Tribunal Criminal Tribunal for the Former Yugoslavia

Page 21518

1 Friday, 21 March 2003

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.21 p.m.

6 JUDGE ORIE: Madam Registrar, would you please be so kind as to

7 call the case.

8 THE REGISTRAR: Case number IT-98-29-T, the Prosecutor versus

9 Stanislav Galic.

10 JUDGE ORIE: Thank you, Madam Registrar.

11 Mr. Piletta-Zanin, welcome in the courtroom again. The Chamber is

12 glad to see that you recovered, at least recovered sufficiently to appear

13 in court again during this week. So welcome, and we wish you -- if

14 there's any need for further recovery, we wish you all the best to that.

15 We have on our agenda for today a number of items.

16 Yes, Mr. Piletta-Zanin.

17 MR. PILETTA-ZANIN: [Interpretation] Mr. President, first of all,

18 thank you for giving me the floor. But before we really begin to deal

19 with our agenda, I would like to ask your permission not to speak -- not

20 to speak for 30 minutes and to not speak on my feet because I believe it

21 is the duty of all lawyers in international law. Because at one point one

22 should know how to assume one's duties. And if you allow me, I will

23 remain silent for 30 seconds. This is the Defence's way of showing our

24 tacit protest before the International Tribunal of the United Nations,

25 protest against what is happening to other people, namely the violation of

Page 21519

1 international law and the fundamental principles in which we and the

2 International Community believe. I therefore ask your permission to

3 remain silent on my feet for 30 seconds.

4 JUDGE ORIE: The Chamber emphasises that everyone is free to

5 express his view on what happens at this moment in the world. At the same

6 time, the Chamber of course cannot prohibit you from being silent and to

7 express yourself in this courtroom. On the other hand, the Chamber feels

8 that this matter is not part of this case and we should separate.

9 Therefore, the Chamber will not give you any permission to do or not do

10 what you ask us. The Chamber considers this a matter which is not to be

11 dealt with at this moment in this court. At the same time, the Chamber

12 supports fully the freedom of expression which does not necessarily mean

13 that at every place one should express its view on that. So therefore,

14 we'll neither give you permission nor are we specifically prohibiting.

15 It's not relevant for this case. Therefore, no decision will be taken on

16 your request.

17 MS. PILIPOVIC: [Interpretation] Thank you, Mr. President. May I

18 ask you perhaps more diplomatically to be patient to bear with me for 30

19 seconds before we begin with our work according to our agenda?

20 JUDGE ORIE: No. It's -- it has got nothing to do with this case.

21 And therefore, as I told you before, the Chamber is aware that people may

22 have strong feelings, may have strong opinions about it, they should be

23 free to express themselves about it, but it's not a matter that should be

24 considered in whatever way, in a negative way or a positive way, in this

25 case in this court. Therefore, we just will proceed with the agenda.

Page 21520

1 On our agenda at this moment is -- let me just have a look --

2 rebuttal evidence, exhibits that are still outstanding on which no

3 decision has been taken, and some of them we still are waiting for a point

4 of view of one of the parties or both parties. One specific exhibit in

5 this respect is the video material that has been tendered recently with

6 three sequences, video material pointed at as coming from the fifth tape,

7 as we call it. And then we have still - that's also part of the

8 outstanding exhibits - specifically the documents related to the testimony

9 of the military expert, where some documents were tendered from the bar

10 table where the Prosecution has expressed itself in a -- in the Radinovic

11 statements, which has been disclosed to the Defence.

12 So I'd first like to go to the rebuttal evidence. The Chamber has

13 received the response from the Defence that was filed yesterday in

14 relation to the rebuttal evidence. May I first ask the Defence whether

15 the Chamber can consider this to be the response, or is there anything

16 that should be added to your written response?

17 MR. PILETTA-ZANIN: [Interpretation] Yes, Your Honour. There will

18 doubtlessly be something to add.

19 JUDGE ORIE: Well, if there's specific points you'd like to add,

20 you can do it now.

21 MR. PILETTA-ZANIN: [Interpretation] Perhaps we could come back to

22 it later. Certain things are very clearly expressed in this document.

23 We don't know whether the Prosecution holds its position still,

24 because in their submission there are certain things that appear to us

25 obviously inadmissible, and perhaps we can make an effort, if the

Page 21521

1 Prosecution tells us that they continue to stand by this position, we

2 could perhaps ask them to clarify whether this is so and if we are perhaps

3 to withdraw some of the elements that we quoted in our submission.

4 JUDGE ORIE: Yes. Mr. Ierace, you have read, I take it, the

5 response of the Defence? There is on -- on almost all of the 92 bis

6 statements is an objection.

7 Do I understand you well, Mr. Piletta-Zanin, Ms. Pilipovic, that

8 your response also covers the viva voce witnesses? Because it says

9 Defence response on Prosecution motion pursuant to Rule 92 bis in relation

10 to rebuttal. Could you please clarify the position of -- it's about Mr.

11 From. I take it that the viva voce witnesses are covered fully or ...?

12 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. But what

13 I would like to say is that I wrote a letter to the Prosecution in one of

14 the languages of the Tribunal, as I'm required, and I still didn't get an

15 answer. One of the things I asked is --

16 JUDGE ORIE: Mr. Piletta-Zanin, may I -- did you want to say that

17 you wrote it in French or did you want to --

18 MR. PILETTA-ZANIN: [Interpretation] Yes, yes.

19 JUDGE ORIE: If you wrote it in French, that's clear. It gives

20 also a clue as to why there might not be an immediate answer. Please

21 proceed.

22 MR. PILETTA-ZANIN: [Interpretation] Because -- because, of course,

23 I can say French. Anyway, I didn't get an answer either in English or in

24 French. I asked the question very clearly; namely, since when this famous

25 logistician was available.

Page 21522

1 THE INTERPRETER: Softwares, interpreter's correction.

2 JUDGE ORIE: Yes. Perhaps we'll hear from that, if we give an

3 opportunity to the Prosecution to respond.

4 Yes, Mr. Ierace.

5 MR. IERACE: Yes, Mr. President. I assume my learned colleague is

6 referring to a letter that the Prosecution received this morning in

7 French. And indeed we were able to have it translated reasonably

8 promptly. I've now known its contents for some two and a half hours. And

9 as I understand it, whereas the Prosecution had offered the Defence

10 yesterday, had renewed its offer to the Defence yesterday to attend a

11 demonstration of Mr. From's software, the essence of the response this

12 morning was to decline the invitation. So I don't know how that

13 correspondence impacts on the remaining issues before the Trial Chamber

14 this afternoon. Thank you.

15 JUDGE ORIE: Yes. Thank you.

16 Mr. Ierace, could you please respond, then, to the submissions

17 made by the Defence in response of your -- of the rebuttal evidence you

18 have applied for -- at least you have applied for leave to present this

19 rebuttal evidence. And I would specifically ask your attention for one

20 issue, where it seems that the photograph and the testimony of Mr. Babic

21 seems to be related to the structure of the school of theology, especially

22 in respect of the number of storeys that existed during the war. It seems

23 from the answer that it's not the Prosecution's case that there -- not the

24 Defence case that there was one story added after the war.

25 MR. IERACE: Yes, Mr. President, I noticed that. The evidence of

Page 21523

1 the relevant witness was that an upper floor of one of the buildings was

2 damaged and he identified the floor as being a third floor of a particular

3 building and he said that it was thus unsafe to travel onto that floor.

4 So that extent, I agree with the Defence. However, the witness went on to

5 say a few pages later that the building, both during the war and pre-war,

6 did not have a fourth floor, that the fourth floor only existed for the

7 first time post-war. And the evidence of the Prosecution witness to be

8 called in rebuttal clearly refutes that. It makes clear that there was a

9 four-storey building in the complex pre-war and that that floor was intact

10 at the end of the conflict and following renovations it continues to have

11 a fourth floor. So that's the direct relevance of it. Thank you.

12 JUDGE ORIE: Yes. The -- Mr. Piletta-Zanin, one of your

13 witnesses, Witness DP4, said -- I'll just take one line out of his

14 testimony, that -- about the school of theology. "So before the war and

15 during the war this part here was only composed of only three storeys, so

16 it was only a three-storey building at that time," which suggests that one

17 floor was added. It does not only suggest it, but since in a previous

18 line he says "it was just right after the war because the convent was so

19 damaged, one floor was added after the war." I now understand from your

20 response that it's not the Defence case that the -- one floor was added to

21 the building after the war. Is that a correct understanding?

22 MR. PILETTA-ZANIN: [Interpretation] Your Honour, I will check this

23 with Mrs. Pilipovic because I didn't quite understand it now.

24 But anyway, I just asked a very precise question of the

25 Prosecution and I didn't get an answer. I wanted to know when this

Page 21524

1 software became available, not only to the public but in specialised

2 agencies, and I wanted this to be made available to us. The Prosecution

3 cannot make a demonstration for us if they don't have basic information,

4 and this is not the first time this is happening.

5 As far as the number of floors is concerned, we will look into it

6 and get you an answer.

7 JUDGE ORIE: Yes.

8 MS. PILIPOVIC: [Interpretation] Your Honours, I'm trying to cast

9 my mind back to this testimony and what I watched. But I think we have a

10 confusion here about the fourth floor. This is actually the third floor,

11 because where I come from the ground floor is not counted. That's the

12 explanation, I think. That's, I think, where the problem lies.

13 JUDGE ORIE: So it's not the position of the Defence that the

14 school of theology was a three-storey building but it was a four-storey

15 building, "four storeys" meaning ground floor, three upper floors?

16 MS. PILIPOVIC: [Interpretation] Yes, and I think we are talking

17 about the third floor all the time. We are not talking about the fourth

18 floor, counting the ground floor.

19 MR. PILETTA-ZANIN: [Interpretation] Mr. President.

20 JUDGE ORIE: That's -- I'm trying to avoid the whole matter by

21 saying a four-storey building, which means four layers above the ground.

22 And when you are talking about the top floor, whether you call it the --

23 MS. PILIPOVIC: [Interpretation] What I'm referring to is a

24 building with a ground floor and three upper floors.

25 JUDGE ORIE: Yes.

Page 21525

1 MS. PILIPOVIC: [Interpretation] Which means four storeys in total.

2 JUDGE ORIE: Yes.

3 [Defence counsel and accused confer]

4 [Trial Chamber confers]

5 JUDGE ORIE: If it would assist the Defence, there is, of course,

6 some other evidence as well that there were four floors. For example, DP6

7 told the Court that the tallest building was the monastery, that is, the

8 faculty of theology, four floors. There is, however, other evidence which

9 says that the tallest part had three floors. So if the Defence says that

10 it's their position that it's not four floors but three, then the

11 Prosecution's request makes sense in respect of the floors. If the

12 Defence position is that there were four floors, I would like to invite

13 the Prosecution to tell us what still is the matter at stake.

14 Yes, please, Mr. Piletta-Zanin.

15 MR. PILETTA-ZANIN: [Interpretation] Mr. President, in my mind it

16 was perhaps both of each because I remember a witness who was saying that

17 part of the building was higher than the rest and the other part of the

18 building was lower than the one he was talking about. So it was not a

19 question of three or four floors. And if we are talking about a building

20 as a whole, we cannot accept that it had three or four floors because in

21 all probability --

22 JUDGE ORIE: No, Mr. Piletta-Zanin, if you look at the material

23 that the Prosecution is offering, there's no way that they want to

24 establish that the whole of the building was four floors. So you're

25 responding to something that is, as far as I understand, not the issue

Page 21526

1 raised by the Prosecution. I think the issue raised by the Prosecution is

2 that the south-facing wing of that building had four storeys.

3 Is that correct, Mr. Ierace?

4 MR. IERACE: Yes, Mr. President.

5 JUDGE ORIE: Yes. Would you please respond to that.

6 MR. PILETTA-ZANIN: [Interpretation] Four floors -- when we say

7 "four floors," we mean four levels. Is this clear?

8 JUDGE ORIE: Yes. Four levels, four storeys, one ground floor,

9 three upper floors; is that the position of the Defence, or is there -- is

10 the position of the Defence one ground floor and two upper storeys?

11 MR. PILETTA-ZANIN: [Interpretation] Acceptable.

12 JUDGE ORIE: So four storeys -- well, acceptable, yes. It's then

13 accepted by the Defence.

14 Mr. Ierace, may I then ask you what's the -- whether there's any

15 use to maintain the photographs which demonstrate the height of the

16 building and the testimony that should establish that both during and

17 after the war the highest part of the building was four storeys?

18 MR. IERACE: Well, Mr. President, as I now understand it the

19 Defence position is that the buildings -- that the highest building in the

20 complex was indeed ground plus three upper storeys. And if that is the

21 case, then there is no longer a conflict in the evidence.

22 JUDGE ORIE: Yes.

23 MR. IERACE: And therefore, I don't seek to call that witness.

24 JUDGE ORIE: Yes. So the -- on the basis of the position of the

25 Defence, the request to call -- to present the statement of Mr. Babic has

Page 21527

1 been withdrawn. Yes.

2 And the same is true, I would take it then, for the photographs

3 related to his statements?

4 MR. IERACE: Yes.

5 JUDGE ORIE: Yes. Could you please respond -- there was a

6 specific issue where it seemed that there was no contradiction between the

7 parties any more. Could you please briefly respond to the other, both 92

8 bis issues and the viva voce witness. I think the first one addressed by

9 the Defence for Berkovac and Bijedic.

10 MR. IERACE: Yes, Mr. President --

11 JUDGE NIETO-NAVIA: I'm sorry, Mr. Ierace. Before leaving the

12 issue of the photographs, I have one photograph here and I would like to

13 be sure which part of the building is depicted. It's the one 600, the one

14 that shows the four-storey building. Which part is that?

15 MR. IERACE: Your Honour, I'm just trying to identify which

16 photograph 600 is. The photographs I have contain ERNs -- excuse me.

17 [Prosecution counsel confer]

18 MR. IERACE: Thank you.

19 JUDGE NIETO-NAVIA: It says "building 1."

20 MR. IERACE: Yes.

21 JUDGE NIETO-NAVIA: I would like to know which part is the north,

22 south, east, west, or south-east or south-west. I don't know.

23 MR. IERACE: Yes. Unfortunately, Your Honour, the contents of the

24 statement don't make that clear. There's no comment in the statement as

25 to the position of the buildings, in terms of north, south, east, and

Page 21528

1 west, I don't think. The buildings are identified by the -- otherwise by

2 the reference at the top of each -- above each photograph, in this case

3 "building 1" corresponds to paragraph 19, so it would seem.

4 JUDGE NIETO-NAVIA: So you don't know.

5 MR. IERACE: No.

6 JUDGE NIETO-NAVIA: Thank you.

7 JUDGE ORIE: Yes. Then could you please, apart from the Babic

8 statement and the photographs of the school of theology, could you please

9 briefly respond to the other suggested rebuttal evidence in view of the

10 response of the Defence.

