiality from the testimony
2 and this also includes some exhibits.
3 MS. KRAVETZ: Your Honour, if I can briefly address that. The
4 issue of the confidentiality of this portions of the transcript is not a
5 matter that -- for us to deal with. It's for the Rule 70 provider to
6 authorise and the -- obviously we can only send the complete transcript
7 of the testimony to the Rule 70 provider once the witness has completed
8 his testimony, and we proceeded in this same fashion with the transcript
9 of the testimony of the other Rule 70 witness, Mr. Shaun Byrnes.
10 JUDGE PARKER: Can you tell us, Mr. Djurdjic, what it is that you
11 think you would need to reflect upon? It's evidence that has been given.
12 There's a transcript of it. And there's one exhibit. The witness,
13 because of the position taken by the provider, was received in private
14 session and treated as confidential. That was solely because of the
15 position of the provider. The provider now says, well, we've looked at
16 what has been said, and we are content for it now to be a matter of
17 public knowledge. It's not clear to me what it is that -- how it would
18 adversely affect you if it became public.
19 MR. DJURDJIC: [Interpretation] Now I'm quite clear on the matter,
20 and I agree. I wasn't clear before.
21 JUDGE PARKER: Thank you very much. The pages --
22 [Trial Chamber and Registrar confer]
23 JUDGE PARKER: The confidential recording of part of the evidence
24 of the witness Michael Phillips, as identified in the submission of
25 Ms. Kravetz, will now be made public and similarly the exhibit to which
1 she specifically referred.
2 MS. KRAVETZ: Your Honour, just for the record, I do want to
3 clarify one point. In portions of those transcript pages, there are also
4 exhibits that the Defence used and which were tendered under seal. We
5 are not authorised, as they are not our exhibits, to request that the
6 seal be lifted, so should the Defence wish to make those exhibits public
7 exhibits, they would need to file their own or -- send their own request
8 to the Rule 70 provider with regard to that. So --
9 JUDGE PARKER: That's not affected by your motion. Your motion
10 is only the oral evidence.
11 MS. KRAVETZ: That is true, Your Honour.
12 JUDGE PARKER: And one exhibit which you've identified.
13 MS. KRAVETZ: Which is our exhibit, yes.
14 JUDGE PARKER: We've made our order in respect of those matters
15 only. Thank you.
16 Now, we wish to hear the submissions of counsel in respect of the
17 proposal concerning witness K87, and for that purpose we will adjourn now
18 to resume at 10 minutes past 4.00 with a view to hearing those
20 --- Recess taken at 3.36 p.m.
21 --- On resuming at 4.11 p.m.
22 JUDGE PARKER: Before we hear submissions under Rule 98 bis, the
23 Chamber would like to deal with one matter, which is the Prosecution's
24 third motion to amend the Rule 65 ter exhibit list. This arose at the
25 time of the evidence given by Aleksandar Vasiljevic in June. It was
1 proposed to add 17 documents to the Prosecution's Rule 65 ter list. That
2 was opposed by the Defence in submissions given on the 8th of June. The
3 Chamber, by oral decision on the 8th of June, allowed the documents to be
4 put to the witness Vasiljevic, and those documents were marked for
5 identification pending this decision and a decision on a motion made in
6 the course of the hearing then for the admission of each of those
7 documents into evidence. Vasiljevic was specifically questioned by the
8 Prosecution only in respect of two of the 17 documents, and there was no
9 cross-examination on any of them.
10 There is no specific justification given for the Prosecution's
11 delay in seeking to add the documents to its exhibit list in the
12 circumstances that have been mentioned, but each of the documents were
13 documents that had been referred to or relied upon by Mr. Vasiljevic in
14 the preparation of his evidence.
15 The Chamber is of the view that the late addition of these
16 documents to the Rule 65 ter list would not, in the circumstances that
17 we've described, prejudice the rights of the accused. I've mentioned
18 that during the evidence, the Prosecution also sought then to tender each
19 of the 17 documents as exhibits.
20 The documents themselves relate to deployment of MUP and VJ
21 forces in Kosovo at times relevant to the indictment. The documents were
22 issued by official sources, as indicated either by official stamps or
23 seals or the signatures of persons holding positions of authority. In
24 those circumstances, the documents are considered to have a sufficient
25 probative value for the purposes of accepting their admission into
2 The Chamber is able to reach that conclusion essentially on the
3 basis of the 17 documents themselves as it is not -- it is not the case
4 that there has been any detailed discussion of the documents, their
5 contents, or their reliability in the evidence of the witness Vasiljevic
6 or any other witness.
7 Having regard to those matters, the Chamber is persuaded in the
8 end that it would be in the interest of justice, first, to allow the 17
9 documents to be added to the Prosecution's Rule 65 list, they are set out
10 in Appendix A of the corrigendum to that list. And the Chamber is
11 further of the view that each of those documents should be admitted into
12 evidence. They will be the orders of the Chamber.
13 We now come to the question of Rule 92 quater, and the evidence
14 that is proposed to be tendered of the witness known in these proceedings
15 as K87.
16 [Trial Chamber and Registrar confer]
17 JUDGE PARKER: The documents I've mentioned in the respect of the
18 previous motion will be admitted as public exhibits.
19 Mr. Stamp.
20 MR. STAMP: Thank you, Your Honours, and good afternoon. The
21 motion was filed confidentially and the issue was just raised to me as to
22 whether or not this hearing should be confidential. Actually, I'm not
23 sure that it needs to be if we express ourselves in a manner that does
24 not reveal any confidential information. But I'm in the hands of the
25 Court in that regard.
1 JUDGE PARKER: I'm not inclined at the moment to see reason for
2 continued confidentiality. The normal practice is to file matters
3 confidentially where there is likely to be personal information,
4 including information as to health of a person, including a witness, but
5 it would seem at the moment that that is not really a critical issue on
6 this present application.
7 MR. STAMP: Very well, Your Honour. Thank you. I'll proceed,
8 and if myself and I'm sure counsel on the other side think that we need
9 to go into private session, we'll make the appropriate application.
10 Your Honours, if it pleases you, the Prosecution refers to the
11 motion filed on the 22nd of October, that the statement and transcript of
12 K87 be received under Rule 92 quater. And for the purpose of these
13 arguments, I adopt the submissions made in the written file.
14 There is not much that I have to add to it. The matter is
15 squarely before Your Honours as a matter to exercise your discretion as
16 to whether or not you should have available to you at the end of the case
17 the documents in question. The issue is admissibility at this stage, not
18 weight. Indeed, most of the arguments that I could think of to add were
19 arguments that would bolster the weight of these statements, arguments I
20 think the Prosecution can and will legitimately make. But I don't think
21 that this would be the appropriate time to make the arguments about
23 If I may, however, Your Honours, just make one or two additions.
24 In paragraph 15 of the motion, the Prosecution submits that the evidence
25 of K87 is corroborated to the extent that it fits within a larger
1 framework of evidence in the case. And that larger framework of evidence
2 in the case is evidence of the accused's participation in the concealment
3 of the bodies in Serbia
4 I would respectfully ask Your Honours to refer to the statements
5 of -- or the evidence before the Court of former SUP chiefs Keric and
6 Golubovic who testified about orders they also received from the accused
7 in respect to the burial of the bodies.
