1 Monday, 24 March 2003
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.09 a.m.
5 JUDGE ORIE: Good morning to everyone.
6 Madam Registrar, would you please call the case.
7 THE REGISTRAR: Case number IT-98-29-T, the Prosecutor versus
8 Stanislav Galic.
9 JUDGE ORIE: Thank you, Madam Registrar.
10 Mr. Ierace, is the Prosecution ready to present its rebuttal
12 MR. IERACE: Yes, Mr. President. We will do that.
13 Two preliminary matters: Because the evidence refers to a
14 protected witness and involves a photograph, it would seem that closed
15 session would be the appropriate format in which that evidence is to be
17 And secondly, rather than tender the 92 bis statement, it might be
18 easier all round if I take a few minutes to orally elicit the evidence in
20 JUDGE ORIE: Yes. As you may remember last Friday, the Chamber
21 has explicitly left it up to the Prosecution whether they wanted to
22 present the 92 bis statement. And then, of course, parts should have been
23 taken out, because only to some extent the rebuttal evidence was allowed.
24 And since the 92 bis statement also deals with other matters, perhaps that
25 might be the most practical way of presenting this evidence.
1 But before giving a decision, is there any observation to be made
2 from the Defence?
3 MR. PILETTA-ZANIN: [Interpretation] Mr. President, good morning.
4 None at all.
5 JUDGE ORIE: Then about closed session, Mr. Piletta-Zanin, is
6 there any ...?
7 MR. PILETTA-ZANIN: [Interpretation] Just a second, please.
8 [Defence counsel and accused confer]
9 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. I believe
10 that with good reason Mr. Galic, General Galic, tells me that the fact
11 that it's a protected witness does not necessarily require a closed
12 session. We could perhaps deal with the once and this photograph in
13 closed session in certain parts, as far as the photograph is concerned,
14 but not entirely.
15 JUDGE ORIE: [Previous interpretation continues] ... Apart from
17 But Mr. Ierace, would you agree to go into closed session whenever
18 any issue arises in respect of the protective measures?
19 MR. IERACE: Yes, Mr. President. Or alternatively, I could place
20 some yellow stickers over the identifying features of the witness's body.
21 JUDGE ORIE: Yes. But then, of course, the witness should be
22 instructed to -- not to mention the name of the --
23 MR. IERACE: He has those instructions already.
24 JUDGE ORIE: He has those instructions.
25 Okay. Then we might even avoid at all to go into closed session.
1 Then, Mr. Usher, could you please escort the witness into the
3 [The witness entered court]
4 JUDGE ORIE: Good morning. I take it that you're
5 Mr. Tait-Harris?
6 THE WITNESS: That's correct. Good morning, yes.
7 JUDGE ORIE: I don't have to ask you whether you understand me in
8 a language -- whether you hear me in a language you understand, since you
9 replied to my question.
10 THE WITNESS: Yes, I did.
11 JUDGE ORIE: Mr. Tait-Harris, before giving testimony in this
12 court, the Rules of Procedure and Evidence require you to make a solemn
13 declaration that you'll speak the truth, the whole truth, and nothing but
14 the truth. The text will be handed out to you now by the usher and I'd
15 like to invite you to make that solemn declaration.
16 THE WITNESS: I solemnly declare that I will speak the truth, the
17 whole truth, and nothing but the truth.
18 WITNESS: JONATHAN TAIT-HARRIS
19 JUDGE ORIE: Thank you. Please be seated.
20 Mr. Tait-Harris, as far as I understand, your testimony will be
21 about your investigative activities, also in relation to a person who is a
22 protected -- who was a protected witness in this case. May I -- although
23 I do understand that you might have received already instructions, would
24 you please not mention the name of any protected witness in this
1 THE WITNESS: Yes.
2 JUDGE ORIE: Yes. And if there would be a necessity to do so,
3 we'll turn into closed session first.
4 Mr. Ierace, please proceed.
5 MR. IERACE: Thank you, Mr. President.
6 Examined by Mr. Ierace:
7 Q. Sir, is your full name Jonathan Hopwood Tait-Harris?
8 A. That's correct.
9 Q. Were you born on the 1st of February, 1962?
10 A. Yes, I was.
11 Q. Are you an investigator with the International Tribunal for the
12 former Yugoslavia?
13 A. Yes, I am.
14 Q. And for how many years have you held that position?
15 A. Four and a half years.
16 Q. Prior to that, what was your occupation?
17 A. I was a detective officer with the West Mercia constabulary in
18 Great Britain.
19 A. Thank you.
20 MR. IERACE: I ask the witness be shown P3808. I have copies, one
21 for the witness.
22 MR. PILETTA-ZANIN: [Interpretation] Mr. President.
23 JUDGE ORIE: Yes, Mr. Piletta-Zanin.
24 MR. PILETTA-ZANIN: [Interpretation] Since this is going very fast,
25 I didn't hear very well where he was a detective, because it's not on the
2 JUDGE ORIE: [Previous interpretation continues] ... Please could
3 you repeat in what police force, as I understand, you were serving before
4 you came to the Tribunal.
5 THE WITNESS: The West Mercia constabulary, which is a police
6 service based in the midwest of Great Britain.
7 JUDGE ORIE: Mr. Ierace, I do not know what yellow stickers you
8 used exactly, but there is no other -- is there any name on it, or is that
9 the name of this witness?
10 MR. IERACE: That would be the name of this witness,
11 Mr. President.
12 JUDGE ORIE: Yes. Please proceed, then.
13 MR. IERACE:
14 Q. Sir, would you please place the photograph in front of you
15 complete with the yellow sticker on the machine to your right.
16 A. [Witness complies]
17 Q. Thank you. Do you recognise this photograph?
18 A. Yes, I do.
19 Q. Do you know who took this photograph?
20 A. I did.
21 Q. On what date did you take the photograph?
22 A. The 5th of March.
23 Q. And by reference to pseudonyms, who is it that appears in the
25 A. This is a gentleman known as Witness G.
1 MR. IERACE: Nothing further, Mr. President.
2 JUDGE ORIE: Yes.
3 One additional question: The 5th of March would be of this year?
4 THE WITNESS: That's correct.
5 JUDGE ORIE: Mr. Piletta-Zanin.
6 MR. PILETTA-ZANIN: [Interpretation] Thank you.
7 Cross-examined by Mr. Piletta-Zanin:
8 Q. [Interpretation] Witness, good morning. What are your titles,
9 degrees, academic titles?
10 MR. IERACE: I object, Mr. President, on the grounds of relevance.
11 JUDGE ORIE: Mr. Piletta-Zanin.
12 MR. PILETTA-ZANIN: [Interpretation] Mr. President, gladly. I note
13 that this is the first and, I hope, the last objection. If the witness
14 leaves the courtroom, I'll explain.
15 JUDGE ORIE: [Previous interpretation continues] ... Well, the
16 objection is about relevance. I do understand that Mr. Ierace points at
17 the fact that this witness has been called exclusively to establish the
18 source of this photograph, and I do understand that Mr. Ierace takes the
19 position that whether you take a photograph with or without any
20 academic --
21 MR. PILETTA-ZANIN: [Interpretation] All right. Very well. Very
22 well, Mr. President.
23 JUDGE ORIE: All right. We'll ask Mr. Tait-Harris to leave the
25 MR. PILETTA-ZANIN: [Interpretation] I said it's all right.
1 I'm -- I'm going to ask another question.
2 JUDGE ORIE: [Previous interpretation continues] ...
3 MR. PILETTA-ZANIN: [Interpretation]
4 Q. What is the sensitivity that you used?
5 A. May I ask in what respect?
6 Q. I'm talking about the photograph. What is the sensitivity of
7 this? When we're talking about photography, there are films of various
8 sensitivity. ASA.
9 JUDGE ORIE: Are you asking about what is usually called the DIN
10 or the ASA value of the film that has been used?
11 A. I understand the question now. The film -- sorry, the image was
12 recorded with a digital camera, so therefore film was not an issue.
13 MR. PILETTA-ZANIN: [Interpretation]
14 Q. Sir, how did you print this photograph?
15 A. This photograph was printed directly from the compact disk onto
16 which the images were downloaded.
17 Q. Did you do it yourself, the printing?
18 A. I requested it to be printed, but no, I didn't print it myself.
19 Q. So you gave that CD to someone else.
20 A. No, no. The image was printed directly off our internal computer.
21 Q. Who did the printing?
22 A. Our photo visuals unit. If I may explain the procedure, it's
23 quite straightforward.
24 Q. No, not for the moment. I would only like to know: What is the
25 machine you used to take this photograph, the camera?
1 A. A digital camera.
2 Q. Yes. But which one, which type?
3 A. Excuse me if I don't know, but it's one that was issued to me by
4 our equipment department.
5 Q. All right. Do you know whether with this type of camera you can
6 rewind the image?
7 A. No, I do not.
8 Q. It must be an interpreting matter. Can you turn the image back?
9 A. Can I make comment on the question before. I didn't actually hear
10 that question. So the answer I see before me is not what I meant.
11 JUDGE ORIE: No. I think the question is whether you can -- yes,
12 Mr. Piletta-Zanin.
13 MR. PILETTA-ZANIN: [Interpretation] Sinus cosinus. Sinus cosinus.
14 JUDGE ORIE: Whether you can mirror the image, so left to the
15 right, right to the left.