11 MR. IERACE: Just give me one moment, Mr. President.

12 JUDGE ORIE: Yes.

13 MR. IERACE: Mr. President, in relation to the Defence arguments

14 which are advanced in respect of those two witnesses, the Defence, I note,

15 at one point indicates that it would be appropriate to question the

16 witnesses if they were called in a way that suggests beyond the strict

17 issue in respect of which they would be called. It's my submission that

18 that involves a misunderstanding of the purpose of rebuttal evidence. The

19 Prosecution is limited quite strictly in calling witnesses in rebuttal.

20 They -- I notice my learned colleague is on her feet.

21 JUDGE ORIE: Yes.

22 MS. PILIPOVIC: [Interpretation] I apologise. I would just like to

23 be able to follow which two witnesses are concerned. I am not sure which

24 witnesses are in question. Perhaps I wasn't following carefully enough.

25 JUDGE ORIE: I suggested --

Page 21529

1 MS. PILIPOVIC: [Interpretation] Is it Mr. Berkovac and

2 Mr. Bijedic.

3 JUDGE ORIE: I suggested to the Prosecution to follow the order

4 you have in your response, and that's Berkovac and Bijedic.

5 Yes.

6 MR. IERACE: So Mr. President, that's the first observation I make

7 the --

8 JUDGE ORIE: May I ask you one question directly in respect of

9 that. So you do interpret Rule 90(H) to in this respect, that if we are

10 talking about rebuttal evidence, that cross-examination is limited to

11 anything that's of importance to the Defence own case only to the extent

12 that it would be admissible in rebuttal. That means that they are not

13 entirely free to elicit from a rebuttal testimony -- or from a rebuttal

14 witness all information for their case but it should be limited to

15 material that would be admissible as rebuttal evidence for the Defence.

16 MR. IERACE: Precisely, Mr. President.

17 JUDGE ORIE: Yes.

18 MR. IERACE: It should be confined strictly to that -- that one

19 issue or at least those issues which arise properly as rebuttal -- as

20 rebuttal issues.

21 JUDGE ORIE: Yes. That's clear. Please proceed.

22 MR. IERACE: In relation to paragraph 21, the Defence argues that

23 the issues involved are so closely connected to the role of the accused as

24 to offend the constraints of Rule 92 bis. Mr. President, I would dispute

25 that. The issue is in effect the positions of weaponry and other military

Page 21530

1 installations, and therefore the positions of what, in one sense, might be

2 legitimate military targets. In my respectful submission Rule 92 bis is

3 not affected by that, in terms of its application to this particular set

4 of facts.

5 Moving on, Mr. President, at paragraph 22 the Defence more

6 particularly focuses on the proposed evidence of Witness Berkovac, and I

7 note in passing there appears to be a reference to an intent, if he was

8 called, to go beyond the issue. But I think we've dealt with that.

9 Mr. President, I should say that the relevance of the evidence

10 also extends to having regard to the content of the statements, whether

11 there were signs that the military facilities were indeed targeted in any

12 event; in other words, whether it's consistent with the hypothetical

13 theory that these were the targets and not Kosevo Hospital.

14 Mr. President, unless you want to hear further from me in relation

15 to those two witnesses --

16 JUDGE ORIE: No. Perhaps if you -- perhaps it's very practical if

17 we immediately put questions to you in respect of this.

18 As far as my recollection goes, it has always been the Defence

19 case that if civilians were hit, that it was always a -- well, to say

20 stray bullets or collateral damage of targeting military targets at least.

21 That has been one of the central issues I noticed in the Defence case and

22 it has been put to, I would say, almost all, if not all, the Prosecution

23 witnesses. Is there any reason why the Defence -- why the Prosecution has

24 not presented any evidence as to the military targets they considered to

25 be in existence and therefore excluding in that view the possibility of

Page 21531

1 targeting military targets rather than civilians? I mean, it has been the

2 central issue. Of course, one of the ways to establish that you're

3 targeting civilians is to precisely point out that it was civilians that

4 were hit. But on the other side, you could also establish that there were

5 no or only a very limited number of military targets around, so that that

6 could not explain civilians to be hit. What's the reason why the

7 Prosecution comes up with this issue in rebuttal rather than already in

8 its -- in the presentation of its case?

9 MR. IERACE: Well, Mr. President, I think really there are two

10 questions that you've posed to me. The first is to partly use your words

11 why has the Prosecution not presented any evidence as to the military

12 targets they considered to be in existence? In response to that question,

13 the Prosecution called General Karavelic, who gave evidence in

14 cross-examination as well as evidence in chief of the positioning of

15 various military facilities in Sarajevo. There was similar evidence given

16 by General Hadzic. So Mr. President, with respect, I don't think it's

17 entirely correct to say that there has been no evidence called in the

18 Prosecution case.

19 JUDGE ORIE: No. Perhaps I should -- I should be more precise to

20 say why no evidence has been presented specifically on these issues. I do

21 agree with you that it can't be said that the Prosecution did not present

22 any evidence as to military facilities, which could be military targets,

23 but not specifically as far as I -- as my recollection goes in relation

24 to -- to incidents to say as far as this incident is concerned there were

25 no military targets just around. I mean, it's rather in the positive way

Page 21532

1 to say here were military facilities and therefore they could be

2 considered as military targets but not specifically on the absence of

3 military targets around places where -- where the Prosecution claims

4 Defence -- civilians were hit, either by shelling or by sniping.

5 MR. IERACE: Yes. In relation to the sniping incidents,

6 Mr. President, the incidents -- the evidence surrounding the particular

7 incidents preclude that as a plausible explanation. In other words, the

8 evidence will typically be that there was one shot, that there was not the

9 indicia of outgoing fire from that area at the time, there were

10 not -- there was no military activity occurring in the vicinity as to

11 where the person was shot, there were not people carrying weapons in that

12 area at the time, there were not military vehicles in that area at the

13 time, the weather was clear so as to preclude any difficulty of

14 visibility, that sort of thing.

15 So Mr. President, the Prosecution takes the view that it's not

16 essential to lead evidence of what military facilities may have been

17 nearby. If I could perhaps illustrate that with a hypothetical example:

18 If one -- perhaps as an example, number one, the unscheduled first

19 incident -- takes that as an example, what difference would it make if it

20 happened that there was a brigade headquarters immediately behind the

21 victim in terms of a line of sight. Her evidence was that there was no

22 one on the streets at the time, there was no one nearby, that the person

23 who attended her when she was wounded came from a nearby building. Her

24 evidence was also that there was no sound of any firing whatsoever, that

25 eerily quiet because of the earlier broadcast radio message. So if there

Page 21533

1 would have been even a brigade headquarters a matter of metres away, it

2 would in no way have excused her shooting, a woman wearing a dress, not

3 carrying weapons, passing down the street. In other words, the

4 hypothetical existence in this example of brigade headquarters is against

5 the background of dual-use streets, if you like, a dual-use area, military

6 and civilian. The Defence, and indeed a commander in that situation, is

7 not excused if civilians are hit deliberately or recklessly. So

8 Mr. President, that's the short answer to it.

9 In relation to the scheduled shelling incidents, there has also

10 been explanation of what military facilities were nearby. You may recall

11 for instance, as an example of course, in relation to the Markale a number

12 of witnesses were asked by the Prosecution in chief in the Prosecution

13 case whether they were aware of any facilities in that area. And the same

14 applies to the other scheduled shelling incidents.

15 In relation to unscheduled shelling incidents there has been some

16 evidence of some military facilities in the vicinity in relation to the

17 Alipasino Polje incidents of the -- I think it was the 9th and 10th of

18 November is, 1993. I do not suggest that that evidence in any way

19 absolves those responsible of responsibility; in other words, those who

20 carried out the actions of criminal responsibility. I simply point to in

21 that particular instance some evidence of military facilities nearby.

22 So Mr. President, I hope that answers your -- your question.

23 JUDGE ORIE: Yes, to some extent. Because what you explained to

24 us is that you -- that the Prosecution, as far as the presence or the

25 absence of military facilities were concerned or military targets,

Page 21534

1 military activity, has led evidence mainly by those who were at these

2 places and observed no military activity or no military facilities. And

3 now I would say it's a more technical presentation that you are seeking

4 now.

5 MR. IERACE: Yes.

6 JUDGE ORIE: I mean, if you say that we sufficiently established

7 that, aren't you reinforcing your case by having these military

8 professionals to support what these mainly civilian people observed?

9 MR. IERACE: I understand your question, Mr. President. You may

10 recall that there was a pattern repeated almost without exception in the

11 cross-examination of Prosecution witnesses by the Defence whereby a list

12 of names would be rattled off to the witness and they would be invited to

13 respond if the names meant anything to them. In that fashion - and I'm

14 not being critical - the Defence elicited from each witness what knowledge

15 they might have of the existence of various brigades, battalions,

16 headquarters, paramilitary units, and so on. In that fashion, they sought

17 to, as I understood it, obtain what evidence they could from Prosecution

18 witnesses of the places of various legitimate military targets, otherwise

19 legitimate, in the city. When, however, it came to their case, they

20 called witnesses - and I think the second witness from recollection was a

21 prime example, someone who was familiar with the area immediately to the

22 south of Kosevo Hospital - to indicate with great specificity, including

23 the names of streets, the appearance of buildings, particular headquarters

24 of local units. That had not been put to General Karavelic and at a bare

25 minimum it should have been. So we then had, for the first time and with

Page 21535

1 no warning, evidence of what appeared to be significant military

2 facilities within close proximity of Kosevo Hospital. That is why it

3 arose and that is how it arose for the first time without warning.

4 Now, in response, the Prosecution, through its investigators, has

5 made relevant inquiries, and in some respects, I should say, this further

6 evidence on one level is of assistance to the Defence, having been given

7 this information and making relevant inquiries, the Prosecution is able to

8 confirm that some of the -- some facilities of that nature did exist in

9 the general area of Kosevo, not all and not to the same extent. But given

10 this information for the first time, those inquiries are, unfortunately,

11 made for the first time in the Defence case. Had it been put to

12 General Karavelic, those inquiries would have been made in the Prosecution

13 case if indeed they were needed, because of course General Karavelic could

14 have responded on the spot in the witness box.

15 So Mr. President, that's the background to that.

16 JUDGE ORIE: Yes.

17 MR. IERACE: And I -- as I've indicated earlier, it of course

18 doesn't then -- there remain other issues of fact, such as whether they

19 were indeed targeted, those military facilities and whether that assists

20 the Defence in terms of explaining any fire received at Kosevo Hospital.

21 But I won't go into that.

22 JUDGE ORIE: Yes. Whether the Defence feels assisted by your

23 offer of rebuttal evidence from the response, I do not feel --

24 MR. IERACE: No.

25 JUDGE ORIE: -- That they agree with you.

Page 21536

1 Mr. Piletta-Zanin.

2 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President, very

3 briefly. We would like to thank the Prosecution for attempting to assist

4 us in this manner, but we do not share their point of view for the simple

5 reason that when we examined --

6 JUDGE ORIE: [Previous interpretation continues] ... It's clear

7 that you do not share their view. So if there's any --

8 MR. PILETTA-ZANIN: [Interpretation] I hope that it's clear,

9 Mr. President.

10 JUDGE ORIE: So --

11 MR. PILETTA-ZANIN: [Interpretation] But as far as Karavelic is

12 concerned, what we want to say in clear terms - because we are being

13 reproached with not having questioned Karavelic in detail, in sufficient

14 detail - when we are asking -- when this witness was asked a series of

15 questions, he was subject to amnesia, he no longer knew whether there were

16 any tanks or whether there were any heavy weapons, he didn't know anything

17 any more. So why question a witness who is not prepared to answer?

18 That's my first point.

19 And the second point is that the Defence is examining and will

20 inform very soon this Trial Chamber the possibility of submitting a motion

21 so that this witness is accused of perjury because we think that a chief,

22 a corps commander, cannot be unaware of the number of heavy weapons he has

23 in such a situation. The responses he provided are being examined in

24 detail, and perhaps we will intervene again to ask for article -- for Rule

25 91 to be applied.

Page 21537

1 JUDGE ORIE: I do not -- I must be quite honest. I do not

2 understand your last remark. Rule 91 being to ask witnesses not to -- to

3 tell witnesses not to lie? Is that -- let me just have a look.

4 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President.

5 JUDGE ORIE: I do not -- at this moment I do not see that as any

6 request for Mr. Karavelic to be -- to be examined.

7 MR. PILETTA-ZANIN: [Interpretation] No. I said that -- no,

8 Mr. President, I said that the Defence counsel is in the course of

9 examining the possibility of following procedure before your Trial Chamber

10 so that this witness who obviously did not say the truth, something should

11 be -- some measures should be taken against him. And I am quoting Rule

12 91, which has to do with false testimony before the Trial Chamber. That's

13 another matter that I just wanted to inform you of this in advance.

14 JUDGE ORIE: Yes. An observation that that's another matter.

15 Then the next question would be the witnesses Vladimir Sisic, and

16 Vahida Makic. That is, I would say, the mosques. Mr. Ierace, would you

17 please response to the response of the Prosecution -- of the Defence.

18 MR. IERACE: Yes, Mr. President. I find the argument of the

19 Defence in relation to these two witnesses perhaps a little

20 self-contradictory. But in any event, the evidence became relevant -- I

21 withdraw that.

22 As I've indicated in my written explanation, there was peripheral

23 reference to this issue in the Prosecution case, quite peripheral. And in

24 the Defence case it became a matter of constant questioning of

25 Prosecution -- of Defence witnesses as to whether they were aware of

Page 21538

1 mosques being damaged.

2 Looking at the arguments of the Defence, the -- at paragraph 31

3 the Defence submitted that the statements mention facts which go to proof

4 of acts and conduct of the accused. Well, strictly speaking, the issue

5 was whether mosques had been damaged. That was the way in which it

6 initially arose in the Defence case. But the Defence went on to elicit

7 evidence from witnesses that mosques had not been targeted by forces of

8 the accused. The basis of relevance offered by the Defence was

9 whether -- was a matter of consistency, given the accused wasn't charged

10 with those matters, the Defence argument was one would expect mosques to

11 be at least damaged and one might infer if indeed not targeted if there

12 was a campaign in existence to target civilians.

13 Now, Mr. President, the evidence in rebuttal makes clear that in

14 those two examples mosques were damaged and indeed, in one instance, were

15 targeted. If the Trial Chamber takes the view, if you take the view,

16 Mr. President and Your Honours, that there is too close a nexus between

17 these acts and the accused, thus requiring him to be called, then we could

18 do that, we could call each of those two witnesses.

19 In relation to the mosque in the area of Dobrinja and Nedzarici,

20 I think there were a series of witnesses. I think in my explanation I

21 referred to two, there were others as well, who were specifically asked

22 about that mosque, whether that mosque was damaged. And so it takes on

23 particular significance. Thank you.

