091215ED

Page 26252

1 Tuesday, 15 December 2009

2 [Open session]

3 [The accused entered court]

4 [The witness takes the stand]

5 --- Upon commencing at 9.08 a.m.

6 JUDGE ORIE: Good morning to everyone in and around the

7 courtroom.

8 Mr. Registrar, would you please call the case.

9 THE REGISTRAR: Good morning, Your Honours. Good morning to

10 everyone in and around the courtroom. This is case number IT-06-90-T,

11 the Prosecutor versus Gotovina, et al. Thank you.

12 JUDGE ORIE: Thank you, Mr. Registrar.

13 The Gotovina Defence has asked an extension of time for

14 submissions which were due today. Two days extension of time is granted.

15 Mr. Vurnek, I would like to remind you that you're still bound by

16 the solemn declaration you have given yesterday at the beginning of your

17 testimony.

18 Mr. Kuzmanovic, are you ready to proceed?

19 MR. KUZMANOVIC: Yes, Your Honour. Thank you.

20 JUDGE ORIE: Please do so.

21 WITNESS: DRAGUTIN VURNEK [Resumed]

22 [Witness answered through interpreter]

23 Re-examination by Mr. Kuzmanovic:

24 Q. Good morning, Mr. Vurnek.

25 A. Good morning.

Page 26253

1 Q. There are just a couple of general topic areas that I wanted to

2 discuss as a result of cross-examination by the Prosecutor and questions

3 by the Bench.

4 The first area concerns artillery which is where we left off, and

5 your statement D1896 -- and your statement and D1896 which was the war

6 path.

7 You had discussed that there was a reconnaissance group and that

8 reconnaissance group was used to correct artillery fire on the first day

9 of the operation. Do you remember that testimony?

10 A. Yes.

11 Q. Could you please explain to the Trial Chamber what your role was

12 in that reconnaissance group on that first day and what kind of artillery

13 we're talking about.

14 A. The role of the operative reconnaissance group was to detect and

15 pin-point the exact positions of enemy forces, their fortified positions,

16 to detect minefields and lay open a passage for their troops through the

17 mind fields.

18 Q. Maybe I spoke too quickly. I wanted to know your specific role

19 and what you role you had, if any, with regard to that group.

20 A. At that point in time, I did not have a role to play in that

21 group, since I was injured. When the commander of the group was killed,

22 I took over the command.

23 Q. Now, the person -- you're familiar with what would need to be

24 done to correct artillery fire; and the second part of that question that

25 I asked initially was, what kind of artillery were we talking about on

Page 26254

1 that first day, in terms of what would be corrected? What kind of

2 artillery fire are we talking about?

3 A. They are mortars.

4 Q. So we're not talking about any high-level Howitzers, or cannons

5 from a distance; correct?

6 A. No.

7 Q. Are you familiar with what the specific person would do with

8 respect to artillery fire and correcting it, this mortar fire that you

9 were talking about, what kind of tools would this person have to correct

10 the fire? Would he have maps, would he have -- what would he do?

11 A. In order to correct the mortar battery fire with any precision,

12 it is necessary to have a topographical map and a compass.

13 Q. Were those tools available to the person who was correcting the

14 artillery fire, to your recollection, on that day?

15 A. Several persons from the group had both the maps of the area and

16 compasses.

17 Q. Now, I'd like to move on to the issue of your interview and

18 statement, which is D1895.

19 Mr. Vurnek, did any investigator or lawyer at any time tell you

20 what you had to say in that statement?

21 A. No.

22 Q. The statement that you ended up signing, were those words yours,

23 or were they someone else's words?

24 A. Those were my words in answer to questions.

25 Q. Were you influenced in any way by any investigator or attorney to

Page 26255

1 make your statement a certain way?

2 A. Nobody.

3 Q. I'd like to move to the topic of photographs. We spent a great

4 deal of time on the issue of the black-and-white photographs that you saw

5 before testifying, and I believe they were colour here in the courtroom.

6 You were not in Gracac on the 9th of August when those photos

7 were allegedly taken; is that correct?

8 A. No.

9 Q. Did anyone from the Markac Defence at any time ask you anything

10 about those photos other than to ask you what your thoughts were as to

11 what the photos depicted?