16 THE WITNESS: I don't know.
17 JUDGE ORIE: On that camera.
18 THE WITNESS: I don't know.
19 MR. PILETTA-ZANIN: [Interpretation]
20 Q. All right. Generally speaking, in all the mechanisms known to us,
21 computer mechanisms, and we know it, it is possible to reverse the image
22 on a photograph. Do you know -- no, I'm going to rephrase this question.
23 And kindly focus on the question that follows. I am talking about the
24 print that we have in front of us. How can I know - and I'm talking only
25 about the print now - how can I know without the negative, the original
1 negative, whether this photo is a reflection of what the camera saw or if
2 it is reversed? I'm not talking about the situation. I'm talking only
3 about this image, this print. Have you understood the question?
4 A. Yes, I have entirely. The photograph we have before us is the
5 photograph that I took, and I believe it hasn't been reversed because of
6 the fact I can relate it to other items in the room. But with regards to
7 whether it's possible with this camera, I cannot comment.
8 Q. Thank you. Does this camera allow you to make close-ups?
9 A. It does in the respect it has a limited zoom capability.
10 Q. What distance?
11 A. I don't know what the focal length of the lens is. It's the case
12 that when you look through it, you can zoom in and out until it frames the
13 photograph to your satisfaction.
14 Q. Witness, when you went on that mission, did you know what that
15 mission was? Did you know what you were supposed to photograph?
16 A. I was aware that I had to photograph this subject and this part of
17 the subject.
18 Q. Which part?
19 A. The gentleman's rear view.
20 Q. Very well. But his entire body, the rear view of his entire body,
21 or a certain part of it?
22 A. His upper rear body was the area in which I had particular
23 interest, and I asked him to expose the area that had been wounded.
24 Q. Did you know what kind of wound it was allegedly?
25 A. I was aware that they were -- the marks that I was particularly to
1 focus on would be consistent with that of a bullet wound. But as for any
2 more detail than that, no, I wasn't aware.
3 Q. All right. Before leaving, did you try to make a test of your
4 camera to see until what distance you could photograph with the zoom to
5 have as many details as possible?
6 A. If I understand your question correctly, you're asking me could I
7 have got closer to make a more detailed --
8 Q. No. I asked you whether you made a preliminary test.
9 A. No. Because the view finder gives you -- you see in the view
10 finder the image you will receive once the photograph is taken.
11 Q. That, I understand. But my question is whether - yes or no - you
12 made a test. For instance, did a colleague of yours draw something on his
13 back for you to test the camera and see how close you can get?
14 A. No, it wasn't necessary.
15 Q. Thank you. With the assistance of the usher, I would like you to
16 look at another photograph and use the Post-its so that we can have
17 maximum protection of the subject. Thank you.
18 MR. PILETTA-ZANIN: [Interpretation] No. Put a Post-it also on the
20 JUDGE ORIE: The signature -- it is the signature of this witness,
21 as we just have established, Mr. Piletta-Zanin.
22 MR. PILETTA-ZANIN: [Interpretation] Yes. But I want it to be
23 protected, Mr. President.
24 JUDGE ORIE: This witness is not protected in any way.
25 MR. PILETTA-ZANIN: [Interpretation] Oh, I'm sorry. Sorry.
1 JUDGE ORIE: Yes.
2 MR. PILETTA-ZANIN: [Interpretation] Sorry.
3 Q. All right. Witness, would you kindly point the wound with a
4 pointer, the entrance wound.
5 MR. IERACE: Mr. President.
6 JUDGE ORIE: Yes.
7 MR. IERACE: The question presumes that this witness from one
8 source or another is aware of which is the entrance wound and which is the
9 exit wound, and that hasn't been at all established.
10 JUDGE ORIE: Would you please first lay the foundation for this
11 last question. Yes, please continue.
12 MR. PILETTA-ZANIN: [Interpretation] Very well. I'll rephrase
13 that, Mr. President.
14 But could the booth follow me closely. Thank you.
15 Q. Witness, could you please point to the area where we can see a
16 wound in this image.
17 MR. IERACE: Well, Mr. President, again the question assumes there
18 is only one wound which is visible, and that hasn't been established.
19 MR. PILETTA-ZANIN: [Interpretation] Very well. I'll rephrase
21 Q. Witness, is there the trace of a wound of any kind on this part of
22 the person, on this side of the person; yes or no?
23 A. Yes.
24 Q. Could you please point to the wound that we can see or the wound
25 that you think you can identify.
1 A. [Indicates]
2 Q. Very well.
3 MR. PILETTA-ZANIN: [Interpretation] The witness complied and
4 pointed once to the upper part and then to the bottom part to the left
5 towards the interior, not towards the exterior.
6 JUDGE ORIE: Would you please repeat that, because I do not see
7 everything appearing in the transcript, Mr. Piletta-Zanin.
8 MR. PILETTA-ZANIN: [Interpretation] That I asked that I should be
9 closely followed. I'll repeat that. The witness started by pointing to
10 the upper part of the right -- of the back on the right. That's not the
11 case, but -- the right --
12 MR. PILETTA-ZANIN: [Interpretation] Well, if the booth can't
13 translate, they should say so.
14 JUDGE ORIE: No. I --.
15 MR. PILETTA-ZANIN: [Interpretation] Is there a problem? If so,
16 I'll change my terminology.
17 In the upper part, below the shoulder, to the right there's the
18 first wound. And then the second wound, it's to the left near the spine,
19 the shoulder blade to the left.
20 JUDGE ORIE: Yes.
21 MR. PILETTA-ZANIN: [Interpretation] Very well. That's clear.
22 Q. Witness, you pointed to the right, below the right spatula [as
23 interpreted] on the back of the patient --
24 MR. PILETTA-ZANIN: [Interpretation] It wasn't the spatula, but it
25 doesn't matter.
1 Q. You pointed to there. Is it possible - yes or no - to make a
2 close-up of this?
3 A. Not without removing the witness's visual features, which I
4 included so that we could link the photograph of the upper torso to the
5 person's identity, i.e., the head. To go in any closer would have been
6 just the relate or would have just resulted in purely a picture of the
8 Q. Witness, do you know whether there are medical reports which have
9 to do -- which concern this witness; yes or no?
10 MR. IERACE: I object, Mr. President. I note that it's 15
11 minutes, firstly. Secondly, this goes well beyond the scope of rebuttal
12 and therefore the scope of cross-examination, in my respectful submission,
13 a very different rule applies to cross-examination of a rebuttal witness
14 in terms of latitude. Thank you.
15 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I don't agree.
16 But it's not the first time that I don't agree with my colleague,
17 Mr. Ierace. And it's for the reason -- for the following reason: We know
18 that if we want to have a clear idea of this, we have to have the trace of
19 the wound somewhere. It has to be visible. Our medical expert on the
20 basis of such photographs would have liked to tell us something, to inform
21 us of something, but we have great difficulties.
22 JUDGE ORIE: [Previous interpretation continues] ... Whether
23 this -- whether this witness knows anything about medical reports in
24 respect of the person he photographed.
25 Do you know anything about medical reports in respect of
1 this -- of this part of the body of Witness G?
2 THE WITNESS: I'm going to be very cautious in my answer here.
3 About this photograph, Mr. President, no. But I'm aware that certain
4 medical records do exist for this witness.
5 JUDGE ORIE: Yes. Did you consult them before taking this
7 THE WITNESS: I did read them, but my aim in taking this
8 photograph was to record an image, and it wasn't, I believe, necessary to
9 go into any greater detail than establish this person had wounds upon his
10 back so that I knew what area to photograph and that I could discuss that
11 with him so that I got the right photograph.
12 JUDGE ORIE: Yes. Mr. Piletta-Zanin, please proceed.
13 MR. PILETTA-ZANIN: [Interpretation]
14 Q. As a former detective in the police force, did you ever have the
15 opportunity in the course of your professional life of using cameras; yes
16 or no?
17 A. In my years with the West Mercia constabulary, no, that was not
18 the role of a detective. We had other persons to work with to do that
20 Q. Other situations perhaps, here in the OTP?
21 A. Yes. I have used cameras and video cameras before.
22 Q. Thank you. When you say that you've used cameras, would that
23 include classical cameras with film?
24 A. Various types of camera, including film camera.
25 Q. Thank you. Witness, do you know whether in the course of
1 investigations, police investigations, it is sometimes useful to see
2 details, that is to say, to have close-ups --
3 JUDGE ORIE: Yes. I know Judges who immediately seize mobile
4 phones that are --
5 MS. PILIPOVIC: [Interpretation] I apologise, Your Honour. I have
6 a problem with my -- with my device because I can't see when it's on, when
7 it's all. I apologise.
8 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I'm sure that
9 my colleague is trying to remind me that time is running out, and I'll
10 take that into account.
11 Q. Witness, this will be my last question: Do you know whether in
12 the course of police investigations it is sometimes necessary to have a
13 detail available, that is to say, to have a close-up of certain elements
14 which are of particular importance for an investigation? Are you aware of
16 A. Yes. But --
17 Q. Thank you. Thank you. Witness, would you have had the
18 possibility, the technical possibility in the OTP, within the OTP to take
19 a traditional device with you for investigation of yours which might have
20 enabled us to have a close-up and to have the appropriate lens to have a
21 close-up of these two alleged points of impact? Did you have such a
22 possibility; yes or no?