24 Do you wish me to go on to the next witness, Mr. President?

25 JUDGE ORIE: I'm just trying to verify whether I understood the

Page 21539

1 parties well. You, Mr. Ierace, said the Prosecution did not consider the

2 damage or even destruction of mosques of great relevance. It was just a

3 peripheral matter for you. And you're now offering this evidence in

4 rebuttal because the Defence, by repeatedly asking questions about damage

5 done to mosques, has given it a different type of relevance and that

6 relevance would be that if you -- if you attack Muslim civilians, not just

7 by mistake but as a system, systematic way, then you would not -- you

8 would also attack mosques. It's not well understandable that you do

9 attack the Muslims systematically and do not attack their mosques.

10 Is that a correct understanding of the Defence position and also a

11 correct understanding of the reason why you want to present this evidence

12 in rebuttal?

13 MR. IERACE: Indeed -- Mr. President, they're not my words.

14 They're the words of --

15 JUDGE ORIE: No, Mr. Ierace, please.

16 MR. IERACE: They're not my words. They're the -- they're a

17 paraphrasing of the words of the Defense when the issue was first

18 deliberated upon by the Trial Chamber. And I think I give the page

19 reference in the -- in my written explanation. Thank you.

20 JUDGE ORIE: Mr. Piletta-Zanin.

21 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. There is

22 a matter which is in dispute, a matter of contention between us. But what

23 we want to emphasise is that it's not quite true to say that this wasn't

24 included in the indictment with regard to the charges levelled against

25 General Galic. I think that in the indictment it mentions a campaign that

Page 21540

1 was either inherited or implemented by General Galic and the objective of

2 this campaign was to hit very symbolic buildings such as museums,

3 historical buildings, et cetera. And it is obvious that if one is opposed

4 to a people called the Muslims, then it is obvious that the monuments that

5 express the identity and culture of this people, so religious buildings,

6 it is obvious that they will necessarily be included in the indictment.

7 If the Prosecution didn't think of clarifying this point in the course of

8 its case, well, that's not the Defence's problem. The Defence says this

9 and it has proved the fact that the mosques in Sarajevo with a few

10 exceptions due to firing errors, we claim that mosques were not targeted,

11 and this is an element of proof indicating that there was no campaign.

12 That is our position.

13 JUDGE ORIE: Yes, that's clear. Thank you.

14 Then let's move to the next -- well, the next one in the response

15 of the Defence is the Babic statement, which seems not --

16 MR. IERACE: I think we've dealt with that one.

17 JUDGE ORIE: Yes, we've dealt with that one. Then we have --

18 MR. IERACE: Linda Patrick in the process.

19 JUDGE ORIE: Yes.

20 MR. IERACE: Mr. President, in relation to Professor Zecevic,

21 Mr. Stamp will deal with that. But before I hand over to him -- might I

22 just note for the record that as I understand it, this is the first time

23 the Defence has suggested that mosques in Sarajevo were indeed hit, and I

24 quote the words appearing at page 23, line 9, "due to firing errors."

25 Thank you.

Page 21541

1 JUDGE ORIE: Yes.

2 MR. PILETTA-ZANIN: [Interpretation] Mr. President, Mr. President,

3 Mr. Ierace is very artful. He said that although this wasn't targeted,

4 there were traces. Obviously there were. Sarajevo was a city at war and

5 it's quite probable that there were certain holes, certain bursts on the

6 walls. The Defence counsel can't know what the state of all the mosques

7 were. We can't say that bullets never hit a certain wall, the wall of a

8 mosque, et cetera. That's obvious. We shouldn't be -- words shouldn't be

9 put in the mouth of the Defence, and certainly not in this manner. It's

10 not very agreeable.

11 JUDGE ORIE: Yes. You have explained your position on this issue.

12 Then, Mr. Ierace, we come to -- we'll not deal with Dr. Zecevic at

13 this time but Jonathan Tait-Harris, and Ademir Hadzismailovic.

14 MR. IERACE: Yes, thank you, Mr. President. In relation to

15 Jonathan Tait-Harris, the first part -- I withdraw that. I notice

16 Mr. Piletta-Zanin is on his feet.

17 MR. PILETTA-ZANIN: [Interpretation] Mr. President.

18 JUDGE ORIE: Yes.

19 MR. PILETTA-ZANIN: [Interpretation] I'm sorry to interrupt, but

20 again the transcript is very liberal, as far as the English booth is

21 concerned. I said a moment ago it was very important that I say it again.

22 It's possible that hits were made not only against mosques but also

23 against churches. It doesn't appear in the transcript, and it's

24 important. A bullet could have hit a mosque, a synagogue, or a church,

25 and I think this has to be made very clear.

Page 21542

1 JUDGE ORIE: Yes. That's clear. One of the reasons,

2 Mr. Piletta-Zanin, why it might be difficult to have everything in the

3 transcript is also the speed of speech. And I know that we are all

4 violating now and then. But a slower speed of speech certainly will make

5 the task -- the very difficult task of those who have to transcribe the

6 hearing and to translate whatever has been said at least a little bit less

7 difficult, as it is not easy.

8 Yes, Mr. Ierace.

9 MR. IERACE: Mr. President, the first part of Jonathan

10 Tait-Harris's proposed evidence is dealt with at paragraph 50 of the

11 Defence response, and the response of the Defence is to claim that they

12 have "proved," and I quote that word, indeed I'll quote the rest of the

13 sentence "proved that these are authentic SRK documents through its

14 witnesses," and then mentions some witnesses, including Dr. Radinovic.

15 And concludes, "The statement of this witness is not relevant for a

16 decision of the Trial Chamber in present case."

17 Mr. President, this material becomes relevant for the first time

18 in rebuttal because one was entitled to expect that the Defence would

19 establish the authenticity of these documents that it sought to tender in

20 its own case. Indeed, it could not do it during the Prosecution case. It

21 had to be done during the Defence case. But did we hear a witness say "I

22 found these documents in this place," "this is how they were stored since

23 1994 or 1995"? No, we did not. The Prosecution has consistently

24 maintained its position throughout that accepting the broad parameters

25 which apply in this Tribunal the documents would be admitted subject to

Page 21543

1 the issue of weight and that we did not accept that they had been

2 authenticated but we would take whatever steps we could to satisfy

3 ourselves that they were authentic. So it's relevant to that issue of

4 weight. It could not be done in the Prosecution case. It could only be

5 done in rebuttal. And it rebuts in effect, to put it in a strict context,

6 evidence in the Defence case which tends to suggest the documents are

7 authentic.

8 Coming to --

9 JUDGE ORIE: May I ask you one question in that respect: If it is

10 your position that the source of at least many of these documents is

11 rather vague or unclear, would -- first of all, the question is whether it

12 would be the Prosecution's task to establish that it's unclear where -- or

13 is it in your view the task of the Defence to establish that the source of

14 these documents is clear? And that leads me to the second question, that

15 is: Do you consider the evidence you suggest to present of assistance to

16 make clear to the Chamber that the sources are unclear, or would that be

17 clear enough without such evidence?

18 MR. IERACE: Yes. Mr. President, in response to the first

19 question, it is incumbent upon the Defence and the Defence alone to

20 sufficiently establish the authenticity, if you like the antecedents of

21 the documents. The reason that we lead this evidence of what the

22 Prosecution has done in that regard is, in one sense, an exercise in

23 completing the story, because if this was not done, then the Trial Chamber

24 might reasonably or perhaps -- at least, I could take out "reasonably," --

25 might conclude on the state of its present knowledge that there was the

Page 21544

1 imparting of relevant information at the meeting that took place between

2 investigators, and of course that was made aware to the Trial Chamber. So

3 the onus rests squarely with the Defence. This makes clear that nothing

4 further was open to the Prosecution and that doesn't shift the onus.

5 In relation to the second question - might I just refresh my

6 memory on that one-

7 JUDGE ORIE: I think your answer covered more or less both

8 questions or ...

9 MR. IERACE: Yes, I think it does, Mr. President. And indeed,

10 Mr. Radinovic in his report commented that the documents had been

11 dispersed.

12 Mr. President, just in relation to that, I don't know if it's of

13 assistance to the Trial Chamber at this stage - I think we have said it in

14 the past - that in particular where the documents assist the Defence,

15 unless they're authenticated, they should not attract any significant

16 weight. Thank you.

17 JUDGE ORIE: Thank you.

18 Mr. Piletta-Zanin, in your response in this -- on this part, am I

19 right that the issue of to what extent authentication has been offered,

20 has been dealt with as complete as possible? Because I do read that you

21 say, well, for -- that some witnesses have identified certain documents.

22 I take it that you're specifically referring to -- to witnesses who say I

23 recognise this document, I drafted it myself or I signed it or whatever,

24 but I know it, and it's -- I think you also referred in your response

25 to -- well, what seems to suggest an authentication by your military

Page 21545

1 expert. Is that correct and could you explain more specifically what you

2 understand by authentication by your military expert, since it is my

3 recollection that very often documents are used or produced without a

4 clear origin of it mentioned.

5 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. The

6 problem of the collection of documents was covered by several witnesses.

7 The knot was untied. Some documents were scattered all over the place,

8 and I cannot make a judgment on this but I can establish even now that

9 what the Defence actually did when making efforts to adduce this evidence

10 is rather important.

11 Now, when we considered useful to ask everyone who had any

12 knowledge about these facts their opinion of the authenticity of these

13 documents. So the witness sometimes said "I know the person who signed

14 it," or "this is the format in which documents were usually drafted and I

15 can confirm it's authentic." On the other hand, the military expert had

16 said that he had had opportunity to review all these documents. He had

17 access to dozens of binders containing such documents.

18 Secondly, based on his career and his military competences, he was

19 in a position to know whether a certain order was an order which was

20 formally acceptable or adequate in legal and formal terms. He was able to

21 compare orders between them, and he could ascertain whether a certain

22 order was the usual format that was issued within a certain corps or

23 brigade. Secondly, after this internal comparison, the military expert

24 gave a very precise opinion on these documents. This question will come

25 up again, and we will deal with it again when we talk about the military

Page 21546

1 experts.

2 JUDGE NIETO-NAVIA: [Interpretation] Page 8, 28 line 8 it said

3 that the --

4 MR. PILETTA-ZANIN: [Interpretation] I'm sorry, I don't have the

5 same numbering because I again stopped my computer and in fact I said

6 really that the corps was disbanded. Thank you, Honourable Judge. The

7 corps simply disappeared as some sort of military organisation.

8 JUDGE ORIE: Yes. That's a clear position from the Defence.

9 Mr. Ierace, then we have Mr. From.

10 MR. IERACE: I think, Mr. President, before we get to that there's

11 the part of Jonathan Tait-Harris's statement that relates to Witness G.

12 JUDGE ORIE: Yes.

13 MR. IERACE: And the argument of the Defence is that, as I

14 understand it, that if the -- firstly, that the medical certificate is not

15 an appropriate way to introduce the -- in effect the evidence of the

16 doctor. And I frankly say to the Trial Chamber that indeed there should

17 be a witness statement, but given the time constraints unfortunately we

18 couldn't go back and obtain a witness statement from the doctor. But as

19 I've indicated in the written explanation, the doctor is available for us

20 to call him as a witness.

21 Mr. President, the Defence argument in relation to this issue

22 generally as a rebuttal issue - and that, of course, includes the

23 photographs of back of Witness G - overlook the fact that the witness

24 offered to bare his back in the court and show the precise positions of

25 the wounds. They did not ask him to do that on cross-examination.

Page 21547

1 JUDGE ORIE: Mr. -- Yes, Mr. Ierace. It's my recollection that

2 when he offered to do so that you said it's not necessary.

3 MR. IERACE: No, that's --

4 JUDGE ORIE: Yes.

5 MR. IERACE: No, I'm not seeking to be clever here, Mr. President.

6 That was in chief.

7 JUDGE ORIE: Yes, it was in chief, yes.

8 MR. IERACE: And listening to that, the Defence would have well

9 understood that when it came their turn later in the evidence if they had

10 wanted to see those wounds, they could have asked him to go that extra

11 step and reveal where the wounds were on his back. That's my point.

12 JUDGE ORIE: Yes.

13 MR. IERACE: And when I said those words to him "no, it's not

14 necessary" that is because I reasonably understood it was not an issue.

15 And --

16 JUDGE ORIE: No. We don't have to spend too much time on that,

17 but --

18 MR. PILETTA-ZANIN: [Interpretation] Mr. President.

19 JUDGE ORIE: Yes.

20 MR. PILETTA-ZANIN: [Interpretation] At this point I'm falling off

21 my chair because in this case we're only talking about knowing what's left

22 and what's right. Carefully looking at the file and God knows how many

23 people are in the Prosecution team to do this, would have permitted us to

24 establish facts. So we cannot say to someone, "Look, here is the right

25 and here is the left." This is something that the Prosecution team should

Page 21548

1 have done. They had enough elements to do that, and they could have shown

2 the witness's back if they wanted to. And now it's a bit too late to do

3 that.

4 JUDGE ORIE: Yes. You say the Prosecution could have pointed at

5 the contradiction between -- yes, the Defence could have done the same.

6 That's -- we have a report and we have a witness who stated where it was.

7 We are now in a position where we have to decide whether any rebuttal

8 evidence will be heard.

9 MR. IERACE: Mr. President.

10 JUDGE ORIE: Yes.

11 MR. IERACE: I haven't yesterday responded to that part of the

12 Defence argument in -- that is the --

13 JUDGE ORIE: Yes.

14 MR. IERACE: The left-right business. Repeatedly during the

15 Prosecution case I raised the issue of the Defence not complying with its

16 obligation to put its case where it contradicted the witness's evidence.

17 Lead counsel for the Defence speaks as her native tongue and reads B/C/S.

18 If the Defence was of the view that the relevant part of the medical

19 report clearly indicated a left-right trajectory which was inconsistent

20 with their case, that should have been put to the witness, and it wasn't,

21 in spite of repeated warnings in relation to that rule. It, therefore,

22 emerged for the first time in the Defence case, and the Prosecution has

23 responded appropriately. Thank you.

24 JUDGE ORIE: Yes.

25 MR. PILETTA-ZANIN: [Interpretation] No, Mr. President, I do not

Page 21549

1 agree because the Prosecution focuses -- the Defence focuses its efforts

2 toward what is appropriate and it's not up to the Defence to do this job,

3 and the Defence does not have the material resources to examine all the

4 details. It was only much later that the Defence was able, with the

5 assistance of its experts, to examine certain points and --

6 JUDGE ORIE: We don't have to fully debate this issue,

7 whether -- I noticed that, at least during the presentation of the

8 evidence and the cross-examination the matter was not identified -- the

9 issue was not identified at this moment.

10 Then any more about Mr. Tait-Harris, apart from Witness G?

11 MR. PILETTA-ZANIN: [Interpretation] Mr. President.

12 JUDGE ORIE: Yes.

13 MR. PILETTA-ZANIN: [Interpretation] Just one thing that I would

14 like to add with regard to Mr. Radovic [as interpreted], with your leave.

15 It's -- the witness mentioned a minute ago. No, it's not necessary.

16 Thank you.

17 JUDGE ORIE: Yes. Mr. Ierace, any further issues in relation

18 to --

19 MR. IERACE: Mr. President, there was a further issue covered in

20 the statement of Mr. Tait-Harris, but I don't know that the Defence has

21 responded to it, and that was the nature of the terrain between the school

22 of theology and the area approximate to, I think it was incident 23.