12 A. I was asked to tell what the photographs stood for, nothing else.

13 Q. Did anyone from the Markac Defence tell you what any other

14 witness may have testified to regarding those photos?

15 A. No.

16 Q. I'd like to move to the questions that the Prosecutor asked about

17 two exhibits, which were statements given by Mr. Vanderostyne and

18 Mr. Steenbergen.

19 MR. KUZMANOVIC: Those are P321 and P516. They don't necessarily

20 need to be up on the screen.

21 Q. But in P321 --

22 MR. KUZMANOVIC: I suppose I will have them up because I want to

23 make sure that everything is read correctly and the Court can see that.

24 If we can go to P321, please, page 6 of 14, paragraph 18 and 19.

25 Q. You were shown an article by Mr. Vanderostyne and your attention

Page 26256

1 was drawn to portions of his statement, Mr. Vurnek. I'd like to show you

2 paragraphs 18 and 19 of Mr. Vanderostyne's statement, and I'll read them,

3 part of them anyway, to save time.

4 Paragraph 18 says:

5 "We then came in Otocac. I can see from my notes that my main

6 focus was on the impact of the war. I saw all kinds of traces of

7 demolition/firing, houses blown up, traces of artillery shelling, traces

8 of war such as fresh destruction. In my notes, I stated that in every

9 city in every village, and in every single hamlet I saw that Croatian

10 soldiers had settled. You could tell that it was the end of the

11 offensive. The soldiers were walking around in groups or sitting

12 together. They were not in aggressive positions. I saw no Serb

13 soldiers. My general perception was that the area was totally empty of

14 Serbs."

15 Now, before Operation Storm, Mr. Vurnek, are you familiar as to

16 whether or not Otocac was entirely in Croatian hands?

17 A. I can't say anything with any certainty.

18 Q. In paragraph 19, it continued: "People told me that Otocac had

19 been under fire on Saturday."

20 Could you tell the Chamber whether or not that fire was fire from

21 Serb positions? Saturday, being the second day of Operation Storm.

22 A. I don't know. I can't answer the question.

23 Q. Let's move on to the statement of Mr. Steenbergen, P516,

24 paragraph 45.

25 Mr. Vurnek, this is a statement on paragraph 45, excuse me, in

Page 26257

1 which Mr. Vanderostyne [sic] states: "I first visited Gracac on

2 6th August."

3 Now you were, Mr. Vurnek, in Gracac on the 6th of August;

4 correct?

5 A. That's correct.

6 Q. He further states in this paragraph:

7 "We observed burned houses and houses that were still burning.

8 It was difficult to distinguish between damage caused by shelling and

9 damage caused by arson. We did not conduct any crater analysis at this

10 time, but we could clearly see craters from shelling in various parts all

11 over the town - most of the streets had some form of shelling damage.

12 For example, there were roughly 10 to 20 craters observed in the area of

13 the cross-roads I have marked with D on the map."

14 Now, the first question I wanted to ask you is: With respect to

15 your recollection on the 6th of August, other than the house that you saw

16 when you entered Gracac, do you recall any burnt houses or houses that

17 were still burning in Gracac itself, while you were in Gracac?

18 A. No.

19 Q. Did you see any craters from shelling in various parts all over

20 the town, as Mr. Vanderostyne stated -- or Mr. Steenbergen states in his

21 statement?

22 A. No. I saw several craters at the cross-roads just outside of the

23 town. As for the town itself, I don't recall there being any.

24 MR. KUZMANOVIC: If we could go to paragraph 51, please, which is

25 the next page.

Page 26258

1 Q. Paragraph 51 -- on the Croatian version, Mr. Vurnek, it will go

2 from the first to the second page, or to the next page but I will just

3 start at the beginning.

4 On paragraph 51 the witness says in his statement:

5 "I have been shown an UNMO HQ SS daily sitrep dated 6th August,

6 1995, and timed at 2030 hours which refers to HV troops looting empty

7 houses in Gracac and the fact that the UNMO office in Gracac was burned

8 to the ground. Later in this sitrep it is reported that UNMO team met

9 with the commander of HV special forces and were allowed to patrol in

10 Gracac. Whilst patrolling in Gracac, UNMO Team Gracac observed HV troops

11 looting and that all houses in Gracac are partially destroyed and five of

12 the houses are completely destroyed."

