Tribunal Criminal Tribunal for the Former Yugoslavia

Page 606

1 Friday, 5 December 2003

2 [Open session]

3 --- Upon commencing at 9.00 a.m.

4 [The accused entered court]

5 JUDGE ANTONETTI: [Interpretation] Please be seated. Madam

6 Registrar, will you call the case, please.

7 THE REGISTRAR: Good morning, Your Honours. This is case number

8 IT-01-47-T, the Prosecutor versus Enver Hadzihasanovic and Amir Kubura.

9 JUDGE ANTONETTI: [Interpretation] The accused may be seated.

10 Mr. Prosecutor, can we have the appearances, please.

11 MR. WITHOPF: Good morning, Your Honours. For the Prosecution,

12 Mr. David Re, Ekkehard Withopf, and Ms. Kimberly Fleming as the case

13 manager.

14 JUDGE ANTONETTI: [Interpretation] Thank you.

15 And now for the Defence, please.

16 MS. RESIDOVIC: [Interpretation] Good morning, Mr. President; good

17 morning, Your Honours. On behalf of General Hadzihasanovic, Edina

18 Residovic, attorney from Sarajevo, Stefan Bourgon, attorney from Canada,

19 and Mirna Milanovic, legal assistant. Thank you.

20 JUDGE ANTONETTI: [Interpretation] Thank you.

21 And for Mr. Kubura.

22 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honours.

23 For Mr. Kubura, Fahrudin Ibrisimovic and Rodney Dixon, with Nermin

24 Mulalic, our legal assistant.

25 JUDGE ANTONETTI: [Interpretation] The Chamber bids good day to

Page 607

1 all the people present, the Prosecution, the Defence, and the accused,

2 the personnel of the registry. Today we will continue with the

3 cross-examination of the witness who testified yesterday. I understand

4 that witness number four on the list will not come today. Can the

5 Prosecution provide us any further clarification regarding the

6 difficulties encountered in that connection?

7 MR. RE: Depends on how much detail Your Honours wish me to go

8 into. I can go into some details, but I would require private session

9 for that.

10 JUDGE ANTONETTI: Yes, please.

11 [Private session]

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23 [Open session]

24 THE REGISTRAR: We are in open session, Your Honour.

25 [The witness entered court]

Page 609

1 JUDGE ANTONETTI: [Interpretation] Madam, can you hear the

2 interpreters?

3 THE WITNESS: [Interpretation] Yes.

4 JUDGE ANTONETTI: [Interpretation] Mr. Prosecutor, you have some

5 more questions for the witness? Because I thought that you were almost

6 done.

7 MR. RE: Before we broke yesterday, I foreshadowed, I anticipated

8 maybe 15 to 20 minutes more with the witness, and that, of course,

9 factors in objections as well.


11 [Witness answered through interpreter]

12 Examined by Mr. Re: [Continued]

13 Q. Good morning, Ms. Kegelj. I'm going to ask you to draw on a map

14 a little bit later, but first I'm going to ask you about the work you

15 told us about you did yesterday, the work you described yesterday to us,

16 as a translator for the ECMM, that's the European Community Monitoring

17 Mission. I think you said you got the job in about February or so 1993.

18 A. Yes, on the 11th of February, 1993, I started working for the

19 team, accommodated in Busovaca, that is, the Dutch Battalion.

20 Q. Who were you working with and for on that ECMM team?

21 A. In those days, there were three or four monitors of different

22 nationalities. I remember there was a Dane, a Dutchman, and I'm not sure

23 about the other two. But as you know, European Union consists of many

24 countries and representatives of all countries took turns, and they

25 changed every three or six months. So it's rather difficult to remember

Page 610

1 all their names.

2 Q. You remember working with a monitor called Victoria Fifield?

3 A. Yes. Ms. Victoria Fifield, who was a Brit, she was there at the

4 beginning of 1994 -- I'm sorry, 1993. No, 1994? I'm not quite sure.

5 1993.

6 Q. Can you just tell us in general what sort of work you and the

7 ECMM were doing in 1993, the first part of 1994? Just in general: Where

8 you were going, the sorts of things you were doing.

9 A. During the war itself, and in Central Bosnia, of course, at first

10 their efforts were directed towards reconciling the forces of the army

11 and the HVO in Central Bosnia. There were many meetings held with both

12 sides, in the desire for the hostilities that had started to be stopped.

13 I remember that we had a lot of contact with the chief of staff in the

14 headquarters of the HVO in Vitez, Mr. Nakic, and Mr. Merdan on behalf of

15 the 3rd Corps.

16 MS. RESIDOVIC: [Interpretation] Mr. President.

17 JUDGE ANTONETTI: [Interpretation] Yes, the Defence.

18 MS. RESIDOVIC: [Interpretation] Before the Prosecution continues

19 with this line of questioning of the witness, I would first like the

20 Prosecution to notify us the direction in which it intends to question

21 the witness, for two reasons. As we heard now, the witness was working

22 for the ECMM, that is, the European monitors, and this is a problem we

23 discussed on a number of occasions, and the Prosecutor agreed not to call

24 international monitors because the Defence still has no access to the

25 documentation of the European monitors. A discussion on the same issue,

Page 611

1 without the Defence being able to cross-examine on the same issues, would

2 be bringing the same issues in around the back door.

3 And another matter is that the witness was an interpreter, and we

4 don't know whether she has authorisation of the European monitors to be

5 able to speak about things that she learnt as an interpreter. Because,

6 as far as I know, the interpreters are also under a certain solemn

7 obligation not to disclose things that they learned during their

8 professional duties, and that is the reasons why we would like to receive

9 some additional explanations.

10 JUDGE ANTONETTI: [Interpretation] Yes. Regarding this objection,

11 which has two parts, which are important, because, as you know, the

12 Defence has still not had access to the archives of the European Union,

13 and therefore it cannot cross-examine this witness should a question

14 arise regarding the European Union missions. Therefore, in view of the

15 fact that the Defence has still not had access to those documents, the

16 Chamber must make sure of the equality of arms, and therefore, you cannot

17 ask questions regarding what the mission of the European Union was doing,

18 by whom this witness was employed.

19 And the second part, which is also important: Having been an

20 employee of an international institution, she is, like all staff members,

21 subject to the obligation of keeping a professional secret, and

22 therefore, questions that may be put to her regarding what she was doing,

23 which is quite removed from the facts she is testifying about as a

24 victim, therefore, you are allowed simply to ask her what her position

25 was, without entering into the very contents of her work. And therefore,

Page 612

1 I give you the floor.

2 MR. RE: Thank you, Your Honour. Could I ask procedurally that

3 the Prosecution be allowed to address an objection before Your Honours

4 rule on it? Because there are things the Prosecution would wish to put

5 before Your Honours, before Your Honour actually does rule on an

6 objection raised. The Prosecution would put the following --

7 JUDGE ANTONETTI: [Interpretation] Yes. So what are your

8 arguments?

9 MR. RE: The following matters, Your Honour: Firstly, the

10 witness's intended evidence has been disclosed to the Defence for -- I

11 can't tell you the exact period off the top of my head, but for a long

12 time. The Defence is fully on notice of the evidence this witness would

13 give, and it is in fact, of course, in the witness summary, which the

14 Prosecution filed with its pre-trial brief in October.

15 The second issue is the nature of the ECMM's work. There is no

16 secret at all about what the ECMM was doing at all in Central Bosnia.

17 That is very much a matter of the public record. So, in the

18 Prosecution's submission, the witness merely describing what she was

19 doing as in travelling around with the ECMM, going to meetings between

20 the two sides, is not revealing -- is not breaching any confidentiality

21 because that is in fact what the ECMM was there doing.

