1 Wednesday, 27 February 2002
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.07 a.m.
5 JUDGE ORIE: Madam Registrar, would you please call the case.
6 THE REGISTRAR: Case number IT-98-29-T, the Prosecutor versus
7 Stanislav Galic.
8 JUDGE ORIE: Thank you very much, Madam Registrar.
9 Let me first try to adjust my seat.
10 Mr. Ierace, yesterday you indicated you would like to have -- to
11 make some observation as far as, well, should I say the scope of
12 cross-examination is concerned. I'd like to do that just before the first
13 break we'll have, and I think that both parties should have five minutes
14 to explain their views. So we'll do that just before half past 10.00.
15 That would mean, unless there are any other messages, that we could now
16 start the examination-in-chief of Mr. Kucanin.
17 MR. IERACE: Mr. President, that is correct, and I must apologise
18 for what happened yesterday afternoon. That was the fault of the
20 JUDGE ORIE: Yes.
21 MR. IERACE: Mr. Kucanin's name was left off the witness list for
22 yesterday. That list was provided to the Victims and Witnesses Unit on
23 Monday afternoon. It was an oversight by a team member, and again, I
24 apologise for that.
25 JUDGE ORIE: Yes. Your apologies are accepted.
1 Then, Mr. Usher, I think you could bring in the witness.
2 JUDGE ORIE: Yes, Mr. Piletta-Zanin.
3 MR. PILETTA-ZANIN: [Interpretation] Mr. President, first of all,
4 before we bring in the expert, I should like to thank the Chamber for the
5 problems -- I should like to apologise for the problems that I caused
6 yesterday. I have to say that the Defence, it seems, has not to date
7 received the tape, the arrival of which was announced yesterday. We still
8 do not have the tape, and I wanted to indicate that issue to you right
10 JUDGE ORIE: Yes. Mr. Ierace?
11 MR. IERACE: Mr. President, firstly, there was no interpretation
12 of the French, but I have, of course, the transcript --
13 JUDGE ORIE: Yes.
14 MR. IERACE: -- of what Mr. Piletta-Zanin said. I'll make some
15 inquiries at the first break to find out if we have a copy ready to hand
16 over to the Defence.
17 JUDGE ORIE: Yes, please do so.
18 [The witness entered court]
19 JUDGE ORIE: Mr. Kucanin, can you hear me in a language you
20 understand? Yes. Mr. Kucanin, first of all, welcome in this courtroom.
21 Before you give your testimony in this courtroom, the Rules require you to
22 make a solemn declaration that you'll speak the truth, the whole truth,
23 and nothing but the truth. The text of this declaration will be handed
24 out to you now by the usher. I invite you to make that solemn
1 THE WITNESS: [Interpretation] Thank you.
2 WITNESS: Mirsad Kucanin
3 [Witness answered through interpreter]
4 THE WITNESS: [Interpretation] I solemnly declare that I will speak
5 the truth, the whole truth, and nothing but the truth.
6 JUDGE ORIE: Thank you very much. Please be seated. Mr. Kucanin,
7 the order is that you'll first be examined by the counsel for the
8 Prosecution. You'll then be examined by counsel for the Defence, and
9 whenever the Judges have any additional questions, you'll hear from them.
10 Mr. Ierace, please proceed.
11 Examined by Mr. Ierace:
12 Q. Is your name Mirsad Kucanin?
13 A. Yes, my name is Mirsad Kucanin.
14 Q. During 1992, did you live in Sarajevo?
15 A. Yes.
16 Q. Were you a member of the police force?
17 A. Yes.
18 MR. IERACE: Mr. President, I note that I don't have a translation
19 through the headphones from Bosnian to English.
20 JUDGE ORIE: Yes.
21 MR. IERACE: My apologies. It's my mistake. I'm on the wrong
23 JUDGE ORIE: Please proceed.
24 MR. IERACE:
25 Q. When did you join the police force? In what year?
1 A. 1984.
2 Q. By 1992, were you a criminal inspector in the centre of the
3 Security Service in Sarajevo?
4 A. Yes, among other things.
5 Q. Was the centre of the Security Service sometimes known as the CSB?
6 A. Yes.
7 Q. As an inspector, did your responsibilities include the
8 investigation of serious crimes, including homicides and sexual crimes,
9 for the whole district of Sarajevo?
10 A. Yes, that is correct.
11 Q. Did those responsibilities continue throughout the conflict, that
12 is, between 1992 and 1995?
13 A. Yes.
14 Q. At the beginning of the armed conflict, did the police service
15 have a number of departments, including a Criminal Investigation
16 Department, a Criminal Technical Department, a Criminal Analytical
17 Department, and Aliens Department, a Uniform Department, and a Special
19 A. Yes, more or less that would have been the main departments of the
21 Q. Immediately before the outbreak of the armed conflict, were there
22 ten police stations in the city of Sarajevo?
23 A. Yes.
24 Q. Following the outbreak of hostilities, were those ten police
25 stations divided between the two primary sides to the conflict?
1 A. Since there were ten municipalities within the town, there were
2 ten stations for public security. When the war broke out, six of them
3 remained under the control of the Bosnian Serbs, whereas four public
4 security stations remained under the control of Bosnia and Herzegovina.
5 Q. Were the four that remained under the control of Bosnia and
6 Herzegovina Centar, Novi Grad, Novo Sarajevo, and Stari Grad?
7 A. Yes.
8 THE INTERPRETER: Could the witness be asked to speak up, please.
9 JUDGE ORIE: Yes. Mr. Kucanin, the interpreters have some
10 difficulties in hearing you, so we first try to get the microphones a bit
11 closer to you. And would you please speak clearly and loud enough for the
12 interpreters to hear you.
13 THE WITNESS: [Interpretation] Very well.
14 JUDGE ORIE: Yes. Thank you.
15 Please proceed, Mr. Ierace.
16 MR. IERACE:
17 Q. Were the six that came under the control of the Bosnian Serbs
18 Pale, Ilidza, Trnovo, Hadzici, Ilijas, and Vogosca?
19 A. Yes.
20 Q. Approximately how many police officers were there following the
21 division of the police stations operating in the area controlled by the
22 government of Bosnia and Herzegovina?
23 A. Do you mean in total, within the police, or how many policemen in
25 Q. How many policemen were left to operate the four police stations?
1 A. As for the uniformed police, there could have been about a hundred
2 police officers.
3 Q. And how many investigators or inspectors were there of those 100?
4 I withdraw that question. How many investigators or inspectors were
6 A. At the beginning there were very few of us left, maybe up to 15.
7 I am talking about the centre of the Security Service. There may have
8 been two or three other police officers within those four police stations,
9 but we were forced to call back in service the reserve force, or people
10 who had similar educational backgrounds, so that they would also be
11 engaged. So the final number was about 100.
12 Q. All right. Did the police service in Sarajevo, before the war,
13 come under the control of the Ministry of the Interior?
14 A. Yes.
15 Q. Did it remain under the control of the Ministry of the Interior
16 throughout the war?
17 A. Yes.
18 Q. You mentioned that you were forced to call back into service the
19 reserve force. Did the reserve force come under the Ministry of the
21 A. Yes.
22 Q. During the armed conflict, at one point did some of the reserve
23 police come -- assume military duties?
24 A. Yes, those though I cannot remember the exact year or the date,
25 but I remember that an order came, since the police was the only
1 disciplined body on the territory which was under the control of the BH
2 government, that is, which was not occupied, a request was made to
3 reactivate the reserve police force for the defence of Sarajevo. I'm only
4 talking about the reserve force now. So that is how a certain number of
5 reserve police officers came under this control.
6 Q. Before the war, did the regular members of the police service have
8 A. Yes.
9 Q. During the war and throughout the war, did the regular members of
10 the police service have uniforms?
11 A. The majority did, yes.
12 Q. What about the reserve police members? Did they have uniforms
13 during the war?
14 A. Not at the beginning. Occasionally someone got the upper part or
15 the trousers or some other part of clothing, which indicated that they
16 were members of the police, but they did not have a complete uniform.
17 Q. You said that a certain number of reserve police officers became
18 involved in the defence of Sarajevo. At any stage, did the regular police
19 officers become involved in the defence of the city?
20 A. Yes. In certain cases, specific cases, where intervention was
21 required, where a certain area was exposed to danger, they provided us
22 with support when we had to carry out our duties, and they went to those
23 portions of the front or the area where defence was needed or where it was
24 necessary to repel an enemy attack or similar situation.
25 Q. You said just then that when a certain area was exposed to danger,
1 they provided us with support when we had to carry out our duties. Do you
2 mean by that that when you were carrying out your investigative duties in
3 an area that was exposed, that you would receive some protection from
4 other members of the regular police force?
5 A. When we had to identify the perpetrator of an incident or perform
6 a search or prevent black market activity, we had the support of them,
7 that is, the people who were able to protect us while we were carrying out
8 our regular police work.
9 Q. You also said that the regular members of the police force, or at
10 least some members, went to the portions of the front when it was
11 necessary to repel an enemy attack or similar situation. How many times
12 did that happen during the armed conflict between 1992 and 1995?
13 A. I couldn't tell you the exact number of such cases, but certain
14 areas of the town came under infantry attacks on almost a daily basis, and
15 it was impossible to have the regular type of defence. So when some areas
16 were physically threatened by the enemy, either from the infantry forces
17 or armoured vehicles or other such equipment, when our defence lines were
18 under imminent danger, then the police force would offer help if it was
19 necessary to defend the specific area. So that is what they did in terms
20 of defence during the war.
21 Q. When do you recollect the armed conflict commenced? In what
22 month? In what year?
23 A. The armed conflict --
24 JUDGE ORIE: Yes, Mr. Piletta-Zanin.
25 MR. PILETTA-ZANIN: [Interpretation] I'm not sure, but I'm
1 listening to the Serb version. I think that the witness spoke about a
2 considerable number of such attacks, which is not clear from the English
3 text. Let me give you the reference. Page 8, line 20. More or less, I'm
4 telling you this right away, also in view of the tape that we have to
5 listen to.
6 JUDGE ORIE: Could you please invite the witness to clarify the
7 issue, Mr. Ierace, whether there's any misunderstanding as far as page 8,
8 line 20, is concerned.
9 MR. IERACE: I will, Mr. President, but I do note page 8, lines 13
10 and 14 of the English translation, which seem to correspond with what
11 Mr. Piletta-Zanin has referred to.
12 JUDGE ORIE: Perhaps let me first ask Mr. Piletta-Zanin: It's not
13 what we find in page 8, line 14, where the answer of the witness was that
14 it was infantry attacks on almost a daily basis, which of course is a
15 considerable frequency, I would even say. Is that what you had in mind?
16 MR. PILETTA-ZANIN: [Interpretation] Yes, more or less, but I think
17 that the witness mentioned a very large number of attacks, which would
18 imply a large number of reactions by the police. That is why I thought
19 the precision was important. But the idea is the same, more or less. The
20 witness, however, spoke about a high number of attacks.
21 JUDGE ORIE: Yes. Of course, if we talk about the -- he talked
22 about attacks on a daily basis, and of course the implications, you could
23 ask the witness about during cross-examination.
24 Yes, please proceed.
25 MR. IERACE:
1 Q. In what month of what year did the armed conflict commence in
3 A. At the beginning of April 1992. To be more precise, in my view,
4 it started on the 5th of April, 1992.
5 Q. You said that there were attacks on a daily basis. Did that apply
6 throughout the period of the armed conflict, that there were attacks on a
7 daily basis, or did it apply to some times -- some periods of time in
9 A. Every day. During those four years, I don't remember one single
10 day that Sarajevo didn't come under some form of attack.
11 Q. I appreciate that, but does that mean that regular members of the
12 police service were involved in fighting every day during the armed
13 conflict from 1992 through to 1995?
14 A. No. I also understand the objection made by the Defence. The
15 attacks were on a daily basis. When I spoke about the defence by the
16 police, I was referring to some exceptional situations when an area was in
17 danger. When the lines were weak, when there was the threat of enemy
18 piercing our lines, then the army, if they were not able to repel such an
19 attack on their own, they would call the police. However, our daily,
20 regular forces carrying out the daily police work, they didn't go there as
21 often. They would be helped by two or three members of the special unit,
22 because they were the only ones who were able to handle anti-armour
23 weapons in order to stop an attack or any similar vehicle.
24 Q. Was it members of the special unit of the regular police who would
25 engage in these fighting activities in support of the army?