13 I wanted to ask you, Mr. Vurnek, based on your observations on

14 the 6th of August, 1995, when you were in Gracac itself, did you observe

15 any troops of any kind - whether they were special police troops,

16 HV troops - looting?

17 A. I didn't observe anyone looting any property in Gracac.

18 Q. Now, later in the last sentence this witness says: "... all the

19 houses in Gracac are partially destroyed ..."

20 Did you observe any of that?

21 A. On the first day of my testimony, I said that I saw one house on

22 the edge of Gracac having been destroyed, burnt. I didn't see any other

23 destruction, save for the fact that the whole town was in a state of

24 neglect.

25 Q. Now, there is no definition of what "partially destroyed" is, but

Page 26259

1 in your observation, in Gracac, did any house that you saw appear to you

2 to be in any state of destruction?

3 A. I don't recall that. Except for that one house, I don't recall

4 others being destroyed.

5 Q. Now, I'd like to go, please, to D443.

6 JUDGE ORIE: Mr. -- you started saying that there's no definition

7 of "partial destruction," and the witness said at the end that he doesn't

8 have any recollection of destroyed houses which may create some

9 confusion.

10 MR. KUZMANOVIC: Sure, Your Honour.

11 JUDGE ORIE: Did you see any houses which were -- which had,

12 well, let's say, serious or substantial damage without being destroyed?

13 THE WITNESS: [Interpretation] Except for the house I mentioned,

14 no.

15 JUDGE ORIE: Thank you.

16 Please proceed.

17 MR. KUZMANOVIC: Thank you, Your Honour.

18 Please pull up D433.

19 Sorry. 443. If I said 433, I'm sorry.

20 That's not it. It was right the first time. I mis-numbered it

21 in my notes. It's D433. Thank you, Mr. Registrar.

22 Q. Mr. Vurnek, this is a map which has been marked and admitted as

23 evidence of Gracac and the surrounding areas with a legend marking

24 various points on the map.

25 Now, with the assistance of the usher, I would like you to show

Page 26260

1 us where your unit entered the road going from the upper left of the map

2 down to Gracac.

3 Before do you that, is that the road from Gracac to Gospic?

4 A. Yes.

5 Q. Please mark in blue where your unit came upon that road and then

6 from that point you went into Gracac.

7 MR. KUZMANOVIC: Could we please have the usher's --

8 THE WITNESS: [Interpretation] This is a very imprecise map. I

9 can only give you an approximation --

10 MR. KUZMANOVIC:

11 Q. That's fine.

12 A. [Previous translation continues]... of the route of advancement.

13 Q. All I want for you -- from you, Mr. Vurnek, is an approximation

14 of where we -- there we go.

15 So essentially you were right very close by to Sveti Rok.

16 A. Correct.

17 Q. And from that point where the tip of your arrow is your unit

18 advanced on that road all the way to Gracac on the 5th of August;

19 correct?

20 A. Correct.

21 Q. Now, did you -- how did you get into Gracac? Was that by -- on

22 foot?

23 A. I, myself, yes, went there on foot.

24 Q. Did you along the road as you went to Gracac. Along that road?

25 A. Along the road.

Page 26261

1 MR. KUZMANOVIC: Your Honour, I would like to please show the

2 witness a short video of that route taken on the 5th of August. Oh, can

3 we please tender this document with the map, Your Honour.

4 JUDGE ORIE: Say 5th of August, may I take it 1995?

5 MR. KUZMANOVIC: Yes, Your Honour. Before we do that, before we

6 show the video, Your Honour, may I please tender the map with the marking

7 by the witness.

8 MS. DE LANDRI: No objection, Your Honour.

9 JUDGE ORIE: Mr. Registrar.

10 THE REGISTRAR: Your Honours, this becomes Exhibit D1899. Thank

11 you.

12 JUDGE ORIE: D1899 is admitted into evidence.

13 MR. KUZMANOVIC: There is some brief dialogue on this. The booth

14 has been provided with copies, Your Honour, it's 65 ter 3D00140.