22 Thirdly, in relation to the evidence which I intended to lead

23 from the witness in relation to the Orasac camp is contained in

24 Ms. Fifield's statement, which is taken in 1997, served on the -- by the

25 OTP, and served on the Defence in this case a long time ago. And it

Page 613

1 details similar matters in relation to the Orasac camp and General Alagic

2 and the matter concerning Mr. Popovic, which is in the indictment. The

3 relevant ECMM records relating to those meetings have been disclosed to

4 the Defence. At my fingertips, I don't have the exhibit number. If

5 given a moment, I can probably find them.

6 So what I'm saying is the matters which the Defence have alluded

7 to, to some degree, it is correct that they have not had full access to

8 all ECMM material. The Prosecution, however, is confident they have had

9 access, and we've served on them all material relevant to the evidence

10 which this particular witness could give in relation to those particular

11 meetings.

12 It brings me to the confidentiality aspect. The ECMM has waived

13 in respect of all -- as far as we can tell, all of the matters subject of

14 the indictment, any confidentiality, by providing the material to the

15 Prosecution and allowing us to disclose it to the Defence, which we have,

16 in relation to Orasac, the negotiations, the meetings between the various

17 sides, and we have provided probably hundreds of pages of ECMM minutes

18 relating to the matters, the subject of the indictment.

19 So, in the Prosecution's submission, the Defence have been on

20 notice, and probably should have all relevant material in relation to the

21 evidence which we intend to call from this witness at some stage in

22 relation to the Orasac camp and a meeting she attended at which the

23 Mujahedin -- or in exchange with the Mujahedin were discussed.

24 There, of course, is another -- there is a practical way of

25 dealing with this, and dealing with any difficulty the Defence may have

Page 614

1 in relation to cross-examination, if they in fact don't have, they feel

2 all the material, although the Prosecution is fairly confident they must

3 have by now, and that is to allow the Prosecution to lead the evidence

4 from the witness now, and, if necessary, if the Prosecution -- Defence

5 needs to cross-examine her further, the witness be recalled for

6 cross-examination. Because this witness was on our list as the third

7 witness, and it has always been foreshadowed from the two statements we

8 disclosed that she would be giving evidence about the activities

9 peripherally of the ECMM and specifically in relation to two incidents

10 which are relative and probative in the indictment.

11 So those are the matters the Prosecution would put before the

12 Court as to why the Prosecution should be permitted to adduce this

13 evidence now, if there is a difficulty. But we submit that the Defence

14 should be allowed to cross-examine if they need to, at a later point, or

15 go as far as they can and then recall her, if necessary.

16 JUDGE ANTONETTI: [Interpretation] I shall now give the floor

17 again to the Defence.

18 MS. RESIDOVIC: [Interpretation] Mr. President, it is true that as

19 our learned friends from the Prosecution are telling you, that in the

20 pre-trial brief there were certain indications regarding each of the

21 witnesses. However, on the 28th of November, at the Pre-Trial Conference

22 - which means after the exchange of documents - the Defence drew

23 attention to the problem it has in gaining access to the archives of the

24 European monitors. The Trial Chamber then ruled that those matters would

25 not be discussed until such access is provided to the Defence.

Page 615

1 The Prosecution, during the Pre-Trial Conference, agreed with

2 your ruling. In the course of the hearing yesterday, when we partly

3 agreed that the memory of this witness be refreshed, we did so with

4 regard to only one of her statements. The second statement, which is

5 dated the 6th of February, 2000, we objected to that statement being

6 shown, as it doesn't relate to this period. This is something that the

7 Prosecution agreed with again.

8 Last night, at 6.00 p.m., the Prosecution gave us a brief note by

9 my learned friend David Re, informing us that during a 20-minute

10 interview with the witness, the matters were reviewed that he referred to

11 now. We believe that this method of examining the witness is not

12 appropriate.

13 The Prosecution has disclosed to us a part of the material which

14 was provided to the Prosecution by the European Community, but it is only

15 part of the incriminating material. The Defence cannot function as an

16 equal party in the proceedings if it only has the documents disclosed to

17 it by the Prosecution. That is why we stand by our objection and ask the

18 Trial Chamber to rule accordingly.

19 JUDGE ANTONETTI: [Interpretation] It is now 9.20. We will

20 withdraw to deliberate on this matter, and we will come back in 15

21 minutes. So the hearing will be resumed in 15 minutes. Of course, the

22 witness is not allowed to speak to anyone in the meantime. Thank you.

23 --- Break taken at 9.22 a.m.

24 --- On resuming at 9.33 a.m.

25 JUDGE ANTONETTI: [Interpretation] Please sit down. Please have

Page 616

1 the accused brought in.

2 THE INTERPRETER: Your microphone, please.

3 JUDGE ANTONETTI: [Interpretation] Yes. Have the witness brought

4 in, Mr. Usher.

5 THE INTERPRETER: Could the Judge's microphone pleased be

6 switched on. Thank you.

7 [The witness entered court]

8 JUDGE ANTONETTI: [Interpretation] Very well. As to the objection

9 raised by the Defence regarding the examination of this witness, and in

10 relation to the work she did within the ECMM as of February 1993, the

11 Trial Chamber finds that, with relation to the possibility for the

12 Defence to access ECMM documents, a problem which is not yet settled, in

13 as much as during the Pre-Trial Conference, the Defence informed the

14 Trial Chamber that it had problems finding access to all of the documents

15 that could be used by it to defend the accused. The Secretary-General of

16 the European Union informed the Defence that he was willing to provide

17 the documents, provided the Defence specified the nature and identity of

18 the said documents.

19 Things being what they are, there are currently discussions

20 between the Defence and the European Union in order to find a solution.

21 In addition to this, the European Union argues that it reserved the

22 possibility to provide documents, provided Rule 70 of the Rules of

23 Procedure and Evidence was applied with regard to its own interests.

24 Therefore, the trial concludes that, to date, the Defence does

25 not have material likely to enable it to argue and to examine witnesses

Page 617

1 regarding the work done by the ECMM and things or facts that it may have

2 seen.

3 The Prosecution wishes to examine this witness regarding the work

4 of ECMM. The Trial Chamber does not think it is possible today for the

5 Prosecution to do so. The more practical -- or practicable solution

6 would be for the Prosecution to call this witness again. Of course, the

7 witness will inform her superior that she is going to be examined on

8 facets of her work with the ECMM and, if need arise, the ECMM could argue

9 that Rule 70 should be applied as to certain parts of the work. We don't

10 know that yet.

11 Therefore, the examination-in-chief by the Prosecution can only

12 deal with facts that she witnessed, including those of the 26th of

13 January, or related questions probably as well, but the Prosecution is

14 not authorised to raise questions regarding her current position and the

15 work she did as of February. Those questions may be put to the witness

16 in due course. There is no such urgency that it would be necessary right

17 now to put those questions to her.

18 This is the decision issued by the Trial Chamber today.

19 I give the floor again to the Prosecution.

20 MR. RE:

21 Q. Ms. Kegelj, I wish to show you a diagram. It is a smaller

22 photocopy of Exhibit P3. Yesterday I asked you to describe where certain

23 things were in the photograph on the screen. What I would like you to do

24 is take the black pen which is -- the usher is about to hand to you, and

25 being aware that it is a felt-tip pen, a large one, I want you to circle

Page 618

1 the following things on it. Just let me describe them to you first: Your

2 family's house. Not yet, Ms. Kegelj. Just wait. Vinko's house, Niko's

3 house, Stipo's house, the two white houses down at the bottom. I want

4 you to draw with an arrow the route you took from -- through the orchard

5 to the Muslim part of the village. I want you to do it with an arrow,

6 cross, cross, cross, cross, cross, and the route to Brdo, I want you to

7 mark in the route to Brdo, and the route taken -- you took back to your

8 Uncle Stipo's, and the route you took to the Lasva school. And I want

9 you to mark in the names above the houses, if you can put an arrow down

10 to it and the name of the person whose house it was. Circle the house

11 and put a line down to it. Do you follow completely what I want you to

12 do?