23 JUDGE ORIE: Yes, it was the --

24 MR. IERACE: And I must say in relation to that issue,

25 Mr. President, whilst indeed there was a witness who said it was open

Page 21550

1 terrain, thereby I think suggesting that there was no opportunity for a

2 sniper to operate closer to the front line. In fairness I should point

3 out that there were some other Defence witnesses who is said there was

4 indeed cover there. They didn't use that word but they referred to houses

5 and to trees. And so I -- I couldn't suggest that the unequivocal Defence

6 evidence was that there was no cover. And if you did not -- if you were

7 against the Prosecution in terms of that as being rebuttal evidence, the

8 Prosecution at least has other Defence evidence it could point to in

9 relation to that issue.

10 JUDGE ORIE: This is not a real withdrawal of this aspect, or is

11 it? Or is it just a relativation of the importance of this issue?

12 MR. IERACE: There's a conflict in the Defence evidence, and that

13 makes it a little difficult, I think, to -- for the Prosecution to

14 determine whether we are obliged to refute it, that is, refute the

15 evidence of one of their witnesses when other witnesses take a different

16 view. Ideally we would call that evidence, but given the constraints

17 which are upon all of us, should the Trial Chamber decide that we cannot

18 call that evidence, then I would say nothing further.

19 JUDGE ORIE: Yes. Is there any response specifically in this

20 respect, Ms. Pilipovic or Mr. Piletta-Zanin?

21 MR. PILETTA-ZANIN: [Interpretation] Mr. President, the stance of

22 the Defence being that there had never been snipers outside this building.

23 Everything else follows as a castle of cards. The thing with this witness

24 is again another difficulty for the Prosecution.

25 JUDGE ORIE: Yes. Then Mr. Ierace, the next issue is --

Page 21551

1 MR. IERACE: Yes, Mr. From.

2 JUDGE ORIE: Yes.

3 MR. IERACE: Mr. President, the nature of his evidence, his

4 anticipated evidence, could be neatly divided into two aspects, the first

5 being the so-called line of sight rebuttal evidence. In relation to that,

6 the Defence argument appears to be, looking at paragraph 57, that it's not

7 possible to establish lines of sight from these maps because they do not

8 contain the data of building heights, tree densities, and so on.

9 Now, Mr. President, I don't think we've disclosed a copy of

10 the -- these maps other than for incident 24, which was one of the Jewish

11 cemetery incidents. And I think the Prosecution disclosed to you at that

12 stage, as we disclosed to the Defence, a graph and a map, and that is the

13 type of evidence that we're talking about in relation to these five other

14 incidents.

15 So my first point is, in response to the Defence argument, that

16 the essential aspect of this evidence is, if you like, the graph showing

17 the fall of the land between the suspected source of fire and the position

18 of the victim. And in relation to incidents 4, 9, and 14, in particular

19 in relation to incident 4, Witness G at least, one will note that the land

20 falls away very steeply from the source of fire. So one certainly in that

21 case doesn't need to know the heights of buildings, because there weren't

22 any. There's no evidence there were any in between. The suggestion by

23 the Defence was there were orchards and forests at the time, and the fall

24 of the land is of assistance to the Trial Chamber in determining whether

25 that, assuming that there were such things, that that would have indeed

Page 21552

1 been an obstruction to the line of sight.

2 In relation to incident 24, there is indeed some evidence as to

3 the height of the chapel in the cemetery, and that was the relevant aspect

4 there. You may recall I put to the witness there was a 40-metre

5 difference between the chapel at ground level and his position, and the

6 map made clear there was a direct line of sight between his position

7 through the chapel to the site of the -- where the victim was hit and

8 therefore whether the chapel was beneath the line of sight was relevant.

9 So Mr. President, my basic position is the Defence argument

10 doesn't really respond to the relevant aspect of the Prosecution evidence

11 for category 1. Category 2 is not evidence in rebuttal. And that's

12 the -- the maps which are now possible with software which has been

13 available to us since November 2002, and that software allows the

14 measurement of distances more conveniently on the maps with a ruler

15 because they contain a scale.

16 JUDGE ORIE: May I ask you one question in this respect.

17 MR. IERACE: Yes.

18 JUDGE ORIE: You say it's available to us since November 2002.

19 MR. IERACE: Yes.

20 JUDGE ORIE: That can mean two different things. The first is

21 that it's on the market since November 2002; it also can mean that you

22 bought it in November 2002 but it was on the market already for ten

23 months. Could you explain more clearly what it means "available to you,"

24 on the market or in your office?

25 MR. IERACE: Mr. President, in our office. The mapping people

Page 21553

1 purchased that software, it became available to them in November 2002. I

2 don't know when it first came on to the market. And it was with the

3 arrival of that software that it was possible to do these additional

4 features, such as graphs, and I first made the Trial Chamber aware of it

5 in the second half of November, I think towards the end of November; in

6 other words, within a few weeks of it coming into the office.

7 Thank you, Mr. President. I should add, if you need to be aware

8 of it, that there have been some difficulties in providing these maps

9 earlier than we have to the Defence. We provided the Defence with a

10 complete set on Wednesday, another set earlier in the week, and those

11 difficulties are of -- they're to do with a combination of factors, Mr.

12 President. But suffice to say at this stage that that's the earliest that

13 we could do it.

14 JUDGE ORIE: Yes. Then I think we've -- we've not forgotten

15 but --

16 MR. IERACE: And Mr. President, I'm sorry to interrupt.

17 JUDGE ORIE: Yes.

18 MR. IERACE: Because it's not rebuttal evidence, I appreciate that

19 calling this second category of evidence at this late stage is problematic

20 because it would be in effect evidence in chief from the Prosecution. It

21 seems to me, Mr. President, in my respectful submission that unless the

22 Trial Chamber took the view that it was material which the Trial Chamber

23 wished to have directly, then I would withdraw it. The Trial Chamber is

24 empowered to have material tendered into evidence directly, and that, of

25 course, would follow an examination of Mr. From and I should say a

Page 21554

1 demonstration, complete with computer access on our monitors. But if

2 that's not the case, then the Prosecution acknowledges that there are

3 clear difficulties in tendering it, that is, the second category of

4 evidence, at this late stage. Thank you.

5 MR. PILETTA-ZANIN: [Interpretation] Mr. President.

6 JUDGE ORIE: Just for -- it's quarter to 4.00. I'd like, with the

7 assistance of the interpreters and the technicians to see whether we

8 can -- because Dr. Zecevic is still to be discussed -- to see whether we

9 can get a brief answer by Mr. Piletta-Zanin, apart from what has already

10 been said in the response from the Defence, and then briefly discuss

11 Dr. Zecevic and then have the break. If that could be then, then

12 we'd -- the break might be a bit longer than -- but if there's a

13 problem ...

14 THE INTERPRETER: No problem for the interpreters, Mr. President.

15 [Trial Chamber and registrar confer]

16 JUDGE ORIE: There's -- as far as the technicians are concerned,

17 there's ten minutes of tape left, so we certainly could not surpass that

18 ten minutes. If the interpreters would be willing to cooperate, then

19 we'll have an adequate break afterwards.

20 Please, Mr. Piletta-Zanin.

21 MR. PILETTA-ZANIN: [Interpretation] Thank you, Mr. President. And

22 the Defence counsel would like to thank all the booths too.

23 Mr. President, if my memory is correct, the Prosecution case

24 started in October -- sometime in October 2002. We have had a lot of

25 difficulties -- the Defence for General Galic has had a lot of

Page 21555

1 difficulties when we had to deal with these maps which weren't regular in

2 that they were artificially stretched, extended. There was a scale that

3 wasn't legible and understandable for the witnesses, and it didn't

4 represent the reality on the ground. The Defence counsel say that is it

5 was handicapped because of this, and we see that the maps that we are

6 shown now are maps where the scale is quite correct and you no longer have

7 this distortion, and it would have been extremely useful for

8 General Galic's Defence if we had been in a position to have these maps

9 during the proceedings. The Prosecution has never told us. We now have a

10 solution. "Let's discuss it. Let's have a look at it, let's examine it,"

11 and this is something which is a serious problem with regard to respecting

12 the rights of the parties. And we think that it is now far too late to

13 use these maps. This is technically no longer possible. But it is our

14 opinion that the Prosecution should have provided these maps earlier; that

15 was its obligation and it didn't do so for reasons which seem to us to be

16 evident. They didn't want to carry out one of its obligations in this

17 field. Thank you.

18 JUDGE ORIE: Thank you, Mr. Piletta-Zanin.

19 MR. IERACE: Mr. President, could I respond very briefly.

20 JUDGE ORIE: Yes. But very briefly.

21 MR. IERACE: Yes. The Prosecution has offered as early as the

22 software first became available to the Defence to witness a demonstration,

23 and prior to that in the very beginning of the Prosecution case we offered

24 to the Defence to give them a demonstration of the software. When this

25 issue was considered in November, Mr. President, you will recall that you

Page 21556

1 asked me if it was possible for some maps to be made at the instructions

2 of the Defence, and I assured you we would find ways to do that. Thank

3 you.

4 JUDGE ORIE: Yes. Then Dr. Zecevic. That's, I think, the last

5 issue we have as far as the rebuttal evidence is concerned. Could I

6 please hear the response from the Prosecution to the position taken by the

7 Defence. Mr. Stamp.

8 MR. STAMP: May it please you, Mr. President, Your Honours. I

9 think the relevant passage in the Defence filing is paragraph -- if I

10 could have a moment.

11 JUDGE ORIE: What about paragraph 41 and following?

12 MR. STAMP: Paragraph 42 in particular, in which it seems, I

13 think, to be conceding that Dr. Zecevic -- Dr. Zecevic's 92 bis statement

14 is referring to facts about which Dr. Janko Vilicic mentioned for the

15 first time, and one of those facts on which the Defence expert used

16 are -- which was the basis of some conclusions by the Defence expert was

17 not even raised in the Defence expert's statement filed under Rule 94 bis.

18 These were documents and a scientific proposition which he first mentioned

19 and was first mentioned in the case during the testimony of the Defence

20 expert witness. And therefore, it would fall within the category of

21 matters which are properly rebuttable in evidence. May it please,

22 Mr. President.

23 JUDGE ORIE: Yes. Mr. Piletta-Zanin.

24 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. As far as

25 the two experts are concerned, I have to admit that we haven't as yet had

Page 21557

1 the opportunity of examining in detail the scope of Mr. Zecevic's

2 statements. This is a technical matter. And I have to admit that I don't

3 master it to a certain extent. I know that the Trial Chamber does.

4 In principle, if this expert witness should be heard again, it's

5 obvious that Dr. Vilicic should also be heard again. This would be fair,

6 for the sake of equality of arms. This is all we can say at the moment

7 because we are not in a position to examine the contents of Mr. Zecevic's

8 report. Thank you.

9 MR. STAMP: If I may.

10 JUDGE ORIE: Yes.

11 MR. STAMP: Though the issue of a sort of balance, that is, if one

12 is to be heard, then the other is to be heard again, may be something that

13 the Court might think it appropriate to consider later at an appropriate

14 time, the issues which Dr. Zecevic proposes to -- or we propose that

15 Dr. Zecevic deals with in rebuttal are issues which were fully and

16 completely canvassed by the Defence when they had Dr. Vilicic in chief.

17 JUDGE ORIE: Yes. I take it that if you say, Mr. Piletta-Zanin,

18 if the expert witness should be heard again, it's obvious that Dr. Vilicic

19 should also be heard again. I take it that if Dr. Zecevic would testify

20 and if after hearing his testimony the Defence would consider it important

21 to hear Dr. Vilicic again, that you'll ask leave to call him in rejoinder

22 evidence and the Chamber then, of course, if this happens, will consider

23 whether this evidence qualifies to be heard in rejoinder.

24 Then I would like to adjourn for --

25 [Trial Chamber and legal officer confer]

Page 21558

1 JUDGE ORIE: We'll adjourn until 4.30. We'll then deal with the

2 other matters, that is, mainly the exhibits. And if the Chamber is able

3 to give decisions, even if they were just oral decisions for the time

4 being, we'll let the parties know.

5 There is another issue I'd like to parties to think about, that

6 is, next Thursday the Chamber is requested to swap with another case. So

7 that would mean that we would sit next Thursday, if we are sitting at all,

8 but then to sit in the afternoon and not in the morning. I'd like to hear

9 from the parties whether there's any objection against that. And if there

10 would be an objection against Thursday, would then the parties please

11 consider whether that would be possible, but that's only a second choice,

12 on Wednesday next week.

13 We'll adjourn until 4.30.

14 --- Recess taken at 3.57 p.m.

15 --- On resuming at 4.43 p.m.

16 JUDGE ORIE: The Chamber apologises for returning late, but we

17 thought it of great importance to give decisions right away and then take

18 ten more minutes for that.

19 The Prosecution has requested leave to present rebuttal evidence.

20 First of all, a statement that was provided to the Chamber in relation to

21 interception of telephone conversations of a certain Mr. Suman was not

22 explained by the Prosecution, and the Chamber understood it to be a

23 mistake that this evidence was also sought to be presented. Is that

24 correct, Mr. Ierace?

25 MR. IERACE: Not a mistake, Mr. President, but I don't have

Page 21559

1 anything to submit to you on that, the -- other than to say the obvious.

2 You may recall that in the last few days of the Defence case a transcript

3 was shown to a witness, to Mr. Radinovic.

4 JUDGE ORIE: Yes.

5 MR. IERACE: And I think something was said on that occasion. I

6 don't seek to say anything further.

7 JUDGE ORIE: Well, no further explanation has been given, since

8 the Defence has had hardly any opportunity to respond to what would have

9 been the reasons for the appearance of Mr. Suman as a viva voce witness.

10 In this respect, the request is denied.

11 But before continuing, the Chamber would like to set out very

12 briefly what in its view qualifies as rebuttal evidence, that is, evidence

13 in relation to a significant issue is the first criterium; the second

14 criterium, that it arises directly out of Defence evidence; and the third

15 criterium, that it could not be reasonably anticipated by the party who

16 seeks that rebuttal evidence to present that rebuttal evidence. I'll on

17 the basis of this go through the -- through the request in respect of

18 other witnesses, either -- and we'll start with the other viva voce

19 witness, Mr. From.

20 In respect of the first part of the evidence to be given by

21 Mr. From, the Chamber does not consider it to be proper rebuttal evidence.

22 And as far as the second part is concerned, it would be fresh evidence,

23 and therefore the request is denied.

24 Then we have, and I'll deal with them together, the 92 bis

25 statements of Makic and Sisic, that's -- to say it short, that's about

Page 21560

1 the -- about the mosques. This trying of -- or targeting mosques is not a

2 part of the Prosecution's case, at least not an explicit part of the

3 Prosecution's case, and the issue is not of such significance as to

4 qualify as rebuttal evidence.