15 JUDGE ORIE: Which route do we -- will be shown?

16 MR. KUZMANOVIC: From Sveti Rok to Gracac. We could do it

17 through Sanction.

18 JUDGE ORIE: Yes.

19 MR. KUZMANOVIC:

20 Q. Mr. Vurnek, I just want you to watch this video, and then I will

21 ask you some questions about it. It's very short. After it's done

22 playing.

23 MR. KUZMANOVIC: Please play the video.

24 [Video-clip played]

25 THE INTERPRETER: [Voiceover] "The tank looks as if it has been

Page 26262

1 used as fire for a barbecue.

2 "Sveti Rok.

3 "Sempre Gracac. Here we go. This could be Ricice, which was

4 also a Croatian village.

5 "As soon as you see everything is burnt, you know that it is our

6 village. Clear. It's been burnt long ago.

7 "This is all really been torched.

8 "So where is now that fucking UNPROFOR to ask those ...

9 [inaudible] ...

10 "On a bicycle, right?

11 "This is the UNPROFOR base.

12 "Is this where we're going to go home through?

13 "Pub.

14 "Joco cafe.

15 "Perhaps we should call home."

16 MR. KUZMANOVIC:

17 Q. Mr. Vurnek, you saw, obviously it wasn't the whole route from

18 Sveti Rok to Gracac, but was that the route that you had mostly walked on

19 the way to Gracac?

20 A. That's correct.

21 Q. Is that --

22 A. That's the road we took.

23 Q. Does that video -- do you recall seeing those homes on either

24 side of the road that were shown, many of which, or most of which look

25 like they had been significantly or completely destroyed?

Page 26263

1 A. I saw the houses.

2 Q. And what did those houses appear to you to be in terms of state

3 of disrepair? Recently destroyed, currently destroyed? Based on your

4 recollection of walking along that road.

5 A. I wasn't thinking it. We knew that those houses belonged to the

6 Croats who had lived there before the war which had been destroyed in the

7 early 1990s by the Serb army.

8 Q. So essentially the route that you took from Sveti Rok all the way

9 through to Gracac, the destruction that you saw was destruction from long

10 ago?

11 A. Neither our army nor police engaged in any fighting in that area.

12 There was no fighting in the area.

13 Q. Okay. I understand that. But my -- my question to you,

14 Mr. Vurnek, was essentially the route that you took from Sveti Rok all

15 the way to Gracac, the destruction that you saw was destruction from long

16 ago; is that correct?

17 A. Correct. There was vegetation and trees growing out of the

18 houses. You could tell that they had been destroyed several years back.

19 MR. KUZMANOVIC: Your Honour, I would like to tender this video.

20 MS. DE LANDRI: Could I ask the witness a few questions about the

21 video, Your Honour.

22 JUDGE ORIE: I take that in further cross -- or would you before

23 you make up your mind as far as objections are concerned?

24 MS. DE LANDRI: Well, I'm sure any foundation has been laid for

25 the admission of it. And I can do it at the Court's preference. I can

Page 26264

1 ask the questions in further examination.

2 JUDGE ORIE: Perhaps we mark it identification and then see

3 whether there is any objection at the very end.

4 Mr. Misetic.

5 MR. MISETIC: Yes, if we could also check, I have a recollection

6 of this video having been ... I see, I guess it was marked but not

7 admitted, so I take it back.

8 JUDGE ORIE: Then we'll have to -- but if it was marked, any

9 recollection as what number was there? So that we also can verify why it

10 was not ...

11 MR. KUZMANOVIC: I believe it was D294, Your Honour.

12 JUDGE ORIE: D294. We will look further into the matter.

13 You can put further questions to the witness in recross.

14 Please proceed, Mr. Kuzmanovic.

15 MR. KUZMANOVIC: Your Honour, those are all the questions I have.

16 Thank you.

17 JUDGE ORIE: Those are all the questions. Well, then, that

18 moment has come very quickly.