1 A. And in certain cases, intervention platoons belonging to the
2 police stations which were closest to the area in danger.
3 Q. Did the special unit have a name?
4 A. It was commonly referred to as Bosna, although we always called
5 them the specials. They were the only members of the special force that
6 we had.
7 Q. Was there a unit that had the name Lasta?
8 A. Yes. I don't know when exactly that was. Maybe in 1993. But our
9 centre of the Security Service set up a kind of intervention unit which
10 was called that way, that is, the Lasta Special Unit. Their members were
11 police officers from the police stations in the area, and the more
12 competent police officers became members of this special police unit,
13 Lasta. And it was under the control of the Sarajevo centre of the
14 Security Service.
15 Q. Did members of Lasta have a special uniform?
16 A. That's right. They had black uniforms.
17 Q. What about members of Bosna? Did they have a special uniform?
18 A. Well, they wore all sorts of things, as far as I could see. I'd
19 say that the olive-green/grey prevailed, but at times they had camouflage
20 uniforms. They wore all sorts of things.
21 Q. Did the police, that is, the regular members of the police
22 service, ever become involved in the fighting other than in a responsive
23 fashion, that is, other than in response to an attack from the Bosnian
24 Serb army?
25 A. No, as far as I know.
1 Q. During the armed conflict, did you investigate only offences where
2 civilians were the victim, or did you sometimes investigate offences where
3 members of the military were victims?
4 A. My job as a CI inspector was in addition to my regular activities
5 in the CID also included inspections, investigations on site, the filing
6 of records of events, but only fatalities, fatalities in civilian areas,
7 which means that it was the civilians who were, by and large, the victims.
8 Q. I will take you now to some particular investigations in which you
9 were involved. The first such investigation relates to an incident which
10 occurred on the 22nd of July, 1994. Do you remember investigating an
11 incident on that date?
12 A. I do.
13 Q. How did you come to know of an incident on that date? How did you
14 first become aware of it?
15 A. Well, I can give you a general question. How I learnt it that
16 day, I don't know, but the rule was that the operations officer, the duty
17 officer, would receive information and then report to the duty inspector.
18 So that is how the information was forwarded and how we received it. So
19 unless it was a specific case, and in that case I would have learned about
20 it in a car, by radio.
21 MR. IERACE: Mr. President, I ask that the witness be shown
22 Exhibit P2790. There is an English translation, which is .1.
23 JUDGE ORIE: Yes. Mr. Usher, could you assist Mr. Ierace.
24 MR. IERACE: For the benefit of the Trial Chamber and my learned
25 colleagues, the evidence of this incident relates to scheduled sniping
1 incident number 27.
2 Q. Do you recognise the document that you have been handed?
3 A. Sorry. Let me see. Yes, I do.
4 Q. Is that an official note made by you on the 22nd of July, 1994?
5 A. That's right.
6 MR. IERACE: For the transcript, we have on the ELMO at the moment
7 the English translation.
8 Q. In that note, do you say that at 5.00 on that date, you received a
9 message by radio of two persons being wounded and one killed?
10 A. Yes.
11 Q. Did you immediately attend the Novo Sarajevo police station to
12 make some further inquiries in relation to those casualties?
13 A. Yes, quite. Quite so.
14 Q. How many separate incidents were involved with those three
15 casualties, that is, the two persons wounded and one killed?
16 A. I don't understand the question.
17 Q. All right. Did you attend a scene following your inquiries at the
18 police station?
19 A. Yes, I did.
20 Q. And whereabouts did you go to? What street?
21 A. In the police station, I received the information that a person
22 had been killed, and that is why I organised the investigation. However,
23 when I arrived in Miljenka Cvitkovica Street in the Novo Sarajevo
24 municipality, that is when I got to the scene, I learned that a child had
25 been wounded by a bullet from a firearm, and it was then that I organised
1 the investigation on
2 site, but I turned over the direct responsibility to the police station of
3 Novo Sarajevo, even though I was present at the on-site investigation, and
4 that is why I wrote this official note.
5 Q. Whilst you were at the scene, did you view any damage made by
6 small rounds, bullets?
7 A. Yes. I mean, next to the scene of the incident, there is a
8 catering outlet, and in its window shop and inside, one could clearly see
9 the traces of bullets.
10 Q. Did you speak to any eyewitnesses of the incident?
11 A. Yes. In this catering outlet, there were witnesses, and we
12 conducted interviews with them so as to acquire a complete picture about
13 the incident.
14 Q. Was the child still at the scene when you arrived, that is, the
15 child who had been wounded?
16 A. No. The child had already been taken to the hospital.
17 Q. You understand that the child was a boy by the name of Seid Solak?
18 A. That's right.
19 Q. You've referred to a food outlet. Do you mean by that a
21 A. Well, something of the kind.
22 Q. Whilst you were there, did you see photographs taken of the crime
24 A. Yes. I helped, since I was a more experienced officer, so I
25 instructed them how to document everything related to the incident as best
1 as possible. So I saw those photographs and I saw how they recorded the
2 trajectory of the bullets, and all the rest.
3 Q. Whilst you were there, did you see members of UNPROFOR apparently
4 carrying out an investigation with members of the police force?
5 A. Yes.
6 Q. Did you understand from speaking to eyewitnesses that apparently
7 two shots had been fired, the second shot immediately after the first?
8 A. Yes.
9 Q. Was it pointed out to you where the boy had been standing at the
10 time that he was shot?
11 A. Yes.
12 Q. Did you discover in relation -- I withdraw that. And was that
13 outside the restaurant and a short distance from it, that is, from the
15 A. Yes, outside the restaurant, next to a passage through the
16 building next to the entrance into the restaurant.
17 Q. In relation to the shot that entered the restaurant, were you able
18 to discover more than one impact point made by the bullet?
19 A. Yes. There were three.
20 Q. What was the -- having regard to the trajectory of the bullet,
21 what was the first impact point? In other words, what did it first go
23 A. In front of this catering outlet was a canvas, an awning, on a
24 metal frame, and the bullet went through the canvas, which was plastified.
25 I hope you understand what I'm talking about. It was an awning, plastic.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 The second was in the glass, in the window shop of the facility, and the
2 third one was in the wall, in the interior of the facility, outlet.
3 Q. Was any attempt made to connect the holes made by the bullet in
4 order to establish a line of sight to the direction from which it came?
5 A. Yes.
6 Q. Was any particular instrument used in that exercise?
7 A. Yes.
8 Q. What was that instrument?
9 A. Well, the simplest way to do it, and perhaps I forgot to mention
10 it, but if you have two points, one behind the other, then one can take a
11 simple hollow tube, a small pipe, and if you put -- depending of course on
12 the width of the opening. However, so that is the simplest way. However,
13 that day we used a device which was designed by Borislav Stanko, who is
14 a prominent ballistics expert, and who developed an appliance which is
15 like a periscope but displays horizontally, and it had a kind of antenna
16 because -- and it could go even through the smallest openings. And there
17 was this part with a lens to view it. And if you looked through this --
18 at this periscope, you could establish the exact place where the bullet
19 had been fired from.
20 Q. Do you know whether that device took into account that the
21 trajectory of a bullet is not precisely a straight line?
22 A. In that particular case, it was obvious --
23 THE INTERPRETER: We could not hear the end of the witness's
24 answer. Sorry.
25 MR. IERACE:
1 Q. Would you mind repeating that answer. We did not hear all of
2 your words.
3 A. In this -- in this particular case, since the bullet went through
4 the canvas very easily and hit the glass, one could establish easily that
5 it was a straight line.
6 Q. When you visually connected those first two impact points, what
7 did you see at the end of that line?
8 A. When we did what you just said, we saw a house which was well
9 known in that part of the city as the Przulj house. Perhaps there were
10 several houses known by the same surname. But that was an ill-famed
11 house, a notorious house, and I knew about this Przulj house for a long
12 time. But that day we could establish easily that the bullet came from
13 that house.
14 Q. On what street was that house?
15 A. From what I knew about Sarajevo, it was Zagorska Street. However,
16 you realise we could not go to the scene to exactly establish -- to
17 identify the street. But from what I know about Sarajevo and its streets
18 and from interviews with witnesses, the name of the street is Zagorska.
19 Q. In what municipality was that street?
20 A. Novo Sarajevo, I think.
21 Q. On what side of the confrontation line, on that date, was that
23 A. On the side of the army of Bosnian Serbs.
24 MR. IERACE: Mr. President, I ask that the witness be shown
25 Exhibit P2792. I have no further questions in relation to Exhibit P2790.
1 JUDGE ORIE: Madam Registrar, would that please be returned to the
2 registrar. Yes. And could you, Mr. Usher, provide the witness with the
3 document requested.
4 MR. IERACE: Could the document first be shown to the witness and
5 then placed on the ELMO. Perhaps the cover could be first placed on the
6 ELMO. To avoid reflection, perhaps the paper could be placed upwards
7 rather than the clear plastic sleeve.
8 Q. Sir, do you recognise the folder as being a photo file in relation
9 to this incident?
10 A. I do, yes.
11 Q. Indeed, do you recognise the photos in it as having been taken on
12 the day of the incident, in your presence, that is, the 22nd of July,
13 1994? I should say the photographs of the scene of the crime.
14 A. Yes, that's right.
15 Q. All right. Would you --
16 MR. IERACE: Perhaps the Court usher could turn to the first page,
17 ending with ERN number 66.
18 Q. Is that a view of the outside of the food outlet or catering
19 outlet or restaurant?
20 A. Yes.
21 Q. Please turn to the next page, which, amongst other numbers, has an
22 ERN number ending in 67. Does that photograph show where you understand
23 the victim was when he was wounded by sniper fire?
24 A. Yes.
25 Q. According to the caption, it was near a shoe store. Does that
1 accord with your recollection?
2 A. It does.
3 Q. What is the fluid which appears on the footpath to the left of
4 centre in the photograph?
5 A. Blood, as far as I can remember.
6 Q. Would you please go to the next photograph, which shows a boy
7 lying in bed with a large bandage area in the lower abdomen. Do you
8 understand that to be a photograph of the victim?
9 A. That's right.
10 MR. IERACE: For the transcript, that was the ERN number ending in
12 Q. Please now go to the next photograph, ending in number 69. Does
13 that show the first impact point of the bullet being on the sunshade
14 outside the restaurant?
15 A. Yes.
16 Q. And so as to be clear on this, we're not talking about the bullet
17 that wounded the boy, but the second bullet that was fired immediately
18 after, which penetrated the nearby restaurant; is that correct?
19 A. It is.
20 Q. Please go to the next photograph, which ends in numbers 70. Does
21 that show the second impact point being the glass at the front of the cafe
22 or restaurant?
23 A. That's right.
24 Q. Please go to the next photograph, which is 71. Do you know the
25 identity of the person who appears in that photograph?
1 A. No, I don't. It's a visitor who was in this outlet when it
2 happened, but I believe that the members of the Novo Sarajevo police
3 station identified the person.
4 Q. Is he pointing to the third impact point, that is, the wall, where
5 the bullet ended up?
6 A. That's right, yes.
7 Q. Please go to the next photograph, which ends in numbers 72. Does
8 that show, as you understand it, the bullet which ended up on the cafe
10 A. Yes, that is the bullet that was found in the outlet when it ended
11 its path.
12 Q. What size is the bullet?
13 A. It is 7.62, a rifle bullet. I'm not a ballistics expert, but I'm
14 talking on the basis of my previous experience.
15 Q. And finally, shall we go to photograph 73. Is that a photograph
16 taken on that date --
17 A. Yes, it was.
18 Q. -- showing the general direction from which you concluded the
19 bullet came?
20 A. Yes. It was at my insistence, even though that is a technical
21 job. But after it was established that it had come from this direction,
22 then they took a shot of this area, and that is the photograph.
23 Q. Do you see in that photograph the approximate position of the
24 house that you referred to as being the established source of fire?
25 A. As far as I can recall, it is the roof above a white building that
1 you can see below this rim which is encircled, and I think it is, as far
2 as I know, as far as I can recall, that should be the house from which the
3 fire came.
4 MR. IERACE: Might that be returned.
5 Q. Now, I wish to ask you some questions about some other incidents
6 which you investigated. Do you recall investigating an incident which
7 occurred on the 9th of November, 1993 involving the shelling of a school?