23 A. The equipment was available. It would not have made the
24 photograph attributable.
25 Q. For what reason?
1 A. Quite simply the case that the photograph was taken as such so
2 that we could attribute it to this particular witness. The equipment
3 required would be quite simple and the equipment that we took this with,
4 that this was taken --
5 Q. Witness, I'll stop you there. Why did you provide me with this
6 answer? I simply asked you whether the material existed -- the equipment
7 existed. You made a comment. Why did you add this comment?
8 A. So that my answer was understood.
9 Q. The question was simple: Was there such equipment; yes or no?
10 Would it have been possible - yes or no - to make a close-up of these two
11 points or -- that is, of the upper part of the back; yes or no?
12 A. Yes.
13 MR. PILETTA-ZANIN: [Interpretation] Thank you. No further
14 questions, Mr. President.
15 JUDGE ORIE: Thank you, Mr. Piletta-Zanin.
16 Is there any need to re-examine the witness, Mr. Ierace?
17 MR. IERACE: Just one matter, Mr. President.
18 JUDGE ORIE: Yes.
19 Re-examined by Mr. Ierace:
20 Q. Do you have in front of you a black pen?
21 JUDGE ORIE: If you want markings to be made, Mr. Ierace, blue was
22 the colour --
23 MR. IERACE: Sorry, Mr. President. Blue, yes.
24 Q. Would you please take the blue pen and circle the two wounds that
25 you indicated earlier, being very careful as you do so to not actually
1 obscure the wounds themselves. Thank you.
2 A. [Marks]
3 MR. IERACE: Nothing further, Mr. President.
4 JUDGE ORIE: Thank you, Mr. Ierace.
5 MR. PILETTA-ZANIN: [Interpretation] Perhaps just one question,
6 Mr. President.
7 JUDGE ORIE: Yes.
8 Further cross-examination by Mr. Piletta-Zanin:
9 Q. [Interpretation] Witness, could you take the pointer. Can you see
10 the first part of the right -- the anterior, the forward part of the right
12 A. I'm sorry, I don't understand. I can see his right elbow.
13 Q. I understand. Of course you can see it. The anterior part of the
14 right elbow, the fore part.
15 [In English] The right part of his elbow, please, can you see it?
16 A. If you're referring to this area here, yes.
17 Q. That's exactly that. Do you see anything here, a hole maybe?
18 A. I can see wrinkles and a dark area.
19 Q. Could you point to that spot, please.
20 A. [Indicates]
21 Q. All right. Can you see a hole here? Can you see a hole?
22 A. I can see a mark, but I don't know whether it's a hole or not. I
23 can't comment on whether it's a hole.
24 Q. Okay. No comment at all. Thank you very much.
25 JUDGE ORIE: Thank you.
1 [Trial Chamber confers]
2 JUDGE ORIE: Judge Nieto-Navia has one or more questions.
3 Questioned by the Court:
4 JUDGE NIETO-NAVIA: Did you take one photograph only or more than
5 one photograph?
6 A. Four photographs.
7 JUDGE NIETO-NAVIA: Do you have them?
8 A. Not with me.
9 JUDGE NIETO-NAVIA: Yes.
10 MR. IERACE: Mr. President, we have some black-and-white copies of
11 those if you wish to see them.
12 JUDGE NIETO-NAVIA: Yes. But I think that we should see them on
13 the ELMO, the colour photographs as well.
14 MR. IERACE: Yes. Yes. I'll hand those up.
15 JUDGE ORIE: Could we also take care that the --
16 MR. IERACE: I'm sorry, Mr. President --
17 JUDGE ORIE: -- The face of the person photographed is --
18 MR. IERACE: Yes. And I don't have colour photocopies, only black
19 and white.
20 JUDGE ORIE: They could be produced if necessary.
21 MR. IERACE: They could, yes.
22 JUDGE ORIE: Yes.
23 MR. PILETTA-ZANIN: [Interpretation] Mr. President.
24 JUDGE ORIE: Yes.
25 MR. PILETTA-ZANIN: [Interpretation] I'll have to intervene with
1 regard to a problem of disclosure concerning this witness. And could the
2 Prosecution provide us with these elements as soon as possible because we
3 are quite surprised to discover about their existence now. I didn't ask
4 the witness because I was sure there was one photograph. That changes
5 everything. We'll have to prepare for this witness for certain.
6 MR. IERACE: Mr. President, I -- if I could respond to that.
7 JUDGE ORIE: Yes, Mr. Ierace.
8 MR. IERACE: Thank you, Mr. President. Mr. President, I don't
9 accept that the disclosure obligations require -- will require the
10 Prosecution in this case to disclose to the Defence every photograph taken
11 by this witness of Witness G. I see no basis for that. Thank you.
12 JUDGE ORIE: Yes.
13 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I don't think
14 that's the case. We're trying to find the truth here and not play a game
15 of hide and seek. The Prosecution has had these photographs since March,
16 I think, so for long enough, and I don't see why we weren't informed of
17 this immediately. We've had to try and contact our expert, ask the expert
18 questions, and we're not ready today, so we are saying that there's been a
19 violation of our rights. This seems to me to be a manoeuvre which
20 violates the Rules, and it's not acceptable.
21 JUDGE ORIE: What Rule exactly, Mr. Piletta-Zanin?
22 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I think that
23 when we have -- when one has material -- I haven't seen these photographs
24 yet. If there is material --
25 JUDGE ORIE: What Rule exactly, Mr. Piletta-Zanin?
1 MR. PILETTA-ZANIN: [Interpretation] Well, Mr. President, I think
2 that with regard to respect for fair proceedings, the accused should know
3 exactly what is being done. And when one continues with an investigation,
4 all the elements of the investigation should be provided.
5 JUDGE ORIE: I was asking you what Rule exactly, perhaps apart
6 from --
7 MR. PILETTA-ZANIN: [Interpretation] I think Rule 66 should provide
8 an answer to that question. But unfortunately I don't know this by heart.
9 JUDGE ORIE: Yes. Rule 66(B) says that "The Prosecutor shall on
10 request permit the Defence to inspect any books, documents, photographs,
11 and tangible objects in the Prosecutor's custody or control which are
12 material to the preparation of the Defence or are intended for use by the
13 Prosecutor as evidence at trial or were obtained from or belonged to the
14 accused." Isn't it -- that would be Rule 66(B), which starts with a
15 request. And I'm just trying to -- because I'm trying to find,
16 Mr. Piletta-Zanin, the Rule which says that the material, also those parts
17 that are not used in evidence, should have been disclosed to you.
18 MR. PILETTA-ZANIN: [Interpretation] Yes. But, Mr. President, I
19 think that there is a general principle, especially if we have such a
20 delicate question and something that has to be dealt with by experts,
21 because we have seen that the experts don't share the same opinion. When
22 we continue with investigations and additional elements are provided, I
23 don't think that one can content oneself with simply providing the best
24 of. Everything that's been photographed should be provided or nothing.
25 [Trial Chamber confers]
1 JUDGE NIETO-NAVIA: I have no further questions. I have the
2 photographs. That's all. No questions.
3 JUDGE ORIE: Yes.
4 MR. PILETTA-ZANIN: [Interpretation] Mr. President.
5 JUDGE ORIE: Yes.
6 MR. PILETTA-ZANIN: [Interpretation] You know that the Defence is
7 sometimes perfectionist, and we would be glad -- we'd appreciate it if we
8 could have these photos in colour, if there are any.
9 JUDGE ORIE: Yes. As far as I understand, they have to be
10 printed. Is that correct?
11 THE WITNESS: That would be correct, yes, Mr. President.
12 JUDGE ORIE: Yes. And that's possible and that doesn't take too
13 much time, I take it.
14 THE WITNESS: No, I don't believe it will do.
15 MR. PILETTA-ZANIN: [Interpretation] Thank you.
16 JUDGE ORIE: I have one question for you: Did you look closely to
17 the part of the body of Witness G you were to photograph?
18 A. Yes. But -- yes.
19 JUDGE ORIE: Did you see anything on this part of his body, apart
20 from the two spots you just indicated which to you, as not a medical
21 expert, looked as if this was a scar of a previous wound?
22 A. No.
23 JUDGE ORIE: Thank you for your answer.
24 Mr. Tait-Harris, since you've answered all the questions --
25 MR. PILETTA-ZANIN: [Interpretation] Not quite, Mr. President.
1 JUDGE ORIE: Do I understand that you would like to put another
2 question to the witness?
3 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I've just said
4 this, and I'll say it even more clearly: We worked in the dark to a
5 certain extent because our expert wasn't able to - and I'll show this -
6 JUDGE ORIE: [Previous interpretation continues] ... That's not
7 the testimony of this witness. What I do understand is that you want to
8 have oral arguments on disclosure issues which eventually might lead you
9 to further requests or submissions to the Chamber, and perhaps that
10 therefore you would like to remain this witness available or his
11 photographs available. Is that correct?
12 MR. PILETTA-ZANIN: [Interpretation] Yes, that's right,
13 Mr. President. But what I wanted to say before we release the witness,
14 the Defence reserves its rights. Because when we asked for the assistance
15 of an expert to get prepared, he was incapable for seeing -- of seeing a
16 possible wound on the back in the photographs that were given to us. So
17 now perhaps we'll be able to work. Thank you.