8 In respect to -- I also refer the Court to the evidence of K88
9 that is discussed at paragraph 11 of the motion. K84, also K84 is a
10 witness who led the initial Working Group investigation of the matter.
11 He took K87's original statement and took statements from other persons
12 including drivers, which these statements form a broad framework of
13 evidence which is substantially corroborate K87 in what he has said was
14 his participation and the participation of the accused.
15 And also, Your Honour, I'd ask Your Honour to refer to the
16 evidence of K93, one of the drivers who -- whose evidence was to the
17 effect that he transported bodies from Serbia and also bodies from one
18 truck that had been left in the Danube
19 those bodies to Batajnica. And that also when the issue arose, when the
20 -- the concealment of the bodies was revealed in the press, he -- the
21 accused was present with General Lukic when his transfer to another part
22 of Serbia
23 So those are just four or five witnesses. And as far as K84 is
24 concerned, the documents that accompany his testimony that form part of
25 the broad framework we refer to in paragraph 15, that is substantially on
1 all fours with the evidence that we propose to receive by the Court.
2 Secondly, Your Honours, if I may seek to augment the arguments
3 that we made in paragraph 16 of the motion. This is paragraph discussing
4 the submissions as to why Your Honours should admit the statements, not
5 withstanding that it refers to the acts and conduct of the accused.
6 There have been quite a few cases in this Tribunal where
7 statements referring to the acts and conducts of the accused have been
8 received under 92 quater. And I think I should, for the record, just
9 cite two of them. And that is the Prosecutor against Popovic et al., the
10 decision on the Prosecution motion for a motion of evidence pursuant to
11 Rule 92 quater of the 21st of April, 2008. And also the Prosecutor
12 against Milutinovic et al., the decision on the Prosecution motion for
13 admission of evidence pursuant to Rule 92 quater of the 5th of March,
14 2007 in -- particularly in paragraph 9 in the Milutinovic decision and
15 paragraph 35, and thereafter in the Popovic decision.
16 Those are cases, Your Honours, among others where statements
17 going to the acts and conduct of the accused were admitted. And these
18 decisions emphasise a point that it is just a factor, one factor, for the
19 Court to consider in exercising its discretion. And it's a factor really
20 counselling cautious scrutiny of the evidence. The circumstances in
21 which it was taken and the extent to which it is corroborated, in
22 particular. But all of these cases, indeed the rule itself, contemplates
23 that these statements are admissible in appropriate circumstances, which
24 we submit is the situation in this case.
25 And thirdly and last, Your Honour, if I may perhaps redundantly,
1 but I will nonetheless briefly just mention and remind the Court that the
2 -- there is a next decision, another decision in the Milutinovic case in
3 respect to 92 quater, that is cited in footnote 2 of the present motion,
4 the instant motion before the Court. And that is the decision of the
5 16th of February, 2007, and I just refer to paragraph 9 of that decision
6 where it's also discussed that even if there is lack of
7 cross-examination, the statements can be admissible if they -- other
8 circumstances -- all the circumstances considered together make it
9 appropriate to do so. So the absence of cross-examination does not
10 automatically preclude admission of the evidence.
11 In this case the statement -- there was no cross-examination in
12 the making of the statement, but there were opportunities by four or five
13 counsel to cross-examine in the Milutinovic case, and indeed in this case
14 the evidence of Mr. Trajkovic which substantially corroborates what K87
15 said was also open to cross-examination by counsel in this case.
16 That, Your Honours, for the present is all I have to add to the
17 written submissions. May it please you.
18 JUDGE PARKER: Thank you, Mr. Stamp.
19 Mr. Djurdjic.
20 MR. DJURDJIC: [Interpretation] Thank you, Your Honours. First of
21 all, I would like to emphasise the chronology of events relating to the
22 testimony of witness K87. Based on the Prosecution reports that we have
23 received, one can deduce that on the 1st and the 21st of August of this
24 year, the Prosecution was again in contact with the witness. I don't
25 want to go any further back into the history because it's irrelevant.
1 At that time the said witness informed the Prosecution about the
2 fact that it is necessary -- I have to stop for a moment because
3 Ms. O'Leary has just pointed out to me that I should ask you whether we
4 should go into private session for them, although I'm not going to
5 mention any names. In my view it's not unnecessary, but I would be
6 grateful for your guidance, Your Honours.
7 JUDGE PARKER: We have seen no reason for that, but if there's
8 something that concerns you, please mention it because we don't want to
9 create a problem by oversight. But this was mentioned briefly by
10 Mr. Stamp, we couldn't see any reason.
11 MR. DJURDJIC: [Interpretation] Thank you.
12 On the 21st of August, the witness informed the OTP that he had a
13 medical check-up scheduled for the 29th of August. I have here a
14 Prosecution notice to the effect that the Defence was advised on the 29th
15 that -- on the 29th of September that on the 5th October, the witness
16 will be available for hearing. At that time they already knew that he
17 was going to see the doctor. After that, the Prosecution got in touch
18 with the witness on the 30th of September, and on that day, the witness
19 informed them that he was due to undergo an operation on the 6th of
20 October, 2009. At the Prosecution's request, the witness provided
21 medical records, i.e., referral for a day hospital, and then ergometry
22 department report, dated the 29th of September.
23 Based on these records and documents, the Prosecution
24 investigator concluded that there were no -- there was no evidence that
25 there was any surgery scheduled on the 6th of October, 2009, and that,
1 therefore, a witness wouldn't be able to testify. Let us just look at
2 this order of events that we have been informed about by the Prosecution.
3 It's evident that the Prosecution knew that on the 6th of October, 2009
4 the witness would not be available. If he had a referral for day
5 hospital dated the 1st of October, that means, that she will have to stay
6 in a medical institution. Later we are going to see that immediately
7 after this information was revealed, the OTP contacted the medical
8 institution where this witness was hospitalised. I think that their best
9 intention was to expedite the proceedings, but the OTP submitted
10 documents to this Trial Chamber, and bearing in mind everything that I
11 said earlier, failed to provide a report dated the 7th of October, 2009
12 received from the physician who works at the hospital where the witness
13 was hospitalised. In other words, these documents were not submitted to
14 the Trial Chamber before the Chamber decided to schedule the videolink
15 testimony for the 16th. Although the OTP had some prior information, but
16 they deprived the Trial Chamber of that information.
17 What I want to say is, that the Prosecution disclosed all this
18 information to the Defence on the 13th of October. Let us just look what
19 is said in these medical reports. They only show that the witness is
20 only temporarily incapacitated, and it has been very specifically
21 described. In one report it is said that he is not able to go to work
22 for three weeks, and in response to the request by the Prosecution
23 received on the 7th of October, it is said that the patient would be
24 re-examined one month later to see what his condition is.
25 I think that based on these indications, we have no proof that
1 this witness is permanently unavailable. In other words, that his
2 health, both physical and mental, is such that he is permanently unable
3 to testify.
4 Your Honours, based on these medical reports we see that this
5 witness is unable to work only for a period of 30 days following the
6 surgery, which took place on the 5th of October. So this 30-day period
7 will expire in about five or six days. Therefore, we believe that there
8 is no evidence that his health condition is such that at this point due
9 to psychological and physical ailments, this witness is incapable of
11 And what the Prosecution has rightly and fairly pointed out, at
12 no point was it said in these reports that he was incapable of
13 testifying. However, this incapability is limited to a 30-day period
14 during which period he should be spared any work in any other efforts.