8 A. Yes.
9 Q. Whereabouts was the school?
10 A. It was I think the worst case that I had during these four years
11 of war. That school, it was a provisional class which was temporarily
12 accommodated in a building on Zavnobih Square, that's its old name, and
13 the locality is Alipasino Polje. And that particular class had just one
14 room. There were pupils there, and it was protected with vertical
15 concrete slabs.
16 MR. IERACE: Mr. President, I ask that the witness be shown
17 Exhibit P1840. There is an English translation, .1.
18 JUDGE ORIE: Mr. Usher, would you please assist Mr. Ierace.
19 MR. IERACE:
20 Q. Mr. Kucanin, do you have before you a 3-page report, together with
21 a cover sheet, being a report signed by you at the bottom of
22 page 3?
23 A. That's right.
24 Q. Is this a report made by you on the following date, that is, the
25 10th of November, 1993, in relation to this incident?
1 A. Yes. I drew up this record on the scene of the crime, so I did it
2 there on the spot. It was simply typed out on the 10th of November.
3 Q. I don't propose to take you through the detail of this incident,
4 since we have your report to read, but I will ask you some questions in
5 relation to it. First of all, how many shells were fired -- I withdraw
6 that. How many shells impacted on or near the school?
7 A. There was a shell that landed right next to the school building.
8 It killed and wounded several individuals.
9 Q. What size was -- first of all, what type of shell was it? Was it
10 an artillery shell, tank shell, mortar shell, or what?
11 A. It was a mortar shell.
12 Q. What size was the mortar shell?
13 A. As far as I can recall, it was a 120-millimetre shell, but that
14 information should be in the report. But off the top of my head, I think
15 it was a 120-millimetre shell.
16 Q. Would you please look at your report, in particular, I think, at
17 page 2, about a third of the way down, in the second -- the last line of
18 the second paragraph.
19 JUDGE ORIE: Mr. Ierace, am I right in understanding what you
20 refer to as page 2 is the second page of the report itself, but numbered 3
21 at the bottom?
22 MR. IERACE: Mr. President, in fact, I should have clarified
23 that. I'm referring to the Bosnian version of the report.
24 JUDGE ORIE: Yes.
25 MR. IERACE: On the English version, the relevant place is page 3.
1 JUDGE ORIE: Yes.
2 MR. IERACE: Just past halfway.
3 JUDGE ORIE: That's clear now. Thank you.
4 MR. IERACE:
5 Q. I refer you to page 2 of your report, that is, the
6 Bosnian-language version. On that page, at the end of the second
7 paragraph, did you refer to the calibre of the mortar shell?
8 A. Yes. It was a 120-millimetre-calibre shell.
9 Q. All right. Now, how many people were killed by the impact of that
10 mortar shell?
11 A. This mortar shell killed the teacher, the lady teacher, whose name
12 was Fatima Gunic and three pupils, one was 6 and two were 9 years old. So
13 four individuals were killed on the spot.
14 Q. How many people were injured by the shell impact?
15 A. 21, mostly children.
16 MR. IERACE: Mr. President, I ask that the witness be shown a map,
17 the standard Prosecution map. I think it's Exhibit P3644, and it would be
19 JUDGE ORIE: Yes, Mr. Piletta-Zanin.
20 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. Thank
21 you. I don't know whether it is this map which is almost completely
22 covered in red, and we cannot make it out any more. I say this because
23 there are so many premarked things. If this is the map we're talking
24 about --
25 MR. IERACE: It's not.
1 MR. PILETTA-ZANIN: [Interpretation] -- the Defence should like to
3 JUDGE ORIE: It's not, Mr. Piletta-Zanin.
4 MR. IERACE: I have some additional copies. Might that map be
5 shown to the witness.
6 Q. Mr. Kucanin, could you please look at the map, take your time, and
7 if you can find it, could you use the pointer to show us where the school
9 MR. IERACE: Perhaps the camera could zoom back so we can place
10 this part of the map in context. I think we can see the airport.
11 Q. Do you see the position of the school?
12 A. Yes, though I'm not an expert, and I apologise. There are no
13 inscriptions here, and I don't have my glasses with me. But in my
14 opinion, in my estimate, the location would be here, more or less, in this
15 part of the neighbourhood.
16 Q. Do you have your glasses nearby?
17 A. I left them in the witness room.
18 Q. All right. Well, perhaps we might come back to that after the
19 morning break.
20 MR. IERACE: So for the moment, perhaps the map could be taken
22 Q. And perhaps you could retrieve your glasses during the morning
24 Was there another incident that day involving a shelling that you
1 A. Yes, there was. In another part of the same neighbourhood, in
2 another section of the square, another shell landed.
3 Q. Approximately how far from the school did that shell land?
4 A. Again, it is my estimate that the shell fell some 200 metres away
5 from the school, on Rade Koncara Square. That is the name of the
7 Q. From the inquiries that you made, did you understand the shells to
8 fall at the same time, a few minutes apart, or hours apart, or what?
9 A. I'm not quite sure, but -- I don't think I can tell you the exact
10 time, but one followed the other. The one that landed at the school
11 building was the first one to fall, and then this one came after. You
12 have to bear in mind that, after all, it was all ten years ago.
13 Q. I appreciate that. What was the -- first of all, I take it that
14 that second shell was also a mortar shell; is that correct?
15 A. Yes.
16 Q. What was the size of the second shell?
17 A. I think it was the same size, 120.
18 Q. In what type of area did it land? In other words, was it park
19 land, residential land, industrial land, or what?
20 A. It was a residential area on a square which was covered with
21 concrete blocks, and obviously the objective was to kill as many civilians
22 as possible.
23 Q. How long before you arrived at the scene did you understand the
24 shell had landed?
25 A. Usually we came to the scene not later than one hour after the
1 incident had occurred, so we would always be there at the scene within one
2 hour, although there were certain exceptional cases when, due to constant
3 shelling, we were unable to visit the scene to carry out investigation
4 right away.
5 Q. Did you notice any military equipment nearby when you arrived,
6 such as trucks or weaponry?
7 A. No.
8 Q. Did you notice any soldiers in the vicinity when you arrived?
9 A. I didn't notice any particular formation. A citizen in uniform
10 may have passed by, but there was no military formation there. Later on I
11 learned -- but the name escapes me at the moment, but nothing that would
12 indicate that there was any military presence in the area. No, nothing.
13 JUDGE ORIE: May I just interfere? In the translation it says
14 that later you learned of -- and then you didn't finish that part of your
15 answer. Could you please tell us what you learned later.
16 THE WITNESS: [Interpretation] That there was some kind of
17 headquarters there, perhaps not headquarters, but a logistical base. I
18 don't know what the facility is normally called, when records of -- where
19 records of soldiers are kept. There was some kind of outpost there
20 belonging to a unit, but I don't remember the name of this unit.
21 MR. IERACE:
22 Q. How many people were killed, if any, as a result of that shell?
23 A. As far as I recall, three civilians were killed, and the number of
24 wounded was 18, approximately. Later on, no mention was made of that in
25 my report. Several more people died as a result of injuries.
1 Q. You said that the three killed were civilians. What about the --
2 sorry. I withdraw that. You said that the three people who in your
3 report were named as killed were civilians. What about the 18 minimum
4 that were -- I withdraw that. What about the people wounded who I think
5 you said was approximately 18 and of whom some later died? Do you know
6 whether they were civilians or military or a mixture?
7 A. According to what I know, though you were able to see that
8 yourself, in my reports, I usually mention the information about the
9 number of victims, the killed and the wounded, including witnesses as
10 well. And as far as I was aware at that moment, all of them were
12 MR. IERACE: Mr. President, I note the time, and I remember you
13 said you wished each side to have five minutes. Would that therefore be a
14 convenient time to suspend examination of this witness.
15 JUDGE ORIE: Yes. If this is a convenient moment. You could go
16 on for four or five moments, but if you say this would be a suitable
17 moment, then --
18 MR. IERACE: It would be, Mr. President.
19 JUDGE ORIE: Mr. Piletta-Zanin.
20 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I don't know
21 whether we are going to talk about Rule 90(H). If that is the case, I
22 think that we should do it in writing, in view of the time that it might
23 take. I don't know whether that was the issue that my learned friend,
24 Mr. Ierace, wanted to raise and debate.
25 JUDGE ORIE: First of all, I think when we discussed this issue of
1 Rule 90(H), I don't think that there's any reason why Mr. Kucanin should
2 attend it.
3 Mr. Kucanin, we have a legal, technical issue we'd like to discuss
4 for a couple of minutes before we have a break. It's of no use for you to
5 be present, so I'll ask the usher to lead you out of the courtroom and
6 we'll resume at 11.00. So you're off for 40 minutes.
7 THE WITNESS: [Interpretation] Thank you.
8 JUDGE ORIE: Mr. Piletta-Zanin, I would rather wait and see what
9 happens and then decide on whether we need any written exchange of views
10 on Rule 90(H), but I'd like to give the parties both just a couple of
11 minutes in order to -- first of all, to give Mr. Ierace the possibility to
12 explain what he actually seeks, and then for the Defence to respond to
13 that. And this might result in an invitation to the parties to prepare
14 something in writing for the Chamber.
15 Please proceed, Mr. Ierace.
16 MR. IERACE: Mr. President, there are two points that I wish to
17 make in relation to Rule 90(H)(ii), but before I make those points
18 approximate, I would remind the Trial Chamber and my learned colleagues
19 that on a number of occasions since this trial has commenced, I have drawn
20 the attention of the Trial Chamber to Rule 90(H)(ii). In particular, I
21 have made the point that in the context of the Prosecution case, the
22 Defence is required, by the word "shall," to put its case to the witness
23 if that witness's evidence contradicts the Defence case. I think
24 I'm correct in saying that if it has happened, it's happened perhaps once
25 or twice that it has been put to a witness that their evidence is
1 incorrect. If evidence is inconsistent with a party's case, it seems to
2 me that the witness should be -- it should be put to the witness that
3 either they are being untruthful or they are mistaken, and that has rarely
4 happened, if at all, with any of the witnesses.
5 By now the Prosecution has called approximately 40 witnesses, and
6 we are probably between a quarter and a third of the way through the viva
7 voce evidence in the Prosecution case.
8 Having reminded the Trial Chamber and the Defence of this
9 provision of the Rules, it seems to me that the Prosecution is entitled to
10 conclude that except if the rare circumstance, if at all, where it has
11 been put to a witness that their evidence is incorrect, the Prosecution is
12 entitled to assume that none of the evidence which has been called to date
13 and which has been tendered by the Prosecution is inconsistent with the
14 Defence case. So that is the first point I wish to make. It seems to me
15 that it is appropriate for me to state on the record in the Trial Chamber
16 that the Prosecution takes that view. It could not be said because the
17 Rule has been repeatedly been referred to that there is any
18 misunderstanding on the part of the Defence as to the requirement of that
19 Rule. And again I emphasise the use of the word "shall," not "may." It
20 is a strict requirement.
21 I note that yesterday, in the Milosevic trial, the Trial Chamber,
22 in relation to the accused President Milosevic, did not require him to
23 comply with the Rule, but rather --
24 JUDGE ORIE: Mr. Piletta-Zanin.
25 MR. PILETTA-ZANIN: [Interpretation] I'm very sorry to interrupt my
1 colleague, but I see the word "shall" in the transcript, which has been
2 translated by the word "shell" or "obus" in French. So I wanted to draw
3 your attention to this particular problem of the French interpretation and
4 the French transcript.
5 JUDGE ORIE: Yes. Please proceed. It has been amended already.
6 MR. PILETTA-ZANIN: [Interpretation] I really apologise to my
7 learned friend, Mr. Ierace, but I really thought it was a very essential
9 JUDGE ORIE: Please proceed, Mr. Ierace.
10 MR. IERACE: I'm grateful to my friend.
11 Whilst in that trial, as I understand it, the accused is not
12 compelled to comply with this requirement. The Trial Chamber made clear
13 that a relevant factor was that he is unrepresented, and indeed I note in
14 the wording of the Rule that it is counsel who is required to put the
15 contradiction to the witness. In this case, of course, the accused is
16 represented, and in my respectful submission to the Trial Chamber, there
17 can be no reason for the Defence in this trial to not put to each witness
18 what of that witness's evidence is inconsistent, is contradictory to the
19 Defence case.
20 Mr. President, the second point I wish to make goes to the
21 apparent reasoning behind the Rule. What if we arrive at the end of the
22 Prosecution case and enter the Defence case and then the Defence calls
23 evidence which is contradictory to evidence called in the Prosecution
24 case, that evidence might be something said by the accused, for instance,
25 if he gives evidence. It then leaves the Prosecution, and more
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 particularly, you, Mr. President, and Your Honours, with something of a
2 dilemma, because it hadn't been put to the relevant witness or witnesses
3 in the Prosecution case. And had it been put, it may well be that there
4 was a ready answer that the witness or witnesses could have given.