13 THE WITNESS: So circles, plus arrows, plus names?

14 MR. RE: That's right. And if you could write it in English, it

15 would be helpful.

16 THE WITNESS: [Microphone not activated] There is a problem--

17 JUDGE ANTONETTI: [Interpretation] Could the witness tell us which

18 is the name given to that house.

19 THE WITNESS: [Interpretation] Yes, that's right. I've already

20 marked that and placed a circle around my family house and the name of my

21 father, with an arrow.

22 JUDGE ANTONETTI: [Interpretation] Thank you. Thank you very

23 much. We observe that this is her father's house.

24 THE WITNESS: [Interpretation] Yes, that's right. Now, I have a

25 slight problem with respect to my uncle Vinko's house. He still lives in

Page 619

1 the old house. He never actually moved into his new house. So there's

2 nothing of that new house. You can't see it on this photograph. It's

3 where this -- these fruit trees are. So I don't know. Should I just put

4 an X where the location should be but you can't actually see the house?

5 JUDGE ANTONETTI: [Interpretation] It might be better for her to

6 put a cross there where the old house or the former house was.

7 THE WITNESS: [Marks]

8 JUDGE ANTONETTI: [Interpretation] This is her uncle's house.

9 THE WITNESS: [Interpretation] This is uncle Niko's house over

10 here.

11 JUDGE ANTONETTI: [Interpretation] Could the witness tell us whose

12 house that is.

13 THE WITNESS: [Interpretation] The one I have just circled is my

14 Uncle Stipo Kegelj, house, right here. I'm going to circle now --

15 actually, the two I'm drawing a circle around belong to our neighbour

16 Marko Rajic. And the next house belongs to my late Uncle Jure. It's

17 actually a new house that he never used. He never moved into it. Ivica

18 Kegelj used it. So perhaps it would be better to place his son's name

19 here, right, because he and his mother lived in that house.

20 Those are the houses. So I've finished with that. Now you want

21 the roads, the paths. As I have said, we were in my Uncle Niko's cellar,

22 then in the orchard, and they took us through the orchard up above the

23 houses. There's a path leading this way, across the fields, which is

24 where we passed to go down to the crossroads. And after spending some

25 time down there, once everybody had gathered there, we went back along

Page 620

1 the ordinary, normal road. And at this crossroads here for Brdo, we were

2 stopped, and they separated the soldiers and civilians, as a human

3 shield. So this, then, would be the road leading towards Brdo.

4 MR. RE:

5 Q. Can you just put an arrow in the direction of Brdo, please.

6 A. There are lots of them here, lots of arrows. So this is the --

7 not the path leading up to this little hill, but it goes straight on.

8 You can't see the portion on the photograph. And then the rest were

9 taken to this house here, my Uncle Stipo's house, where we stayed until

10 the late afternoon hours, as I've already said. And from there, they

11 took us back the same way - I don't know how to indicate this, but we

12 took the same road.

13 Q. Can I just stop you? If you could just draw perhaps a few

14 millimetres above with an arrow going the same direction back. So it's

15 just above the road.

16 A. [In English] That's what I'm doing, David. [Interpretation] So

17 they took us back to this junction here, and from there, the road to

18 Lasva leads on in this direction. Lasva is here.

19 Q. Could you also just, please, write on the Muslim part of the

20 village, something so that we know -- the word "Muslim part of the

21 village" or something like that.

22 A. Yes, I understand. This is the road that leads to the Muslim

23 part of the village. Perhaps I could do it this way. Is that all right?

24 The village is, of course, much bigger, but you can just see the first

25 houses. It stretches this way. It's much bigger, actually.

Page 621

1 Q. Also, yesterday you mentioned a stable, Zuhdija Halid's stable.

2 Would you be able to mark that on too, please.

3 A. I'm afraid you can't see it very well on this photograph, but

4 anyway, the crossroads are here and the houses should be in this section,

5 because my mother and I stood underneath the shed on the road. So these

6 two crosses would represent the house and the shed, and I think his

7 surname was Halid. Zuhdija Halid.

8 Q. And finally, could you just, please, put an arrow down toward the

9 orchard is and write "orchard" above it.

10 A. There are several orchards. Which one are you referring to?

11 One, two, three. Each house and household had its own orchard. Well, we

12 walked through all three. So this is the path we took. The orchards

13 from which I saw the shooting at Marinko when he was fleeing, is that the

14 one you mean? And that is the first one between Uncle Niko's house and

15 Uncle Vinko's house, this orchard here.

16 Q. Yes, please. Just mark that with an arrow down.

17 A. Yes, that's right. That's the orchard. [In English] I can't

18 spell orchard.

19 Q. O-r-c-h-a-r-d. Thank you. Can you please, on the very bottom

20 where it's white, can you please write your name and sign it, if Your

21 Honours consider that appropriate for the proceedings.

22 A. Today's date is 5th.

23 Q. 5th of December, yes. Thank you. Also just sign it as well.

24 A. [Marks]

25 Q. Thank you.

Page 622

1 MR. RE: May that be tendered into evidence.

2 MS. RESIDOVIC: [Interpretation] The Defence has no objections.

3 Thank you.

4 THE INTERPRETER: Your microphone, please, Your Honour.

5 JUDGE ANTONETTI: [Interpretation] Madam Registrar, can we have a

6 final exhibit number.

7 THE REGISTRAR: Your Honour, since the original exhibit was

8 marked Exhibit P3, I would suggest to mark this Exhibit P3.1, as marked

9 by the witness.

10 MR. RE: It's not actually an exhibit marked by the witness.

11 It's a photocopy of an exhibit. Could I respectfully suggest you just

12 give it a different number, like P4, so it doesn't get confused with P3.

13 JUDGE ANTONETTI: [Interpretation] Yes.

14 THE REGISTRAR: The next number, then, will be P6.

15 JUDGE ANTONETTI: [Interpretation] Fine. This exhibit is tendered

16 into evidence as P6. I hope this is clear to everybody.

17 Mr. Prosecutor, please proceed with your questions.

18 MR. RE: Thank you.

19 Q. Yesterday, Ms. Kegelj, you told us about what happened in the

20 house, your parents' house in Dusina and thereabouts. Do you know a

21 person or did you know a person called Geler, G-e-l-e-r, Geler?

22 A. Yes, I have heard of the name. A lot was spoken about him after

23 the crime in Dusina, that he was one of the main perpetrators --

24 actually, that he was the main perpetrator and that he did all the dirty

25 work, if I can put it that way, that he performed the executions. I

Page 623

1 don't know him personally. Possibly I've seen him around, but I don't

2 remember. Yes, I do think I saw him once. He has a glass eye, if that's

3 the man.

4 Q. Do you remember whether you saw him in Dusina on the 26th of

5 January, 1993?

6 A. Yes. In my Uncle Stipo's house, where they held us captive. If

7 that's the young man with the glass eye, then that would be it.

8 Q. Thank you. The other person I want to ask you about is someone

9 called Edin Heco, H-e-c-o, if my pronunciation is correct. Do you know

10 him and was he present on the 26th of January, 1993?