18 JUDGE ORIE: Yes. Mr. Ierace, we therefore can expect that the
19 Defence might submit a request for further cross-examination of this
20 witness in respect of other photographs shown. The status of these other
21 photographs is not entirely clear to me at this moment because it's not
22 clear to me what photographs you'll tender as exhibits. Is that only the
23 coloured photograph or also the black-and-white photographs that have been
24 shown to us?
25 MR. IERACE: Mr. President, I'm happy to tender the
1 black-and-white photographs as well if that's of assistance to the Trial
3 JUDGE ORIE: Yes. Just in order to clarify issues, may I ask you,
4 Mr. Tait-Harris: One of these four photographs seems to be part of the
5 coloured photograph; is that right? And I am looking at the bottom of
6 these pages. There's one which bears the number -- yes. Could that
7 please be shown -- 1106.JPG and is not the entire --
8 A. This black-and-white photograph that I see here does appear to be
9 slightly smaller than the -- than the image, but the file number which you
10 see at the bottom left-hand corner is the same.
11 JUDGE ORIE: Yes. Do I have to understand that all of these
12 black-and-white photographs are parts of the original photographs?
13 Because they all end at 5.3 and then do not give any further details in
14 respect of the dates, and I can imagine that this has been caused by the
15 landscape versus the portrait format of the --
16 A. The reproduction, yes.
17 JUDGE ORIE: Of the reproduction.
18 A. I believe that's the case.
19 JUDGE ORIE: Thank you.
20 Mr. Ierace, if you want to -- if all these documents are -- all
21 the photographs are tendered, would it not be wise to provide coloured
22 photographs but then the full photograph and not only part of it?
23 MR. IERACE: Yes, Mr. President. I imagine we can obtain colour
24 copies during the course of the day, if that's of any assistance.
25 JUDGE ORIE: Yes.
1 Mr. Tait-Harris, this at least for this moment concludes your
2 evidence before this Trial Chamber. As you may have noticed --
3 MR. IERACE: Mr. President.
4 JUDGE ORIE: Yes.
5 MR. IERACE: I apologise for interrupting. It's just been brought
6 to my attention that there may be a further photograph which is not
7 included in the black-and-white copies. I'll provide a copy of that as
8 well to my learned colleagues during the day.
9 JUDGE ORIE: Yes. But that would raise the issue whether there
10 was a fifth photograph and the number "5" seems to be a problematic one in
11 this courtroom.
12 Mr. Tait-Harris, was it your evidence that you took four
13 photographs or ...?
14 A. Yes. I said four.
15 JUDGE ORIE: Four.
16 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I have a
17 question now because the fifth photograph --
18 JUDGE ORIE: Mr. Ierace, could you explain to this Chamber how you
19 could produce a fifth photograph where the witness says that he has taken
21 MR. IERACE: Yes, Mr. President, I can explain that.
22 Perhaps I should do that in the absence of the witness.
23 JUDGE ORIE: Yes. Mr. Usher, may I ask you to escort
24 Mr. Tait-Harris out of the courtroom for a while.
25 [The witness stands down]
1 JUDGE ORIE: Mr. President, what prompts me to say is that is that
2 I have an e-mail from Mr. Tait-Harris to myself dated the 13th of March,
3 2003 on which there is a further image. The email included electronically
4 copies of the photographs we've so far seen and a further one. So I
5 suspect that he's forgotten that one.
6 I should hasten to add I don't think it changes the situation at
7 all in terms of the quality of the evidence. But just to be complete on
8 it, I think there is a fifth photograph.
9 JUDGE ORIE: Could you -- we should ask the witness. Could you
10 tell us -- he has sent these photographs electronically to you by email?
11 MR. IERACE: Yes.
12 JUDGE ORIE: And there were five. And they all cover the same
13 subject? It's not --
14 MR. IERACE: Would you allow me a minute, Mr. President, just to
15 double-check that.
16 JUDGE ORIE: Yes.
17 [Prosecution counsel confer]
18 JUDGE ORIE: Mr. Ierace, if you would look at the black-and-white
19 copies you see that the file numbers are indicated, and Judge Nieto-Navia
20 draws my attention to the fact that it goes from 1103 to 1105 and then 6
21 and 7, so one would expect that once there existed an 1104.
22 MR. IERACE: Mr. President, I think actually the further
23 photograph I have is the number 2 rather than the number 4.
24 JUDGE ORIE: Yes. And does that also show the back of Witness G
25 or --
1 MR. IERACE: Oh, yes, it does.
2 JUDGE ORIE: Yes. Then we should ask the witness in more detail
3 about that.
4 Yes, Mr. Piletta-Zanin.
5 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. Thank you
6 for 02, but 04 is missing, so from 5 we'll probably be reaching number 6,
7 so we should deal with this on one occasion, at once.
8 JUDGE ORIE: Yes. If Mr. Ierace could inform us -- he only talked
9 about five photographs and not of six, but if he has any knowledge of a
10 sixth photograph which could be 1104, then ...
11 MR. IERACE: I don't, Mr. President.
12 JUDGE ORIE: You don't.
13 MR. IERACE: No.
14 JUDGE ORIE: Okay. Let's then ask the witness.
15 Mr. Usher, could you please escort the witness into the courtroom
17 [The witness entered court]
18 JUDGE ORIE: Mr. Tait-Harris, there's still a few questions
19 remaining. You testified that you took four photographs. We have been
20 informed that you once sent an email with attached to it electronic
21 photographs of the same subject but that there were five.
22 A. I apologise if that is the case. I must be mistaken.
23 JUDGE ORIE: Yes. Could you please look on the black-and-white
24 photographs, if they could be put in front of you again. We see -- on the
25 black-and-white ones we see the file names. What the Chamber has in front
1 of it is file numbers 1103.JPG, 1105, 1106, and 1107. You'll find that on
2 the bottom of the page printed out. Are you aware of the existence of
3 1104 and perhaps 1102 and/or 1108? I mean, there's one missing in the
4 series, and of course it's still to be established whether 1103 would be
5 the first one of the series and whether 1107 would be the last one of the
7 A. Mr. President, I'm not aware of the existence of other photographs
8 that perhaps would slot into this sequence of numbers. When I take the
9 photographs with this camera, I merely switch the camera on and begin to
10 photograph them. The file number doesn't appear until the time when you
11 come to download them, if that's a good way of explaining it. And as to
12 how the camera numbers these photographs, these are numbered by the camera
13 rather than myself. And if they're out of sequence, then that is possibly
14 down to a technical explanation that I don't -- that I'm not able to
16 JUDGE ORIE: Yes. Then the next question would be: Did you take
17 any photograph at that time of which you thought it was, for example, for
18 technical reasons not satisfactory and that, therefore, you removed it,
19 which in -- with many cameras one can do?
20 A. There was a further photograph, and it was sideways on, if I may
21 use that term, in landscape as opposed to portrait. I haven't removed it.
22 It still exists.
23 JUDGE ORIE: Yes. Any further questions in respect of this?
24 MR. PILETTA-ZANIN: [Interpretation] It's possible that there
25 was -- that there is one, but I would like to consult my co-counsel, if
1 you allow me first.
2 JUDGE ORIE: Yes, please do, Mr. Piletta-Zanin.
3 MR. PILETTA-ZANIN: [Interpretation] Thank you.
4 [Defence counsel confer]
5 [Trial Chamber confers]
6 MR. PILETTA-ZANIN: [Interpretation] Mr. President.
7 JUDGE ORIE: Yes.
8 MR. PILETTA-ZANIN: [Interpretation] No other questions, but just a
9 suggestion to the Prosecution so that we can save time. Would it be
10 possible for the Prosecution to give us a computer copy of the photographs
11 they received. If that's possible, we could immediately do what is
12 required, send it to one of our experts, to save time, and after that we
13 could hear again this witness. It's just a matter of practical saving of
14 time. We could have a computer copy.
15 MR. IERACE: Mr. President, I certainly have -- I'm certainly
16 happy to provide electronic copies of the photographs. I wouldn't want
17 that to be interpreted as an acceptance by the Prosecution of the need to
18 recall the witness.
19 Might I make a suggestion, and that is that we quickly print off
20 this further photograph so that we can from the Prosecution perspective,
21 at least, complete the evidence of this witness promptly, at least in
22 black and white, if not colour.
23 MR. PILETTA-ZANIN: [Interpretation] Objection, Mr. President. The
24 Defence will not be helped much if they think we can prepare like that on
25 the technical level. We need time to consult our experts. At this time
1 we cannot immediately be ready and continue the cross-examination of this
3 JUDGE ORIE: Mr. Ierace, if you could provide a electronic version
4 of all photographs available to you to the Defence, that would be fair.
5 I do understand that the Defence reserves its right to ask this
6 witness to be recalled for further cross-examination. The Chamber will
7 consider that matter.
8 And if you are preparing an electronic version, and I do
9 understand that it's not your intention to file it but the Chamber would
10 like to have an electronic copy as well because it enables to enlarge and
11 to do a lot of things in order to have a better look at these photographs.