5 The Trial Chamber would then have the dilemma of working out
6 whether witnesses who had been called in the Prosecution case should be
7 recalled. The Prosecution would then have the dilemma of working out
8 whether that was possible and seeking trying to arrange it, and no doubt
9 at great expense. So that is a practical consequence if the Defence is
10 aware of instructions or evidence in its case which it proposes to tender
11 which is contradictory to the evidence given in the Prosecution case.
12 Apart from that practical concern, which could ultimately create
13 problems for the management of this trial, if the Rule is not being
14 applied by the Defence, then we are missing and continue to miss an
15 opportunity to narrow the issues and to save time. Because if ultimately
16 the Defence proposes to contradict some of this material, if we know about
17 it now, then the issues are narrowed and are more apparent.
18 I say "if" for this reason: Since the Defence has been put on
19 notice a number of times about the existence of the Rule, including in the
20 judgement of the Appeal Chamber in December, then one could only assume
21 that, firstly, they are aware of it; and secondly none of the evidence so
22 far called, with perhaps a rare exception, is in contradiction with their
24 Thank you, Mr. President. Simply, I want to put that on record
25 and point out -- put on record that the Prosecution proposes ultimately to
1 submit that because the Defence has not challenged in a general sense the
2 evidence called, that the Trial Chamber is entitled to conclude that it is
3 not contradicted by the Defence case. Thank you.
4 JUDGE ORIE: Mr. Piletta-Zanin, as far as I understand, it's not
5 primarily the scope of the cross-examination, but the application of Rule
6 90(H)(ii), especially the duty for counsel to put to the witness the
7 nature of the case, in this case, the Defence case. Could you please
8 respond to Mr. Ierace.
9 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I'm looking at
10 the clock. Time is fleeing by. I should need a certain amount of time in
11 order to respond. However, let me just say -- may I continue?
12 JUDGE ORIE: Yes, you may continue. I'll grant you as much time
13 as Mr. Ierace took. That means approximately 11 minutes. Please
15 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I think it
16 would be perhaps better to have a break now, in view of the hour. But let
17 me just say that the Defence --
18 JUDGE ORIE: Please proceed.
19 MR. PILETTA-ZANIN: [Interpretation] Thank you. -- that the
20 Defence makes mention of the fact that the Rule invoked by Mr. Ierace and
21 the problems invoked is in contradiction with Articles 20 and 21 of the
22 Statute, which govern the right to equitable and fair trial, and that this
23 particular provision should be considered, practically speaking, as null
24 and void. That is what we wanted to indicate. And I am -- I think I can
25 say that the Defence counsel in the Talic case and in certain other cases,
1 where there's no Defence such as in the Milosevic case, I think that
2 taking the same position regarding this particular provision. I don't
3 know whether, in view of the hour, you would prefer to proceed with the
4 break. I can elaborate my point. On the other hand, I can perhaps do it
5 in writing, which is a better solution, because we will also be saving
6 time by proceeding that way.
7 JUDGE ORIE: Mr. Piletta-Zanin, I, as a matter of fact, am not
8 aware of any case where one of the parties relied on Rules 20 and 21 of
9 the Statute in order to argue that the obligation for counsel to put to
10 the witness the nature of its case was not in conformity with these
11 Articles. This, of course, is different from the general part of the Rule
12 as far as it limits the scope of the cross-examination. So what I suggest
13 to you is that we'll have a break, perhaps a bit shorter than usual, and
14 resume at 10 minutes to 11.00 in order to give you an opportunity to
15 respond specifically on the obligation as stated in Rule 90(H), under
16 (ii), and whenever you'd like to make any submissions as far as the
17 problem of the inconsistency of Rule 90(H) in general with Article 20 and
18 21 of the Statute of the Tribunal is concerned, I think we could discuss
19 that then later, once we've received your submissions in this respect. So
20 I'd like to split up clearly the obligation of counsel to put to the
21 witness the nature of its case and the general problem you raised is that
22 whether Rule 90(H) violates Article 20 or 21 of the Statute.
23 So on this first issue, you'll have an opportunity in 20 minutes
24 to respond. On the second issue, we'll wait for your written submissions.
25 We'll then adjourn until 10 minutes to 11.00.
1 --- Recess taken at 10.34 a.m.
2 --- On resuming at 10.55 a.m.
3 JUDGE ORIE: Mr. Piletta-Zanin.
4 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. Thank you
5 for giving me the floor. To begin with, so that one the position of the
6 Prosecution, it seems that it is done -- that very indirectly, the Defence
7 is reproached with being the one, if I understood properly what Mr. Ierace
8 said, that we are being reproached with not behaving quite in line, which
9 would seem, and I repeat, which would seem to be required by Rule
10 90(H)(ii) of the Rules. Now, Mr. President, Your Honours, we have a
11 problem here, which is a fundamental problem. It is a fundamental problem
12 because whatever the manner which one elects -- chooses to examine, we
13 come back always to the same question, to the same question which we have
14 to examine here and now, hic et nunc. Rule 90(H)(ii) was drafted in
15 English in a way and in a different form in French, but one understands
16 what is the general idea behind them. However, what should be examined is
17 what is the source, what is the -- what is behind this provision, and that
18 is -- and in a manner which one might call a theological -- that is, it is
19 in a theological manner to see what was the genesis of this particular
20 provision. And this position precisely, that is, Article -- Rule
21 90(H)(ii), finds its origins, of course, not in -- obviously in the
22 continental system that we normally apply and which some members of the
23 Chamber know perfectly well, not to say all, but in an Anglo-Saxon system,
24 and in the Anglo-Saxon system, there is a difference, because it seems
25 that the source of this provision is more specifically the British system,
1 that it is a kind of the heritage, of the legacy from the English
2 language, and that means an important consequence for the Chamber.
3 Because in the British criminal system we basically have not a Chamber of
4 professional but a jury, which is made of lay individuals.
5 Now, bearing in mind this detail, Mr. President, and we shall see
6 in a moment, it turns -- it transpires indeed that in the British system
7 there is a difference between this system and other Anglo-Saxon system, it
8 would seem -- and I am speaking very conditionally, because this is not
9 really my area, and I apologise in advance -- but it would seem that to a
10 certain extent, the silence of the accused may be maintained in part or
11 totally, sometimes totally, that it be held against him. On the other
12 hand, in the system of the American time, this silence can in no way, in
13 no way, in the criminal law, may be taken against the accused.
14 What we -- the adage that we all know here is that the one who is
15 silent agrees, is not really accepted in the international jurisdiction,
16 and in no way can we accept that this fundamental principle of the rights
17 of the accused to defend himself by silence, that it be violated in any
19 There is a clear decision, both in international law and with
20 regard to this Chamber -- and I apologise if I take five or six minutes
21 more in order to make myself sufficiently clear -- but there are clear
22 decisions which indicate to which extent this right of the Defence, or
23 rather, of the accused, needs to be preserved. I will quote certain
24 things; that is, I will be quoting certain references and you may take
25 note of them.
1 Now, concerning the attitude of the Defence during some of the 40
2 examinations and cross-examinations which we could now follow, it is quite
3 obvious -- it is obvious that every time the Defence did not say to this
4 or that witness that he was not telling the truth merely for reasons of
5 politeness, which is our natural behaviour, and it is on the other hand up
6 to your Chamber of professionals to see what is the attitude of the
7 witness, what were the difficulties to obtain answers when asked by the
8 Prosecution, and that, esponte sua, the Chamber should have helped the
9 Defence not because the Defence did not have its proper argument, but
10 because I believe one could well see that some of the witnesses were to a
11 certain point reluctant to answer and speak the truth.
12 There was also a witness, and I'm not afraid to say it now before
13 this Chamber, that a witness here gave a false testimony; that is, the
14 witness who first affirmed that his father was not a soldier, whereas
15 effectively, when questioned by the Defence, the witness admitted that the
16 father was a member of the army. Such type of statements -- and you have
17 seen it -- and the Defence tries to apply this approach every time in
18 order to clarify matters. Why, Mr. President, is it not right, is it not
19 possible to ask the Defence, in an imperative manner, that is, to apply
20 the word "shall" to every time produce documents which will challenge the
21 witness's statement? Well, why don't we do it? Well, simply because we
22 can imagine a situation where, for reasons which have to deal strictly
23 with the strategy of the Defence, and that is the absolute right of the
24 accused. One can well imagine that this accused chooses to keep silent so
25 that ultimately, when it comes to his case, to show what was the reality
1 of the things, what was the real state of affairs. It is also quite
2 possible that at that particular moment, that at this particular moment
3 the accused does not have all the elements in his hands to efficiently
4 challenge this or that witness, but that it also presumes that he is not
5 perhaps completely certain and that investigators have to do a number of
6 things so as to come up with their own results. And we, Mr. President, we
7 know that your Chamber is particularly concerned to hear what the witness
8 has to say.
9 I will remind the application of Rule 91 to remind the witness
10 what were the consequences of the lapses of memory, and you will remember
11 that we asked you to do that a number of times because there was a
12 statement which was not correct, and the Chamber said that it would not do
13 that. Well, I took note of that.
14 Now, right. To go back to those indications which I will put to
15 you now --
16 JUDGE ORIE: You approximately used your time. You covered a lot
17 of specific subjects. You indicated false testimony in this Court. You
18 spent some time to the right to silence, which I would not say everything,
19 of course, is related to everything, but which was not the specific
20 subject I asked you to respond on. So if you could please conclude in
21 two, not more than three minutes, specifically on the subject I asked you
22 to respond on, your observation, please.
23 MR. PILETTA-ZANIN: [Interpretation] Very well. Thank you,
24 Mr. President.
25 The decision which I will quote now are the following: You have
1 the Delalic case, and I would suggest that you read paragraph 58. I
2 believe that the case is well known. But I will also give you the
3 references in a moment, if you wish me to do so. I will find it in a
4 moment. I'm sorry. I was interrupted, so ... But here we have the
5 Delalic case, number of the Delalic case, and then you have paragraph 58,
6 and there is an interesting quote which says.
7 THE INTERPRETER: The interpreters are asking the counsel to put
8 it on the ELMO for the interpreters.
9 JUDGE ORIE: Could you please put the part you're quoting on the
10 ELMO so that the interpreters will be able to read it.
11 MR. PILETTA-ZANIN: [Interpretation] If you want me to, yes, I
12 shall be happy to do so, but to gain time, it suffices merely to --
13 JUDGE ORIE: Mr. Piletta-Zanin, it's the wish of the interpreters,
14 who are trying to do their job as good as they can, which I follow at this
15 moment. Of course, it will not be deducted from your three minutes.
16 Please, would you -- do you have a copy or ... otherwise quote --
17 MR. PILETTA-ZANIN: [Interpretation] It will take me several
18 minutes to prepare that. You are asking too much of the Defence.
19 JUDGE ORIE: Mr. Piletta-Zanin, I'm just asking you whether
20 there's a copy. I'm not blaming you. I'm trying to find a solution for
21 those professionals in the booth who have to perform their duties. That's
22 what I'm trying to solve, and nothing else. So would you -- if you have
23 no copy, then please read it slowly. If you have a copy, please put it on
24 the ELMO.
25 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I do not have
1 any other copy. I didn't have any time to copy during the break.
2 JUDGE ORIE: Mr. Piletta-Zanin, would you then please read slowly
3 the part of the Delalic.
4 MR. PILETTA-ZANIN: [Interpretation] Very well. The Chamber, in
5 the Delalic case, paragraph 58, says as follows, and I'm quoting:
6 "[In English] It is the sacred and solemn duty of every judicial
7 institution to respect and give construction to the provisions granting
8 such right instead of giving such a construction as to whittle down their
10 [Interpretation] You will find this in the Delalic case. There
11 are also obviously other decisions on the international scale, and I can
12 quote for the Chamber the decision which comes from the American law,
13 which says the same thing, and that is Miranda versus Arizona case, that
14 is 384 US 436460 of 1966 and it is a decision where it is again -- where
15 there is again mentioned the inviolable character of the defendant to
16 remain silent. And if I say this, it is because there is quite a number
17 of things related to Rule 90(H)(ii) where this right to remain silent may
18 be violated if we every time have to do what the Prosecution wants us to
20 Mr. President, I believe that these decisions, that is, the
21 Delalic decision which with I have just quoted, that is, the 58th
22 paragraph of it, are sufficiently clear and they allow you to reach a
23 decision on this point. I'm sorry if I took ten minutes more from the
24 time that was assigned to me, but I believe I used properly these ten
25 minutes. Thank you very much. And I'm sorry that I had to take more
2 JUDGE ORIE: Thank you, Mr. Piletta-Zanin. One moment, please.
3 [Trial Chamber confers]
4 JUDGE ORIE: We'll adjourn for just a couple of minutes in order
5 to give a response to the observation of Mr. Piletta-Zanin.