11 A. I know that he worked with my uncle in the ironworks and I know

12 that my aunt, in the school in Lasva, asked him where her husband was,

13 Niko, and he told her that he had stayed on in Dusina. So I saw him in

14 the school. But I don't remember seeing him up there in the house while

15 we were at Dusina. But in the school in Lasva, yes, I did, because I was

16 with my aunt when she asked him that.

17 Q. You mentioned yesterday a person called Hakanovic. How many

18 times did you see him in Dusina on the 26th of January?

19 A. I saw him at the crossroads for a brief moment, and I saw him

20 when the human shield was taken off to Brdo at the small junction that I

21 indicated on the map. And he addressed me personally and said that I

22 didn't need to go to join the human shield because my mother was feeling

23 sick. She needed some help in walking, because she lost consciousness

24 when she learnt of Drazen's death, that he was killed. So I saw him take

25 other people by their shoulder and take them off for the human shield. I

Page 624

1 saw him hold the Motorola moment role in his hand, I mean the radio

2 station, and that he kept having brief conversations. Whether he was

3 issuing orders or receiving orders, I can't actually saw, but he was in

4 contact and on the line to someone all the time.

5 MR. RE: That's the Prosecution's examination-in-chief.

6 THE INTERPRETER: Microphone, please.

7 MR. RE: I apologise. That's the Prosecution's

8 examination-in-chief, Your Honours.

9 JUDGE ANTONETTI: [Interpretation] Very well. Thank you very

10 much. But before I give the floor to the Defence, the Chamber wishes to

11 ask something of the witness. Indeed, on many occasions she mentioned a

12 human shield. What is the meaning she gives to this concept of human

13 shield in her mind? What does that mean, what did that mean? Why a

14 human shield? Could you answer this question, Witness?

15 THE WITNESS: [Interpretation] When I say that, I mean a group of

16 people - I can't say exactly the number of people in this group, but it

17 was quite a lot of people, who were separated and taken to Brdo with just

18 one aim: To protect the members of the BH army from the HVO soldiers who

19 were still at Brdo and did not want to surrender.

20 JUDGE ANTONETTI: [Interpretation] So this is how the witness

21 understands the notion of human shield.

22 Very well. It is now 10.00. We can work until 10.30. Then

23 we'll have the usual break. I now give the floor to the Defence for the

24 cross-examination of the witness.

25 MS. RESIDOVIC: [Interpretation] Thank you, Mr. President.

Page 625

1 Cross-examined by Ms. Residovic:

2 Q. [Interpretation] Ms. Kegelj, good morning.

3 A. Good morning.

4 Q. My name is Edina Residovic, and I am Defence counsel for

5 General Hadzihasanovic.

6 Before I begin asking my questions, I should like to express my

7 sincere condolences because of the tragedy that befell your family.

8 I should now like to ask you, Mr. President, with the Court's

9 indulgence, to have the witness have the photograph of the Kegelj

10 settlement, which we received from the Prosecution, before her, to

11 facilitate my conversation with her and to make the things we're talking

12 about self-evident to the people in the court.

13 Ms. Kegelj, is this the photograph of the Kegelj hamlet?

14 A. Yes, it is. And you can see a little more on this particular

15 photograph than on the previous ones.

16 Q. Thank you. That is why I thought it was a good idea that I show

17 you this particular photograph.

18 The photograph has numbers on it, which were not written by the

19 Defence, but I think that it will facilitate communication. Could you

20 state again who the houses belong to, with the numbers that are already

21 on this photograph. So take the houses and the numbers.

22 A. Do you want me to start with number 1 and then go on 2, 3, 4, in

23 order, or do you want me to begin from my own house?

24 Q. You can do whatever you choose. Choose the order yourself.

25 A. So number 1 is the house that belonged to Ivica Kegelj, that is

Page 626

1 to say, my late Uncle Jure, who died before the war. He never lived in

2 the house. I don't believe he did, and that's why I said I would denote

3 it as being Ivica Kegelj's house; that is, his son's house who lived with

4 his mother in that house and of course with his own family as well.

5 Number 2 is -- there are two houses belonging to Marko Rajic, the

6 bigger one and the small one next to each other.

7 Then we go on to number 3. I can't see number 3 anywhere.

8 What's this? 5. The red seems to be number 5. Number 5, I assume is

9 indicating -- once again we have an old house and a new house, but I

10 think it refers to the remains of the new house of my uncle Vinko Kegelj.

11 We've skipped one other.

12 Number 5 the blue, is the shed belonging to my late Uncle Vinko.

13 Then the next number 5, once again blue, are the remains of our own shed,

14 Jozo Kegelj's.

15 Number 6, in red, is our family house, the one we actually lived

16 in. The blue 6 is the unfinished house, still under construction, that

17 my father was building for my brother.

18 Number 7 are the remains of Bata and Mara. We called them that.

19 Mara Kegelj, in fact, was her full name. That was number 7.

20 We go to number 8, in red. That house belonged to our neighbour,

21 a Serb, Kalajdzic was his surname, Simion Kalajdzic or Simo. The 8 blue

22 is the shed belonging to that same man.

23 Number 9 denotes the house belonging to another Kalajdzic family,

24 the last Djordje Kalajdzic, who died, so it was his sons with their wives

25 who lived there.

Page 627

1 Q. Thank you.

2 A. You're welcome.

3 Q. Tell me now, please: Which were the houses in which, on the

4 night of the 25th and 26th, your brothers stood watch, stood guard, as

5 members of the HVO?

6 A. That was in house number 8, red number 8. Simo Kalajdzic was the

7 owner.

8 Q. Can you tell me, please, which road or path leads towards Lasva,

9 and could you mark it in and put in the next number. So after number 9,

10 I don't think we have a number 10. So put it down as number 10, the road

11 from Kegelj leading towards Lasva.

12 A. While I'm being supplied with a pen to mark this down with, I'll

13 indicate it with the pointer. It's this road. From my house you would

14 go this way, round about, and this road leads to the same crossroads.

15 This part goes to the Muslim section and this direction going slightly to

16 the left and down leads towards Lasva.

17 Q. If you've been supplied with a pencil, could you place an arrow

18 there and tell us that that is the Lasva road.

19 A. Do you need me to add this little bit?

20 Q. No. We've already seen that. Now, tell me, please, which road

21 leads towards Busovaca and the village of Merdani?

22 A. As to the village of Merdani, it's this road here, passing by the

23 late Uncle Jure's house, or Ivica's house, whichever you like. So this

24 is Merdani. And this other road, round about, goes up here past the

25 cemetery and carries on above the cemetery. And these are fields that

Page 628

1 are called Kucarina. There are two roads. I don't know which one you're

2 interested in more.

3 Q. Well, I think they both follow the same direction across the

4 hill, do they?

5 A. No. One of them goes across the hill this way and the other one

6 takes you through the forest the other way, and they don't meet. The two

7 roads don't meet.

8 Q. All right. Then place number 11 and number 12, please.

9 A. Just a minute. This road to Lasva is number 10. I omitted to

10 indicate that.

11 Q. Put number 11 for Merdani.

12 A. Here it is, yes.

13 Q. And both roads to Busovaca, mark with a number 12.

14 A. This one across Marko's houses, through the forest, is 12, to

15 Busovaca, and this other one as well. You can take this route round

16 about and up. And you told me to put a number 12 for both those roads.

17 Q. Yes. Both the number 12 roads leads towards Busovaca.

18 Thank you.

19 A. You're welcome.

20 Q. Tell me, please: Although we've seen this on the photograph,

21 we've seen the path taken towards Dusina, inhabited by the Muslim

22 population. Tell me: How far is that part of the village from your own

23 houses?