15 After the expiry of this period, he will probably be able to work and
16 anyone who is capable of working, I think, is capable of testifying. But
17 I think that that should be left to the medical expert to decide.
18 Therefore, in my view, this submission that there is permanent incapacity
19 on the part of the witness cannot be acceptable.
20 Since we have written records, we can see that there are
21 definitely all requirements met for a videolink testimony. However,
22 these risks will be eliminated in a matter of course of three or four
23 weeks when the witness becomes healthy again, and I don't see any reason
24 for him not to testify.
25 I would like to address Rule 92 quater now. Pursuant to this
1 rule and concerning this other alternative which says that a person that
2 is incapable of testifying viva voce due to bodily or mental condition,
3 as far as this particular witness is concerned, will be able to testify
4 in about seven or eight days' time. What I would like to underline here
5 is the following: Mr. -- [overlapping speakers]... statement said that
6 this witness was not cross-examined in Milutinovic. That is true, there
7 was no interest on the part of the Defence to cross-examine this witness.
8 And I think this is a crucial point and that the Trial Chamber should
9 particularly take this into account when delivering their ruling.
10 I would also like to point to another fact. We are dealing here
11 with a witness who is to testify about the acts and conduct of the
12 accused for which he is charged in the indictment. If the Prosecution
13 believes that this testimony is unnecessary, they could have relinquished
14 it. But, however, it seems that they believe this testimony is going to
15 be relevant, particularly for the portions of the indictment containing
16 the charges against the accused.
17 Why cross-examination is required? Precisely because, as
18 Mr. Stamp put it today, K87 had given statement and it is already part of
19 this proceedings and which has been admitted into evidence. When this
20 witness testified in Milutinovic, during the briefing with the
21 Prosecution, he denied the statement he gave to this witness. He
22 qualified that as an informal conversation that the content of this
23 conversation was misinterpreted and misrepresented, that he wished to
24 withdraw it.
25 The Defence was notified of this and, therefore, did not conduct
1 cross-examination. Now the Prosecution is arguing that the
2 cross-examination is not necessary in this case either. I think that
3 this witness should and must be cross-examined.
4 And one more thing, although the Prosecution --
5 JUDGE PARKER: Can you be a little more specific. Are you saying
6 that the witness K87 said that the statement given was a misinterpreted
7 and misrepresented statement, or is it another witness speaking about the
8 conversation with K87?
9 MR. DJURDJIC: [Interpretation] I was probably not accurate
10 enough. When K87 came to testify in Milutinovic, he had a proofing
11 session with the Prosecution beforehand. The Prosecution informed the
12 Defence that the witness told the Prosecution that the statement that he
13 had -- that K84 gave a statement which was misinterpreted, that the
14 contents were wrong, and that this was actually not his statement. K84
15 is also present in this trial and in this case. Through K84, this
16 statement has been admitted into evidence in this case, the statement
17 claimed by K87 not to have been given by K84. And it's, nevertheless,
18 became part of the evidence.
19 Since the Prosecutor in the Milutinovic case did not wish to
20 rectify this in examination-in-chief, and to put to the witness, and
21 there was no subsequent cross-examination, the matter was left as it was.
22 We only have a notification by the Prosecution in the Milutinovic case
23 that the witness denied having given a statement to our witness K84. I
24 believe that this is proper grounds for cross-examining witness K87
25 because that is one of the crucial and fundamental reason for doing so.
1 I don't know if I was clear enough on this matter. Or maybe I
2 should try to clarify it again.
3 JUDGE PARKER: We are slow this afternoon, Mr. Djurdjic, I'm
4 sure. It is not clear to me, are you saying that K87 has said that his
5 evidence concerning your client of conversations between K87 and your
6 client is not correct, has been misinterpreted or misrepresented? Or are
7 you talking about some other event that concerns witness K84?
8 MR. DJURDJIC: [Interpretation] Your Honours, in our proceedings
9 we heard witness K84, who was in charge of MUP group and took statements
10 from different witnesses, and those statements were as such tendered into
11 evidence through K84. In the Milutinovic case, witness K87 came and told
12 the Prosecutor that statement taken by the Working Group, i.e., by
13 witness K84, that witness is not correct. Am I clear, and have I managed
14 to explain now?
15 JUDGE PARKER: Thank you very much, yes.
16 MR. DJURDJIC: [Interpretation] Thank you. The point is that at
17 the hearing, the Prosecutor also failed to avail himself of the
18 possibility of telling the witness, excuse me, just as what the K84 has
19 drawn up does not correspond to the truth. The Defence did not
20 cross-examine him, and it remained as such. Now we have that statement
21 in the case file via witness K84.
22 May I also say this, I believe that by adoption of these
23 documents of the transcript and these statements according to Rule 92
24 quater without cross-examination, we would infringe upon the accused's
25 right to a Defence. There is another thing which is untrue which we
1 heard here, which is that protected witness K93 had said that Mr. Lukic
2 had participated with the accused in the transportation of bodies.
3 Mr. K93 had never said any such thing here, and this is something that
4 you can verify for yourselves by reading our transcripts.
5 Bearing in mind this state of facts, I'm referring to the health
6 condition of the person referred to, this witness, namely when we -- seem
7 that we waited for four or five weeks for Mr. Crosland, perhaps this
8 Chamber could or should also wait for another ten days until we get a
9 medical report to the effect whether this witness is indeed capable of
10 taking the stand or not. I think it would be a minimal loss and
11 practically no damage done, no harm done relevant to the potential damage
12 that could be done to the accused and to his right to a Defence if we
13 were to rule today on the basis of -- to make a decision today on the
14 basis of Rule 92 quater.
15 I, therefore, move that the Chamber do not rule instantaneously,
16 but for us to wait for the relevant medical reports, and only then on
17 their basis bring just decision. This is what I wanted to point out
18 because in the course of proceedings so far, I believe that the
19 proceedings have been conducted to the satisfaction of all parties in the
20 proceedings, and that at this juncture we are for the first time at a
21 juncture where potentially harmful or perhaps erroneous decision might be
23 JUDGE PARKER: So that we are clear, you are directly urging that
24 we should delay the progress of the trial to receive a further medical
25 report when it becomes available?
1 MR. DJURDJIC: [Interpretation] Yes. Your Honours, on the basis
2 of the existent document, the Defence deems that it has not been
3 ascertained that this witness is permanently incapacitated physically and
4 mentally to take the witness-stand and that the relevant records and data
5 will be available to the Trial Chamber only in a matter of seven days,
6 after his scheduled check-up, and that it should only then rule. The
7 Defence does accept that if the medical record were to show that he is
8 not capable of taking the witness-stand on medical grounds, then of
9 course the Trial Chamber would have grounds to decide whether
10 requirements under 92 quater have been met or not.
11 JUDGE PARKER: I notice that you have several times spoken of it
12 not being established that the witness is permanently unable to testify.
13 I don't see the word permanently in Rule 92 quater A. Merely that he is
14 or she is unable to testify orally. Now this of course is a separate
15 issue from whether it may be the case that the witness will be fit to
16 give evidence in a week or two's time, as you suggest. But do you accept
17 that there's no specific requirement that the witness be permanently
18 unable to testify from the rule?