6 Mr. Ierace, is there anything you would like to add at this very
8 MR. IERACE: Mr. President, perhaps if I just speak for two
9 minutes or so in response, or would you prefer I didn't?
10 JUDGE ORIE: Yes, please do so.
11 MR. IERACE: Very briefly, it has nothing to do with the accused's
12 right to silence; it's to do with fairness. And there are some efficiency
13 gains if the Rule is complied with. Secondly, it is not for the Defence
14 or the Prosecution, for that matter, to ignore the Rules. We are obliged
15 to follow them. Thirdly, I note that my friend has still not said whether
16 or not they are complying with the Rule. He said these words: "Why don't
17 we do it? Well, simply because we can imagine a situation where, for
18 reasons which have to deal strictly with the strategy of the Defence, and
19 that is the absolute right of the Defence." And finally, he refers to
20 practical problems which the Defence would have in complying with the
21 Rule, where further investigation work is required to be undertaken by the
22 Defence investigators.
23 Mr. President, I quite agree. I can well imagine that many of the
24 aspects of evidence which emerge in the Prosecution case require some
25 further investigation before the accused could place his position on the
1 record. Therefore, my approach is that whilst there are some occasions
2 when one could not expect reasonably the accused, through his counsel, to
3 challenge evidence at this stage, that does not explain a total inadequacy
4 to do so if indeed the evidence is contrary to his instructions. Thank
6 JUDGE ORIE: Yes. Mr. Piletta-Zanin, another two minutes for you
7 if you are in need -- if you feel any need to respond.
8 MR. PILETTA-ZANIN: [Interpretation] Thank you, Mr. President. No,
9 we shall retain theses two minutes, and we believe that this provision
10 needs to be considered as nil unless the Prosecution tries every time to
11 follow a procedure which is just as fair and unbiased as possible. To
12 bear in mind -- because in other cases, otherwise it would be considered
13 as a flagrant violation of Articles 20 and 21.
14 JUDGE ORIE: Thank you, Mr. Piletta-Zanin. We'll then adjourn for
15 just a couple of minutes. So many minutes as we need. So I can't give
16 you an exact time.
17 --- Recess taken at 11.15 a.m.
18 --- On resuming at 11.26 a.m.
19 JUDGE ORIE: The Chamber has considered what has been said by
20 Mr. Ierace and Mr. Piletta-Zanin. The Chamber will be glad to receive
21 submissions on the issue, as indicated by Mr. Piletta-Zanin, so that the
22 Prosecution could respond to that in writing as well. On the basis of the
23 views expressed until now, the Chamber finds no reason not to apply Rule
24 90(H), and more specifically, 90(H)(ii). The Chamber stresses that, in
25 its view, as it is at this moment, Rule 90(H) does not prevent the Defence
1 from presenting whatever evidence they might find in a later stage during
2 their investigations when the Defence is presenting its case. So those
3 are our decisions for the time being.
4 I do think, Mr. Ierace, we are at the point where we could
5 resume the examination of Mr. Kucanin, as I hope, with glasses. And I'll
6 just use the time available in order to inform everyone in this courtroom
7 that since the first break was a bit shorter, we'll have the long break as
8 the second break. That's my first remark. The second one is that I
9 indicate to the parties that on the 6th of March we'll not hear the case
10 as usually in the morning, but in the late afternoon session. That would
11 mean from a quarter past 2.00 until 7.00. I think it's Wednesday, the 6th
12 of March.
13 Mr. Kucanin, please be seated. I know that you had to wait
14 already last week for quite some time and now it's even one half of an
15 hour extra. We apologise for that.
16 Please proceed, Mr. Ierace.
17 MR. IERACE: Thank you, Mr. President. I ask that the witness be
18 shown again the map. That's Exhibit P3644 MK1.
19 Q. Mr. Kucanin, you told us about two shelling incidents that you
20 investigated on the 9th of November, 1993, and you've told us that as a
21 result of inquiries that you made, they happened at about the same time.
22 The school incident happened first and the second shell that landed about
23 200 metres away immediately followed. Are you able to find on the map,
24 now that you are wearing your glasses, the site of the school?
25 A. As I have already indicated, the location was a residential
1 block. The ground floor of that residential block was turned into a
2 school, so we cannot call it actually a school. It was not a school
3 building. It's just that during that period of time it housed one
4 classroom which was used as a school. And as I indicated earlier on, this
5 was on Zavnobih Square.
6 Q. Could you please take a blue marker pen and place a cross over the
7 position of the classroom which was used as a school.
8 JUDGE ORIE: Could you please leave it on the ELMO, Mr. Kucanin.
9 Perhaps the ELMO could be moved so that we can see how you -- yes, that's
10 visible now.
11 MR. IERACE:
12 Q. Would you please place the number 1 alongside the cross.
13 A. [Marks]
14 Q. Did your investigation team include a ballistics expert?
15 A. Yes.
16 Q. Did the investigation establish, firstly, the direction of the
17 trajectory of the mortar shell?
18 A. Yes.
19 Q. What was that direction?
20 A. From this point in time, all I can tell you is that it was told
21 that it had come from the direction of Nedzarici, which at the time was
22 occupied by the VRS.
23 Q. Do you see on the map the area of Nedzarici?
24 A. Yes.
25 Q. Indeed, I think on the map we can see the name Nedzarici; is that
2 A. Yes, it is.
3 Q. All right. Are you able to identify on the map the part of
4 Nedzarici which was under the control of the Bosnian Serb army on that
6 A. I think this lower part of the neighbourhood, here.
7 Q. Would you place a circle or -- I withdraw that. Would you draw
8 a -- I withdraw that. Do you know approximately the position of the
9 confrontation line in the Nedzarici area on that date?
10 A. Approximately. I know because my brother lived in this building
11 here that I'm indicating now, which was on this side of the street, on our
12 side. So the line, I think, was along this line here, more or less. But
13 I'm by no means an expert for maps or a military expert. I know that it
14 was not possible to walk along this street, because this area here was
15 directly exposed to sniper fire. A military barracks was here, which had
16 remained in the hands of Bosnian Serbs. So that is why soldiers were
17 quartered here, and fire was opened from this location, as we could hear
18 from the witnesses who were there.
19 Q. For the benefit of the transcript, you referred to a
20 number of places in your last answer. You referred to the place of
21 residence of your brother, which was approximately above the name Mojmilo,
22 which appears on the map; is that correct?
23 A. Yes. In the Mojmilo neighbourhood, that is where my brother
25 Q. And you've indicated approximately the position of part of the
1 front line. I appreciate that you don't know exactly where it was. Where
2 that understanding, would you please take the blue marker pen and, to the
3 best of your understanding, place the approximate position of the front
4 line in the Nedzarici region.
5 A. [Marks]
6 Q. Thank you. And for the benefit of the record, you've placed a
7 line to the right and above the name Nedzarici.
8 Now, assuming that the top of the map is north, it would therefore
9 seem that the direction of fire was to the south-west; is that correct,
10 that is, to the south-west of the school, or the classroom?
11 A. As I told you, I'm not an expert, but if I had put down the
12 direction in my report, that should be taken into account. That is, if
13 the ballistics experts had given me the right direction.
14 Q. In any event, did you understand from the ballistics experts that
15 the source of fire --
16 JUDGE ORIE: Yes, Mr. Piletta-Zanin.
17 MR. PILETTA-ZANIN: [Interpretation] Sorry. I have to intervene
18 once again for the benefit of the transcript. The French booth has
19 invented an answer of the witness, line --
20 JUDGE ORIE: Mr. Piletta-Zanin --
21 MR. PILETTA-ZANIN: [Interpretation] -- 45 or 7.
22 JUDGE ORIE: The interpretation is the interpreters invented an
23 answer of the witness. Would you please indicate if there's any mistake
24 in view of you, in the translation, would you refrain from using words
25 like "inventions."
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 MR. PILETTA-ZANIN: [Interpretation] Mr. President, a posteriori,
2 with hindsight, it is an invention, to the extent that Mr. Ierace said,
3 for the record, he was going to explain what has happened, that is, what
4 the witness has indicated on the map, which line and where. He did that
5 for the benefit of the record. After that, the French booth invented an
6 answer of the witness, which was "yes." If I cannot speak here, as
7 counsel of General Galic, I will keep quiet.
8 JUDGE ORIE: Mr. Piletta-Zanin, it's just a matter of the words
9 you're using. If you say that something was translated what was not said,
10 the word "inventing" has a specific meaning, and I think it's unfair to
11 the interpreters to use it, and I'll allow you, as you know, to make
12 whatever comment on any mistake in the translation or anything translated
13 which, in your view, has not been said. As a matter of fact, it's my
14 recollection that the witness did give a very short word at that moment,
15 but let's -- if you want to listen to the tape, it's fine. But I'd just
16 like to keep the tone of our discussions as neutral as possible.
17 Please proceed.
18 MR. PILETTA-ZANIN: [Interpretation] I make note, Mr. President, of
19 that. Thank you very much for that. I was just being very attentive and
20 careful for the benefit of the parties and the Chamber, and I think that
21 the terms that I used were precise.
22 JUDGE ORIE: This is not a debating club, Mr. Piletta-Zanin. This
23 is a court of law.
24 Mr. Ierace, please proceed.
25 MR. IERACE:
1 Q. Now, are you able to locate on the map the site of the second
2 mortar impact which occurred on the same day?
3 A. Yes.
4 Q. Would you please place a cross with the blue marker on that site,
5 and alongside it, write 2.
6 A. [Marks]
7 Q. In relation to that investigation, were you also assisted by a
8 ballistic expert?
9 A. Yes.
10 Q. What was the established direction of fire; in other words, from
11 what area?
12 A. I know, as far as I can recall, that it was the same direction as
13 from Nedzarici. I wrote it down in my report, and I believe that it
14 reflects what the ballistics expert had said.
15 Q. I'd like to now ask you about another incident that you
16 investigated. Did you investigate an incident which occurred on the 20th
17 of July, 1993 involving the shooting of a girl in her home?
18 A. I investigated a murder of a girl in her house, but I don't think
19 that it was on the 20th, but on the 28th of July.
20 Q. My apologies. Whereabouts did that shooting take place? I
21 withdraw that. When you say "murder," was it murder involving shooting or
22 some other cause?
23 A. Yes, shooting from fire weapons. I remember the case very well.
24 It was quite special. Me and two other colleagues, ballistics experts,
25 visited the scene upon a call of a neighbour, who told us that there was
1 shooting going on coming from the Serb positions. If we are talking about
2 the same case, that is.
3 MS. PILIPOVIC: [Interpretation] Your Honour, my colleague is
4 telling me that Mr. Ierace was not precise in terms of the date. What
5 year are we talking about? The date is 28th of July, but we didn't hear
6 the year.
7 JUDGE ORIE: Could you please clarify this, Mr. Ierace.
8 MR. IERACE: Yes, Mr. President. July 1993.
9 Q. And Mr. Kucanin, you have said that your recollection is that it
10 was the 28th of July. Is that the 28th of July, 1993?
11 A. Yes, yes.
12 Q. What was the name of the victim?
13 A. It was a 2-year-old girl whose name was Elma Jakupovic.
14 Q. Where was she at the time that she was shot?
15 A. She was at her home. She was sleeping on a couch with her twin
16 sister, just beneath the window.
17 Q. You've told us that you remembered the case because it was quite
18 special, and when you attended the scene upon the call of the neighbour,
19 the neighbour told you that there was shooting going on coming from the
20 Serb positions. What was the address or at least the location of the
21 place where the victim was sleeping?