5 I then come to Dr. Zecevic. That needs perhaps a bit more

6 explanation. Dr. Zecevic has testified during the Prosecution's case

7 about the speed a projectile would need to have its tail fin embedded into

8 the ground. So penetration in the ground and speed of impact were matters

9 explicitly dealt with during the Prosecution's case. During the Defence

10 case, Dr. Vilicic has further elaborated on that, especially he has given

11 tables and Berezansky formula. After having heard all this evidence and

12 having seen what the Prosecution offers as new evidence, in the opinion of

13 the Chamber there is not a remaining issue of sufficient significance to

14 deal with in rebuttal. Therefore, also in this respect, the request is

15 denied.

16 The evidence to be given by Mr. Tait-Harris. Mr. Tait-Harris

17 deals with a couple of matters. The only one on which the Chamber would

18 allow Mr. Tait-Harris -- the statement of Mr. Tait-Harris to be presented

19 in evidence would be the photograph of the back of Witness G, not the

20 medical report of the doctor attached to it but just the photograph. And

21 the Defence will have 15 minutes for cross-examination of Mr. Tait-Harris

22 on this photograph.

23 Then evidence to be given by Mr. Babic, that request is withdrawn.

24 Is same is true for Linda Patrick. That's of no importance any

25 more.

Page 21561

1 And then finally the evidence to be presented by Mr. Berkovac and

2 Mr. Bijedic, that could sufficiently be anticipated by the Prosecution and

3 therefore in that respect the request is also denied.

4 That means the only witness who has to be called and whose

5 statement and only to a very limited extent can be presented in rebuttal

6 evidence is Mr. Tait-Harris, exclusively on Witness G.

7 These are the decisions -- it's the decision of the Chamber on the

8 request of the Prosecution.

9 Yes, Mr. Piletta-Zanin.

10 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I just want to

11 clarify something. I wasn't quite listening to the English booth. The

12 French booth mentioned 50 minutes. That's quite generous. But should I

13 take it to be 15 minutes, as it states in the transcript?

14 JUDGE ORIE: Well, Mr. Piletta-Zanin, you know that to take a

15 photograph usually takes approximately 1/250th of a second, and therefore

16 the Chamber considers it's reasonable to allow you 15 minute - 15,

17 one-five minutes - of cross-examination.

18 Yes, Mr. Stamp.

19 MR. PILETTA-ZANIN: [Interpretation] We'll accept that gladly,

20 Mr. President. Thank you.

21 MR. STAMP: Having regard to the decision in respect to

22 Dr. Zecevic, I just note that the decision referred to one part of the --

23 JUDGE ORIE: No. The -- I should have -- that's always the risk

24 if you give oral decisions. We dealt with all the four annexes. Some of

25 them do not qualify for other reasons as rebuttal evidence. The Chamber

Page 21562

1

2

3

4

5

6

7

8

9

10

11

12 Blank pages inserted to ensure pagination corresponds between the French and

13 English transcripts. Pages 21562 to 21565.

14

15

16

17

18

19

20

21

22

23

24

25

Page 21566

1 intends to give a written decision next week but thought that it would be

2 good for the parties to know immediately what they could expect so that

3 they know what to do and what not to do. But more in detail on all the

4 four annexes. So the statement is relatively short and then we have the

5 four annexes partly dealing with the issue I just mentioned. But that's

6 one of the -- I would say one of the most important issues, and therefore

7 I explained a bit more detail that aspect of the decision. Yes?

8 MR. STAMP: Very well, Mr. President. Thank you very much.

9 JUDGE ORIE: Then having given these decisions, we should move to

10 the outstanding exhibits of different character.

11 [Trial Chamber and registrar confer]

12 JUDGE ORIE: Yes. If I'm well informed, the parties have received

13 from the registrar a -- just a brief survey of documents that

14 are -- exhibits that are still not admitted into evidence or on which no

15 decision is yet given in evidence -- no decision is given related to the

16 admission into evidence.

17 I'd first like to look at the exhibits introduced through the

18 witness Radovanovic, that's D1928, 1928A, 1927, and 1927A. Is there any

19 further observation to be made in that respect? I think the Prosecution

20 has expressed its view already. Is there any further observation to be

21 made? We have them now in their numbered version.

22 Yes, Mr. Piletta-Zanin.

23 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. We wanted

24 to ask your Trial Chamber to proceed a little more slowly, perhaps,

25 because we have to check all of this. But what we wanted to say is that

Page 21567

1 we received from the Prosecution about 16 pages -- no --

2 JUDGE ORIE: I'm talking about the witness Radovanovic, the

3 demographer.

4 MR. PILETTA-ZANIN: [Interpretation] I apologise.

5 JUDGE ORIE: Perhaps I should have explained to you that I did not

6 start at the top of the list but I for various reasons I started with

7 number 2 on the list.

8 [Trial Chamber and registrar confer]

9 JUDGE ORIE: So Radovanovic. No further issues to be raised?

10 Then --

11 [Trial Chamber confers]

12 JUDGE ORIE: Mr. Stamp, the Chamber is a bit confused, as a matter

13 of fact, to whether there were -- what the problem -- what kind of

14 problems there were in respect of these bundles. These were the bundles,

15 the lists of --

16 MR. STAMP: The bundles, the two bundles, are -- let us deal with

17 the last two bundles.

18 JUDGE ORIE: Yes.

19 MR. STAMP: Which are numbered now.

20 JUDGE ORIE: Yes.

21 MR. STAMP: Contain various different documents from different

22 sources, sometimes one, two, or three pages from various documents which

23 are not necessarily related, apart from the fact that they deal with

24 issues in Sarajevo. The witness was asked about some pages of some

25 documents without putting it necessarily in the context of the full

Page 21568

1 document, and some documents are even split up in the package. The

2 question really was what were we to consider as evidence.

3 JUDGE ORIE: Yes.

4 MR. STAMP: What were we to consider as matters which the Court

5 could legitimately consider. And especially so, having regard to the fact

6 that the witness could not testify in any way about the truth, accuracy,

7 methodology of compiling these documents. She did not really know about

8 them, apart from having seen them.

9 JUDGE ORIE: Yes.

10 MR. STAMP: And noted that they bore official stamps. So there

11 were two things, the weight and the -- which is an ultimate issue, but

12 also what is really admitted.

13 JUDGE ORIE: Yes.

14 Yes, Mr. Piletta-Zanin.

15 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. I regret

16 not having been here for the end of the hearing of this witness because I

17 could have personally clarified some of these points. I'll do so now.

18 These documents were provided, and we know that they all come from

19 the Prosecution. So as far as the authenticity is concerned, as

20 Judge Nieto-Navia said, there shouldn't be any problems. These documents

21 were provided so that the witness could tell us what his impression as a

22 professional was about what one could have done on the basis of such a

23 document, in purely statistical terms. And I think that there is no

24 reason to reject them because the witness recognised them as documents

25 that he was accustomed to see, and given the fact that he could find his

Page 21569

1 bearings there, he could identify them, certain conclusions could be

2 reached which were useful for his report and could have made it possible

3 to compare his report with the other expert reports. So it doesn't seem

4 useful for us in our opinion to reject such a document and it's not

5 desirable either. Thank you.

6 JUDGE ORIE: Yes. That's the position of the Defence.

7 We'll give a decision not right away, but it does not influence in

8 whatever way --

9 Yes, Mr. Stamp.

10 MR. STAMP: Just an inquiry. I was wondering if counsel's last

11 remarks were addressed to Radinovic or Radovanovic.

12 JUDGE ORIE: Yes. I was wondering because since in the English

13 text the word "he" was used again and again. But I was wondering if in

14 French you used "le temoin," which would also refer to the feminine. Is

15 that correct, Mr. -- Or is it?

16 MR. PILETTA-ZANIN: [Interpretation] No.

17 JUDGE ORIE: We are talking about the documents D1928A and -- yes.

18 MR. PILETTA-ZANIN: [Interpretation] No. Obviously we're talking

19 about a woman. I don't know what the term is that I used, but if I used

20 the term "le expert," the expert in French, then that is in the masculine.

21 You don't really use the feminine for expert in French. That will happen,

22 but not yet. I may have spoken about an expert in the masculine, but I

23 was referring to a woman.

24 JUDGE ORIE: Yes. That is then clarified as well. That's rather

25 a language matter.

Page 21570

1 Then we have in relation to Witness DP30. Madam Registrar, could

2 you please tell us again, Witness DP30, what P3766 and 66.1 would be. And

3 then we now have -- these are, as far as I remember, the report of the

4 meeting.

5 [Trial Chamber and registrar confer]

6 JUDGE ORIE: That's the interview of which the Chamber said that

7 it would consider admission if it would be presented in such a way that I

8 think I referred to that last Tuesday what exactly was required to make

9 the Chamber consider to admit it into evidence. So therefore, since it

10 now -- or has been presented in the way the Chamber required, it's now up

11 to the Defence to respond to the --

12 MR. IERACE: Mr. President, just before that happens.

13 JUDGE ORIE: Yes.

14 MR. IERACE: Perhaps I should clarify. I think on the last

15 occasion we sought to tender some cassettes. And I now think that there

16 were already some cassettes. No.

17 JUDGE ORIE: I think we wanted the cassette, the original with the

18 translation on it, so that we could hear everything.

19 MR. IERACE: Yes.

20 JUDGE ORIE: And that we would have the transcripts and --

21 MR. IERACE: I stand corrected.

22 JUDGE ORIE: Yes. So it's now up to the Defence to express itself

23 on whether it wants to object.

24 [Defence counsel confer]

25 MS. PILIPOVIC: [Interpretation] Your Honour, the Defence has no

Page 21571

1 objection to the admission of this document, but in view of the fact that

2 this document was corrected by the witness and that the witness answered

3 questions by investigators and the document isn't signed, you will have to

4 decide what weight to attach to it and how to estimate its authenticity.

5 JUDGE ORIE: Yes. Being no objection against admission, it is

6 admitted into evidence.

7 Madam Registrar, could you please call them.

8 THE REGISTRAR: Exhibit P3766, under seal, interview -- just a

9 moment.

10 [Trial Chamber and registrar confer]

11 JUDGE ORIE: In view of the confidentiality, we'll first now move

12 into private session.

13 [Private session]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 21572

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [Open session]

6 JUDGE ORIE: We are in open session again. The registrar just

7 referred to documents P2754 and P2759 that were tendered through Witness

8 DP17. Is there any objection?

9 MR. PILETTA-ZANIN: [Interpretation] No objection, Mr. President.

10 JUDGE ORIE: Then these two documents are admitted into evidence.

11 Then we have in respect of Witness Milenko Indic, document P3785.

12 Madam Registrar, that is ...?

13 THE REGISTRAR: Exhibit P3785 is "report of the Secretary-General

14 pursuant to general assembly resolution 53/35, the fall of Srebrenica."

15 JUDGE ORIE: Yes. Although, not the whole of the report. I think

16 it's the front page, it's the --

17 THE REGISTRAR: It is the front page.

18 JUDGE ORIE: There are two pages dealing with the Markale market

19 incident, and these are pages ...?

20 THE REGISTRAR: Page 31, page 32, page 108, and 109.

21 JUDGE ORIE: Pages 108 and 109 in respect of the footnotes related

22 to the other pages just mentioned.

23 Yes, Mr. Piletta-Zanin.

24 MR. PILETTA-ZANIN: [Interpretation] Yes. I think we reviewed only

25 pages 31 and 32 at the time, and consequently the Defence gladly accepts

Page 21573

1 the cover page, page 31, and page 32.

2 [Trial Chamber confers]

3 JUDGE ORIE: The document as tendered, including the pages with

4 footnotes referring to the pages 31 and 32, is admitted into evidence.

5 Then the Defence has tendered a bundle of documents. These are

6 sketches and examples of medical reports, parts of medical literature

7 under the number D1930A. Until now the objection of the Prosecution was

8 that there were no translations of the medical articles that were written

9 in B/C/S. The D1930A version does contain now the English translations.

10 Mr. Mundis.

11 MR. MUNDIS: Mr. President, the Prosecution would object to that

12 portion of D1930A that contains the English translations on the grounds

13 that those translations were not available at the time the witness

14 testified and thus we were unable to cross-examine the witness with

15 respect to those pages of the book which were previously only available in

16 B/C/S.

17 JUDGE ORIE: Yes. May I ask you, Mr. Mundis, is my understanding

18 correct that those parts of the book do not directly relate to any of the

19 specific incidents but -- that's not to invalidate your objection, but do

20 I understand that those parts of this book give explanation general and

21 pictures in general of -- of wounds, et cetera?

22 MR. MUNDIS: That's correct, Mr. President.

23 JUDGE ORIE: Yes. Thank you.

24 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I believe that

25 it's something that either came spontaneously from the witness or was a

Page 21574

1 question asked by the Chamber, but I can't really remember now.

2 JUDGE ORIE: Yes. It spontaneously came up.

3 On the other hand, Mr. Mundis, the objection at that time was that

4 you could not -- you would object because there were no English

5 translations. Now the English translations are there, and it's not

6 because of the content of the articles but, rather, on the fact that there

7 were no translations at that time that you now -- I mean, you could have

8 foreseen that or -- or was your objection at that time already that it

9 could never be admitted because there were no English translations at that

10 very moment when the witness was in court?

11 MR. MUNDIS: No, it would be the former, Mr. President.

12 JUDGE ORIE: Yes. Then it's a bit surprising that -- if you say

13 it cannot be admitted because there are no English translations and not

14 purely because at the moment of the testimony there were no English

15 translations that you ask English translations to be made and then to say,

16 "well, they were not there at that time, so even with these translations

17 we would still object".

18 MR. MUNDIS: Perhaps -- perhaps I wasn't clear, Mr. President.

19 When this issue was raised on Tuesday of this week --

20 JUDGE ORIE: Yes.

21 MR. MUNDIS: And I indicated that our objection had been that the

22 materials that were provided by the registry did not include an English

23 translation, that was referring back to when the witness testified.

24 JUDGE ORIE: Yes.

25 MR. MUNDIS: The fact that he pulled this out. We were then

Page 21575

1 unable to cross-examine him because of that spontaneous production of this

2 material.

3 JUDGE ORIE: Yes.

4 MR. MUNDIS: And that's simply the grounds for our objection.

5 JUDGE ORIE: Yes. I do understand. That must then -- at least, I

6 misunderstood what you then said on Tuesday.

7 We'll then give a decision at a later stage on that.

8 Then we have, Madam Registrar, the documents that are suggested to

9 be given number C10 and C11.

10 MR. PILETTA-ZANIN: [Interpretation] Mr. President.

11 JUDGE ORIE: Yes, Mr. Piletta-Zanin.

12 MR. PILETTA-ZANIN: [Interpretation] Two words, because I didn't

13 state my view on this issue. It seems to me that if really the

14 Prosecution, in making this objection -- Here we have a field that we

15 could have dealt with before. The Prosecution never mentioned this

16 witness who could have been recalled if they needed clarification on this

17 point.