12 But apart from that, the Chamber would like to have all the photographs
13 taken, whether there are five or six, in evidence in coloured copies.
15 MR. PILETTA-ZANIN: [Interpretation] [redacted]
16 have the same view of things. One of the reasons - and I thank you for
17 this suggestion - what we wanted is to have photographs showing certain
18 areas. And when you enlarge the photograph, you can see whether it is
19 reversed or not. They always go in this -- in the same direction.
20 Certain things are always juxtaposed in a certain way. So if you have a
21 picture in the photograph, you will be able to see whether it was reversed
22 or not.
23 [Trial Chamber and registrar confer]
24 JUDGE ORIE: Mr. Piletta-Zanin, would you please be very careful
25 in having pictures in your hand while standing because the booth cannot
1 guarantee that not part of those pictures are not seen on the screen. I
2 can imagine that you --
3 MR. PILETTA-ZANIN: [Interpretation] My mistake. I'll take
4 something else to hold it rather than a photograph. My mistake and
6 JUDGE ORIE: Then Mr. Tait-Harris --
7 MR. IERACE: Mr. President.
8 JUDGE ORIE: Yes.
9 MR. IERACE: I apologise for interrupting. I seek leave to ask a
10 question or two following on the last answer of the witness.
11 JUDGE ORIE: Yes. That directly arises from the questions from
12 the Bench, I take it. Please do so, Mr. Ierace.
13 MR. IERACE: Thank you, Mr. President.
14 Further examination by Mr. Ierace:
15 Q. Sir, you said there was a further photograph and it was sideways
16 on, if I may use that term, in landscape as opposed to portrait. The
17 photograph that you were first shown this morning was in what format,
18 landscape or portrait?
19 A. The one this morning was landscaped.
20 Q. All right. The photograph that you described as still existing,
21 that you haven't removed, as best as you recollect is that in landscape or
23 A. On the computer screen, the image of the witness lies sideways.
24 But whether it's actually in a portrait or a landscape background, I don't
1 Q. All right. Thank you.
2 MR. IERACE: Nothing further, Mr. President.
3 JUDGE ORIE: Thank you, Mr. Ierace.
4 Mr. Tait-Harris, I'll try it once again, to tell you that this
5 concludes for the time being your evidence before this Trial Chamber. You
6 may have noticed that there might be a moment where the parties or the
7 Chamber would like to call you again as a witness.
8 Yes, Mr. Ierace.
9 MR. IERACE: Mr. President, if it assists, I now have some
10 black-and-white copies of that photograph.
11 JUDGE ORIE: Yes. Well, at least we could have a look at it not
12 in order to take final decisions but at least to convince ourselves that
13 it's about the same subject.
14 Could they be distributed. Mr. Usher, could you please assist
15 Mr. Ierace.
16 In order to avoid any confusion, what we see in front of us now
17 seems to be also a part -- a black-and-white copy of a part of a
18 photograph which appears to have been taken as portrait rather than in
20 MR. PILETTA-ZANIN: [Interpretation] Mr. President.
21 JUDGE ORIE: Yes.
22 MR. PILETTA-ZANIN: [Interpretation] Precisely. As the witness was
23 telling us, if this is something that was photographed sideways, it's not
24 the impression I have when I look at this. So I don't know if we could
25 ask the witness before releasing him if it's exactly the picture that he
1 remembers or if he meant perhaps 04. I don't know.
2 JUDGE ORIE: Could perhaps the black-and-white copy be shown to
3 the witness. It's already there.
4 Mr. Tait-Harris, we're looking at the black-and-white photograph
5 of which appears on the bottom "1102.JPG". Is this what you described as
6 a photograph sideways taken?
7 MR. IERACE: Mr. President.
8 JUDGE ORIE: Yes.
9 MR. IERACE: That was not the evidence. If I could direct you to
10 page 28, line 8, the witness referred to the image being sideways on the
11 computer screen rather than the way it was taken.
12 JUDGE ORIE: Yes. Is this the picture you were talking about
14 THE WITNESS: Mr. President, before I -- I confirm that it is, I
15 would like to actually check my image on a computer screen. I believe
16 that this is the same photograph, but I would actually like to see the
17 computer screen image. The reason I had difficulties, I tried to
18 reproduce this by printing it and my image would not come out. That might
19 be due to my lack of technical knowledge.
20 JUDGE ORIE: Yes.
21 THE WITNESS: Or sufficient technical knowledge.
22 JUDGE ORIE: Yes.
23 [Trial Chamber confers]
24 JUDGE ORIE: For various reasons the Chamber deems this not
25 necessary at this very moment for you to verify whether this was the
1 picture you had in mind. If needed, if you would be recalled, then of
2 course we could pay further attention to it. But at this moment that's
3 not necessary.
4 Mr. Ierace, the Chamber would also like to have a colour version
5 of this complete photograph.
6 Mr. Tait-Harris, I'm first looking to the parties before I give it
7 a final try to see whether this really concludes for at this very moment
8 your evidence -- your testimony in this court.
9 MR. PILETTA-ZANIN: [Interpretation] Mr. President.
10 JUDGE ORIE: Yes.
11 MR. PILETTA-ZANIN: [Interpretation] Just one remark: Because this
12 witness is going to check this in his computer, let him also check --
13 JUDGE ORIE: No, the Chamber has decided that it was not necessary
14 for him to check it at this moment. But if there would be anything else,
15 because if he would be recalled, if there would be anything else you'd
16 like him to check, please tell us now so that, Mr. Tait-Harris, that if
17 you would receive a message that you would have to testify again, that
18 apart from checking this photograph, that -- what else, Mr. Piletta-Zanin,
19 you would like him to --
20 MR. PILETTA-ZANIN: [Interpretation] Simply, I would like us to be
21 certain whether there were four or five or seven photographs, because the
22 series does not go in sequence, some numbers are missing. So let the
23 witness check if there were five, six, or seven, or more. Thank you.
24 JUDGE ORIE: I take it that you'll check on your computer as well
25 whether we now have seen all the photographs or that there were any other
1 photographs, but of course same subject, that means the back of Witness G.
2 Well, this concludes for the time being your evidence in this
3 court. Since there's a chance that you'll be recalled, I would like you
4 not to discuss with anyone the subject of your testimony, also not in the
5 near future. That does not mean that you're not allowed to work on it or
6 that you would not be allowed to give instructions as such as to make
7 printouts and give instructions on how to do that, but that you're not
8 permitted to discuss the wounds, the situation of the wounds, what this
9 could prove or not. So I'd like to instruct you not to discuss such
10 issues with anyone unless -- up till the moment that it's for certain that
11 you'd not have to appear again as a witness in relation to these
13 THE WITNESS: I understand.
14 JUDGE ORIE: Yes.
15 Then, Mr. Usher, would you please escort Mr. Tait-Harris out of
16 the courtroom.
17 [The witness withdrew]
18 JUDGE ORIE: I take it that the photographs -- the colour
19 photographs could be made available to the Defence by today?
20 [Trial Chamber and registrar confer]
21 JUDGE ORIE: The black-and-white photographs, as they have been
22 shown to us, will be marked for identification so that we later can check
23 whether the colour copies of the full photographs is the same as the
24 black-and-white cutout.
25 And then I take it that you already tender at this moment as P3808
1 the --
2 MR. IERACE: Yes, Mr. President.
3 JUDGE ORIE: -- Photograph which has been provided in colour.
4 THE REGISTRAR: And that should be under seal.
5 JUDGE ORIE: Yes.
6 MR. IERACE: Yes.
7 THE REGISTRAR: And the photographs marked for identification will
8 be MFI.25.
9 JUDGE ORIE: That is a set of photographs on which appears on the
10 bottom the file number --
11 THE REGISTRAR: I apologise. I made an error. It's MFI.32.
12 JUDGE ORIE: And that is a bundle of black-and-white photographs
13 which a file indication on the bottom of the page, last numbers 1102,
14 1103, 1105, 1106, and 1107 before the extension "JPG." Yes.
15 [Trial Chamber and registrar confer]
16 JUDGE ORIE: Also, this bundle of black-and-white photographs is
17 marked for identification but under seal.
18 Mr. Piletta-Zanin, Ms. Pilipovic, may I invite the Defence to
19 express itself, apart from on the issue of these photographs, the
20 additional photographs, what the Defence intends to present as evidence in
21 rejoinder, if any.
22 MR. PILETTA-ZANIN: [Interpretation] Yes, Your Honour. We believe
23 that there should be one. We learned about the existence of new elements
24 at the last minute, and these elements are certainly important. What we
25 wanted and the Defence team will have to consult some more about the new
1 photographs we will soon receive in colour, I hope -- we will have to
2 express only a part of our views today. We wanted the expert who had
3 to -- the opportunity of reviewing this sniping incident, Dr. Dunjic, to
4 receive these photographs and equipped with the knowledge he has of the
5 events in question - I regret to say that this particular expert is now
6 engaged in working in the investigation of a very important assassination
7 in Yugoslavia - so we wanted this expert to come to the court and based on
8 all of these photographs to explain whether what he said during his first
9 testimony still holds or not. I think it is important for him to come as
10 a forensic expert and tell us his views. I believe we owe it to the
11 defence of General Galic. Apart from that, we will have to consult on the
12 colour photographs we are soon going to receive. Thank you.