24 A. As the crow flies, or how do you mean? In a direct line or

25 taking the road?

Page 629

1 Q. Well, take the road.

2 A. Well, you can access this for yourself. I know that the distance

3 from the crossroads to Uncle Stipo's house is about 350 to 400 or 500

4 metres, at the most. So if this is 500 and to the first houses, that

5 would make it up to Zuhdija, which is 100 metres from the crossroad to

6 the top of the village how much would that be? From Uncle Stipo's house

7 to the top of the village let's say one kilometre, 800 metres to one

8 kilometre.

9 Q. Thank you. Would you agree with me when I say that from your

10 houses to Merdani is two and a half to three kilometres?

11 A. I must say I never used that road. I just used it twice, so I

12 can't really say. The furthest I got along that road from the houses --

13 I don't know what the family name was, but she was my Kuma. She lived in

14 those houses. On the road to Merdani, there were several Croatian

15 houses. I don't suppose they exist there any more. So the furthest I

16 went was up to those houses. I never remember going to Merdani myself,

17 so I don't know. I can't say as to distance.

18 Q. Thank you. However, it is true that your Kegelj hamlet was the

19 borderline between the Lasva local commune belonging to Zenica and the

20 local communes belonging to the Busovaca municipality; would that be

21 correct?

22 A. Yes. They are their first inhabited areas, and they border on

23 Dusina. Merdani I know belonged to Busovaca as does Kula and some other

24 places, I know that for sure. Solakovici and places like that.

25 Q. You also know, I am sure, Ms. Kegelj, that the main road from

Page 630

1 Zenica to Busovaca, at Cankecumi [phoen] leads through Kaonik, Busovaca,

2 along the Lasva River valley; that's right, isn't it?

3 A. Yes. You mean the asphalt road.

4 Q. Now, if that block were to be blocked, the other possible way you

5 could get to Busovaca and Kacunj would be precisely through Dusina or

6 rather through your own hamlet; is that right?

7 A. Yes you could put it that way.

8 Q. As we can see on the photograph these are all mountain roads,

9 hilly roads; is that right?

10 A. Yes, of course.

11 Q. Now I want to ask you something else, something different. A

12 that time, you knew that the military-able men from the village of Dusina

13 and Lasva belong -- were Croats. They were ethnic Croats and they were

14 members of the HVO. You know about that, don't you?

15 A. Yes. Correct.

16 Q. You were also aware of the fact that that particular unit did not

17 belong to the Jure Francetic Brigade in Zenica but rather to the brigade,

18 that's right, isn't it?

19 A. Yes, that is right.

20 Q. So their basic command was in Busovaca; right?

21 A. Yes.

22 Q. I'm sure you also know that the HVO commander for the entire

23 Lasva River valley and the president of the HDZ was Zvonko Rajic?

24 A. Well, I don't know Zvonko's titles attachment that wasn't

25 something I delved in. But I do know that the HVO unit was there. As to

Page 631

1 his political activities, I really can't say. I don't know about them.

2 Q. I'm sure you also know that in Dusina itself, there was a squad

3 of the HVO, the commander of which was Dragan Rados.

4 A. Yes, I do know that.

5 Q. Dragan Rados lived in the hamlet of Brdo, didn't he?

6 A. Yes, correct.

7 Q. And in his house in the Brdo hamlet, there was a sort of small

8 headquarters for that squad, if I can put it that way.

9 A. I can't say that, and I don't think I can agree, because he built

10 a new house in which his wife and children lived, and I doubt that he

11 would turn it into some sort of headquarters. But if you say so, I am

12 willing to accept it, although I have my doubts.

13 Q. Zvonko Rajic - and if you know about this, could you please

14 confirm it - I put it to you that he lived in the Rajici hamlet, in the

15 valley of the River Bosna, not far from the Lasva railway station; is

16 that right?

17 A. Yes, I do know that, and that is true.

18 Q. This hamlet of Rajici cannot be seen from your own hamlet of

19 Kegelj, can it?

20 A. Part of the village can be seen very well, and let me tell you

21 from which vantage point. [In English] Sorry. I am supposed to show it

22 to everyone, not just her.

23 Q. Yes. Everything you indicate to us we can all see on our

24 screens.

25 A. [Interpretation] Yes. I realise that. What I wanted to say is

Page 632

1 from this small orchard here, there was a little mound, and you can see

2 most of Rajici from that. You have in front of you the motorway and the

3 village along the motorway, Polje whatever it's called, and to the right,

4 in front of the motorway, closer to us, you can see some of the Rajici

5 house. And the village above Rajici - I don't know what its name was -

6 it was a Muslim part, you had the Muslim part of the village. I can't

7 remember what its name was.

8 Q. I really don't know.

9 A. Nor do I. But you can see that -- the Muslim part and part of

10 Rajici underneath. I don't know exactly how many houses, but you can see

11 some of it, yes. I've just remembered the Muslim village above Rajici --

12 it's called Karacivina [phoen].

13 Q. On the 25th of January, as you're well aware, the family of

14 Zvonko Rajic came to the Kegelj hamlet and it found itself there on the

15 morning of the 26th of January; is that right?

16 A. Yes. The wife and her children, I think she had two daughters;

17 whether there was a son, I'm not quite sure, but I know she was there

18 with her children, and not only her, Franjo Kristo was there too at my

19 aunt's place, but they're relatives and they would visit each other

20 fairly frequently.

21 Q. Now, from your own houses, could you see Rados -- Drago Rados's

22 house in Brdo?

23 A. When you look from the hill, you can see Rajici as I said a

24 moment ago. In Brdo you can see Augustin Rados's house, I believe,

25 Cico's house, and some Muslim ones you can see the contours of them

Page 633

1 following down towards the value easement and Drago's house was shielded,

2 so you can't see it from the vantage point that I showed you. It's in a

3 sort of depression.

4 Q. I'm sure you also know that on the 25th of January, Drago Rados's

5 family came to your hamlet and spent the night there, before the events

6 that came to pass.

7 A. I don't know about that. I know about Rajic, and I know about

8 the people from Visnjica, from my aunt's house, her sister and husband.

9 As to the others, I don't know that they were in the area.

10 Q. Zdravka Rados?

11 A. I know the wife, but I don't know her name. And I know she was

12 in the Dusina area.

13 Q. All right. You've already said that there were some other

14 families there too from Donja Visnjica.

15 A. Not some others. All I know is about Franjo Kristo and his wife

16 but they would often visit my aunt because they were sisters. So

17 Franjo's wife was -- and my aunt were sisters, and I know that they would

18 often visit each other. So that could have just been one of the regular

19 visits.

20 Q. Do you know that sometime in the second half of January there was

21 a conflict in Busovaca between the BH army and the HVO?

22 A. Yes. News spread quickly. First of all, they said that a taxi

23 driver had been killed. I think his name was Ivica. The man's name was

24 Ivica. I'm not quite sure. He was killed, anyway, at -- what did they

25 call this place? The installations -- please help me out here. Like a

Page 634

1 barrier.

2 Q. Checkpoint, you mean?

3 A. Yes, checkpoint of the BH army. And for what reason that was, I

4 don't know, but they killed that Croat from Busovaca on the 24th. It was

5 a Sunday, in actual fact. So that was before Dusina.

6 Q. Do you know that on the 25th of January, in the morning hours,

7 that is to say, before noon, an artillery attack on Merdani started?

8 A. I really can't say. I don't know anything about that.

9 Q. A moment ago, you said again that at the crossroads you

10 recognised Edin Hakanovic, your neighbour, from the Brdo hamlet. Is that

11 right?