18 JUDGE ORIE: Yes. I do understand that you would take the

19 position that by other means the matter could have been solved rather than

20 by -- by objecting against the admission into evidence of this part of the

21 bundle.

22 Mr. Mundis.

23 MR. MUNDIS: If I could just respond, Mr. President. The first

24 time that I was shown the bundle of documents which the Defence proposed

25 to tender through this witness was on Tuesday of this week. Prior to

Page 21576

1 that, when we had been discussing potential exhibits to be tendered

2 through the witness Dunjic; the assumption I was working on was that we

3 were talking about the diagrams which the witness drew while he testified

4 and not any other material. And perhaps I misunderstood what the Defence

5 was proposing to tender, but the first time I was shown the bundle of the

6 actual documents they were proposing to tender was when Madam Registrar

7 provided that to me on Tuesday.

8 JUDGE ORIE: Yes. Well, it seems to be that a lot of

9 misunderstandings have been there in what one party expected from the

10 other. The Chamber will give a decision.

11 Then, Madam Registrar, I think we went on through to the documents

12 in respect of Witness DP35, or the Chamber asked material to be produced.

13 THE REGISTRAR: C10 is an UNMO report from December 1992; and C11,

14 UNMO report January 1993.

15 JUDGE ORIE: These documents are admitted into evidence as well.

16 Then the next issue would be three new video sequences on one

17 tape, the number being P3783 and P3783.1, which the last number relating

18 to the transcript of this videotape. Madam Registrar.

19 THE REGISTRAR: I understand that the Prosecution intends to

20 tender a new version of the transcript numbered P3783A.

21 MR. IERACE: Mr. President, the problem with the earlier

22 transcript is that in clip 1 and clip 2, that is, on the transcript, there

23 is a reference to a particular person, being a three-year-old child. It's

24 apparent from the content of the videotapes that it is the same child but

25 a different name appears in the transcript for clip 1, that is, the first

Page 21577

1 name, compared to the first name which appears in clip 2. That simply

2 comes down to the transcript being prepared by the sound -- by the voice

3 mentioning that name. So the corrected transcript has the same name for

4 both clips.

5 MR. PILETTA-ZANIN: [Interpretation] Mr. President.

6 JUDGE ORIE: Yes, Mr. Piletta-Zanin.

7 MR. PILETTA-ZANIN: [Interpretation] Yes. Excuse me. I would like

8 to say that we shouldn't go to the merits before the decision is made on

9 these tapes. I don't know if we are allowed to state our view on this

10 now.

11 JUDGE ORIE: Yes. The -- I understood that the Prosecution was

12 just explaining why they produced a new transcript which is slightly

13 different from the former one. And I think we'll now discuss, now the

14 Defence has an opportunity to give its view, give its opinion on whether

15 this videotape and this transcript should be admitted into evidence.

16 MR. PILETTA-ZANIN: [Interpretation] Gladly.

17 Mr. President, as you probably know, I didn't have the opportunity

18 to see everything because I came from being away. But reading the first

19 lines I can see what is being referred to. What we're dealing with, I

20 think, are elements that have never been viewed by the Chamber, elements

21 that neither you nor we nor anyone else had opportunity to see in the

22 courtroom, and I think that regarding these tapes whatever the way they

23 became available to the Prosecution, I think what they should have done is

24 to use the rebuttal in order to ask this witness to come again and to ask

25 her what really happened and to allow us to view the tape. I don't think

Page 21578

1 it is fair to ask us to accept these tapes, which have not been seen by

2 you, first of all, and haven't been seen by the parties. And thirdly, it

3 was not possible for General Galic, who never ever saw them, to express

4 his opinion or to advise his counsel, which advice is very necessary, how

5 to proceed.

6 So procedurally speaking, this is inadmissible.

7 JUDGE ORIE: Mr. Piletta-Zanin, let me just try to reconstruct

8 what happened. Witness Gray came with a number of tapes. You used part

9 of one of these tapes, which later on was called the fifth tape, in your

10 sequence that you tendered into evidence. Therefore, it seems reasonable

11 to accept that the Defence was aware of the content of that fifth tape.

12 It could have discussed it with the accused -- well, it was only because

13 the Prosecution could not find that sequence on the four tapes disclosed

14 to it that they felt that there should have been another tape, and it was

15 only after quite some time where both parties tried to do our

16 best -- their best - and I refer to my remarks regarding who came out most

17 happy out of the weekend - both parties did their utmost best to find that

18 tape on which this first sequence of the compilation tape tendered by the

19 Defence could be found. It was only at the very end of this exercise that

20 it turned out that the Defence had a tape which it had not disclosed.

21 Now you are suggesting that the witness - and you're again, but it

22 might be a translation error as well, but as far as I'm aware of the word

23 "witness" has no feminine in French either, it's just "the witness" and

24 not "the female witness." Do you want us to call Mr. Gray -- should the

25 Defence -- should the Prosecution call Mr. Gray again? Is that what you

Page 21579

1 suggest?

2 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. What I

3 said - I wasn't speaking of a witness in the feminine. If that was the

4 case, I'm sorry. But I remember that Mr. Gray is not a lady - what I

5 really said was this witness, in the masculine form, should be heard.

6 Why? Certainly there was a mistake with the fifth tape. Certainly we

7 offer our apologies to everyone concerned. This error was genuine, and it

8 had to do with the haste in which we worked. But it doesn't mean that

9 these excerpts have really not been viewed by either the Trial Chamber or

10 the Defence or the Prosecution in the courtroom. So the most correct way

11 and the most logical way was to call this witness to tell him, "Here are

12 these clips, these sequences, what can you tell us about it?" Neither the

13 Defence nor the Prosecution developed this. The best way now would be to

14 correct this mistake. The Prosecution was then saying, "Let us remove

15 these first two sequences in the Defence tape which are contained in some

16 fifth tape." That's what would restore the balance between the parties in

17 the best way. But if these three tapes are admitted - I can see that the

18 Prosecutor is shaking his head - but if they are admitted, it is

19 completely against the Rules of Procedure.

20 MR. IERACE: Mr. President, I never said that.

21 MR. PILETTA-ZANIN: [Interpretation] When I said three tapes, I

22 meant the three sequences.

23 MR. IERACE: Mr. President, I never said that the segments on the

24 Defence compilation tape, which we now know came from the fifth tape,

25 should not be admitted. I have not said that, and I don't say it now.

Page 21580

1 Mr. President whilst I'm on my feet, there was -- there are two

2 further documents that I should refer to. The first is a B/C/S rough

3 translation of the transcript of the three clips. And the final

4 document -- perhaps I should explain in this way: During the course of

5 the first clip, a document is seen on the screen. I don't think it's

6 possible to read the words of that document on the copy. It is, however,

7 perfectly clear, on the -- what I might call the original, that is, the

8 fifth tape that was provided by the Defence. It's a document which has

9 not many words on it. They're in B/C/S. So the third document that I

10 seek to tender is a transcript of those words that appear on the document

11 on the copy of the tape provided by the Defence, which perhaps we could

12 call the original. Thank you.

13 JUDGE ORIE: Mr. Ierace, the Defence also has expressed as its

14 view that the tape should be played in open court, at least, and to be

15 played in the presence of the accused. What's the view of the Prosecution

16 there?

17 MR. IERACE: I have no objection to that, Mr. President. It would

18 take something like nine minutes, perhaps ten minutes. The clips are a

19 little longer than the typical clip from the other tapes.

20 JUDGE ORIE: Yes. The Defence also said that we -- that there

21 should be a possibility to examine Mr. Gray on the -- on the tapes. He

22 produced them.

23 MR. IERACE: Yes.

24 JUDGE ORIE: By a coincidence. He was not there when finally it

25 came into the hands of the Prosecution.

Page 21581

1 MR. IERACE: Yes. Mr. President, the way that was first

2 justified, as I understand the argument, was by way of rebuttal the

3 Prosecution should call Mr. Gray. It's not a question of rebuttal. The

4 Prosecution accepts that it's simply not practically possible to have

5 Mr. Gray here in order to be further cross-examined in relation to these

6 tapes. And as I said the other day, there is no perfect solution to this

7 problem. Because of that, I accept, the Prosecution accepts, that these

8 tapes will now attract appropriate weight determined on the content of the

9 tapes themselves. The Prosecution has lost the opportunity to have the

10 witness identify events and places which appear on the tape, and we've

11 lost the opportunity to cross-examine him in relation to a number of

12 matters which I don't think I need to set out at this stage.

13 So Mr. President, essentially what I'm proposing is that the tapes

14 be tendered and appropriate weight be attributed to them in due course by

15 the Trial Chamber.

16 JUDGE ORIE: Yes. So I take it that you're not only proposing

17 that the tapes be tendered but even admitted.

18 MR. IERACE: Admitted as well.

19 JUDGE ORIE: Yes. Mr. Piletta-Zanin, may I first, before I give

20 you an opportunity to respond, could I ask you the following: Events,

21 places, what appears on that tape, could you tell us whether Mr. Gray

22 would have any personal knowledge of these events, these places. I mean,

23 I'm just trying to make clear for myself what it would bring if Mr. Gray

24 would be recalled.

25 MR. PILETTA-ZANIN: [Interpretation] Mr. President, may I ask you

Page 21582

1 to go back into closed session.

2 JUDGE ORIE: Yes. We'll turn into private session, as we usually

3 do in this courtroom.

4 [Private session]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [Open session]

23 JUDGE ORIE: We are in open session.

24 MR. PILETTA-ZANIN: [Interpretation] So to repeat what I said

25 briefly, I really don't know what this witness knows or doesn't know about

Page 21583

1 the possible locations that appear in certain tapes, but what I can say is

2 that if they should be viewed, if they were to be viewed, it should be

3 done in the presence of the witness. I want to be very clear, and I'm

4 afraid I may have been misunderstood by someone a while ago. Thank you.

5 JUDGE ORIE: Yes. Is there any -- is there any rule you would

6 like to invoke that the witness should be present if this videotape is

7 played?

8 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. Article

9 20 of the Statute in that the Defence maintains that their rights would be

10 violated if certain elements on the tape were used without the Defence

11 being in a position to, for example, draw the attention of the Trial

12 Chamber to certain events, certain facts. So these are the essential

13 rights of all those who are accused. They must have access to a fair

14 judgment. Thank you.

15 JUDGE ORIE: Yes. If I understand you well, therefore you say

16 the -- if the witness, who has now returned to another continent, could

17 give some guidance as to what aspects of the picture shown would require

18 specific attention.

19 MR. PILETTA-ZANIN: [Interpretation] Very well. Could we go back

20 into private session.

21 JUDGE ORIE: Yes. We'll return into private session.

22 [Private session]

23 [redacted]

24 [redacted]

25 [redacted]

Page 21584

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Page 21588

1 [redacted]

2 [redacted]

3 [redacted]

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7 [redacted]

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15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [Open session]

22 JUDGE ORIE: We are now in open session again. Let me just see.

23 I'm just trying to find out where exactly we went into private session.

24 [Trial Chamber and registrar confer]

25 MR. PILETTA-ZANIN: [Interpretation] Mr. President, our assistant,

Page 21589

1 who is paying attention to everything, it seems, tells me that it would be

2 page 62, line 22, but this should be checked. Thank you.

3 JUDGE ORIE: Yes. No, it was already checked by Madam Registrar,

4 who comes to the same conclusion, so that's correct.

5 Let me then just find out what was dealt with in private session.

6 First there was a sequence which was intended to be in private session.

7 Yes. Then we continued to discuss in private session that the Defence

8 claimed that there was unclarity in respect of the chronology of the

9 events that appear on sequences that appear on this compilation tape. We

10 then discussed a date which appeared on a document which is shown, as far

11 as I understand, on the videotape. It gives a date, the Prosecution told

12 us, that therefore the events could not have taken place prior to that

13 date but presumably on that date or after that date. But there was a

14 relation between the first or second sequence to the extent that the first

15 sequence had to do with a killing and the second sequence with a burial in

16 the view of the Prosecution related to that killing, so therefore it

17 should have been a couple of days afterwards, and that it was not certain

18 what the date was of the third sequence. And then you, Mr. Piletta-Zanin,

19 you asked some questions about what was clear and what was not clear in

20 this respect. I think that covers more or less what we dealt with

21 in -- and then finally we discussed the matter on whether this tape should

22 be played in the presence of the witness, and where Mr. Ierace suggested

23 that we should play the tape in order to better understand what we had to

24 decide about, that you opposed against and said that you were

25 misunderstood and that you thought the tape could be played only in the

Page 21590

1 presence of the witness.

2 If there's anything to be added to this short summary of what was

3 dealt with in private session, I invite the parties to do so. Otherwise,

4 we'll proceed.

5 Then we'll give a decision in due course on this issue.

6 I think we then dealt with all the exhibits, apart from the

7 Radinovic documents. And I suggest that we do that after the break.

8 MR. IERACE: Mr. President, there is one other document that I'm

9 aware of.

10 JUDGE ORIE: Yes. And I might have forgotten one. And that would

11 be, Mr. Ierace?

12 MR. IERACE: Mr. President, that would be some pages from the

13 final report of the commission of experts. At the same time as the Trial

14 Chamber requested a copy of the SMO January 1993 report, the Trial Chamber

15 also requested either party to tender certain pages of the report, annex 6

16 of the report of the commission of experts. The Defence helpfully filed

17 the relevant pages on the 28th of February -- 27th of February, 2003. And

18 Mr. President, in my respectful submission, that should be tendered. The

19 pages filed by the Defence go up to the 25th of January, 1993. It's my

20 submission that all of those pages should be tendered. And in fairness, I

21 should draw it to your attention that there was at the time a dispute as

22 to which pages should be provided and tendered.

23 Mr. President, the particular entry that I have in mind is for the

24 14th of January, 1993, where there is a reference to the amount of fire

25 coming into the city on the previous night, and there is a reference to

Page 21591

1 that amount of fire being explained by celebration by the Serbs of the

2 Orthodox New Year; in other words, that entry is relevant, in my

3 respectful submission, to the issue, and the issue was whether there was

4 corroboration or at least consistency between the reports generated at the

5 time and the evidence of some witnesses that there was around midnight on

6 certain occasions considerable fire from Bosnian Serb positions into the

7 city. Thank you, Mr. President.

8 JUDGE ORIE: Yes. The Defence has -- I haven't got them here at

9 the very moment, but the Defence has filed these parts of annex 6 to the

10 report of the committees of experts. I take it that this is done in order

11 to have them admitted into evidence, all of them. Is that correct,

12 Mr. Piletta-Zanin?

13 MR. PILETTA-ZANIN: [Interpretation] Mr. President, we could check

14 to see whether these pages are complete, but if I remember correctly I

15 think that your Trial Chamber invited the parties to reduce the number of

16 pages referred to for two months, that is, to do the one that related to

17 December and January, and I think that this is something that we did. I

18 don't know whether we did it by the 25th, because the date of the Serbian

19 New Year is on the 13th of January of each year at the latest, so why go

20 up to the 25th if it's on the 13th? And general you celebrate New Year on

21 the day of the new year and not later. Generally, we celebrate it at that

22 time.