19 MR. DJURDJIC: [Interpretation] Your Honours, now this is within
20 the realm of interpretation. I believe that in a ruling of yours
21 referring to a witness which had been accepted under 92 quater on these
22 grounds, mentally and physically unable, namely that you adopted the
23 position that that was a chronic condition with him, referring to his
24 health of course. Now we are speaking about such a health problem in
25 view of the progress of medical equipment, that this is a routine
1 operation, routine surgery. It is just -- and recuperation will take
2 only a short time. It is just as if somebody would have not been able to
3 come on account of a simple flu. So that within a matter of days that
4 person would have recovered. It is true that this is -- the word
5 permanent is not contained in the article. But it does say that the
6 bodily and mental or physical incapacitation is of a lengthier duration
7 on account of which he will not be available to court.
8 Now, had he been cross-examined in the Milutinovic case, it would
9 be easier to take a decision. Now we have two elements here. A, there
10 was no cross-examination; and secondly, his questionable health
11 condition. If he recuperates within a couple of days, and it is a short
12 period, I believe that we should wait because we waited for Crosland for
13 such a long time. And I believe that it is of the essence in this
14 particular case.
15 And another thing, which I wish to underline, after the
16 cross-examination you have to assess the evidence presented, of course.
17 If this is such an important witness for the Prosecution, I believe that
18 it is only fair and correct for the Defence to cross-examine that
19 witness. And this is yet another argument in favour of the statements
20 that have already been admitted, and we have, of course, the written
21 statement of the OTP that he had recanted his words, but that will not be
22 tendered as evidence unless we cross-examine this witness.
23 If I put myself in the shoes of the judge, despite the fact that
24 it is not expressly stated in this article that it should not be a
25 permanent condition, account should be taken of the nature of the
1 incapacity, the physical and mental incapacity of the witness, which is
2 in question for the Trial Chamber to rule. Of course, something can be
3 acute and short-lived, and other conditions can be permanent or chronic.
4 Thank you.
5 JUDGE PARKER: You did mention a previous decision in which I had
6 been a judge. Do you have a reference to that?
7 MR. DJURDJIC: [Microphone not activated]
8 THE INTERPRETER: Microphone, counsel, please.
9 MR. DJURDJIC: [Interpretation] I did have one, Your Honours, but
10 now with the papers that I have in front of me, of which there are
11 many -- let me just try and find my bearings. Well, IT-05-87/1-T of the
12 19th of August, 2009. It is witness Zhuniqi, Ms. O'Leary just reminded
14 JUDGE PARKER: That is a decision in this case?
15 MR. DJURDJIC: [Interpretation] Yes. Your decision, your Chamber,
16 your case, Your Honours.
17 JUDGE PARKER: Is it reciting merely that in that case there was
18 a chronic condition, or is it your submission that it was said to be a
19 requirement that there be a chronic condition?
20 MR. DJURDJIC: [Interpretation] Yes. I shall read it out for you.
21 You noted that in the documents it was stated the use of Zhuniqi had had
22 a brain stroke, was unable to speak, and was not emotionally stable
23 enough to be able to testify. So on the basis of all those documents,
24 you concluded that he was unavailable.
25 "According to the opinion of the Chamber, these documents clearly
1 attest to the physical and mental condition of the witness and to the
2 fact that he is unable to testify."
3 JUDGE PARKER: Thank you.
4 Mr. Stamp.
5 MR. STAMP: Firstly, if I might deal with the last thing. The
6 passage referred to in the decision with respect to Zhuniqi is at
7 paragraph 8. And if the issues as to whether or not this Chamber impose
8 a requirement that the bodily or mental condition which prevents a
9 witness from testifying is permanent, that is not so, and I think that is
10 clearly reflected in the language used by the Chamber in paragraph 8 of
11 its decision in respect of Zhuniqi.
12 If I may just reply to one or two other comments made. May I
13 just accept responsibility for the failure of the Prosecution to timely
14 provide the medical report of the 7th of October. We received it on the
15 8th of October in the afternoon. That was the same day of the decision
16 with respect to the videolink. As a matter of fact we received it after
17 that decision, shortly after. It was our intention to file it the next
18 day with a correct translation of another medical document that had been
19 filed, and due to oversight it was not filed that day. But when we
20 discovered that on the next occasion, and the Monday thereafter, I think
21 the next day was a Friday, the 9th, I think the Monday thereafter we
22 filed the report of the 7th of October. So we were a couple days late in
23 filing that report.
24 However, the submission is that the reports, although they do not
25 show that he is permanently disabled, they show that -- well, they do
1 satisfy the requirements of the rule that he is presently unable to
2 testify, and there is no reasonable likelihood that he will be able to
3 testify in the near future. I think --
4 JUDGE PARKER: That becomes a very important issue, particularly
5 in view of Mr. Djurdjic's submission. Perhaps you could develop that.
6 MR. STAMP: One of the issues which Your Honours will have to
7 consider is the history of the illness of Mr. -- of the witness having
8 regard to the efforts of the Prosecution that the Prosecution has made in
9 order to get him here. I wish to assure the Court that we almost went
10 overboard in trying to ensure that we did everything possible to make him
11 available to the Court.
12 And I think without going too far in history, I think if you look
13 at the last report, and I think that is report which is referred to by my
14 friend, and it is a report that was appended to the affidavit of service
15 and was filed by the government of the Republic of Serbia
16 the 29th of September this year. It indicates that the further treatment
17 recommendations would be certain medication until February 2010. And it
18 goes on to say that he should be excused from work, travel, and mental
19 and physical exertion until completion of treatment. That is the last
20 medical documentation we have had.
21 There is, I should point out, out of fairness, an apparent
22 inconsistent report in that it has sick leave recommended for a minimum
23 of three weeks. However, we have no information as to the condition of
24 the work that -- or the work arrangement could be made in respect of the
25 witness. What we do have is a clear statement of the doctors that the
1 treatment would continue until February 2010. And he is to avoid
2 stress-related activity until the end of that treatment.
3 JUDGE PARKER: I see it's sick leave, minimum three weeks.
4 MR. STAMP: Yes, Your Honour, that's correct. The approach to
5 this matter by the Prosecution has, as I indicated, been to push as far
6 as possible to try to get him here, and I would submit that we have made
7 a every bona fide effort in order to do so.
8 As to the application that there should be a further delay in
9 trying to get him, I'll leave that in the hands of the Court. If the
10 Court so rules, we will again make every single effort to get him
11 available or make him available to testify. However, I think the medical
12 report speaks for itself and having regard to the history since February
13 of trying to get him here on three or four occasions when he is summoned
14 or subpoenaed to attend, and the intervening medical condition which has
15 consistently prevented him from attending, I would ask you to consider
16 that in deciding whether or not --
17 JUDGE BAIRD: But Mr. Stamp, do you agree with Mr. Djurdjic that
18 there would be a report, a medical report in four or five years time?
19 MR. STAMP: I don't know of that. I don't see where it is
20 reflected in the medical documentation. Perhaps if you could give me a
21 citation, I could have a look at it. I see in the last medical
22 documentation, not only that the treatment will continue until February
23 2010, but he is to repeat the echo stress test in four months, which
24 approximates February 2010.