12 A. Yes, correct.

13 Q. So you knew him before the war as well?

14 A. Yes. Her sister went to school with me. We were friends. We

15 socialised quite a bit. He's one or two years younger than us, so he's

16 always somewhere around. I've known him since childhood.

17 Q. He was a policeman from Visoko, was he?

18 A. I didn't know that at the time when this happened, what happened

19 in Dusina, but afterwards, of course, when news began to spread, I learnt

20 that he did work as a policeman in Visoko, yes.

21 Q. When you said that some soldiers entered the cellar, you said at

22 the time -- or rather, you said beforehand that your brothers and some

23 other HVO soldiers were outside the cellar; they were not in the cellar,

24 in actual fact.

25 A. In which I, my mother, and my aunt were. There were no soldiers

Page 635

1 there at all. There were just civilians. There were two aunts of mine,

2 my mother was there, I personally, of course, and two daughters and the

3 son of Vinko's wife, or Vinko's sons and daughter, and this younger

4 daughter, Mirjana. So that would make it about ten of us in that cellar.

5 There wasn't a single man there, any military machine able men. And as

6 you know, Vahid isn't a military able man.

7 Q. You saw one brother at the crossroads; that's right, isn't it?

8 A. You mean the crossroads dividing the Muslim and Croatian part of

9 the village?

10 Q. Yes.

11 A. When they brought us there, Mladen came with some other HVO

12 members from the Muslim direction the Muslim village direction. They

13 were brought up to us and then he told us what he told us, that they had

14 beaten him, that they had mistreated him, that they had to go barefoot.

15 They took pieces of their uniform they liked, and he told my mother that

16 Drazen had been killed but that her husband was alive.

17 Q. However, you personally didn't see at any point in time members

18 of the BH army beat anybody?

19 A. No, I didn't see that personally. I just know what he told me.

20 Q. The HVO soldiers that you saw at that crossroads, you didn't see

21 later on, did you?

22 A. Rados Augustin, I did see him. He was rather tall, so I saw him

23 quite certainly at the junction. As for my brother, Milenko Rajic, for

24 his brother Milenko Rajic, Milenko Rajic survived. They didn't call him

25 out when they read names out from the list. I don't remember his name

Page 636

1 being called out. Perhaps he was called out and returned. He had some

2 family ties that saved him, I believe, because his wife had Muslims in

3 her family. That was what the story that went round was. Mladen and the

4 others that were taken away, I never saw again. So if I can say Cico and

5 Mladen never returned. I never saw them again after that junction.

6 Q. All right, Ms. Kegelj. You needn't go into all the details.

7 Perhaps you could just give me brief answers to my questions. But of

8 course --

9 A. All right, but things won't be clear then because brief

10 information can be very dangerous information.

11 Q. Yes, I completely agree, but I'd like to hear you tell us what

12 you know directly, and if necessary, of course, you're going to add

13 things you consider to be necessary.

14 But what I want to ask you is this: You've learnt about the

15 death of your brothers from others only; is that right?

16 A. As to Drazen's death, I heard about it at the junction from

17 Mladen, and quite obviously, he knew. He wouldn't just tell my mother

18 Drazen's been killed if he didn't know for sure if Drazen was still

19 alive.

20 As for Mladen, when he was taken away, when they came with the

21 list and took him away, I never saw him again after that. But when we

22 reached Zenica and we spent some time in Zenica from the 27th until the

23 3rd, I think, when they went off to Busovaca, so for that week, or

24 slightly longer that we spent in Zenica, we learned that my father was

25 alive. He called us from Busovaca on the phone that Mladen had been

Page 637

1 massacred, that is to say, killed.

2 Q. But you didn't actually see any of this.

3 A. No.

4 Q. You didn't see how your brothers were killed or how anybody else

5 was killed, any of the other people you mentioned yesterday?

6 A. Yes, that's right. I didn't see that myself.

7 Q. So everything you know about is on the basis of what other people

8 told you; is that right?

9 A. Yes. And on the basis of what my father said, who recognised the

10 body, or rather, bodies.

11 Q. You said that you knew Patkovic from the television screen.

12 A. I said I saw him on television. I never saw the man personally

13 in Dusina or anywhere else at any meeting. I just saw a photograph in

14 the newspapers or on television.

15 Q. In the afternoon, when they took you off towards Lasva, there

16 were some elderly people and tired people, and they enabled transport for

17 them to the school house; is that right?

18 A. As far as I know, the elderly people -- like there were two

19 grandmothers, and Mirko too, he was an invalid -- they stayed on in the

20 village. They didn't leave with us towards Lasva on that day, or that

21 evening. They stayed in Uncle Stipo's house, which is where we were held

22 throughout the day.

23 Now, the people who were able to walk went to Visnjica on foot,

24 and we were first stopped there and then went on to Lasva. In Visnjica,

25 there were some cars, and transport was provided to individuals there,

Page 638

1 those who wanted it, but not before that, as far as I know.

2 Q. When you reached the school house in Lasva, no force, physical

3 force, was used against you?

4 A. No, except they told us that we should go into the school

5 building and wait there.

6 Q. To the contrary; Paro Barucija, the proprietor of the coffee bar,

7 brought in tea and coffee, did he not, and served it round to you?

8 A. I really don't remember that, nor did I drink any tea or coffee

9 or was offered any tea or coffee in the school. Perhaps some were, but I

10 was not. I didn't see anybody drinking. We were in separate classrooms,

11 so quite possibly this took place in one of the classrooms I was not in

12 myself.

13 Q. You said that the next day, that you went to Zenica.

14 A. Yes. We spent the night, as I said, in my aunt's house, and it

15 was a morning train round about 6.00 a.m. I believe that we boarded and

16 went to Zenica on, and we arrived, the HDZ took us over. We were

17 accommodated in the HDZ Dom in Zenica and then we went to friends'.

18 Q. You felt quite safe in Zenica, didn't you? Nobody disturbed you

19 in any way?

20 A. I personally -- no, madam. I personally felt very much

21 distressed, and there was great fear throughout, regardless of the HDZ

22 and the HDZ Dom and that was the place where evil came from, as far as we

23 were concerned. And until we crossed the border and arrived in Vitez

24 with the dead, I didn't feel free. And I don't feel free today in Zenica

25 either. I go there quite often, but I have a cramp in my stomach.

Page 639

1 Believe me when I say that.

2 Q. Well, I believe you that you had those feelings after those few

3 days. But nobody personally threatened you in any way in Zenica?

4 A. In the train, they did. They laughed at us. They insulted us,

5 called us names. From the Muslim women who were travelling with us too,

6 and I could tell they were Muslim women by the clothes they were wearing.

7 MS. RESIDOVIC: [Interpretation] I apologise. May I take a drink

8 of water, Your Honour.

9 Q. During that day, on the road, you saw people wearing different

10 clothing, civilian clothing and army uniforms. I think that's right, is

11 it? Your brother told you that Drazen had been killed?

12 A. Yes.

13 Q. And that was during the fighting that took place before you were

14 detained?

15 A. Yes, before I was arrested, there were -- there was no fighting.

16 It was a pure attack, madam. Nobody fought anybody. There was -- you

17 wouldn't believe the explosions that could be heard in Dusina. There

18 were bursts of gunfire and a series of explosions from hand-held rocket

19 launchers of the type that are called Zolja.

20 Q. You mentioned Allah Akbar being said. Do you know what that

21 means?

22 A. It means something very bad and evil because what happened

23 afterwards is what happened regardless of what the term means, it will

24 never be a term that I will be happy to hear.