22 A. The location was Kosevo Brdo. Whether it was in Jukiceva Street
23 or somewhere else, I can't recall, but it was in the neighbourhood called
24 Kosevsko Brdo.
25 Q. Would you please find that neighbourhood on the map and point to
2 A. This is the area in question, here.
3 Q. All right. Would you please take the blue marker. Are you able
4 to see the street where she lived from the map?
5 A. I don't know. I couldn't indicate the street, but it was in this
6 area here, the one that I'm indicating now.
7 Q. Would you please place a circle around the area of the street.
8 A. [Marks]
9 Q. Would you place a number 3 alongside the circle.
10 A. [Marks]
11 Q. Thank you. What part of the little girl was hit by the bullet?
12 A. Her head. Her forehead, precisely.
13 Q. Did the bullet remain in her body or did it pass through her body?
14 A. The bullet passed through her head and remained stuck in the couch
15 where the girl was sleeping.
16 Q. I take it that it was a fatal wound.
17 A. Yes, it was.
18 Q. Did you recover the bullet?
19 A. Yes, we did. We pulled it out. And the experts were able to
20 establish that it came from a 7.9-calibre weapon. It had a steel jacket
21 which is used for snipers and semi-automatic rifles, so that would be most
22 probably the type of weapon that was used.
23 Q. Did you establish the time, approximately, that she was shot?
24 A. At this point I cannot recall. If I made a report, I think that
25 that should be in the report.
1 MR. IERACE: Excuse me, Mr. President.
2 [Prosecution counsel confer]
3 MR. IERACE: Mr. President, in order that the witness may refresh
4 his memory, I ask that he be shown a document. For the benefit of my
5 learned colleagues, it's a report which is attached to the statement of
6 this witness dated the 21st of February, 1996. They should a copy of
8 JUDGE ORIE: I see no objection, so therefore, proceed,
9 Mr. Ierace.
10 Mr. Usher -- yes, Ms. Pilipovic.
11 MS. PILIPOVIC: [Interpretation] Your Honour, sorry for this
12 intervention. Is my learned colleague referring to the statement or the
13 interview concerning additional information? I only have an interview of
14 the 12th of February, but it is not in a form of statement, but in the
15 form of a note.
16 MR. IERACE: Mr. President, I'm referring to a statement which
17 is -- I'm sorry. I'm referring to a report which is attached to that
18 statement. Excuse me.
19 [Prosecution counsel confer]
20 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I'm listening
21 to the French interpretation. I heard 29th of January -- no, February.
22 I'm sorry. And now I see 21st. Are we talking about the 21st or the 29th
23 of the month?
24 JUDGE ORIE: 21st.
25 MR. IERACE: For the benefit of the transcript and so that it may
1 assist my friends, my learned colleagues, the relevant ERN number for the
2 report in Bosnian is 00269430. I'm happy to provide a copy to my friends
3 to save time from them finding their own copy.
4 JUDGE ORIE: Would it be helpful, Ms. Pilipovic? We could do it
6 MS. PILIPOVIC: [Interpretation] Yes, Your Honour.
7 MR. IERACE: Excuse me while I obtain another copy for the
8 witness, Mr. President.
9 JUDGE ORIE: Yes, please.
10 MR. IERACE:
11 Q. Mr. Kucanin, do you recognise the document that you now have in
12 front of you?
13 A. Yes.
14 Q. Is that a report made by you on the 29th of July, 1993 in relation
15 to this incident?
16 A. Yes.
17 Q. First of all, in relation to the date of the incident, are you
18 able to refresh your memory from this document as to when it occurred?
19 JUDGE ORIE: Mr. Piletta-Zanin.
20 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I would like to
21 be absolutely sure that we are talking about the same ERN number. Is the
22 number 00269430?
23 MR. IERACE: Mr. President, for the moment, I don't have a B/C/S
24 version in front of me. Perhaps the witness could place it on the ERN
1 MR. PILETTA-ZANIN: [Interpretation] Because the number that I see
2 on the paper is not the same.
3 JUDGE ORIE: I see that there are two numbers, and the number in
4 the right top corner of the document is the same as you just mentioned, I
5 think, Mr. Piletta-Zanin. Let me just check all the figures.
6 MR. PILETTA-ZANIN: [Interpretation] It's because on the English
7 statement we have only one figure, and there seems to be two numbers. In
8 order to avoid confusion, Mr. President, I would like to know what is the
9 right one, what document we are talking about, for the record, of course.
10 MR. IERACE: Mr. President, I now have a B/C/S copy, and it does
11 have two numbers, and the number that I first gave is the one that appears
12 on the top right, and that's the number which appears on the screen. The
13 number at the bottom, if that assists my friend, is 00378636. That's the
14 B/C/S version.
15 JUDGE ORIE: Yes. So this has been clarified. You may proceed,
16 Mr. Ierace.
17 MR. IERACE:
18 Q. Mr. Kucanin, on what date was this girl shot?
19 A. You're quite right. I apologise for the confusion. In order for
20 everyone to understand the events, let me try to clarify. At the outset,
21 I indicate that it was a specific event. I remember that the citizens of
22 this neighbourhood complained that there was fire from a nearby Serb
23 house. On that day, several bullets reached this neighbourhood, the
24 Jukiceva Street, and we went to the scene in order to establish where fire
25 was indeed opened from that house. We didn't search the house. We only
1 visually inspected the area and tried to establish the direction from
2 which the fire was opened on that neighbourhood. On that occasion,
3 because we had the report of the killing of the girl, we conducted the
4 investigation on the spot, where the girl was killed. She was killed on
5 the 27th, and the investigation was conducted on the 28th, as you were
6 able to see from the report.
7 Q. At what time, approximately, was she shot?
8 A. In the evening, the time indicated in the report is 2200, and I
9 remember that that is what we were told, that it had happened in the
11 Q. Did you make any inquiries as to whether there was any light
12 source in the room where the girl was lying at the time she was shot?
13 A. No, I did not, although I don't think that that would have
14 affected the activity by the enemy.
15 Q. Why do you say that?
16 A. Well, because there was no rule when fire was opened on civilian
17 targets, whether there was light or not, whether the window was open or
18 shut. It was all the same.
19 Q. Were you able to establish, as a result of your investigation, the
20 source of the fire?
21 A. Yes. Since no one touched the bullet before we arrived, and it
22 was stuck deep into the couch, it pierced the part where you lie on, it
23 ended up in the solid surface, wooden part of the couch. So we had part
24 of the trajectory through the couch, and with the assistance of the
25 mother, who indicated the exact spot where the little girl was sleeping,
1 the ballistics experts made an analysis by inserting a special instrument
2 there, and the trajectory, that part of the path was quite deep, and we
3 were able to tell those people that there was an enemy indeed -- that
4 there was not an enemy in that neighbourhood, that the bullet had come
5 from further away. So we were able to reassure the local citizens that it
6 was not the nearby house that was the firing position but that the firing
7 position was another area of the town which is called Kromolj, and we
8 knew that there was constant fire coming from that position, and the
9 target was this neighbourhood of Sarajevo.
10 Q. With the assistance of the Court usher, could you please look
11 again at the map and identify, if you can, the area of Kromolj.
12 JUDGE ORIE: Could I perhaps first ask another question. On line
13 53, page 53, line -- could you please leave it on the ELMO for second --
14 the witness testified that she was killed on the 27th, and the
15 investigation was conducted on the 28th, as you were able to see from the
16 report. Of course, we have not seen the report. Could the witness please
17 indicate in the report where the date of the 27th is, because I see 20 of
18 the 7th month, which is, of course, not the same as the 27th. But in
19 relation to his reference to the 28th, would that be the 20th of August?
20 It's unclear to me. Could you please clarify this, at least to see
21 whether the witness could explain.
22 MR. IERACE: Certainly, Mr. President. I had not noticed that. I
23 thought the witness gave a different answer.
24 Q. Mr. Kucanin, would you please look again at your report and could
25 you tell us, by refreshing your memory from your report, the date on which
1 the girl was shot.
2 A. On the 20th of July, 1993.
3 Q. Thank you. Now would you please look at the map and see if you
4 can identify the area from which you say the shot came, namely, Kromolj.
5 A. It's this neighbourhood here.
6 Q. Would you place a circle around that neighbourhood as it appears
7 on the map, and alongside it, would you please write "3A."
8 A. [Marks]
9 Q. Thank you. On what side of the confrontation line was the area
10 within the circle on the 20th of July, 1993?
11 A. On the side controlled by the army of Bosnian Serbs.
12 Q. All right. Now, earlier you said that you did not make any
13 inquiries as to whether there was a light on in the room, and you went on
14 to say why you did not do that. Did you make any conclusion -- I withdraw
15 that. Did you notice whether any other rounds had hit the area,
16 apparently about the same time?
17 A. Well, I did say in the beginning that the locals came to the
18 police station to tell us that there was intensive fire opened on that
19 particular neighbourhood over the last few days, and that was why we had
20 come out. They had established that it was coming from that Serb house,
21 and we went out to the scene to see where it was coming. So there was
22 intensive, frequent fire during several days.
23 Q. Did you conclude that the girl was deliberately shot, or rather,
24 that she was the victim of random fire on the area?
25 A. In my view, it was the latter, and that is, it was simply fire
1 opened randomly at a civilian locality.
2 Q. Was there any military activity in the area where she was shot?
3 As a result of your investigations, were you able to discover that?
4 A. No, no, not in this part. I don't know. No. I'd say it was a
5 purely civilian neighbourhood which was far, far away from the demarcation
7 Q. Now, you've told us that you were a criminal investigator
8 throughout the period of the armed conflict in Sarajevo and that your
9 investigations were exclusively of civilian areas on the Bosnian
10 government side of the confrontation lines. From September 1992 until
11 August of 1994, approximately how many shelling incidents did you
12 investigate, that is, where civilians were killed as a result of artillery
13 shells or mortar shells landing in Sarajevo?
14 A. At that time that you mention, several inspectors conducted
15 investigations. I may have performed up to 20 investigations, I mean, of
16 incidents where civilians were casualties, and I mean those incidents
17 where there were fatalities, where people were killed.
18 Q. During that same period, approximately how many incidents did you
19 investigate where civilians were shot as a result of bullets, were killed
20 as a result of bullets?
21 A. All the investigations that I performed involving civilians --
22 oh, you mean just bullet wounds or all together, the percentage of that as
23 against those hit by shells and such-like?
24 Q. I'll re-ask the question. During that period of September 1992
25 until August 1994, approximately how many incidents did you investigate
1 personally where civilians were shot?
2 A. Well, it could be -- I wouldn't say half of them, but 30 per cent
3 of them were hit from -- by projectiles from firearms, in my cases.
4 Q. Are you able to give us an approximate number of such incidents in
5 that period of time?
6 A. You mean my cases, firearm incident killing civilians --
7 Q. Yes.
8 A. -- which I investigated?
9 Q. Yes.
10 A. Well, say eight, for instance, eight investigations. I'm giving
11 you an arbitrary figure now, but it can all be documented. Had I known
12 that I'd be asked this, I would have provided the documents.
13 Q. All right. Did you investigate shootings where there were no
14 fatalities, such as shootings on trams?
15 A. Yes.
16 Q. Approximately how many investigations did you carry out where
17 trams were shot in that same period, that is, from September 1992 until
18 August 1994?
19 A. Well, I could give you an approximate figure, but I cannot exactly
20 when [sic] I did what, when each of these incidents happened. But there
21 were, I think, three occasions where trams were fired at, but I couldn't
22 give you the exact details right now.
23 Q. All right. And do you mean three trams -- three occasions where
24 trams were fired at in that particular period of time?
25 A. That's right, in that particular period of time that you are
1 mentioning, September 1992, August 1994, even though, let me say, there
2 were other teams which were much more involved in this than I was.
3 Q. Now, over the entire period of the armed conflict, from April 1992
4 until Dayton, towards the end of 1995, how many investigations in total
5 did you carry out in that period where civilians had been casualties of
6 shelling or shooting?
7 A. Well, according to my record, approximately -- well, as regards
8 the sniping or shelling of the city of Sarajevo, I performed more than a
9 hundred investigations, and in all of them, casualties were civilians.
10 Q. All right. Now, as a result of your investigations, did you
11 develop knowledge of the sources of sniping fire, that is, the places from
12 which civilians in Sarajevo were shot or shot at?
13 JUDGE ORIE: Yes, Mr. Piletta-Zanin.
14 MR. PILETTA-ZANIN: [Interpretation] Thank you, Mr. President. I
15 am reading that we are talking about the end of 1995, in line 58. I do
16 not think -- I do not think that that question may be allowed, because I
17 do not think -- because I think it is outside the time frame of the
18 indictment, and I do not think that the question can be allowed in this
19 context, that is, up to the end of 1995.