25 So I just point out those aspects of the report to the Court.
1 And I leave that part, that aspect in the hands of the Court.
2 JUDGE PARKER: Mr. Stamp, it becomes very difficult to accept
3 your submission that we should have regard to the history of the failure
4 of this witness to attend when it is now shown that he had surgery early
5 this month to have a stent fitted. Whatever his condition before that,
6 he has undergone now significant surgery. And so it seems, to me at
7 least, that the issue is really what are the medical reports we have in
8 respect of this witness who has undergone significant surgery this month
9 and is now recovering from that and in due course will be assessed to see
10 whether or not that surgery has been successful. And that brings me to
11 the reports we have, the most significant one which was the report given
12 a few days before the surgery, indicating what is likely to follow, that
13 is the report dated the 29th of September, following the ergometrical
14 testing. And it indicated there should be no work, travel, or
15 significant mental or physical efforts until medical treatment is over.
16 And then when the anticipated surgery was undertaken just a few days
17 later, when he was discharged that day, there is a recommendation for
18 further treatment until February 2010 and to repeat the significant
19 ergometrical examination, the echo-examination in four months time, and a
20 sick leave, minimum three weeks, with no indication that the patient was
21 to undergo further specific examination or treatment at any earlier time
22 than the treatment that was planned until February and the
23 echo-examination in four months, which would be four months - late
24 February or 6th of February, would that be four months from the operation
25 on the 6th of October?
1 MR. STAMP: Indeed, Your Honour.
2 JUDGE PARKER: So it seems that there was a treatment plan until
3 February, and there was then to be further stress testing. And it's our
4 evaluation of that report, it seems to me, and the report of the 29th of
5 September, rather than our assessment of what may or may not have been
6 the justification for this witness's failures to attend on earlier
7 occasions. Because while we have no specific medical details about his
8 condition on those earlier occasions, we do know that his condition
9 eventually led to surgery at the beginning of this month.
10 Is there any further observation you'd like to make about that?
11 MR. STAMP: Yes, I accept that, really, the current medical
12 reports are those which are most applicable to the issue, and I have --
13 I've referred to them. And I -- while I don't oppose the application
14 that we could wait, I see no reason on the medical documentation to
15 support what counsel has said or his submissions. So I just point that
16 out to the Court.
17 And also as just indicated by the Court, the medical
18 documentation seems to indicate that his treatment will last until
19 February of next year.
20 JUDGE PARKER: Thank you. Sorry, were you about to put something
22 MR. STAMP: And just one additional area of the submissions of
23 counsel, just for clarification. He refers to a statement that the
24 witness gave to K84, the investigator. That statement is already in
25 evidence and that statement is not the subject of this application. The
1 subject of this application, the statement that he gave to the OTP, and
2 also the transcript of his testimony in respect of that statement reflect
3 at the penultimate page of the transcript, which is 65 ter 05114, that:
4 "It is satisfied that his statement accurately reflects the best
5 of his knowledge and recollection, the truth about the events that are
6 described therein."
7 This was his sworn testimony about the statement, the relevant
8 statement last year. Thank you very much, Your Honours.
9 JUDGE PARKER: Thank you, Mr. Stamp.
10 [Trial Chamber confers]
11 JUDGE PARKER: I see you showing some anxiety to speak again,
12 Mr. Djurdjic. Please.
13 MR. DJURDJIC: [Interpretation] Your Honours, first of all, I
14 would like to say this, as far as I managed to understand Mr. Stamp, we
15 have no information relating to the health condition and whether the
16 witness was capable of working after his operation, and what was
17 routinely done with this kind of patient. Secondly, he is going to be
18 treated for the rest of his life, but does that mean that a his physical
19 and mental condition is such that he is unable to testify? You rightly
20 put that he is due to undergo check-up in four month's time, but it
21 doesn't say that in four month's time he will neither be able to testify,
22 nor to work. And we can see that even after three weeks of sick leave,
23 he can return to work. Otherwise, they would have said that he should be
24 on sick leave for four months and then come to -- for another check-up.
25 In one document it says three weeks, and in another document it
1 is stated that the check-up is due within 30 days. When the OTP
2 submitted their request to you, they stated that there was no indication
3 of his being unable to testify. Therefore, I think that we really have a
4 very short time for us to be able to obtain proper information.
5 [Trial Chamber and legal officer confer]
6 [Trial Chamber confers]
7 JUDGE PARKER: Mr. Djurdjic, there's a question about your
8 submissions. You seem to indicate an expectation that there would be a
9 further medical report -- medical examination and report in the next few
10 days or so. What is the basis for that? Why do you say that?
11 MR. DJURDJIC: [Interpretation] Your Honours, knowing how the
12 health care operates in Serbia
13 leave for the witness is minimum three years. Therefore, his
14 attending --
15 JUDGE PARKER: Three weeks. The translation said years.
16 THE INTERPRETER: Interpreter's correction: Three weeks.
18 MR. DJURDJIC: [Interpretation] Yes, I said three weeks. So after
19 that he is going to go to this medical institution, undergo examination,
20 and then a recommendation should be written whether he is able to go back
21 to work or not. It is up to the doctor to decide whether his sick leave
22 should be prolonged or not. Within this period of time, we never saw
23 that the witness did not work when he was operated in January/February
24 until October. There was no indication that he had been excused from
25 work throughout this period. As far as I know, this kind of surgery is
1 such that makes people capable of going back to work very soon
2 thereafter. So if he is able to work, I don't see any reason for him not
3 to be able to testify.
4 JUDGE PARKER: You are really relying on your medical knowledge
5 and your understanding of the Serbian medical system, is that it,
6 Mr. Djurdjic?
7 MR. DJURDJIC: [Interpretation] But that's how things are. I just
8 presented the facts to you, how things work. And it is up to you, I
9 apologise, I don't want to interfere with how you are going to rule, but
10 my opinion is that if one is capable of performing work, then one is
11 capable of testifying.
12 [Trial Chamber confers]
13 JUDGE PARKER: Mr. Stamp, could I clarify, your motion would seek
14 the admission of the statement and the transcript; is that correct?
15 MR. STAMP: Yes, Your Honours.
16 JUDGE PARKER: Thank you.
17 This is a motion by the Prosecution for the Chamber to receive
18 the evidence of witness K87 by -- in the form of a written statement
19 which the witness has made at an earlier time, and the evidence given by
20 this witness in an earlier trial.
21 The circumstances are that the witness, having failed, for
22 reasons which he expressed to do with his medical condition, to attend on
23 two earlier occasions during the Prosecution case. The situation arose
24 which in the end persuaded this Chamber on the 7th of October this year
25 to issue a subpoena requiring the witness to attend to give evidence by
1 way of videolink from Belgrade
2 The information then before the Chamber indicated that his health
3 condition certainly suggested that it would be un-wise for him to travel
4 to The Hague
5 evidence might be obtained by videolink.
6 The medical information then available to the Chamber has been
7 supplemented since then, in particular by a report which, although
8 reaching the Prosecutor's Office on the 8th or 9th, was not filed until
9 the 16th of October this year. That report indicated that after
10 extensive testing at the end of last month, the accused indeed had a
11 significant health problem -- the witness had a significant health
12 problem, for which surgery to insert a stent was proposed and that this
13 had been held -- this surgery had been performed on the 6th of October
14 this year.