13 JUDGE ORIE: Yes. Is there any other evidence in rejoinder the
14 Defence intends to present?
15 MR. PILETTA-ZANIN: [Interpretation] Mr. President, we talked about
16 this before, before these photographs, and we had thought not, but we
17 don't know what we are going to discover now. So under this reservation,
18 in all likelihood there would only be this evidence to be adduced in
20 JUDGE ORIE: I, therefore, do understand that the picture that has
21 been admitted into evidence, that is, the P3808, as such was not a reason
22 to suggest any --
23 MR. PILETTA-ZANIN: [Interpretation] No. No, Your Honour. Anyway,
24 we had decided to bring this expert again for the following reason: The
25 expert sent us by facsimile what he was able to, namely certain plans,
1 layouts, but he was not able to locate particular wounds. So on the basis
2 of this first photograph, he was unable to give us any information. He
3 indicated that there were several possibilities. Today, however, things
4 are a bit clearer, and therefore he should be given the opportunity of
5 viewing this photograph again plus the other photographs and tell us what
6 he thinks. We believe he should come here to tell us to what extent the
7 first photograph can prove anything from the technical point of view. So
8 in any case, we would like him to come.
9 JUDGE ORIE: Yes. So irrespective of what the other photographs
10 will bring you, it is the request of the Defence to be permitted to
11 present as rejoinder evidence the testimony of Dr. Dunjic, specifically in
12 respect of Witness G and the new photographs.
13 MR. PILETTA-ZANIN: [Interpretation] Quite so, Your Honour.
14 Professor Dunjic.
15 JUDGE ORIE: You certainly are aware that the Chamber did not
16 permit any further expertise, apart from just the photographs. But we'll
17 consider the matter and see.
18 MR. PILETTA-ZANIN: [Interpretation] Your Honour, it is obvious
19 that this witness should talk to us, if at all, only with regard to the
20 evidence newly led by the Prosecution, namely these photographs.
21 [Trial Chamber confers]
22 JUDGE ORIE: Mr. Ierace, is the Prosecution in a position to
23 express itself immediately on the request to present Dr. Dunjic in respect
24 of the photographs you -- that is admitted into evidence and the
25 photographs still to be disclosed in coloured version to the Chamber?
1 MR. IERACE: Mr. President, I'd be grateful for the benefit of the
2 morning break before I make some oral submissions in relation to that.
3 JUDGE ORIE: Yes.
4 MR. IERACE: I do anticipate I could do so straight after the
6 JUDGE ORIE: Yes.
7 MR. IERACE: There are a few things I'd like to check first.
8 JUDGE ORIE: Yes. Perhaps we could do that.
9 And then perhaps I could inform the parties as well as to the time
10 schedule the Chamber has in mind. And of course there are two scenarios:
11 The one is that the Defence will be allowed to present evidence in
12 rejoinder; and the scenario where there would be no evidence in rejoinder.
13 The -- if there will be any rejoinder evidence to be presented,
14 the Chamber expects it to be done next week Tuesday or Wednesday. If
15 rejoinder evidence will be presented, the parties are expected to submit
16 their final briefs by the 23rd of April. This would give you three weeks
17 for preparation, which is one week more than the Chamber initially had in
18 mind. Closing argument is then expected to take place on the 6th and the
19 7th of May, one day for each party.
20 If no evidence in rejoinder will be presented or be permitted to
21 be presented, the final briefs should then be filed one week earlier; that
22 would be the 16th of April. But the dates for the closing argument would
23 not change; that would still be the 6th and the 7th of May. Also in that
24 case the parties would have three weeks to prepare their final briefs and
25 would then have three weeks to prepare for closing argument; whereas if
1 the final briefs are submitted on the 23rd, there would be two weeks left
2 to prepare for the closing arguments.
3 This is what the Chamber has in mind. The Chamber after the break
4 will hear from the parties what -- unless there's something that could not
5 wait until 11.00, Mr. Piletta-Zanin.
6 MR. PILETTA-ZANIN: [Interpretation] Yes, Your Honour. Just one
7 thing I want to say now: We saw that this witness could be recalled, and
8 you haven't made provision for it in your schedule. Could you tell us
9 after the break when, if necessary, he could be recalled. That's the only
10 question in my mind.
11 [Trial Chamber confers]
12 JUDGE ORIE: The Chamber will consider whether it would be still
13 in this week, which has been reserved for evidence -- rebuttal evidence,
14 or that it would be wiser to do it just prior to the examination of
15 Dr. Dunjic, if the Chamber would allow him to be called as evidence -- to
16 give his testimony in rejoinder. We'll consider that.
17 We'll adjourn until 11.00. The Chamber takes it that we'll need
18 only a couple of minutes after 11.00.
19 MR. IERACE: Mr. President, there is the issue of the
20 admissibility of the tape 5 I think to be considered as well.
21 JUDGE ORIE: I think that we have -- let me just --
22 MR. IERACE: I should say the compilation tape. There are some
23 other little issues to deal with that.
24 JUDGE ORIE: Yes. Well, that's just a matter of deciding, I
25 think. The --
1 MR. IERACE: More or less. But perhaps -- I'll raise it after
2 11.00. I simply rose to my feet because you said it was just a few
3 minutes involved.
4 [Trial Chamber confers]
5 JUDGE ORIE: We'll deal with that matter after the break.
6 --- Recess taken at 10.34 a.m.
7 --- On resuming at 11.09 a.m.
8 JUDGE ORIE: We have a few matters still to be discussed. The
9 first one is the position of the Prosecution in respect of the rejoinder
10 evidence suggested by the Defence.
11 MR. IERACE: Mr. President, the Prosecution opposes the
12 application by the Defence to call rejoinder evidence. There are two
13 relevant considerations. The first is that the Defence expert did not
14 seek access to Witness G for an inspection of him. That emerged from the
15 cross-examination of the expert.
16 Secondly, the Prosecution made an application to call a doctor who
17 had examined Witness G a few weeks ago. That doctor was in a position to
18 confirm where the wounds were and, secondly, comment on --
19 MR. PILETTA-ZANIN: Mr. President, I have to make an objection. I
20 think that we took it that following your previous decisions we weren't to
21 talk -- we weren't to discuss anything about this new element that
22 appeared in Mr. Ierace's response, and I think we're looking for a
23 shortcut again in order to address an issue that shouldn't be addressed.
24 That's not exactly what I said, for the English booth. I said one wants
25 to centre something -- place something in the centre of the debate,
1 whereas you said that it should have been removed.
2 JUDGE ORIE: You're talking about the expert.
3 MR. PILETTA-ZANIN: [Interpretation] Yes, exactly, Mr. President.
4 I'm talking about these last scientific elements.
5 JUDGE ORIE: Yes. The Chamber allowed the Prosecution to present
6 the witness who took the photographs, which could be understood as mainly
7 to establish whether there might have been a mistake as to the right or to
8 the left in a medical report. As I said before the break the Defence was
9 aware of this limited scope of the rebuttal evidence accepted. The
10 Defence now seeks to have further -- at least that's how I understand
11 it -- further expertise on the basis of these photographs, in order to
12 interpret them, to tell us in what respect this would change or confirm
13 the earlier expertise. We therefore have to consider to what extent the
14 previous ruling on excluding an expert report on specifically these
15 woundings would have any consequence. I think that there was no need at
16 this very moment to interrupt and Mr. Ierace could express himself as he
17 deems fit.
18 Please proceed, Mr. Ierace.
19 MR. IERACE: Thank you, Mr. President. All I would add is that
20 the decision of the Trial Chamber to exclude this further Prosecution
21 evidence would, in my respectful submission, be a little inconsistent with
22 any decision to permit the recalling of the Defence expert. That's all I
23 wish to say on that matter, Mr. President.
24 JUDGE ORIE: Yes. Thank you.
25 Yes, Mr. Piletta-Zanin.
1 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. There is
2 one matter that is interesting. Everyone can remember that the expert
3 Mr. Dunjic, whom we have heard, said that one could distinguish an entry
4 wound from an exit wound. I admit that I find it very difficult to
5 identify -- to find the wounds on the back of this patient, and I think
6 that the main question that we have to ask is to know whether the expert
7 can identify on the basis of the photographs what would be an entry wound
8 and what would be an exit wound on the basis of his experience, and that
9 is strictly in relation to the photograph or photographs. And it's not in
10 relation to the general technical problems. It has to do with the
11 photograph and the testimony that was provided. Thank you.
12 JUDGE ORIE: Thank you for your observations.
13 [Trial Chamber confers]
14 JUDGE ORIE: The Chamber takes it that there's no need for any
15 further written submissions in this respect, and we'll take a decision in
16 due course and inform the parties as soon as the decision has been
17 reached, even if it would not be available yet in writing so that the
18 parties can continue their preparation.
19 Then, Mr. Ierace, you raised the issue of the three sequences out
20 of the fifth videotape. Would you like to add something to what has been
21 said in this respect until now?
22 MR. IERACE: No, Mr. President.
23 JUDGE ORIE: Yes. No further observations the Defence, I take it?
24 MR. PILETTA-ZANIN: [Interpretation] No, Mr. President. But we
25 quite clearly said there was a problem -- since there was some
1 incomprehension last time, we clearly stated this, and we'll repeat it.