19 Mr. Vurnek, you will further be examined by Ms. De Landri.

20 Please proceed.

21 MS. DE LANDRI: Just a few questions about this video.

22 Further cross-examination by Ms. De Landri:

23 Q. Have you seen it before today?

24 A. No, never.

25 Q. Do you have any information about how it was made?

Page 26265

1 A. I don't know.

2 Q. Do you know who was involved in making the video?

3 A. I don't know.

4 Q. So today is the first time that you've seen it?

5 A. The first time.

6 Q. And you can't identify any -- any persons who were involved in

7 this video, in making the video?

8 A. I didn't see anyone making it or recording it. You can re-wind,

9 perhaps I can watch it again if you want me to.

10 Q. No. What I'm trying to ascertain is aside from your recollection

11 of the events of August 5th, does the video add anything to your

12 recollection of those events?

13 A. No. It is a fact, however, that this does refresh my memory

14 somewhat, because a lot of time has elapsed between now and then.

15 MS. DE LANDRI: Your Honour, I don't have any further questions

16 for the witness.

17 JUDGE ORIE: Thank you.

18 MR. MISETIC: Mr. President, just for the benefit of the parties,

19 this was discussed at page 4827, beginning at line 20, on the transcript.

20 JUDGE ORIE: Do you happen to a have a date and witness for me,

21 Mr. Misetic, that would help? Because only for the later I have the page

22 numbering and the...

23 MR. MISETIC: I have -- the date is the 11th June, 2008.

24 JUDGE ORIE: That's sufficient.

25 MR. HEDARALY: Mr. President, if I may further assist, there was

Page 26266

1 also a discussion and it was tendered on the 2nd of June at transcript

2 reference 4067, and the issue was that when it was put to the witness who

3 testified then, Mr. Vanderostyne, Mr. Vanderostyne could not recognise

4 any of these. So I think for the sake of completeness, the reference

5 that Mr. Misetic gave, in combination with the one I just gave, will give

6 the Chamber the full picture of that video and what the issues were when

7 it was tendered and then not admitted by the Chamber.

8 JUDGE ORIE: Yes. Let me just re-read what was said on

9 page 4827.

10 So at the time Mr. Vanderostyne, he couldn't say anything about

11 the video. He was not familiar in any way. This witness -- but,

12 Ms. De Landri, first of all, does -- is there any objection? Let's have

13 that clear to start with.

14 MS. DE LANDRI: Yes, Your Honour.

15 JUDGE ORIE: And what the objection exactly?

16 MS. MAHINDARATNE: There is no foundation for it.

17 JUDGE ORIE: Well, what is no foundation? What do you mean by

18 "foundation"? That we do not know who made it?

19 MS. DE LANDRI: Well, that's one of the objections. And the

20 witness can testify from his personal recollection of those events. He

21 has a personal recollection of the events of August 5th and --

22 JUDGE ORIE: Yes. If someone would show me the video of my

23 native town, even without knowing who made it, isn't it true that I could

24 recognise certain features, and that in saying nothing was -- this is how

25 it looked like, and then if see it, I could say, yes, that's -- that's

Page 26267

1 not only a description of what it looked like but that is the picture of

2 what it looked like. I recognise that.

3 Would that be insufficient for admission?

4 MS. DE LANDRI: Yes. The evidence would be your recollection and

5 your testimony about the recollection. But not the picture.

6 JUDGE ORIE: But if ... if my testimony is that what I see now is

7 what I described before and what I recognise as what -- what was in my

8 native town, would you then withhold from the trier of fact that picture?

9 MS. DE LANDRI: Yes.

10 JUDGE ORIE: And on what basis?

11 MS. DE LANDRI: If there were insufficient information, indeed,

12 no information about how the video was obtained, how it was made, the

13 circumstances under which it was made, and the witness and this witness

14 and another witness who came before the Chamber could not authenticate

15 it, then I'd say it is not admissible.