15 We now have a report of his condition on discharge from the day
16 surgery when that stent was inserted on the 6th of October, as well as
17 his ergometric examination report, dated the 29th of September. Having
18 received those reports, the Chamber saw that it was not appropriate to
19 pursue the videolink proposal, and it retracted the order for the witness
20 to give evidence by videolink from Belgrade. And that has led to the
21 present motion.
22 I won't review the submissions which we have had today from both
23 counsel for the Prosecution and counsel for the accused. They are set
24 out in the transcript. In particular, counsel for the accused submitted
25 that the medical documentation presently available did not indicate that
1 the accused was either permanently unable to give evidence, or as that
2 submission was developed, as I understand it, did not indicate that there
3 was a sufficient degree of delay or permanency in the unavailability or
4 inability of the witness to give evidence. So that it was submitted that
5 Rule 92 quater had not been shown to be applicable.
6 It was further stressed that the accused would lose the ability
7 to cross-examine this witness, a condition of particular significance
8 because the evidence of the witness dealt with, in some respects at
9 least, acts and conduct of the accused relating to the charge. And also
10 because some matters related, as I understand the submissions, to the
11 credibility and reliability of the evidence of the witness affecting or
12 relating to the evidence of two other witnesses, particularly K84 and, I
13 think, K93, that it would not be open to the accused if this submission
14 -- if this motion were granted to explore those issues and would,
15 therefore, adversely affect his ability to present his Defence
17 The relevant rule is Rule 92 quater. It requires that relevantly
18 by reason of bodily condition, a person is unable to testify orally, and
19 that the Chamber must be satisfied that the witness is unavailable to
20 testify orally, and that the proposed statement is reliable. And the
21 rule specifically draws attention to the situation where the proposed
22 evidence deals with the acts and conduct of an accused which expressly is
23 noted to be a factor against the admission of that evidence or part of
24 it. Sorry, accurately, it may be a factor against the admission of that
25 evidence or part of it. And, of course, the provisions of Rule 89
1 relating to the general admissibility of evidence also apply.
2 A number of factors have been identified in the jurisprudence,
3 particularly in decisions such as the Milutinovic decision of the 16th of
4 February, 2007
5 decision of the 16th of June, 2008, paragraph 6; and the Popovic
6 decision, the one of the 21st of April, 2008, paragraph 31, as to the
7 indicia which are relevant to the assessment of the reliability of the
8 evidence to be admitted pursuant to 92 quater.
9 The fact that the evidence relates to the acts and conduct of the
10 accused gives rise for a reason for the Chamber to give very cautious
11 scrutiny to the evidence, and to its reliability and relevance, and, of
12 course, to the significance of cross-examination in weighing whether it
13 is in the interests of justice for the evidence to be admitted.
14 I turn now to the first and primary question, that is, whether
15 the provision of the rule is one that is -- allows in this present case
16 the admission of this evidence. As I've indicated, the words of the rule
17 speak of the need for, by virtue of some bodily condition, the witness is
18 unable to testify orally.
19 We would have little hesitation in accepting Mr. Djurdjic's
20 submission if it were the case that there was clearly some imminent
21 further medical review in the next few days, is the way Mr. Djurdjic saw
22 it. But we find no support for that factual position in the medical
23 certificates that we have. The certificate of the 29th of September says
24 that, "There should be no work, travel, or significant mental or physical
25 efforts until medical treatment is over." We accept, as is clearly
1 implicit, that the strain of giving evidence and being examined and
2 cross-examined, particularly in proceedings of this significance, is
3 something within the scope of that recommendation. That is, the mental
4 and physical effort which is not to be undertaken on the certificate
5 until medical treatment is over.
6 We then see in the discharge certificate of the 6th of October,
7 2009, that there is specifically a recommendation for further treatment,
8 essentially in the form of medication, and it is noted until February
9 2010, which is some four months from the surgery, and it is then
10 specifically stated that the echo examination, which is the intensive
11 ergometric testing, should be undertaken again in four months.
12 It is true, as Mr. Djurdjic has stressed, that the certificate
13 also says that there should be a minimum of three weeks sick leave. But
14 there is in the certificate no indication that the witness may well
15 return to work in that time, or that he should be further examined or
16 treated in that time. While Mr. Djurdjic sought to assist us with his
17 knowledge of the system of medical treatment in Serbia, we really find
18 ourselves returning to this certificate.
19 It seems from this certificate, and the Chamber accepts it to be
20 the fact, that at the moment because of the medical condition of the
21 witness, he is unable to give evidence because to do so would expose him
22 to the prospect of significant mental and physical effort. And at this
23 time shortly after his surgery, that is not to be undertaken.
24 We do accept the sense of Mr. Djurdjic's submission that the rule
25 requires something more than just some temporary -- indisposition of some
1 temporary inability of the witness to give evidence, but this report
2 indicates to the Chamber that it is not likely to be until February when
3 there will be further significant testing, whether it can be the case
4 that the witness will then be fit enough for the purpose of giving
6 For these reasons in the Chamber's view Rule 92 quater can
7 properly be applied to the present circumstances. The evidence itself
8 is, in the Chamber's assessment, of its nature apparently sufficiently
9 reliable for the purposes of the rule. There was a statement taken in
10 October 2004. It was taken with the assistance of a duly qualified
11 interpreter approved by the Registry of this Tribunal. The statement was
12 read back to the witness in Serbian in June of 2005. It was signed by
13 him with an accompanying acknowledgement that the statement is true to
14 the best of his recollection.
15 This statement was affirmed by the witness in the trial of
16 Milutinovic subject to some minor changes which are specifically noted in
17 the transcript of that trial. The statement, of course, was not itself a
18 sworn statement, but it was confirmed on oath in the Milutinovic trial
19 subject to those minor changes. It was not the subject of
20 cross-examination in Milutinovic. Part of the reason for that may well
21 have been, as Mr. Djurdjic has submitted, but the fact is there was the
22 opportunity to cross-examine by the accused in that trial, one or two of
23 which had some similarity of interest at least with the accused, although
24 no one of them was directly the subject of the evidence as is the case in
25 respect of this accused.
1 But those circumstances which I've outlined suggest to the
2 Chamber that the evidence is apparently reliable. The statement was
3 given in circumstances which tend to support its reliability, and that
4 the witness was careful in what he said. And the witness has dealt with
5 the subject matter again in the course of evidence in the Milutinovic
6 trial. In those circumstances, the Chamber is satisfied about the
7 criteria of reliability.
8 There's no doubt that the evidence is potentially relevant in
9 this case. It deals with an aspect in particular of the evidence, that
10 is whether the accused had some involvement in the disposition of the
11 bodies of displaced persons, some at least of whom would appear to be the
12 subject of the indictment.
13 It is, therefore, in the view of the Chamber the case that the
14 evidence is sufficiently relevant and probative to be admitted under
15 Rule 92 quater and Rule 89C, and that -- we turn now to the question of a
16 fair trial under Rule 89D. We are well conscious of the issues raised by
17 Mr. Djurdjic. The importance of cross-examination of a witness such as
18 this and of the other factors which he submitted indicate that there is
19 significance to the ability of the accused to cross-examine in this case.