25 Q. Did the people using the term know what it meant? I just wish

Page 640

1 you to confirm what you were asked about this morning by the Prosecutor,

2 to state that again, and at the end of 1993, you were an

3 interpreter/translator for Ms. Victoria Fifield.

4 A. Yes, the beginning of 1994, actually. I remember that, in the

5 waiting room, that it was 1994, that Nick Turnbull worked before

6 Victoria, they handed over duty and that was when it was, in 1994, was

7 when we began working together.

8 Q. So you returned to Dusina for the first time at the end of 1993;

9 is that right?

10 A. Whether it was the end of 1993 or beginning of 1994 all I know is

11 there was still little snow on the ground and I have photographs of the

12 houses from that period of time. If you would like to see them, I still

13 have them at home and I can show them to you, so that is the freshest

14 evidence I have after the attack you can see what the houses looked like

15 and my house was burnt down amongst them.

16 Q. Do you know that a part of the population, the inhabitants of

17 Dusina, returned back to their homes from Zenica?

18 A. No. Not from Dusina. Perhaps Visnjica and Lasva, the part

19 nearer to the railway line and the railway station, but not to Dusina. I

20 don't know of anybody who returned to Dusina myself. To take a look at

21 their houses. The only person that goes is my father and the only person

22 -- other person there was myself, to see where my brothers were.

23 Q. Thank you. I have no further questions of this witness.

24 JUDGE ANTONETTI: [Interpretation] If I understand correctly, the

25 Defence no longer has questions within the framework of the

Page 641

1 cross-examination. Is that right?

2 Now Mr. Kubura's Defence.

3 MR. IBRISIMOVIC: [Interpretation] Your Honours, the Defence of

4 Mr. Kubura will not be asking questions, because it doesn't come within

5 the frameworks of the counts against Mr. Kubura.

6 JUDGE ANTONETTI: [Interpretation] Very well. Does the

7 Prosecution wish to ask new questions of the witness?

8 MR. RE: I don't have any examination -- re-examination, but the

9 Prosecution points out to the Defence of Mr. Kubura that although this

10 particular incident is not charged against Mr. Kubura, evidence which

11 witnesses -- which the Prosecution calls can, of course, be used --

12 JUDGE ANTONETTI: [Interpretation] Absolutely.

13 MR. RE: -- clients. So they should be -- the Defence of Mr.

14 Kubura should be aware of that from the start of this trial.

15 MS. RESIDOVIC: [Interpretation] Your Honour, I do apologise, but

16 I would like to tender the Kegelj photograph into evidence as a Defence

17 Exhibit.

18 JUDGE ANTONETTI: [Interpretation] Yes. Where is the photograph,

19 please? So we need an exhibit number, final exhibit number, Madam

20 Registrar.

21 THE REGISTRAR: The number will be Defence Exhibit DH8.

22 JUDGE ANTONETTI: [Interpretation] Very well. Regarding the

23 testimony of this witness, there is no re-examination by the Prosecution.

24 Therefore, this is the end of the witness testimony, at least as

25 far as the personal data is concerned. If the Prosecution wants to call

Page 642

1 the witness again as to her work for the ECMM, it will be possible for

2 her to come back. This being so, we thank you, Witness, for testifying

3 here today. Of course, we share the feelings of condolences expressed by

4 the Defence regarding what happened to her family. Needless to say, we

5 share them with you. We wish you a safe return home, and I'll ask the

6 usher to take the witness out of the courtroom.

7 Well, we have no more witnesses.

8 [The witness withdrew]

9 JUDGE ANTONETTI: [Interpretation] We shall rise for today.

10 However, before doing so, let me go back to the issue of the ECMM, or

11 European Union's archives and records.

12 Could the Defence tell us how far they have progressed in their

13 contacts with the European Union? The issue may arise again with further

14 witnesses. In order to avoid the problems we've dealt with, we would

15 like the Defence to have access to the archives as quickly as possible.

16 How far have you gone?

17 MS. RESIDOVIC: [Interpretation] Mr. President, in my office in

18 Sarajevo, an answer came from the European monitors, and they ask us to

19 be more specific. And without knowing that we would be discussing this

20 issue this morning, we have prepared a letter for the Trial Chamber, and

21 it contains the response by the Secretary-General, Mr. Solana, and it is

22 the Defence's intention, on Monday, and by Tuesday at the latest, to

23 address the Trial Chamber, for you to be able to make a ruling on the

24 issue.

25 JUDGE ANTONETTI: [Interpretation] If I understand you properly,

Page 643

1 you're going to file a written request, or motion, so that we can summon

2 the ECMM for you to have access to the documents. Is that so?

3 MS. RESIDOVIC: [Interpretation] Yes, Your Honour.

4 JUDGE ANTONETTI: [Interpretation] Well, it will take time, of

5 course. The motion will be filed, and then the Prosecution will have to

6 reply. Then a ruling will be made, but by then, we may be faced with a

7 problem again.

8 There could be a practicable solution, which I put to both

9 parties. It is as follows: Inasmuch as the Prosecution has provided the

10 Defence with documents, ECMM documents -- that is, so you know these

11 documents. You're aware of them. You're analysed them -- Given the

12 adversarial nature of the proceedings and the principle of equality of

13 arms, this issue could be addressed by the Prosecution, but only on the

14 contents of the documents, the documents that you are aware of. This

15 being so, the witness, a witness, could be examined only with regard to

16 the said document. But, of course, the Chamber must be able to control

17 the proceedings. Therefore, it would need the said documents. We don't

18 have it. We have a list of documents. We don't have the contents

19 thereof. For the Chamber to be able to control the proceedings, it must

20 be able to check whether the question put to the witness is indeed in

21 keeping with the documents that you, Defence counsel, you have.

22 What do you think of this?

23 MS. RESIDOVIC: [Interpretation] Mr. President, I should like to

24 ask Mr. Bourgon to give a brief explanation, because I seem to be losing

25 my voice. I do apologise for that.

Page 644

1 MR. BOURGON: [Interpretation] Good morning, Your Honours. Your

2 Honour, you made a suggestion to both parties. We would be against such

3 a proceedings, for the following reasons: A gathering of documents from

4 the European Union, or from the ECMM, as it was called in 1993, is made

5 up of a series of documents that were prepared at various levels. You

6 had field observers that were part of teams, and then you had regional

7 posts, or teams, gathering specific teams, and then you had a regional

8 centre in Zenica. We have coordinated all these subregional and other

9 centres. So there were various reports drafted by the ECMM observers.

10 In addition to that, you have reports drafted by people who were

11 part of the Busovaca joint commission. All such reports were prepared on

12 a daily basis. Moreover, these reports could very well be sent from the

13 lower echelon to the highest echelon in Zenica, or even from the lowest

14 echelon directly to Zagreb, to the headquarters of the ECMM. Every day,

15 reports were produced at each and every level.

16 The Defence deems that we have indeed received documents from the

17 Prosecution, and they make it possible, of course, to think of questions

18 likely to be put to a witness. However, we have a problem with that, and

19 the problem arises -- I take an example. Where we have a document that

20 was drafted, say, on the 10th of May. This is just a hypothetical, by

21 way of an example -- so a document prepared on the 10th of May that was

22 provided to us by the Prosecution. The Prosecution would like to use the

23 document for a witness. We don't have the document drafted the day

24 before or the day after. And very often, when ECMM observers were

25 drafting reports in the field, they would not only mention an incident on

Page 645

1 a specific day. Their report would relate to a period of time, more

2 often than not of two or three days, and sometimes up to one week, when

3 you have a recurrent topic cropping up again.