2 The fairest solution would be to say - and I think that the Prosecution
3 suggested this at the time - since we had this problem with the number 5
4 yesterday and today as well, except suppress -- delete the first sequence
5 of our cassette which comes from tape number 5, rather than receiving
6 three sequences from tape number 5, with regard to which neither the
7 witness nor ourselves nor you can clearly carry out investigations. That
8 should be the case. Thank you.
9 JUDGE ORIE: Yes. Mr. Ierace, if the Chamber would decide not to
10 admit into evidence the three sequences, would you insist on non-admission
11 of the first sequence of the compilation of the --
12 MR. IERACE: No, Mr. President. Indeed, as I've expressed in
13 Mr. Piletta-Zanin's absence early last week reiterated on Friday, I don't
14 seek that the Defence clips be removed from their exhibit.
15 JUDGE ORIE: Yes.
16 MR. IERACE: That's a separate issue of disclosure and the
17 opportunity to present that material to the witness.
18 JUDGE ORIE: The Chamber has considered the matter, and the
19 Chamber has to assume that the videotape deals with events that are
20 outside the indictment period and therefore are of very limited relevance.
21 In view of the evidence presented in respect of events similar like the
22 ones that appear on the videotape and are within the indictment period,
23 the Chamber considers the relevance of these three sequences not
24 sufficient to admit them into evidence and keeps in mind that we would
25 have to recall Mr. Gray for certain if we would admit them into evidence.
1 Therefore, this evidence is -- this videotape and the transcript is not
2 admitted into evidence.
3 Then the Chamber invited the parties to comment on the suggested
4 time schedule as I gave it to you just before the break.
5 Mr. Ierace, is there any comment in this respect?
6 MR. IERACE: Yes, Mr. President. There's three things I'd like to
7 say: Firstly, I note that the timetable allows, as I understand it, for
8 one day for oral submissions by the Prosecution and one day for oral
9 submissions by the Defence. Mr. President, I had intended to file a
10 motion later today, indeed straight after today's proceedings, seeking an
11 extension of space for the written submissions from the limit of 200
12 pages. So perhaps I could deal with that issue together and orally.
13 Mr. President, this has been an extraordinarily complex trial, not
14 only because of the number of witnesses that we have heard and not only
15 because one aspect of the Prosecution case is circumstantial, but also,
16 unusually, because of the temporal breadth of the evidence. We're talking
17 about a period of almost two years.
18 Mr. President, further, there are many technical aspects to the
19 evidence. Additionally, there are a large number of exhibits which have
20 been generated in the courtroom, maps and the like. Mr. President, it's
21 my submission that the Prosecution, at least - I don't know about the
22 Defence - could not do justice to the presentation of its case without a
23 doubling of the number of pages, the maximum number of pages, and without
24 two days to present oral argument. In support of the latter part of that
25 submission, I note that in past trials two days has been permitted by the
1 Prosecution and Defence each to make their submissions and by past
2 trials - I have in mind trials of some length - to give two examples, in
3 the trials of the Prosecutor and Blaskic and the Prosecutor and Krstic.
4 Mr. President, I hasten to add that in oral submissions, and
5 indeed in written submissions, the Prosecution has no intention of
6 canvassing every little bit of evidence or laboriously summarising the
7 evidence of Prosecution and Defence witnesses. We see this as an
8 opportunity to bring together pieces of evidence which may not, in the
9 manner in which they were presented in the sequence of the calling of
10 witnesses under categories, have at first glance seemed to be linked. To
11 give one simple example of that, there have been multiple witnesses who
12 have given evidence in relation to activities in particular areas of
13 Sarajevo and the confrontation lines. It's my respectful submission that
14 the Trial Chamber may well be interested in bringing together of those
15 different pieces of evidence in a way which gives added significance to
17 Mr. President, I also hasten to add that I have no intention of
18 drawing the attention of the Trial Chamber in either written form or oral
19 form to every unscheduled sniping or shelling incident. In other words,
20 we do intend to exercise judgment in the way in which we present the
21 material and also in respect of the aspects of the evidence.
22 Having said that, Mr. President, it's still, in my respectful
23 submission, not possible to do justice in the scope of 200 written pages
24 and four hours or thereabouts of oral submissions to this case. So
25 Mr. President, I would be very grateful if -- if the Trial Chamber could
1 give consideration -- and if I could say this: In proposing the 400 pages
2 and the two days, I am not playing a game of making an ambit claim. I do
3 think that we do need two days to -- which would be in the order of some
4 eight hours to present our oral argument and 400 pages to do justice to
5 our written submissions.
6 Mr. President, I also add that we will do our best to develop a
7 smooth presentation of the visual exhibits, if I could call it that.
8 Mr. President, what I can offer, if it's of any assistance to the
9 Trial Chamber and to the Defence, is that we would be prepared -- we would
10 be in a position to present our oral submissions, our oral argument,
11 whether or not there is rejoinder, a week earlier than the timetable
12 presently provides. So if that's of any assistance, rather than
13 presenting oral submissions on the 6th of May, we could do so one week
15 JUDGE ORIE: Mr. Ierace, I can respond to that immediately. As
16 you may remember, I think we said before that the Chamber would have one
17 week off and that unfortunately now coincides with the week previous to
18 the suggested week. So therefore, we could not start on the 29th or the
19 30th of April because the Chamber is not available.
20 MR. IERACE: I understand, Mr. President.
21 JUDGE ORIE: So therefore, that otherwise one would expect that if
22 the -- if the final briefs would be filed one week earlier, that we would
23 hear the oral argument also one week earlier, but the Chamber is just not
24 there and has made all kind of arrangements which it cannot change any
25 more, unfortunately. But that's the situation.
1 Yes, Mr. Piletta-Zanin.
2 MR. PILETTA-ZANIN: [Interpretation] Mr. President, in French there
3 is a proverb that says, "A good listener but someone who uses few words."
4 No, no, for the English booth. I think that everyone has
5 understood me.
6 The Prosecution needed six minutes to develop two arguments.
7 Could I continue?
8 JUDGE ORIE: [Previous interpretation continues] ... Yes.
9 MR. PILETTA-ZANIN: [Interpretation] In less than six minutes: 200
10 pages we will stick to this. The Defence doesn't have the time to read
11 400 pages, to discuss them, to prepare for them, and Defence counsel is
12 certain too that it will be able to make itself understood orally in one
13 day of hearing. The conclusion is that both parties should one day be in
14 a position to ensure that this proceeds better. Thank you.
15 [Trial Chamber confers]
16 MR. PILETTA-ZANIN: [Interpretation] Mr. President --
17 JUDGE ORIE: [Previous interpretation continues] ... Totally
18 unclear to me --
19 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I said in
20 French "concision is an art that one day or the other --"
21 JUDGE ORIE: [Previous interpretation continues] ... On the
22 suggested scheduling order.
23 MR. PILETTA-ZANIN: [Interpretation] Mr. President, with regard to
24 the agenda, the schedule, we are totally in agreement. But as the
25 Prosecution intends to have more time, to write more pages, we clearly
1 said that for us it's no. We will stick to the 200 pages. We won't have
2 the time to read 400 pages, and we don't have the desire or the time to
3 listen to the Prosecution for two days. Thank you.
4 JUDGE ORIE: That means that the -- may I ask you --
5 MR. PILETTA-ZANIN: [Interpretation] We'll accept your decision.
6 JUDGE ORIE: Yes. If the Prosecution would be granted more time
7 or more pages, would the Defence would like to have more pages and more
8 time as well?
9 MR. PILETTA-ZANIN: [Interpretation] To my right I heard "naravno"
10 which means "of course."
11 JUDGE ORIE: No. Because you said that a good listener would need
12 only a few words.
13 MR. PILETTA-ZANIN: [Interpretation] Of course.
14 JUDGE ORIE: We then will decide in due course on the request by
15 the Prosecution to have more time and more pages available for their
16 closing argument and the final brief.
17 Then there's one remaining issue the Chamber asks the parties to
18 pay specific attention to in their final briefs: The parties agree, as
19 far as we can read it, on the applicability of the relevant provisions of
20 Protocol I to the Geneva Conventions. The Prosecution has dealt with the
21 matter in more detail; whereas, the Defence was rather general in this
22 respect. The Chamber would very much like the parties to specifically
23 address the issue why the parties consider Additional Protocol I
24 applicable. Is it on the basis of customary law? Is it on the basis of
25 the protocol itself binding as treaty law the parties, or is it on the
1 basis of any special agreement or agreements whereby either Protocol I or
2 parts of Protocol I were agreed to be binding upon the parties? If I am
3 saying "the parties," the Chamber would very much like the parties in the
4 trial to be very clear when they refer to "parties" which they are
5 referring to parties to the conflict or to state parties, to agreements.
6 And if the parties would rely on special agreements, the Chamber would
7 like to have as precise as possible detailed information such as
8 to -- between whom these special agreement or special agreements were
9 concluded and when they were concluded, when these agreements entered into
10 force. So full details on the applicability of Additional Protocol I.
11 Is there anything else the parties would like to raise at this
12 moment? Yes, Mr. Piletta-Zanin.
13 MR. PILETTA-ZANIN: [Interpretation] Yes, Your Honour. Just to
14 clarify things. I think you are referring here particularly to the
15 agreement - I won't say between the parties - but the agreement reached
16 around the 22nd May. I think that's what you're referring to. So that we
17 make sure we're talking about the same thing. Or you are referring to
18 something else.