20 We are conscious of that and weigh that, but also weigh it
21 against the availability of this rule and the satisfaction in other
22 respects of the rule. It seems to the Chamber that this is a case where
23 there is an appropriate and proper solution. If it should prove to be
24 the case that this witness is not able to give evidence during the course
25 of this trial, then the evidence with its potential and apparent
1 reliability, with it's potential relevance and probative value, is
2 evidence that ought properly to be taken into consideration by the
4 In doing so, of course, the Chamber would be very conscious of
5 the limited value that it ought to place on the evidence because it is
6 not being tested by cross-examination, and the careful assessment of it
7 that would be necessary when taken into account evidence such as those of
8 K84 and K93.
9 Nevertheless, it is evidence which, for the reasons indicated and
10 having regard to the scope and object of the rule, is evidence that the
11 Chamber ought to receive and to assess.
12 On the other hand, if it is the case that at some stage during
13 the evidence of this trial the witness is again able to give evidence, it
14 would seem to the Chamber to be very important for the purposes of the
15 Defence to enable the Defence to cross-examine this witness. And if that
16 were done, a number of the limitations that would potentially affect this
17 witness could be put aside.
18 It is the view, therefore, of the Chamber that, first, in the
19 circumstances the motion should be granted to allow the admission of this
20 evidence at this stage. It is, however, the view of the Chamber, that it
21 would be very much in the interests of justice should the witness become
22 able to give evidence during the trial that the witness should be called,
23 should be made available for cross-examination, and should be
24 cross-examined. And in the view of the Chamber, that would be of some
25 considerable potential significance in assisting the Defence in the
1 conduct of its case.
2 [Trial Chamber confers]
3 JUDGE PARKER: For these reasons, the Chamber would grant the
4 motion and would order the admission into evidence of the Rule 65 ter
5 02756, the witness statement of K87, dated the 25th and 26th of October,
6 2004, to be admitted under seal. And also the redacted version of that
7 statement, which is Rule 65 ter 02847. And also the transcript of the
8 testimony of that witness in the Milutinovic et al. trial, that is
9 Rule 65 ter 05114, with one further addition, we notice that the present
10 transcript does not include the beginning of the evidence in which the
11 oath was taken by K87. We would, therefore, propose and order that the
12 Prosecution upload that transcript page 11813 of the Milutinovic trial
13 which contains the oath by K87, and that that be added to the transcript
14 which is tendered. Also, the Rule 65 ter 02757 pseudonym sheet for K87
15 to be admitted under seal.
16 We would further order that the Prosecution should monitor and
17 seek and obtained regular medical reports, at least on a monthly basis of
18 the progress of the health of the witness, and that these should be
19 provided to the Defence and to the Chamber. And that should those
20 medical reports indicate at any stage during the evidence in this trial
21 that the witness is again able to give evidence, that the Prosecution in
22 consultation with the Chamber and the Defence should arrange a date upon
23 which that evidence of that witness would be continued by videolink if
24 that is the suggestion or indication recommended by the medical
25 certificates, or by personal attendance of the witness in The Hague. And
1 that the witness should be called and made available to the Defence for
3 [Trial Chamber confers]
4 JUDGE PARKER: I hope the proposals regarding monitoring the
5 medical condition of the witness are clear enough, Mr. Stamp. It is the
6 Chamber's wish to minimise the difficulty the Defence faces by virtue of
7 this -- the order for the admission of this evidence. And if it becomes
8 a realistic prospect that that witness can be cross-examined, either by
9 videolink or by personal attendance here, it is the Chamber's objective
10 that that opportunity should be afforded to the Defence. If that doesn't
11 occur and can't occur for the reasons I've indicated, the evidence that
12 has been received will have to be subject to very careful scrutiny by the
13 Chamber in assessing what weight, if any, it might attach to it.
14 Mr. Djurdjic, I see you signalling.
15 MR. DJURDJIC: [Interpretation] Your Honours, just a question.
16 I'm quite clear on everything that you have said. Does the Defence have
17 the right to request that the additional information that we have which
18 the Prosecution submitted in the Milutinovic case be also admitted into
19 the file? Do we have that right? Even if there is no cross-examination,
20 can we propose, can we move that such additional information be also
21 part, an integral part of the file, of the material?
22 [Trial Chamber confers]
23 JUDGE PARKER: So that it's clear that you can proceed, we would
24 grant you leave to file a motion for the admission into evidence of that
25 material. That material should be appended to the motion so that the
1 Chamber can see it and assess and determine whether it has relevance to
2 the trial.
3 We have reached a point where we must break, I believe, because
4 of the tapes. The Chamber would like briefly to explore with counsel the
5 future timetable so that we would, therefore, propose a break of
6 20 minutes, which I think is the minimum that will be feasible, and we
7 can resume. We will then ask questions such as whether we are to
8 anticipate a Rule 98 bis or not, because that will affect the
9 time-tabling that we would see for the future conduct of the trial. We
10 won't ask for an answer now, if you want to discuss it further in the
11 break. And we also assume, Mr. Stamp, that there are no further
12 witnesses or evidence that you propose to offer. There are one or two
13 motions yet to be concluded, completed in decision, and that will happen
14 in the next day or so.
15 MR. STAMP: Yes, Your Honour. I will probably address it after
16 the break, but substantially correct.
17 JUDGE PARKER: We resume at 6.20.
18 --- Recess taken at 5.59 p.m.
19 --- On resuming at 6.19 p.m.
20 JUDGE PARKER: Mr. Stamp, is there any outstanding matter in the
21 Prosecution case apart from the one motion concerning the video?
22 MR. STAMP: Not presently before the Court, but there are two
23 other filings the Prosecution intends to place before the Court, but
24 those filings should not affect any schedule the Court seeks to set. One
25 is the filing of what we have called a proof of death chart, which is
1 really a chart that doesn't seek to tender new evidence, but it links all
2 of the evidence in respect to each individual named deceased in the
3 schedules in the indictment. We had indicated sometime ago that we would
4 offer this chart to the Court to assist the Court in finding the various
5 bits and pieces of evidence. There are references in various lists,
6 forensic reports, autopsy reports from various sources. So that chart
7 would merely be for clarification and to assist the Court in sorting out
8 the evidence in respect to the scheduled deceased -- or the scheduled
10 The Prosecution also proposes to file very shortly a bar table
11 motion in respect to a few documents that we think at this stage of the
12 case the Court may consider receiving in evidence. However, we do not
13 believe that motion should affect any schedule the Court may want to --
14 JUDGE PARKER: Can we suggest that any motion filed after today
15 include a prayer for leave to re-open the Prosecution case to have
16 admitted whatever it is?
17 MR. STAMP: Very well, Your Honours.
18 JUDGE PARKER: Yes.
19 MR. STAMP: So subject to those three matters, there are no other
20 evidentiary matters, all the witnesses that we intend to call have been
21 called and their evidence is before the Court.
22 JUDGE PARKER: So subject to the one pending motion and two
23 potential filings, you close your case.
24 MR. STAMP: That is the case for the Prosecution.
25 JUDGE PARKER: Thank you very much.
1 MR. STAMP: On an unrelated score, I should mention in respect to
2 your previous order before you -- we took the adjournment, that we upload
3 the first page of 65 ter number --
4 JUDGE PARKER: Yes.
5 MR. STAMP: It has been done.
6 JUDGE PARKER: It has been done. That's very speedy response by
7 the Prosecution. I won't say unusually so, but thank you.