4 If the Defence wants to be able to cross-examine efficiently and

5 knowingly, in order to avoid any harm being done to the accused, we

6 submit to you that we need to see not only the documents that were

7 provided by the Prosecution, but also the other documents that would fill

8 in the gaps between the reports that we were provided with in this

9 respect.

10 We believe that if we now allow the Prosecution, at this stage of

11 the proceedings, to have his examination-in-chief, even on a document

12 that we have, it could be harmful to the Defence, which needs to have --

13 all the information and for the whole case, the Defence case, because we

14 would have evidence that can be heard in two different stages, and that

15 could lead to confusion.

16 There may be another example that we could give you regarding

17 specific documents provided by the Prosecution. We had documents

18 regarding the head of the European mission. I won't give his name for

19 the time being. The head of the ECMM had provided the Prosecution with

20 some documents and we were given those documents. We met this person, in

21 order to discuss documents that we had been given. And the head of the

22 ECMM gave us documents that he had drafted himself and that were very

23 relevant to the Defence case.

24 We then said so directly to ECMM, and we asked whether the

25 documents were there, the documents were identified. They then took the

Page 646

1 documents and sent them to the Prosecution, which then provided us with

2 the documents. So we got these documents, but only after a witness had

3 identified them. And we can't proceed in this way with all documents.

4 Therefore, some documents that had been identified on the basis of some

5 selection criteria that are our own were first given to the Prosecution

6 and only then to the Defence.

7 Therefore, the situation, I must confess, is rather difficult and

8 confused. In our latest letter to the ECMM, we suggested some

9 methodology. Either we could go and consult the archives, select

10 specific documents which ECMM could analyse, and then tell us whether

11 they have problems with it, so that we can deal with a specific issue

12 that they might have regarding a specific document.

13 This type of proceeding has been used on several occasions, on

14 prior occasions with other organisations.

15 Let me take two examples, first the United Nations. We asked the

16 United Nations to have records of military men who were in the fields as

17 part of the protection mission, or the UNPROFOR, the UNPROFOR. Excuse

18 me. So the UNPROFOR had been authorised as a mission by the United

19 Nations, under chapter 7. Therefore, the military forces were complying

20 with a specific mandate from the United Nations, and we asked access to

21 the documents of the United Nations. There were some negotiations, and

22 we got an agreement. We were allowed to access the documents.

23 We went to Geneva. We looked at the documents, but not at all of

24 them; only those in keeping with our research criteria, some 20.000

25 pages. We were able to look at them, and we selected some two to three

Page 647

1 thousand pages, and they were revised, not only in Geneva, but also they

2 were sent to New York. They were reviewed there again. Then we have --

3 in English it's called redacted. So some parts were sort of blackened

4 out in order to redact some parts. We got those documents. We don't

5 know how far or to what extent we are allowed or authorised to use those

6 documents.

7 We had the same method for the UK government. Indeed, we looked

8 into the archives in Geneva. We then realised that there were some

9 missing parts regarding the BritBat, which was then, from January to

10 June, 1993, which is the critical period for our defence case. We

11 therefore turn to the UK government in order to obtain the documents.

12 There again it was a rather complicated and cumbersome procedure. We had

13 some negotiations and this very week we received a letter from the UK

14 acceding to our suggestion. We are going to go to the archive unit in

15 the UK in order to read the documents at UNPROFOR document but also at

16 military documents. So that could be something which is directly in

17 keeping with national interests of the UK. And once we have had access

18 to the documents, they will be able to check them and hand over to us

19 those that they are in agreement with. If there were documents that the

20 UK felt they couldn't hand over to us but which we would feel necessary

21 for our defence case, we could then turn to you, Trial Chamber. But then

22 knowingly so, because we would have had the documents indeed.

23 The situation is rather difficult with us regard to the European

24 Union, inasmuch as we have already identified, as much as we could, on

25 the basis of all the information we have, which are the documents which

Page 648

1 was the ECMM that was reporting, and who were the drafters of such

2 reports, what were the dates when they were drafted. We have identified

3 the type of drafted reports. However, unfortunately, right now we can't

4 provide any further information to the ECMM. All this will be filed in

5 our written motion next week, so that you can rule accordingly, so that

6 we know whether we can access the documents as early as possible for the

7 trial proceedings to be pursued normally. But for the time being, we

8 feel that the gathering of documents must be regarded as a whole and that

9 we should be allowed to access the whole of it so that we can properly

10 defend our case, but also avoid any harm being done to the accused.

11 Thank you very much, Your Honour.

12 THE INTERPRETER: Your microphone, please.

13 JUDGE ANTONETTI: [Interpretation] Yes. I'll give the floor to

14 the Prosecution so that, very briefly, you convey your views on the

15 principle arising from the need for the Defence to access all of the

16 documents; and secondly, as to the proceeding suggested by the Defence,

17 which has proved useful in at least two cases for the UN archives and the

18 UK archives. So that to be fully enlightened, the Trial Chamber would

19 like to have the views of the Prosecution.

20 MR. RE: The Prosecution responds very briefly. We understand,

21 of course, precisely what Mr. Bourgon is saying, and the difficulties the

22 Defence is facing with access to the archives. A very practical solution

23 has been suggested, and it appears to be working at the moment. The

24 Prosecution asks to reserve its position until those negotiations are

25 finalised, and if and when the Defence has to file a motion, we will

Page 649

1 speak to the Defence about the documents on our list and whether or not

2 they would -- whether or not the Defence will object to the tender of any

3 of the ECMM documents. We'll speak to them out of court and we'll speak

4 to them and work out whether there may be an acceptable method agreeable

5 to both parties of us providing them to the Trial Chamber in advance.

6 But the Prosecution isn't in a position to address any of those issues in

7 any detail at the moment, but we will do so in the future, when the

8 matter is further advanced.

9 JUDGE ANTONETTI: [Interpretation] Very well. The Trial Chamber

10 expects the motion to be filed by next week. It will be dealing with the

11 whole problem and it will also suggest specific approach, the Defence

12 approach, with regard to the documents.

13 We are going to rise for the day, due to the lack of witnesses,

14 and we shall convene again on Monday afternoon. Unless you want to say

15 something else, but be brief, please, because normally we should have had

16 a break already.

17 MR. BOURGON: Thank you very much, Your Honour. Very quickly.

18 At the Pre-Trial Conference, we submitted to you a list of documents,

19 which is still missing, according to our records, documents that should

20 be provided to us by the Prosecution. We've had talks already with the

21 Prosecution about it. Yesterday we were given additional documents. But

22 we think that there's still some missing documents. Allow me to inform

23 you as to this.

24 Two very quick examples: Next week, we're going to have

25 witnesses who will testify to the events that occurred in the town of

Page 650

1 Miletici. In this respect, there are two exhibits which we deem

2 important, and they are in the pre-trial brief PT44 and PT608. They're

3 still missing in the list of exhibits to be provided by the Prosecution.

4 In order to avoid any undue delay in the proceedings next week, we would

5 like the said documents to be researched so as to see whether we can have

6 them. Thank you, Your Honour.

7 JUDGE ANTONETTI: [Interpretation] If I understand you properly,

8 you're going to meet with the Prosecution to handle this issue, and we

9 had said this earlier on, of course: If there were exhibits mentioned

10 and referred to in the indictment, of course the Defence should have

11 them. There should be no problem for you to receive them. I believe.

12 This being so, we shall convene again on Monday afternoon. Thank you.

13 --- Whereupon the hearing adjourned at 10.50 a.m.

14 to be reconvened on Monday, the 8th day of

15 December, 2003.