19 JUDGE ORIE: That is an agreement that has been specifically
20 mentioned by the Prosecution. But whatever other special agreement or
21 agreements you'd like to refer to, it's up to the parties.
22 MR. PILETTA-ZANIN: [Interpretation] Thank you.
23 JUDGE ORIE: But the Chamber would like detailed information in
24 respect of the position taken by the parties in respect of the
25 applicability of Additional Protocol I.
1 [Trial Chamber confers]
2 JUDGE ORIE: Yes. Then last Friday we discussed the submissions
3 still to be expected by the parties on, if I might say, the list of
4 exhibits. First Prosecution, whatever has been added to the memo that is
5 already on our desk, and then to be filed so that it's part of the
6 proceedings. Then we expect from the Defence a response not later than
7 the end of this week so that we can give a decision on the admission of
8 those documents. And it also pertains to the report of
9 Professor Radinovic.
10 Yes. Is there any other issue to be discussed at this very
12 MR. PILETTA-ZANIN: [Interpretation] No, Your Honour. But since we
13 are probably not going to have any more opportunity to meet in the
14 courtroom in the following hours, the Defence wishes to say very clearly
15 in principle what they think about the witness, the expert witness
16 Radinovic, very briefly.
17 JUDGE ORIE: Yes.
18 MR. PILETTA-ZANIN: [Interpretation] Thank you.
19 JUDGE ORIE: If you could do that very briefly. Because I expect
20 that part of the submission that we expect from the Prosecution deals with
22 MR. PILETTA-ZANIN: [Interpretation] Of course.
23 JUDGE ORIE: But please take a couple of minutes to deal with it.
24 MR. PILETTA-ZANIN: [Interpretation] Simply, the most important
25 thing in our view is that we believe that the request of the Prosecution
1 to exclude a certain number of evidence concerning the expert report is
2 not actually fair. Why? You know how long this list is. Six pages, very
3 detailed, every point is mentioned. Of course --
4 [In English] 16 pages.
5 THE INTERPRETER: 16 pages. Apologies of the English booth.
6 MR. PILETTA-ZANIN: [Interpretation] 16 pages, very long, very
7 detailed. A lot of time was needed for this. And, Your Honour, this was
8 communicated to us after the testimony of Witness Radinovic. What the
9 Prosecution was supposed to do in accordance with Rule 90(H) was the
10 following: If they wanted to exclude these elements, they should have
11 asked the witness why this was not included, what this document was about,
12 et cetera. They didn't do so because they wanted to save on their time.
13 They could have proceeded different. However, we were limited in our time
14 in the same way and we, as you could see, were unable to present all of
15 our documents as we wished to because simply speaking, Mr. President - and
16 I insist on this - you certainly had your own reasons indicated to the
17 Defence that if you presented all your documents as you wished to, we
18 wouldn't have enough time with this witness. So we decided on a certain
19 policy in accordance with your decision not to present all of these
20 elements. The Prosecution wishes to take advantage of this because they
21 were able to proceed in a different way. This is not logical. The expert
22 report is a whole. This whole has to be accepted as such. And the expert
23 witness repeated under oath that he has reviewed a very important volume
24 of documents and that the BH army documents were appropriate, that they
25 conform, and he was able to compare them with the SRK documents. They
1 were comparable and they could function together.
2 And as a conclusion, Mr. President - very briefly - this request
3 is actually not acceptable in our view and it is not loyal.
4 JUDGE ORIE: Is there any need to respond, Mr. Ierace?
5 MR. IERACE: Mr. President, just some short points. The
6 Prosecution made abundantly clear before Mr. Radinovic entered the witness
7 box what its concerns were. There was much correspondence and oral
8 submissions on the point. It was for the Defence to address those
9 identified issues. The witness, further, in cross-examination made clear
10 that he had no recollection or no notes in relation to many of the matters
11 which appeared in his expert report. That's all I wish to say on that,
12 Mr. President.
13 And one remaining matter is the filing. Perhaps we might refer to
14 it as the amicus filing. I'd be grateful for some indication as to what
15 you wish, if anything, from the Prosecution by way of a response to that.
16 JUDGE ORIE: The amicus filing of ...?
17 MR. IERACE: There was a filing approximately two or three weeks
19 JUDGE ORIE: Yes. But has there not yet been a decision taken on
20 that where the parties were in a position to submit whatever they intended
21 to submit and does not this decision say that the Chamber has not received
22 any submissions from the parties in respect of this amicus curiae?
23 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I remember that
24 you said that if we wanted to we could, and everybody is free to make
25 their own decisions.
1 [Trial Chamber confers]
2 JUDGE ORIE: Yes. Mr. Ierace, I think there is a written decision
3 on that in which I think both for substantive reasons but also for formal
4 reasons the application is rejected.
5 MR. IERACE: Thank you, Mr. President.
6 JUDGE ORIE: Is there any other issue at this very moment?
7 Then may I ask the Defence whether they have oriented themselves
8 on the availability of Dr. Dunjic in case the Chamber would allow
9 Dr. Dunjic to testify, the availability early next week?
10 MR. PILETTA-ZANIN: [Interpretation] Tuesday and Wednesday are
11 still the days that the Chamber has in mind?
12 JUDGE ORIE: Yes, that's what we indicated as the days we had in
13 mind. Not both of them, of course. It should be only a limited -- it
14 should take only a limited time.
15 MR. PILETTA-ZANIN: [Interpretation] We will give you our response,
16 Your Honour, as soon as possible, within a few hours, I think, through
17 Madam Registrar, whom we thank for her help.
18 JUDGE ORIE: I take it, Mr. Ierace, is the availability of
19 Mr. Tait-Harris any problem, well, let's say, during the next ten days if
20 he would be recalled?
21 MR. IERACE: Mr. President, I don't know. I'll check and inform
22 Madam Registrar if that's convenient.
23 JUDGE ORIE: Yes.
24 [Trial Chamber confers]
25 JUDGE ORIE: Since there seems to be nothing else on the agenda
1 for this moment --
2 Yes, Mr. Piletta-Zanin. You never disappoint me. Please proceed.
3 MR. PILETTA-ZANIN: [Interpretation] Until the very last day,
4 regrettably, Mr. President. But my only question is: Could we get a
5 response from the Prosecution about the communication of these
6 photographs, because I don't know whether it's technically possible. I
7 know that the assistant of the Prosecution didn't know for sure whether
8 she was allowed to talk to the witness about it. That's how I understood
9 her. So technically speaking, is it possible to send these photographs
11 JUDGE ORIE: Is there any problem in that respect, Mr. Ierace?
12 MR. IERACE: No, Mr. President. I've spoken to my assistant, and
13 she will make available to the Defence reasonably quickly, perhaps in the
14 next hour or so, a CD or some floppy disks with the photographs in
15 electronic form.
16 JUDGE ORIE: Yes. And do we get written -- do we get coloured
17 paper copies as well?
18 MR. IERACE: The latest on that, Mr. President, is that we expect
19 we will have those available by 5.30. They have to be actually sent out
20 of the OTP to be done, so we're expecting them back by 5.30.
21 JUDGE ORIE: Yes.
22 MR. PILETTA-ZANIN: [Interpretation] That was my following
23 question. Thank you.
24 JUDGE ORIE: Then we will adjourn. And it is uncertain to exactly
25 when, because it depends on the decisions of the Chamber, whether a recall
1 of Mr. Tait-Harris and evidence in rejoinder by Dr. Dunjic will be
3 If we would hear new evidence, if we would hear -- if
4 Mr. Tait-Harris would be re-examined and if we would accept evidence in
5 rejoinder to be presented, we would start on April the 1st in the
6 afternoon, quarter past 2.00, unless we receive from the parties a message
7 that Dr. Dunjic would not be available. Then the parties will be informed
8 about the exact time when the expert witness will be examined.
9 MR. PILETTA-ZANIN: [Interpretation] Just one request,
10 Mr. President, because for reasons related solely to my family, I will not
11 be here on the 1st of April. I know that it might be embarrassing to even
12 ask for it now, but is it possible to change the schedule at this point?
13 [Trial Chamber confers]
14 JUDGE ORIE: Since the Chamber expects the evidence, if the
15 Defence will be allowed to present it, will not -- certainly not take much
16 time. And the Chamber has no objection to scheduled for Wednesday. But
17 before giving a decision, Mr. Ierace, you have an opportunity to express
18 yourself on that.
19 MR. IERACE: Wednesday is fine, Mr. President.
20 JUDGE ORIE: Yes. So --
21 MR. PILETTA-ZANIN: [Interpretation] Thank you very much,
22 Your Honour.
23 JUDGE ORIE: If, however, you would not be available on Wednesday
24 either, then lead counsel, of course, has to -- has to fulfil the duties
25 of the Defence.
1 So we'll presumably adjourn until the 2nd of April, 2.15 in the
2 afternoon in this same courtroom, unless the parties will be informed
3 otherwise through the registry. We'll adjourn.
4 --- Whereupon the hearing adjourned
5 at 11.50 a.m., to be reconvened on Wednesday,
6 the 2nd day of April, 2003, at 2.15 p.m.