20 JUDGE ORIE: Mr. Ierace, could you please explain the relevance of
21 including in your question also a time which is not included in the
23 MR. IERACE: Mr. President, that will become clear with the next
24 two questions, if I could be permitted that latitude. Essentially, the
25 next few questions go to whether there was any variation in those sources.
1 JUDGE ORIE: I do understand. You may proceed.
2 MR. IERACE: Thank you.
3 Q. I'll repeat that last question. As a result of your
4 investigations, did you develop knowledge of the sources of sniping fire,
5 that is, the places from which civilians in Sarajevo were shot or shot at?
6 A. Yes.
7 Q. Was there any difference in those places between April and
8 September 1992 compared with September 1992 through to August 1994?
9 A. Well, no. All those places were active throughout.
10 Q. In relation to the investigations that you carried out where
11 civilians became casualties of shelling, similarly, did you develop
12 knowledge of the sources of fire?
13 A. I did, yes, on the basis of ballistic analysis or in situ, yes, we
14 acquired that type of information.
15 Q. You told us that when you attended the investigations, indeed,
16 when you carried out the investigations of the incidents that took place,
17 shelling incidents which took place on the 9th of November, 1993, you were
18 accompanied by a ballistics expert. Whenever you attended the
19 investigation of a shelling incident, did you typically have a ballistic
20 expert with you?
21 A. Oh, yes. That was mandatory.
22 Q. Now, in relation to the sources of fire, was there any significant
23 change from the period April to September 1992 compared to September 1992
24 through to August 1994?
25 A. Well, no, not really, because from those certain areas it
1 happened, at least through the reports you see, that one area comes up and
2 up again all the time.
3 Q. So if I could put it this way, did some areas or places become
4 notorious for sniper fire or shelling?
5 A. That's right.
6 Q. From time to time, did you discuss the sources of fire with your
7 fellow investigators?
8 A. Yes.
9 Q. How many other investigators were there operating between
10 September 1992 and August 1994 carrying out the same type of
11 investigations as yourself?
12 A. Well, 20 inspectors maybe.
13 Q. As a result of their investigations, as you understood it, was
14 there any degree of agreement between you as a group as to the notorious
15 sources of sniping fire and shelling?
16 A. Yes.
17 Q. Last week did you mark on a map --
18 JUDGE ORIE: Mr. Ierace, may I just interrupt you? The objection
19 raised earlier by Mr. Piletta-Zanin was that your question included the
20 period of August 1994 up until December 1995, and you told us that you
21 would ask the witness to compare the periods later on. I heard you asking
22 now a comparison between the period of April until September 1992 and then
23 from 1992 up until August 1994, but I think the objection was that you
24 will -- you included in the number you asked for the period of August 1994
25 until, well, let's say December 1995. So if all the investigations would
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 have specifically been in that period, of course the comparison is not
2 complete. You have compared for the earlier period but not with the later
3 period. And I think it was about the later period that the objection of
4 Mr. Piletta-Zanin was referring to. So since I allowed you to proceed, I
5 think it's fair that you complete your comparison in all directions.
6 MR. IERACE:
7 Q. You've told us that you conducted in excess of 100 investigations
8 throughout the armed conflict.
9 A. That's right.
10 Q. Approximately how many of those investigations did you conduct
11 from August 1994 through to the end of the armed conflict in Sarajevo?
12 A. Well, I'd say majority, an overwhelming majority could be 80 per
13 cent of all the cases I performed between August 1994 and the end of the
14 armed conflict.
15 Q. Was there any difference in the sources of fire, that is, for
16 sniping and shelling, in that latter period compared to the period
17 September 1992 to August 1994?
18 A. No. Same areas came up over and over again, these areas from
19 which sniper fire was opened, as we called them, the sniping areas, and
20 the areas that were hit.
21 Q. All right. Now, last week, did you place some marks on a map of
22 Sarajevo indicating those notorious sources of sniping and shelling fire?
23 A. I did, yes.
24 MR. IERACE: I ask that the witness be shown P36 --
25 JUDGE ORIE: Yes, Mr. Piletta-Zanin.
1 MR. PILETTA-ZANIN: [Interpretation] Yes. Mr. President, thank you
2 for giving me the floor. I note that this map which is to be shown has to
3 relate to 80 per cent, to 80 per cent of incidents which have nothing to
4 do with General Galic, because this is the elements which happened after
5 August 1994. And if it is that map which was premarked, that is a map --
6 then this is a map which the Defence cannot accept as such, including what
7 the witness -- bearing in mind what the witness has just said. Thank you.
8 [Trial Chamber confers]
9 JUDGE ORIE: Mr. Piletta-Zanin, Mr. Ierace, the Chamber is of the
10 opinion that we need at least a clear indication right at the beginning of
11 the questioning in relation to this marked map, whether there are
12 incidents marked and to what extent that happened after August 1994. If
13 this would be a greater majority, I think it would be wiser to use another
14 map, because it then is mainly not relating to the period covered by the
15 indictment. So would you please keep this in mind while questioning the
16 witness on this map.
17 MR. IERACE: I'll do that, Mr. President.
18 Q. Could you also indicate, given that the next break will be longer
19 than the usual break --
20 JUDGE ORIE: Yes, Mr. Ierace. I have to apologise, because I had
21 forgotten that I would compensate you for the ten lost minutes. I'd say
22 we'll have a break until ten minutes past 12.00 -- of course, ten minutes
23 past 1.00. I apologise.
24 --- Break taken at 12.37 p.m.
25 --- On resuming at 1.12 p.m.
1 JUDGE ORIE: Mr. Piletta-Zanin, you're on your feet. I first have
2 to say that I overcompensated you, which is totally against my nature, but
3 well, that's what happens. Please proceed.
4 MR. PILETTA-ZANIN: [Interpretation] No. I will leave the floor to
5 my colleague. But I wanted to present my apologies to the interpretation
6 booths. Sometimes we use very harsh words because it is very important to
7 bear in mind this exchange, the sequence of questions and answers, because
8 of what we have to deal with afterwards. We have to go back to certain
9 things that were uttered before.
10 JUDGE ORIE: No one ignores how important the translation is, so
11 that's -- that goes without saying.
12 Please, Ms. Pilipovic.
13 MS. PILIPOVIC: [Interpretation] Your Honour, thank you very much.
14 With your permission, I should like to remind you that we have to respond
15 to the submissions of my learned colleague in respect of Rule 94 bis as
16 regards the testimony of an expert witness. This morning we have the
17 issue, and I have the obligation to present our position. Whether you
18 want me to do this today or next morning when we finish with the witness,
19 I'm entirely in Your Honour's hands.
20 JUDGE ORIE: No, it cannot be done at this moment, because we're
21 still waiting for the translations. Because the Chamber, in order to
22 determine whether all the requirements of Article 92 bis are fulfilled,
23 needs to have a look in these statements. I saw that yesterday the same
24 issue came up in the Milosevic case, and we cannot -- I think we'll
25 discuss it while we all have the statements there. Yes.
1 MS. PILIPOVIC: [Interpretation] Yes, Your Honour. Maybe there is
2 a misunderstanding. I'm referring to the Rule 94 bis. If that should be
3 convenient, I should like to state my position tomorrow before we resume
4 with the witness, or today at the end of the day. I only need two minutes
5 to do that.
6 JUDGE ORIE: Yes. Let me -- yes, the expert -- yes, I now better
7 understand. I apologise for not taking proper notice of what you said.
8 Perhaps you could do it tomorrow.
9 Mr. Ierace, please proceed.
10 MR. IERACE:
11 Q. Mr. Kucanin, when in 1995 did the armed conflict cease in
13 A. In 1995, when the conflict ceased, I believe it was towards the
14 end of that year.
15 Q. You mean by that around December 1995?
16 A. November, December, thereabouts. I cannot be more precise.
17 Q. Therefore, the armed conflict lasted for some 45 months, is that
18 correct, from April 1992 until December 1995?
19 A. Yes, approximately.
20 Q. And you've told us that 80 per cent of your investigations took
21 place in the last 17 months of those 45 months; is that correct?
22 A. Yes. My investigation, that is how it happened, which doesn't
23 mean that there were not more attacks than that on Sarajevo. I think that
24 there were more attacks leading up to this period, as regards my
25 investigations, because whatever happened in terms of massacres and
1 similar incidents took place in 1994, towards the end of 1994.
2 Q. All right. Now, given that answer by you, can I ask you this:
3 Over those 45 months, did the attacks against civilians occur at a
4 constant rate or not, that is, over the whole of the 45 months?
5 JUDGE ORIE: Please, Mr. Piletta-Zanin.
6 MR. PILETTA-ZANIN: [Interpretation] Mr. President, in the answer
7 given by the witness, no mention was made of civilians. He was referring
8 to the attacks on Sarajevo in general, which means that not every attack
9 was necessarily against civilians.
10 THE WITNESS: [Interpretation] I apologise. I did not have
11 interpretation of the words pronounced by the counsel.
12 MS. PILIPOVIC: [Interpretation] Your Honour, the General is also
13 complaining of the fact that he does not have the interpretation, and I
14 myself am not receiving interpretation either.
15 JUDGE ORIE: We have a technical problem, as far as I see.
16 [Trial Chamber and registrar confer]
17 JUDGE ORIE: The problem is over now. Is having now having
18 translation in a language he or she understands? Okay. Then we may
20 Mr. Piletta-Zanin, you're saying the answer given by the witness,
21 no mention was made of civilians. Yes. Would it be possible for you to
22 rephrase your question? I don't know exactly to what answer
23 Mr. Piletta-Zanin is referring, because on a few occasions the witness
24 testified that he investigated cases where civilian casualties occurred.
25 But if you could clarify it by rephrasing your question, please do so,
1 Mr. Ierace.
2 MR. IERACE:
3 Q. Mr. Kucanin, you told us that you exclusively investigated sniping
4 and shelling incidents where civilians were casualties, and you have also
5 said that there were attacks which occurred in 1994, towards the end of
6 1994, which don't necessarily reflect your investigation figures.
7 JUDGE ORIE: Mr. Piletta-Zanin.
8 MR. PILETTA-ZANIN: [Interpretation] Mr. President, in order for me
9 to be able to follow, could Mr. Ierace quote the page and the line of the
11 JUDGE ORIE: Mr. Piletta-Zanin, if you're talking about attacks
12 occurred in 1994 -- let me -- yes, could you please find it. I think it
13 was just before, but it's not on my screen any more.
14 MR. IERACE: Mr. President, I'm happy to withdraw the question and
15 approach it from auto different angle.
16 JUDGE ORIE: Yes, please do so.
17 MR. IERACE:
18 Q. During that four-month period of the arm conflicted, you were a
19 criminal investigator, you've told us.
20 A. Yes.
21 Q. And you were one of many fellow criminal investigators; is that
23 A. Yes.
24 Q. Your duties exclusively concerned attacks against civilians; is
25 that correct?
1 A. Yes. Everything that has been discussed today concerned my work,
2 which had nothing to do with the military. So whatever I have testified
3 about concerns the killings of civilians and the incidents where civilians
4 were victims.
5 Q. In relation to civilians being targeted -- I withdraw that. In
6 relation to civilians being casualties as a result of shelling and
7 sniping, from month to month during that 45-month period, was there a
8 constant level of incidents or not?
9 A. Yes. The level of incidents was constant except that we can
10 perhaps single out of year of 1994 as being, at least in my opinion, and
11 from what I heard from my colleagues who also visited scenes of such
12 incidents, was perhaps more intense in terms of incidents than other
14 Q. And was that the whole of 1994 or part of 1994?
15 A. In view of the number of civilian victims, and taking into account
16 massacres such as the one at the Markt Halle, it would be the second half
17 of 1994.
18 Q. Were there -- when you say the Markt Halle, which particular
19 incident or incidents do you have in mind?
20 A. The one that took place in February 1994, when the massacre at
21 Markt Halle occurred.
22 Q. Given that February 1994 is in the first half of 1994 and not the
23 second half, I ask you again whether there were -- whether there was an
24 additional intensity for the whole of 1994 or only part, and if so, which
1 A. Let me say the following: After the stated period after August
2 1994, I did many more investigations. However, the number of victims in
3 those incidents was significantly less than the number of victims in the
4 first half of 1994. So the intensity of killings where civilians were
5 victims was greater in this first period of time.