16 JUDGE ORIE: Under what Rule in this Tribunal?

17 MS. DE LANDRI: Rule 89.

18 JUDGE ORIE: Any case law in respect --

19 MS. DE LANDRI: I would have to check into that, Your Honour, but

20 I would be happy to do so.

21 JUDGE ORIE: Yes.

22 [Trial Chamber confers]

23 JUDGE ORIE: Any further response in relation to this objection?

24 MR. KUZMANOVIC: Your Honour, the only thing I would say is that

25 the witness stated that this was the route that he took. He walked the

Page 26268

1 route. The photographs helped his recollection as to what he talked

2 about. There was evidence put to the witness in his cross-examination

3 that the Croats had destroyed everything on each side of the road from

4 Gospic to Gracac, and his testimony and the video serve to counteract

5 that testimony.

6 So I believe that the witness by looking at the video, and

7 describing what he -- and commenting on the video confirms essentially

8 what his testimony was.

9 JUDGE ORIE: Mr. Misetic.

10 MR. MISETIC: We would agree, Mr. President, there is -- the

11 witness has laid foundation. I think under the rules of the Tribunal it

12 is admissible, and even under common law if a witness testifies in Court

13 that something fairly and accurately depicts what his recollection was,

14 it would be admissible even in common law.

15 JUDGE ORIE: Well, I learned that the common law doesn't exist.

16 That is one thing that is for sure. So in your common law, it would be

17 admissible; in your common law, it would not be admissible,

18 Ms. De Landri. Yes, yes.

19 Your common law, Mr. Kay?

20 MR. KAY: It would certainly be admissible, and I have got

21 nothing further to add to the very eloquent arguments already expressed.

22 JUDGE ORIE: Yes, thank you.

23 The Chamber will consider the matter. We will compare our common

24 laws and our civil laws in the case law of the Tribunal.

25 Mr. Vurnek, in respect of this matter, have you travelled that

Page 26269

1 route often?

2 THE WITNESS: [Interpretation] No.

3 JUDGE ORIE: More than at that one occasion?

4 THE WITNESS: [Interpretation] Yes.

5 JUDGE ORIE: How often?

6 THE WITNESS: [Interpretation] I couldn't say. Several times, I

7 believe.

8 JUDGE ORIE: Now, did you recognise the overall picture, the

9 general impression, or did you recognise specific houses or specific

10 places when you saw it?

11 THE WITNESS: [Interpretation] Generally speaking, I recognised

12 the route.

13 JUDGE ORIE: Thank you for that answer.

14 MR. KUZMANOVIC: Your Honour, may I add just one question to what

15 you had said regarding what was seen in the video by Mr. Vurnek? It

16 might enhance the --

17 JUDGE ORIE: Yes, but I was focussing not on -- of course, we can

18 see that sometimes you see this is the direction to Gracac. That is --

19 we have seen that as well. But what I wanted to know is when looking at

20 houses on portions of the video where there's not included a traffic

21 sign, whether he there recognised the overall picture or whether he

22 recognised specific houses, specific villages. That was my question.

23 And that's the way you understood it, I take it, Mr. Vurnek?

24 THE WITNESS: [Interpretation] Yes, Your Honour. That must be the

25 same road.

Page 26270

1 JUDGE ORIE: Yes. I asked whether that's how you understood my

2 question, but ...

3 Any further questions in relation to this.

4 MR. KUZMANOVIC: Yes, Your Honour, just one.

5 Q. Mr. Vurnek, there was a comment in the video about what appeared

6 to be the UN base. Do you recall that UN base being on the side of the

7 road, as it was depicted in the video?

8 A. I do.

9 MR. KUZMANOVIC: That's all, Your Honour.

10 JUDGE ORIE: Yes. My recollection on whether we have already in

11 evidence where that exactly was, I think it was marked on one of these

12 maps with A2, it's --

13 MR. KUZMANOVIC: Yes, Your Honour, I can -- I know the name of

14 the place. We can ask the witness if he knew where it was located.

15 JUDGE ORIE: Well, if he knows the name --

16 Questioned by the Court:

17 JUDGE ORIE: If you could tell us the name of that place, that

18 would certainly assist us in later evaluating the evidence.

19 Mr. Vurnek.

20 A. The UN base was in Gracac, on the outskirts of Gracac to one's

21 left side.

22 JUDGE ORIE: Yes. One other question. You said you saw one

23 house burning close to where there was a weapon depot. Has the finding

24 this weapons depot, has that been reported? Is there any document in

25 which you say, Look there, there are the weapons to be found, or ... any