8 MR. STAMP: Thank you, Your Honours.
9 JUDGE PARKER: Mr. Djurdjic, the Prosecution case has now
10 concluded. Are you in a position, first, to indicate whether there will
11 be any motion under Rule 98 bis?
12 MR. DJURDJIC: [Interpretation] Your Honours, I shall be sincere
13 when I tell you that I would like you to give us a bit more time than you
14 had planned for the preparation of our Defence, and I should not like to
15 be given that through the application of Rule 98 bis because the Defence
16 is not going to avail itself of Rule 98 bis at all. Thank you.
17 JUDGE PARKER: Well, thank you for that. I'm not really
18 surprised at your position. It's a very sound and practical one. But
19 that, of course, brings me to the question then of what time do you see
20 yourself needing? The steps now required, of course, are, firstly, that
21 you file under Rule 65 ter G a list of witnesses, the estimated times -
22 et cetera - anticipated for those witnesses, and a list of exhibits. And
23 then following that comes time for the commencement of the Defence
24 evidence. But firstly, for the filing of witnesses, times and exhibits?
25 MR. DJURDJIC: [Interpretation] Your Honours, I shall continue to
1 be quite candid and sincere. During the summer recess, the three weeks
2 or so that we had, all Serbs are on vacation and very few things could
3 get done. I'm not going to belabour the point and how much difficulty we
4 had. But I should like it seek your assistance in this matter. Would it
5 be possible for us as regards 65 ter to have two weeks or perhaps three
6 weeks as the time given us within which to submit our list, and then in
7 that fourth week, around the 30th of November, that is, we would
8 appreciate it very much if we could start our case then.
9 I am not quite sure about the actual rule, whether it is we need
10 to submit the 65 ter submission to the OTP and the Court a week or two
11 weeks in advance, but Ms. O'Leary has just now told me that the 20th of
12 November would be the optimum time for the Defence case to begin. And on
13 the 30th of November -- no, for that to be done on the 20th of November,
14 and for our case to start on the 30th of November.
15 JUDGE PARKER: One of the points of that is to -- of your filing
16 under 65 ter G is to enable the Prosecution to prepare to meet the
17 Defence case, and you would be, by what has just been proposed, putting
18 the Prosecution under a great deal of pressure. Monday the 16th of
19 November might be a preferable date.
20 MR. DJURDJIC: [Interpretation] Thank you, you are reading my
21 mind, Your Honours. This is exactly what I was about to propose, because
22 Ms. O'Leary has also recommended that and assisted me.
23 [Trial Chamber confers]
24 JUDGE PARKER: Mr. Stamp, is there any submission you would want
25 to make about?
1 MR. STAMP: No, Your Honours. As far as the Prosecution is
2 concerned, as long as there's sufficient time, at least two, perhaps
3 three weeks between the filing of the Defence 65 ter and the beginning of
4 the presentation of the evidence, we leave everything in the hands of the
6 JUDGE PARKER: That's a very brave thing to do, to leave it to
7 us, Mr. Stamp. We do notice that Friday the 27th is a United Nations
8 holiday, so even opening during that week would not be of great
9 advantage. What about then in response to your frankness, if we say,
10 Mr. Djurdjic, that all the 65 ter filings should occur by Monday the 16th
11 of November, and that your opening and your evidence should commence on
12 Monday, the 30th of November?
13 MR. DJURDJIC: [Interpretation] That would be also our wish, that
14 you would indeed accommodate if you were to bring such a decision.
15 JUDGE PARKER: That is our decision, Mr. Djurdjic. Now, we are
16 doing that to try and ensure that you are in a position to present an
17 orderly and efficient Defence case. We do bear in mind that by
18 mid-December we will be having a break and given various exigencies that
19 will probably be a break of four rather than three weeks, so you will
20 have further time then to get your case in order.
21 The Chamber would also point out, and I do this out of caution
22 because it's sometimes misunderstood, if it is decided that you will --
23 that the accused, your client, will give evidence, the Chamber would
24 indicate that it would expect that his evidence be the first evidence led
25 for the Defence. There is no absolute rule about that, but if it is done
1 that way, the Chamber is in the position to give the greatest weight to
2 his evidence. If as occasionally it is suggested the accused should give
3 evidence last, that evidence suffers the disadvantage that it well may be
4 influenced by what other Defence witnesses have said. So the Chamber is
5 in a position to see and assist your client's evidence more clearly and
6 in better light if his evidence is the first that is led.
7 We indicate that, A, for the purposes of ensuring that you
8 understand our position and the advantages of him coming first. And the
9 second reason is that that could be quite material to how you order your
10 witnesses in the time before and after the break over the
11 Christmas/New Year period.
12 If you commence evidence on Monday, the 30th, there will be
13 another Plenary on Thursday the 10th of December, so that will be a four
14 day week, but otherwise, you can expect to go through until, say, Tuesday
15 the 15th or Wednesday the 16th of December in planning your witnesses.
16 And when we resume, you can expect that it will be in the week
17 commencing the 18th of January. So that will assist you in the planning
18 of witnesses.
19 Do you have, at the moment, any estimation of the possible length
20 of your case?
21 MR. DJURDJIC: [Interpretation] Don't hold me to my word, but if
22 we start on the 30th -- don't take my word for it, but if we start on the
23 30th, it will be -- by the end of March, and most probably even before
24 that, that we shall have finished our case. And I should like to thank
25 you, but there is one thing I'm not quite sure about. I believe that the
1 break starts on the 18th of December in fact.
2 JUDGE PARKER: We are breaking a couple of days earlier just out
3 of consideration for you, Mr. Djurdjic, of course. Friday the 18th, yes,
4 but because of travel commitments, it will be Tuesday the 15th or
5 Wednesday the 16th that we break.
6 MR. DJURDJIC: [Interpretation] Oh, I see. It was mistranslated
7 because I was told that we should start presenting our evidence from the
8 15th. It is until the 15th.
9 JUDGE PARKER: Until the 15th. You start on the 30th of
11 MR. DJURDJIC: [Interpretation] Thank you. Thank you.
12 JUDGE PARKER: And then you look in January to recommencing your
13 witnesses and evidence in the week commencing the 18th of January.
14 Anything else, Mr. Stamp?
15 MR. STAMP: [Microphone not activated] No, Your Honours, that is
16 all from the Prosecution.
17 JUDGE PARKER: Nothing else, Mr. Djurdjic? In that event we now
18 adjourn. It will effectively then be four weeks without sitting. As the
19 Chamber has indicated, it has an ongoing anxiety for this case to finish
20 as quickly as possible, but it recognizes that at this point preparation
21 and ordering of Defence witnesses is as important as it was at the
22 beginning of the Prosecution case, and there is a need for notice to be
23 given to the Prosecution to enable them to prepare to meet the Defence
24 case. For that reason, this break of four weeks is in the interests of a
25 fair trial and in the interests of a trial finishing as quickly as
1 possible. So we wish you an industrious month. We now adjourn.
2 --- Whereupon the hearing adjourned at 6.38 p.m.
3 to be reconvened on Monday, the 30th day of
4 November, 2009.