6 Q. All right. In relation to the investigations that you carried out
7 between September of 1992 and August of 1994, and as a result of other
8 investigations carried out by your fellow criminal inspectors in that same
9 period, were there some sources of sniping fire that repeatedly arose
10 during those investigations as the relevant source?
11 A. Yes. On the basis of my experience, I can tell you about those
12 sources until that part of 1994. We would always gather together, me and
13 my colleagues. We would discuss the cases, we took statements from
14 witnesses, and I can talk about that. There were such sources of fire
15 that were notorious. And I can indicate such locations on an empty map.
16 It doesn't have to be a premarked map.
17 JUDGE ORIE: Yes, Mr. Piletta-Zanin.
18 MR. PILETTA-ZANIN: [Interpretation] Mr. President, maybe it's a
19 bit premature to intervene; however, we have had three questions of the
20 same type. The witness spoke about what he has heard from others. I
21 don't know whether one can allow, within the framework of this testimony,
22 that the witness indicates for us on a map, be it a premarked or an empty
23 map, something that he has heard from others.
24 JUDGE ORIE: Mr. Ierace.
25 MR. IERACE: Mr. President, I had intended to clarify that with
1 the next question. Perhaps I could ask that question, and if my friend --
2 JUDGE ORIE: Yes, and then we'll see what still remains of the
3 objection. Yes, please proceed.
4 MR. IERACE:
5 Q. In relation to what you heard from others, I ask you to confine
6 yourself to the results of investigations carried out by your fellow
7 criminal inspectors as to the source of fire. Can you do that, please.
8 A. Yes, I can.
9 Q. All right. In other words, we are confining your sources of
10 information to the results of your own investigations and the
11 investigations of your fellow inspectors.
12 A. Yes.
13 Q. All right. You've told us something --
14 JUDGE ORIE: May I just ask you for a clarification, Mr. Ierace.
15 Do you mean by fellow inspectors those inspectors investigating the same
17 MR. IERACE: No, Mr. President. I'll clarify that. I meant
19 JUDGE ORIE: Yes. Please proceed.
20 MR. IERACE:
21 Q. How many investigators were there operating within the city of
22 Sarajevo on the Bosnian government side of the confrontation lines who,
23 like you, investigated cases of civilians becoming casualties as a result
24 of sniping fire and shelling between September 1992 and August 1994?
25 A. In the town of Sarajevo, there were 20 of us, more or less, from
1 the regional centre for Security Service, plus the inspectors. I mean,
2 those of us who worked on cases involving fatalities. There were other
3 municipal police stations that investigated incidents involving wounding,
4 damage, so there were about 40 additional inspectors, apart from us, who
5 were involved in these types of cases.
6 Q. So that's 20 just in investigating cases of fatalities involving
7 civilians; is that correct?
8 A. Yes, it is.
9 Q. All right. You've told us something of the techniques that were
10 used in order to establish the source of fire with sniping. To your
11 knowledge, were those techniques used by your fellow inspectors as well?
12 A. Yes. Every investigation team would involve a ballistic expert,
13 and yes, they used the same techniques, every one of the teams.
14 Q. Now, you said that you would be able to give the Trial Chamber the
15 positions which recurred during those investigations as sources of sniping
16 fire in that period of September 1992 to August 1994; is that correct?
17 A. It is.
18 Q. Earlier I asked you about a map that you marked, I think last
19 week, with certain positions in relation to the source of sniping fire and
20 shelling fire. Do any of the positions, being the source of sniping fire,
21 in that period, that is, September 1992 to August 1994, appear on that
23 JUDGE ORIE: Yes, Mr. Piletta-Zanin.
24 MR. PILETTA-ZANIN: [Interpretation] I'm sorry, but I must object.
25 It is a question which has to do with the map, and the Defence cannot
1 accept it, and we come back to a question which the Chamber has not yet
2 ruled upon. That is, once again, I believe that the Prosecution is
3 placing the cart before the horse, and the Defence cannot accept that.
4 JUDGE ORIE: First of all, Mr. Piletta-Zanin, as far as I can see,
5 there were two issues you raised. The first was the marked map as such,
6 which you withdrew, but that's when you expected that the map would be
7 presented, and the second one is that on this map there would be mainly
8 incidents that occurred in the period after August 1994. Am I correct in
9 my understanding? Yes?
10 MR. PILETTA-ZANIN: [Interpretation] Mr. President, if we talk
11 about -- if we take this map, we know what this witness has said, and that
12 is that with regard to incidents that he knows about, that's what he said,
13 80 per cent had to do with the investigations following the period of the
14 indictment. If it is those incidents which are on this map, then I do not
15 know, because I did not see it, but then the Defence believes that the
16 production of this map and all the questions would represent a biased
17 nature of -- a biased address -- a biased tackling of this map.
18 JUDGE ORIE: Yes. I then instructed Mr. Ierace that he first
19 should find out whether any markings on the map related to these incidents
20 you just mentioned, the 80 per cent. The question of Mr. Ierace
21 was: "Earlier I asked about a map that you marked I think last week with
22 certain positions in relation to the sources of sniping fire and shelling
23 fire. Do any of the positions, being the source of sniping fire, in that
24 period, that is, September 1992 to August 1994, appear on that map?" So I
25 understood the question of Mr. Ierace as to find out what markings, at
1 least markings related to incidents during what period of time would
2 appear on that map. And if we have an answer to that question, then we
3 can then, of course, decide upon the objection you made, that if the map
4 would contain markings related to incidents after August 1994, that we
5 should not admit it into evidence, if I'm correct in my understanding. I
6 would say that, Mr. Ierace, perhaps you may repeat the question to the
7 witness and then stop after we have got an answer from the witness in
8 order to see what next has to be done.
9 MR. IERACE:
10 Q. Mr. Kucanin, in relation to the map that you marked last week, in
11 which you indicated certain sources of sniping fire, do any of the sources
12 of sniping fire established by you and your fellow investigators between
13 September 1992 and August 1994 appear on that map?
14 A. Yes, they do.
15 Q. Are there any sniping positions marked on that map which were not
16 active in terms of targeting civilians according to the investigations of
17 yourself and your fellow inspectors, during the period September 1992 to
18 August 1994?
19 A. You mean which were activated at a later period? Do you mean
20 whether we discovered some new -- identified some new positions?
21 Q. What I'm asking you is if there are any sniping positions on the
22 map, that is, sources of sniping fire, which relate to a different period
23 than between September 1992 and -- I withdraw that.
24 JUDGE ORIE: May I just see whether I can assist you, Mr. Ierace?
25 You made some markings on a map, which I have not seen, about
1 sources of sniping fire. Are there markings on the map of sources of
2 sniping fire that became known to you only after August 1994?
3 THE WITNESS: [Interpretation] No. Those markings are places which
4 I was aware ever since I started conducting those investigations.
5 JUDGE ORIE: So on the basis of your investigations, every single
6 mark on that map relates to a source of sniping fire you identified
7 already during your or your colleagues' investigations prior to or in
8 August 1994?
9 THE WITNESS: [Interpretation] Yes, during this period that we are
10 talking about.
11 JUDGE ORIE: That means up until August 1994?
12 THE WITNESS: [Interpretation] That is correct, yes.
13 JUDGE ORIE: Please proceed, Mr. Ierace.
14 MR. IERACE:
15 Q. Are there any positions marked as sources of sniping fire on the
16 map which were active only before September 1992 and not between September
17 1992 and August 1994?
18 A. No.
19 Q. All right. Now, in relation to the marks that you placed on the
20 map to indicate sources of shelling, in particular, mortars, were all of
21 those positions active sources of such fire between September 1992 and
22 August 1994?
23 A. Yes.
24 Q. Do you base your answer on investigations carried out by yourself
25 and by fellow criminal investigators with the assistance of ballistics
2 A. Yes.
3 MR. IERACE: I ask that the witness be shown the map, which is
4 Exhibit P3658.
5 JUDGE ORIE: Yes, Mr. Piletta-Zanin.
6 MR. PILETTA-ZANIN: [Interpretation] Mr. President, with regard to
7 this map, I'm listening attentively to the debate, and I must remind of
8 the Defence's position that we have not been able to cooperate in studying
9 this map, which is very detailed, and it is -- I do not think that it is
10 presenting the factual situation to this Chamber, and I don't that I
11 premarked map and premarked with such a detailed -- in such a detailed
12 manner should be accepted.
13 JUDGE ORIE: Let me just confer.
14 MR. IERACE: Mr. President --
15 [Trial Chamber confers]
16 JUDGE ORIE: Mr. Piletta-Zanin, may I first ask you: In the
17 transcript it reads that you have not been able to cooperate in studying
18 this map. Could you please explain what you exactly meant by "to
19 cooperate in studying this map."
20 MR. PILETTA-ZANIN: [Interpretation] Yes. No. It is obviously a
21 difficulty. I will rephrase what we were saying. In order to respect
22 fully the principle of equality of arms, we need to see how such a map
23 could be made in the process of its making, so that everybody, including
24 the Chamber. By cooperation, I meant to say to see how this map came
25 about, and we have not been able to participate in this process because
1 this map was marked in a unilateral manner, and we were not able to
2 assist, to be present in the process. Thank you. That is all what I
4 JUDGE ORIE: Mr. Ierace.
5 MR. IERACE: Mr. President, I hand up a copy of a statement dated
6 the 12th of November, 1995, which was disclosed to the Defence on the 9th
7 of May, 2000. A version in Bosnian was disclosed on the 9th of January,
8 2001. And I refer you, Mr. President, to three pages, commencing with the
9 number 70 at the end of the ERN reference. Mr. President, you will see
10 there are three pages that set out by street name the positions which have
11 been placed on the map.
12 JUDGE ORIE: Yes. I think, Mr. Ierace, the objection of
13 Mr. Piletta-Zanin is not perhaps that it is not clear enough, what has
14 been marked and in what detail, but that such detailed maps should only be
15 admitted into evidence if the Defence has been able to attend the marking
16 as such. I think, if I did understand that well, and perhaps after having
17 listened again to Mr. Piletta-Zanin, that this would be a subject to
18 consider until tomorrow morning, but we'd like to hear from
19 Mr. Piletta-Zanin now what additional observation he has to make.
20 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. I am very
21 happy that Mr. Ierace raised this document to explain how this document
22 was done. This document is of the 10th, 11th of November, 1995, and we
23 see that this document, which is the preliminary statement of the witness,
24 it mentions a number of incidents, and I'm giving you the 18th of August
25 1995, 13th of May, 1995, and then I see here, and so on and so forth, and
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 this is document 01039343, which I'm reading, and this map was then done
2 on the basis of information related to a period which clearly came
3 after the period which concerns his Excellency, General Galic. Thank
5 [Trial Chamber confers]
6 JUDGE ORIE: Having heard the submissions of the parties to the
7 issue, the Chamber would prefer to give its decision on this issue right
8 at the beginning of tomorrow morning. On the other hand, I want to make
9 clear to the parties as well that they should prepare both for the
10 situation where the marked map will be admitted in evidence, but also for
11 the situation that a new map should be used for the continuation of the
12 examining of the witness. So then we'll have a bit more time to consider
13 it, and both parties are ready tomorrow morning at 9.00 to proceed.
14 Let me just make one other remark. Mr. Ierace, may I remind you
15 that you used two hours and 40 minutes, even if I deduct a lot of other
16 issues. And apart from that, I don't know whether the recalling of Mr.
17 Harding would be disturbed by the time we used today and the time we
18 expect to use tomorrow morning. Would you please give this some thought
19 so that we do not have unnecessarily to have witnesses wait for long
20 periods of time.
21 MR. IERACE: Mr. President, the latest I heard was that he was
22 planning on travelling back to The Hague tonight. It may be wise if he
23 has sufficient time to delay that until tomorrow night in order to give
24 evidence on Friday. I'll see if that can be arranged.
25 JUDGE ORIE: Yes, but I'd just like you to pay attention to it in
1 order to prevent any unnecessary waiting for the witnesses.
2 Mr. Kucanin, we'll have to stop for this day. Tomorrow morning
3 we'll continue at 9.00 in this same courtroom.
4 We'll adjourn until tomorrow morning, 9.00.
5 --- Whereupon the hearing adjourned at 1.51 p.m.,
6 to be reconvened on Thursday, the 28th day of
7 February 2002, at 9.00 a.m.