23 JUDGE ORIE: I do understand that the Defence filed all these

24 pages; is that correct? So you did it yourself, Mr. Piletta-Zanin. The

25 only question is whether you filed them rather than you tendered them into

Page 21592

1 evidence.

2 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I didn't do

3 that myself. Someone from the Defence did that. We provided it to

4 Madam Registrar at the time, I think. I think these documents should be

5 in the hands of Madam Registrar. I think so.

6 JUDGE ORIE: Yes. But I do understand that the documents you

7 filed are the documents you want to tender into -- is that correct? They

8 are in the hands of the -- but the parties were invited to admit this into

9 evidence. Filing is not the same as --

10 MR. PILETTA-ZANIN: [Interpretation] Mr. President.

11 JUDGE ORIE: Yes.

12 MR. PILETTA-ZANIN: [Interpretation] We only complied with an

13 instruction issued by your Trial Chamber in which you requested that the

14 parties provide you with all the relevant pages from that period. All we

15 did was follow your instructions. And it is for you to decide whether

16 this amounts to submitting in evidence, et cetera.

17 JUDGE ORIE: Yes. We'll deal with that after the break.

18 We'll adjourn and we'll deal with the Radinovic material after the

19 break. But let me just --

20 [Trial Chamber and registrar confer]

21 JUDGE ORIE: We'll adjourn until quarter past 6.00.

22 --- Recess taken at 5.54 p.m.

23 --- On resuming at 6.22 p.m.

24 JUDGE ORIE: I would first like to return to one of the last

25 issues we dealt with before the break, that is, the tendering of the

Page 21593

1 documents the Chamber has asked for. We have asked for the

2 end-of-the-month report of December and of January the senior military

3 observers. We have also asked the -- the relevant part of annex 6 to the

4 report of the committee of experts. And as the Chamber said on the 17th

5 of January, dealing with the period of the 22nd of January until the 8th

6 of January -- so December 1992 until the 8th of January, 1993.

7 Mr. Ierace, you've just told us that you'd like to have it

8 extended beyond the 13th. But before you do that, approximately eight

9 minutes later on that same 17th of January, you asked the same. You said,

10 "We have, in any event, the monthly report" -- no, you said, "Your Honours

11 will see a comment that it's anticipated that there may be

12 activity -- excuse me, I'll go straight to the reference. Yes. I could

13 read out the comment or it's a matter for Your Honours to read it, but it

14 appears on page 4 under the date of the 13th of January." I do the same

15 as everyone. When I read, I go too quickly.

16 You asked previous to that, Mr. Ierace, to have it extended until

17 the 13th or 14th of January. And then you said, "We have, in any event,

18 the monthly report, so I think that's probably sufficient for the 13th of

19 January." Then I said, "So there's no -- you withdraw the extension?"

20 And then your answer was, "Yes." And then I said, "So would then the

21 annexes -- annex 6 should then cover the period of the 22nd of December

22 until the 8th of January." So you've clearly at that moment withdrawn a

23 similar request for extension, Mr. Ierace. Is there anything which

24 differs from what happened on the 17th of January? I mean, I have not

25 printed out the part where you refer to that same -- I think the 13th or

Page 21594

1 14th of January event described in the year -- in the report of the senior

2 military observers.

3 MR. IERACE: Mr. President, you just said the 17th of January. I

4 think perhaps you meant the 13th or 14th of January.

5 JUDGE ORIE: The -- no, the 17th of January, 2003 was the date on

6 which the matter was discussed, the 17th of this year.

7 MR. IERACE: I'm sorry, yes. Yes. I understand now.

8 Mr. President, whilst we deal with the matter of Radinovic, might

9 I be excused to check the contents of the January 1993 report in relation

10 to that date so that I can refresh my memory. At this stage I'd like to

11 keep open --

12 JUDGE ORIE: Yes.

13 MR. IERACE: -- The opportunity of submitting that we do include

14 the entry for the 14th of January, 1993 from the committee of experts

15 report. I note that the source for the reporting of heavy tank and mortar

16 fire hitting the centre of the city, the heaviest being around midnight

17 and so on, is Reuters, not the senior military observers report or SITREP.

18 So I wish to check that.

19 Could I have that opportunity, Mr. President?

20 JUDGE ORIE: Yes, you have that opportunity.

21 MR. IERACE: Thank you.

22 JUDGE ORIE: But if you have withdrawn it clearly on the 17th of

23 January, there should be something new in order to reconsider the matter

24 now.

25 MR. IERACE: Yes. That is why I specifically said as a matter of

Page 21595

1 fairness I wanted to alert you to the fact that there was some argument on

2 that date about it.

3 JUDGE ORIE: Yes.

4 MR. IERACE: Rather to simply let it be tendered without it being

5 drawn to your attention.

6 JUDGE ORIE: Yes.

7 MR. IERACE: Mr. President, whilst I'm on my feet, I checked the

8 LiveNote during the break and there was another document that we did not

9 finally settle last Tuesday and that was put over until today, and that is

10 the minutes of the meeting of the 14th of May, 1992.

11 JUDGE ORIE: Yes. I remember that I mentioned it. Did you then

12 ask, Ms. Pilipovic, to get more time for that? In that case, I failed to

13 reintroduce the matter at this very moment. These are the minutes of the

14 meeting of the municipalities which appear now in a lot of versions, with

15 page 2, without page 2, with two stamps, one stamps. Yes.

16 MR. PILETTA-ZANIN: [Interpretation] Mr. President, we didn't have

17 more time to see this, but I believe it's very good that -- it's a very

18 good idea for the Prosecution to refresh their memory. They should take

19 time to do this, because contrary to what Mr. Ierace said, this is not the

20 first time he said he didn't say something. I checked, and the

21 Prosecution is wrong about this. The Prosecution said, 20.900: "My

22 assertion in this first stage is that this segment should be removed from

23 evidence." Mr. President, we talked about the well-known segment that was

24 referred to when I just said that the Defence can actually accept the

25 proposal of the Prosecution, the Prosecutor Ierace said that he never said

Page 21596

1 that. So I'm quoting from page 20.900 of the transcript of the 7th March

2 2003 to show this. I think it's not nice for somebody to say they never

3 said something when they actually did.

4 JUDGE ORIE: Let me just check what exactly. I do remember that

5 Mr. Ierace said that he did not oppose against -- no, that he did not ask

6 for the exclusion of that part, and you say that he did,

7 Mr. Piletta-Zanin; is that a correct understanding?

8 MR. PILETTA-ZANIN: [Microphone not activated]

9 THE INTERPRETER: Microphone, please.

10 MR. PILETTA-ZANIN: [Interpretation] I just said what Mr. Ierace

11 asserted on the 7th of March, 2003. On page 20.900, he proposed that at

12 the time, I just indicated so, and then he said he never said it, since it

13 is the same person speaking in the same courtroom, I would like to ask him

14 how are we to understand it.

15 JUDGE ORIE: It's still not -- it's not quite clear what you were

16 quoting. You're referring to a page. But did you quote -- my

17 assertion -- is that the quote, my assertion in this first stage is that

18 this session should be removed from evidence? Is that the quote,

19 Mr. Piletta-Zanin?

20 MR. PILETTA-ZANIN: [Interpretation] Yes, that's it,

21 Mr. President. That's it. And when I just said a moment ago that I could

22 accept this proposal of the Prosecution, the Prosecution said they never

23 made the proposal. It's as simple as that. But when I am told something,

24 I think that it either stands or it doesn't stand. In any case, we have

25 to know.

Page 21597

1 JUDGE ORIE: I'm just trying to find the context, Mr. -- You

2 quoted "my assertion in this first stage is." Let me ...

3 MR. PILETTA-ZANIN: [Interpretation] Your Honour, I believe that in

4 view of the hour this issue doesn't really have to be resolved now. We

5 can move on to dealing with other issues, not to waste time.

6 The question was really of the first sequence of this tape. We

7 are talking about two sequences. And the Prosecution doesn't seem to be

8 talking about the same thing.

9 JUDGE ORIE: Yes. I've found it. It's a bit different. It says,

10 "My submission at this stage is, firstly, that the -- that segment be

11 removed from evidence, the transcript in relation to it should remain."

12 So Mr. Ierace wanted the transcript to remain and the videotape be

13 excluded from evidence. Yes.

14 MR. PILETTA-ZANIN: [Interpretation] Quite, quite so,

15 Mr. President. But I said a moment ago that I could accept this proposal

16 to withdraw this first sequence of the tape, and when I said this, the

17 Prosecution, which otherwise does not react, say they had never made the

18 proposal, and they did. So I quoted it for you. And this is not the

19 first time. And I'm afraid that this is not the last either.

20 JUDGE ORIE: Yes. Mr. Piletta-Zanin, this last remark did not

21 really assist the Chamber in the task it has to fulfil.

22 Then we have the minutes, because that's where we started, the

23 minutes of the meeting. Could the Defence give its position. Yes,

24 Ms. Pilipovic.

25 MS. PILIPOVIC: [Interpretation] Your Honour, in its submission of

Page 21598

1 the 21st of February, 2003 the Defence stated its position on the

2 documents presented to Mrs. Jelena Guskova during her testimony so that

3 the document, which is in the form of the minutes of the meeting with the

4 commanders in that area of responsibility. And I think in previous

5 discussion you asked submissions by parties in writing. I believe we did

6 make such a submission. I am not sure about our learned friends from the

7 Prosecution.

8 JUDGE ORIE: Has the Prosecution made any submission in writing in

9 respect of that?

10 MR. IERACE: Mr. President, I don't recall that we did. But

11 that's something I haven't checked. The way it was left on Tuesday was

12 for -- as I understood, it was for oral submissions.

13 JUDGE ORIE: I'm not quite sure about that, Mr. Ierace. I would

14 have to check it.

15 MR. IERACE: Yes.

16 JUDGE ORIE: Yes. What I see in the transcript of last Tuesday,

17 that we dealt with it at five minutes past 7.00, and then we seemed to be

18 in a hurry because I said, "We -- if there's any submission to be made by

19 the Prosecution in respect of that document, but I think there was a

20 response already, but we'll deal with the matter next Friday." So I might

21 have been mistaken that there was already a response.

22 Do you want to respond then orally, if there's no written

23 submission?

24 MR. IERACE: Mr. President, the issue, as I understand it, is that

25 we have a translation into the English language which contained a comment

Page 21599

1 presumably by the translator that certain words were double underlined,

2 and we have two copies of the B/C/S document, one of which was double

3 underlined and one which wasn't. My submission is simply that that is not

4 surprising as a matter of common knowledge, the Prosecution obtains

5 documents from different sources, sometimes the same document from

6 different sources. And therefore, it contains more than one ERN number.

7 The important aspect is whether there's any difference in the

8 B/C/S words. In the original document, I don't think it's ever been

9 suggested that there is a difference in the wording. And therefore,

10 Mr. President, the -- if there's no dispute as to the B/C/S contents of

11 the original documents, it doesn't matter that an English translation

12 contains a comment. I don't suggest that comments should be in there.

13 The comment was removed on the last occasion when the document was used in

14 relation to Mr. Radinovic. That's my submission on the matter,

15 Mr. President.

16 JUDGE ORIE: Yes. Thank you very much. The Chamber will give a

17 decision on the admission into evidence of that document.

18 I think that is -- by the way, is one of the Radinovic documents.

19 So therefore, we moved already into our next subject --

20 MR. IERACE: Mr. President, just before you do that fully.

21 JUDGE ORIE: Yes.

22 MR. IERACE: The document was also tendered, I think into

23 evidence, through Mr. Donia.

24 JUDGE ORIE: Yes, I know that. But that was -- that was a

25 different document because that was the same document but without page 2

Page 21600

1 and not with the same stamps on it, and I think that was the one with the

2 underlining and the other one was not. But we do have one document which

3 very much resembles the document tendered through the witness Radinovic

4 which seems to relate to the same meeting.

5 MR. IERACE: Yes.

6 JUDGE ORIE: We'll give it --

7 [Trial Chamber confers]

8 JUDGE NIETO-NAVIA: I'm sorry, I have a question for

9 Ms. Pilipovic. I'm looking at the document of 21st February regarding

10 this document, as far as I know. Sorry. The last paragraph you make

11 reference to the question of erasing from documentation where Kazani is

12 mentioned," end of the brackets. And I would like to have some

13 explanation on that because I cannot -- I don't remember at this very

14 moment.

15 MS. PILIPOVIC: [Interpretation] Your Honour, it is a document that

16 the Defence team has received from the Prosecution where I only quoted an

17 example, saying that there was something erased in the document. So I

18 asked the question of what the consequences are when the Defence is being

19 confused. First we received one document, then we received a different

20 document with different numbers with the second page missing. I just made

21 a comparison. If you remember, this is a document that was in colour, it

22 was a photocopy, we used it during examination of a protected witness, I

23 believe. It was just an example of something being erased from a

24 document, of a redaction.

25 JUDGE NIETO-NAVIA: I know the document. I know which is the

Page 21601

1 document. But when you make a reference to Kazani, it's because the

2 second page of that document made a reference to Kazani, the missing page?

3 MS. PILIPOVIC: [Interpretation] No.

4 JUDGE NIETO-NAVIA: That's what I --

5 MS. PILIPOVIC: [Interpretation] No.

6 JUDGE NIETO-NAVIA: That's what I don't understand. Which is the

7 reference here?

8 MS. PILIPOVIC: [Interpretation] No, not the second page.

9 MR. PILETTA-ZANIN: [Interpretation] Mr. President, if you allow

10 me. It is actually simple. What Mrs. Pilipovic wanted to say is that she

11 thought the method was the same when producing incomplete documents and

12 when producing this document, because the name of Kazani was redacted.

13 Those are the numbers that we will probably never know. It was just a

14 question of making a parallel between two situations.

15 JUDGE NIETO-NAVIA: [Previous interpretation continues] ... One

16 document, as far as I remember, it was a list of people killed and wounded

17 and so on, where the word was erased. At that -- it has nothing to do

18 with this document.

19 MR. PILETTA-ZANIN: [Interpretation] It was then a case of what we

20 call the current problem, namely a register, a record kept at the police,

21 an everyday record.

22 JUDGE ORIE: That being clarified, I do understand that there's,

23 before we move on to the Radinovic documents, that there's one exhibit

24 that the Defence would like to tender, that's D Exhibit 1914, which is the

25 front page of a lexicon of foreign words published in Belgrade, 1996, and

Page 21602

1 the -- and another -- another dictionary, it seems, which reads "Recnik"

2 and it seems to be, as far as I can see, Serbian-Croatian-French. It says

3 "Srpsko-Hrvatsko-Francuski" and the relevant pages and the pages in the

4 last dictionary I mentioned was the page where the word "strah" appears

5 and in the first lexicon the page on which the word "teror" appears. Is

6 that correct, Mr. President? Is there any objection as to the admission

7 into evidence?

8 Yes.

9 MR. PILETTA-ZANIN: [Interpretation] Mr. President, just to

10 indicate that we have seen this document. The Prosecution wanted to know

11 what the parenthesis meant after the word "teror." For their information,

12 there is a Cyrillic letter "L" which means "Latinic." And "teror"

13 indicated the etymology which is present in all good dictionaries. And

14 just a moment ago I want to correct the English booth. I wasn't talking

15 about a current problem. I was talking about a record at the police where

16 complaints are filed.

17 JUDGE ORIE: Yes. An everyday record, as far as I understood.

18 So that is then admitted D1914.

19 Then, Mr. Piletta-Zanin, I would like to draw your

20 attention -- but I just have to consult Madam Registrar.

21 [Trial Chamber and registrar confer]

22 JUDGE ORIE: Mr. Piletta-Zanin, Ms. Pilipovic, D Exhibit 72, which

23 is a videotape, it appears that when it's played it's not very clear, and

24 I would like to give you an opportunity to check with the registry whether

25 this is really what is on the original as well because there might be some

Page 21603

1 confusion. Perhaps it's a bad tape. I do not know. But I just draw your

2 attention to it so that there is an opportunity to --

3 MR. PILETTA-ZANIN: [Interpretation] Mr. President.

4 JUDGE ORIE: Yes.

5 MR. PILETTA-ZANIN: [Interpretation] We should ask Madam Registrar,

6 who knows everything, what the content of this tape is so that we can find

7 this immediately.

8 JUDGE ORIE: It was submitted on the 14th of March of this year,

9 so I think on the basis of the transcript you could find out what the

10 context is. But if you could immediately answer that question,

11 Madam Registrar, then ...

12 MR. PILETTA-ZANIN: [Interpretation] If we could know who the

13 witness was perhaps, that would help us to localise this.

14 JUDGE ORIE: [Previous interpretation continues] ... Of last year.

15 I'm making a mistake. It's 14th of March, 2002. And I do understand that

16 it's a tape about the Markale market. Is that correct?

17 [Trial Chamber and registrar confer]

18 JUDGE ORIE: Yes. It's a tape about the Markale market that has

19 been submitted on the 14th of March of 2002.

20 Then I invited the -- yes, Madam Registrar.

21 THE REGISTRAR: It was tendered through Witness Sablija on

22 14/03/02.

23 MR. PILETTA-ZANIN: [Interpretation] Thank you.

24 JUDGE ORIE: Then finally we've only ten minutes left, and it

25 might be the wisest thing to do is to give a written decision on the whole

Page 21604

1 discussion on the exhibits that came to us through the witness Radinovic

2 or as an attachment to his report.

3 Ms. Pilipovic, last Tuesday you said that it would be difficult

4 for you to respond right away to the list the Prosecution has given

5 wherein it gives a summary explanation of its view on the Radinovic report

6 but also on Radinovic documents, Radinovic experts. Could you give your

7 response on that document now, or would you prefer to do that in writing

8 or would it be a general response or a very specific response?

9 MR. PILETTA-ZANIN: [Interpretation] Mr. President.

10 JUDGE ORIE: Yes.

11 MR. PILETTA-ZANIN: [Interpretation] I think that this has been

12 written, but nevertheless it seems that we sent a submission on the 20th

13 with regard to this issue -- but nevertheless, Mr. President, we can say

14 the following: First of all, it's not normal for the Prosecution to have

15 provided us with this list at such a late date because it consists of 16

16 pages and we refuse to believe that these 16 pages were written on the

17 18th or 19th. It is obvious that the Prosecution was aware of all the

18 points that it mentioned in detail when the general was here and when the

19 general testified. It's at that point that the Prosecution should have

20 informed us, at least partially, and then the Prosecution should have

21 raised the matter of these problems to provide us with opportunity of

22 responding if necessary. It didn't do that, and we think that this should

23 have been done.

24 On the other hand, General Radinovic clearly said that he had

25 viewed an important -- a significant number of documents. These documents

Page 21605

1 were partially provided to him by the Defence. He immediately recognised

2 them without notes on the basis of his memory, and this shows how well he

3 was acquainted with this matter.

4 And finally, the third point, in order to fully state what our

5 position is with regard to this matter: The Defence thinks that its

6 rights have been in a certain sense violated. Its right to a fair

7 proceedings, a fair judgment, in that the Defence was not in a position to

8 show each document to the witness, each document that Mrs. Pilipovic

9 intended to show the witness. A decision was taken after the Chamber

10 intervened. It was said, "if you carry on in this manner you will have

11 less time granted to you and it will not be extended," and as a result we

12 did not have the time to provide this in order to follow as suggested by

13 your Trial Chamber. And in a certain sense we think that it is bad for

14 the Prosecution to benefit from this. All the documents that were

15 provided to the witness have to be rejected. Why? There were about 200

16 pages -- this report of the witness refers to a collection of documents,

17 and it functions in relation to this collection of documents. To want to

18 reject these documents is a certain way to reject important documents and

19 also to prejudice the contents, and we can't accept this. The Defence

20 can't accept this.

21 JUDGE ORIE: Mr. Mundis -- well, first of all, I can establish

22 that after hearing from the Prosecution that the Defence could have taken

23 profit from certain documents provided, but now the balance is restored

24 because the Defence takes that the Prosecution would do better by taking

25 advantage of the documents provided.

Page 21606

1 But apart from that, any other observations?

2 MR. MUNDIS: Just a couple of brief observations, if I may,

3 Mr. President. First of all, it strains credibility for the Defence to

4 argue that they were completely taken by surprise with respect to the

5 16-page document which we provided. The Prosecution has consistently

6 raised the issue of the methodology used by this expert witness. We have

7 consistently raised the issue that the footnotes, we were unable to find

8 some of the footnotes. It was unclear what some of the materials were

9 referred to in the footnotes. You will recall I made oral submissions to

10 the Trial Chamber before this witness testified raising many of these same

11 issues.

12 The 16-page document which was handed up on Tuesday was initially

13 to be an outline of oral submissions that I would make with respect to the

14 issue of these documents. As I was preparing this list, it became quite

15 obvious that to do so in an oral setting would take far more time than

16 would be worthwhile or far more time than the Trial Chamber reasonably

17 would permit me to do. Shortly before the hearing commenced on Tuesday a

18 decision was taken to simply print out that document and make it available

19 to the Defence and to Your Honours as a simple way of summarising the

20 arguments which the Prosecution anticipated would have taken place on

21 Tuesday during the session that was -- that was held.

22 But again, just as a brief point, Mr. President, the Prosecution

23 has consistently raised this issue. We have been -- there's written

24 correspondence, there have been filings made, there have been a number of

25 occasions where we have raised issues pertaining to the documents and the

Page 21607

1 use thereof by this witness, so --

2 JUDGE ORIE: That needs no further explanation.

3 MR. MUNDIS: Thank you, Mr. President. And again, if the Chamber

4 would feel that it's necessary to have this issue more fully briefed,

5 we're prepared to do that in writing. But again, as a basic starting

6 point, I think the Prosecution view with respect to the documents is quite

7 clear from that list that is provided to you. One issue that remains

8 would be the admissibility of the expert report, and again we would object

9 to the admissibility of that report in total for reasons which I could set

10 forth either orally or in writing at the Trial Chamber's convenience.

11 JUDGE ORIE: Yes. Would that bring any specific new elements,

12 compared to what has been submitted previously by the Prosecution in this

13 respect? Because we have had already some submissions on the

14 admissibility or the inadmissibility of the report as such.

15 MR. MUNDIS: There would be a couple of -- of newer issues,

16 Mr. President, relating to the testimony of the witness and the sources

17 that he did use, and there would also be some legal argumentation involved

18 with respect to some of the jurisprudence of the Tribunal with respect to

19 expert reports which in the Prosecution view this report has raised a

20 number of issues that have been dealt with by other Trial Chambers and we

21 would be prepared to address the legal arguments with respect to those

22 aspects.

23 [Trial Chamber confers]

24 JUDGE ORIE: Mr. Piletta-Zanin.

25 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. I

Page 21608

1 listened to what my learned colleague said with attention, and I

2 understand what the mechanism desired by the Prosecution was, but that

3 surprises me even more because this is contrary to the principle of the

4 oral nature of the hearing. The Prosecution said that it did this to save

5 time, that is to say, as far as the respect of the parties and the number

6 of hours granted to each party is concerned, the Prosecution by following

7 this procedure provided you with a written document and did exactly the

8 contrary of what the Defence wanted to do in its restricted time; that is

9 to say, it wanted to enter into the substance of the document to be able

10 to prove what the witness knew about it, what he could say about it before

11 you. The Prosecution simply wanted to bypass the principle of the oral

12 nature of the hearings and this is not admissible.

13 JUDGE ORIE: Thank you for your explanation of the position of the

14 Defence, Mr. Piletta-Zanin.

15 The Chamber suggests that any additional argument to this summary

16 explanation and/or a short explanation of what a summary explanation is-

17 although, it's quite clear. We read that you briefly indicate where the

18 problems are, as far as the Prosecution is concerned, so I wouldn't say

19 that that needs much more explanation. But of course until now it's just

20 a piece of paper to assist us in hearing oral argument. From this piece

21 of paper it appears that this is not a matter which is preferably dealt

22 with orally because it creates a lot of confusion. Therefore, the

23 Prosecution, if they want to keep this document as a -- well, as an

24 itinerary through the report and the annexes and other documents, that

25 this would be filed perhaps as an annex to any additional legal argument,

Page 21609

1 that the Defence responds to that also in writing so that we could deal

2 with the matter. It will take some time because it's -- at least the

3 overwhelming number of documents, not only those attached to the report

4 but also those introduced during the testimony of the witness, is such

5 that we cannot deal with it in five minutes. That's impossible. So the

6 parties are invited to do so.

7 I would expect you, Mr. -- when do you think you could produce

8 that? Because it does not interfere in whatever way, I would say, with

9 the rebuttal evidence. I mean, the rebuttal evidence is limited now to

10 Mr. Tait-Harris, the photograph of the back of the person, which is

11 totally different from this.

12 MR. MUNDIS: Mr. President, I would anticipate that we would be

13 able to file certainly no later than close of business on Tuesday and --

14 JUDGE ORIE: Yes.

15 MR. MUNDIS: -- Perhaps close of business on Monday. But to be

16 safe, I would say close of business on Tuesday. We should have no

17 problem.

18 JUDGE ORIE: Yes, if you would do so. And the Defence already has

19 the basic part, that is, the document in its possession so that they could

20 start working on it. And let's -- the Chamber would like to have your

21 response then not later than the end of next week. So that would give you

22 three additional days. And then we'll give a decision on it.

23 At the same time - and I'm now looking forward to next week- can

24 the Chamber expect that Mr. Tait-Harris will be called right on Monday?

25 MR. IERACE: Yes, Mr. President, at 9.00 on Monday morning,

Page 21610

1 assuming that the Defence needs to hear from him. Perhaps I should

2 clarify. His statement is 92 bis'ed. Do you wish him to lead evidence in

3 chief that he took the photographs or will his evidence be accepted for

4 the purpose of evidence in chief?

5 JUDGE ORIE: Well, if he would -- that part of his statement is

6 extremely short. Let me just confer.

7 [Trial Chamber confers]

8 JUDGE ORIE: Assuming that the examination of Mr. Tait-Harris

9 would be limited to the issue raised, we leave it up to you whether you

10 want to present him as a 92 bis --

11 MR. IERACE: I'm happy with 92 bis, Mr. President.

12 JUDGE ORIE: Yes. But then only that part of the statement.

13 MR. IERACE: Yes, that's understood.

14 JUDGE ORIE: Yes. So that would be -- but if you say it's

15 difficult for us, then -- well, to put, to ask the same questions from

16 him, we'll take -- it will take five minutes. But 92 bis is no problem,

17 as far as the Chamber is concerned.

18 MR. IERACE: Thank you, Mr. President. Evidence in chief will be

19 simply a matter of the witness identifying himself.

20 Mr. President, two other issues very quickly.

21 JUDGE ORIE: Yes.

22 MR. IERACE: In relation to the annex 6, I do seek that that part

23 of January up to and including the entry for the 14th of January be

24 included. It does go beyond what's in the senior military observer's

25 report for the month of January 1993. These were documents called for on

Page 21611

1 the initiative of the Trial Chamber.

2 JUDGE ORIE: Yes.

3 MR. IERACE: And I think it would be artificial not to include it,

4 since it is clearly relevant.

5 Mr. President, if I might move on to another matter very quickly.

6 Given the finding, the decision of the Trial Chamber earlier this evening,

7 and having regard to an earlier decision as to the timetable to be applied

8 from the time of rebuttal, assuming there is no rejoinder and assuming

9 that that issue is determined, that is, if there is rejoinder, on Monday

10 and that the result is that there is no rejoinder, applying the timetable,

11 that would suggest that written submissions have to be filed by, I think,

12 the -- the 7th of April. And having regard to Rule 86, that would in turn

13 suggest that oral submissions would be either on the 14th or at some stage

14 in that week, which is the week before Easter. It would be of assistance

15 to us, as you might imagine, Mr. President, in planning our human

16 resources if that could be confirmed.

17 JUDGE ORIE: Yes. I must say I would rather confirm that. I

18 don't know whether you want to arrange for all of it during the weekend.

19 If not, the Chamber would prefer to have a closer look at it and deal with

20 it on Monday, not to make any mistakes in that respect. Because one of

21 the things -- one of your assumptions is - and I'm now turning to the

22 Defence - is that there will be no rejoinder evidence. Of course the

23 limited extent to which the rebuttal evidence is admitted certainly limits

24 the Defence as well. The Defence should, as it was indicated, at the end

25 of the rebuttal evidence indicate immediately what evidence or rejoinder

Page 21612

1 it seeks to present, unless the Defence could express itself already on it

2 now, knowing that the only issue during rebuttal evidence will be one

3 photograph, not even a medical report, but one photograph of a back of a

4 male person.

5 Mr. Piletta-Zanin.

6 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. Thank

7 you. To hurry is never a good idea. We thought that -- we thought about

8 this question over the weekend, and we're going to concentrate on this

9 matter and think about it. But if I may, I would like to answer

10 Mr. Ierace who linked up a couple of objects very skillfully, and I was

11 not in a position to answer the first issue. May I respond, in spite of

12 the fact that we are running out of time? I will do so very rapidly.

13 JUDGE ORIE: You've got one minute, and then I cannot ask the --

14 MR. PILETTA-ZANIN: [Interpretation] Two minutes, that would be

15 enough.

16 JUDGE ORIE: Yes.

17 MR. PILETTA-ZANIN: [Interpretation] It would be quite illogical to

18 add after the 13th something that no longer has anything to do with

19 Christmas or the Serbian New Year. I'm talking about the 14th of January.

20 Thank you very much.

21 JUDGE ORIE: Yes. That's clear.

22 We will adjourn until next Monday morning, the same courtroom,

23 9.00 in the morning.

24 --- Whereupon the Status Conference adjourned at

25 7.09 p.m.