Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9737

1 Tuesday, 29 June 2004

2 [Open session]

3 --- Upon commencing at 9.03 a.m.

4 [The accused entered court]

5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, please call the

6 case.

7 THE REGISTRAR: Your Honours, case number IT-01-47-T, the

8 Prosecutor versus Enver Hadzihasanovic and Amir Kubura.

9 JUDGE ANTONETTI: [Interpretation] Thank you. Appearances for the

10 Prosecution, please.

11 MR. MUNDIS: Good morning, Mr. President, Your Honours, Counsel,

12 and everyone in and around the courtroom. For the Prosecution, Tecla

13 Henry-Benjamin, Daryl Mundis, and the case manager, Andres Vatter.

14 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Mundis.

15 Appearances for the Defence.

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

17 Good morning, Your Honours. Edina Residovic, counsel; Stephane Bourgon,

18 co-counsel; and Alexis Demirdjian, legal assistant for

19 Mr. Hadzihasanovic.

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

21 Fahrudin Ibrisimovic and Nermin Mulalic, legal assistant, on behalf of

22 Mr. Amir Kubura.

23 JUDGE ANTONETTI: [Interpretation] Thank you. The Chamber would

24 like to greet everybody present, the Prosecution, the Defence counsel, as

25 well as all the others present in the courtroom.

Page 9738

1 Today we will continue hearing the witness that we heard

2 yesterday. We are going to bring the witness into the courtroom, and

3 after that we are going to tackle the issue of the forensic analysis of a

4 document.

5 [The witness entered court]

6 JUDGE ANTONETTI: [Interpretation] Good morning. I hope that you

7 are well rested because today we will continue your testimony that we

8 started yesterday.

9 I'm going to give the floor to the Defence, who indicated

10 yesterday that they would need another half an hour for their

11 cross-examination.

12 Mr. Bourgon, you have the floor.

13 MR. BOURGON: [Interpretation] Thank you, Mr. President. Good

14 morning, Your Honours. Good morning, Mr. President.

15 WITNESS: PETER HACKSHAW [Resumed]

16 Cross-examined by Mr. Bourgon: [Continued]

17 Q. [In English] Good morning, Mr. Hackshaw. When we left off

18 yesterday, we were looking at a letter which we had received from the

19 Prosecution, that you confirmed being familiar with. Do you remember

20 this letter?

21 A. Yes, I do.

22 Q. And you mentioned yesterday that this letter -- you were aware of

23 the fact that the letter basically said - and I quote from the letter -

24 that "The perpetrators for such offences are generally unknown," and you

25 acknowledged this information.

Page 9739

1 A. Yes, that's correct.

2 Q. And of course, that this was something that made the task of the

3 Prosecution difficult in trying to identify the fact whether there was

4 any cases which had been referred to the military prosecutor for cases

5 which are in the indictment.

6 A. Yes, that's correct.

7 Q. Now, when you left for your mission in June, you did not have, of

8 course, any information which was provided to you by the Defence or any

9 replies to this letter in giving you any names of perpetrators, did you?

10 A. No, I didn't take any of that sort of material with me at all.

11 Q. Of course, urn not surprised, because if we had known who those

12 Mujahedin were, maybe we would not be here today.

13 A. It's a possibility, yes.

14 Q. Now, a further complication in terms of your investigation or

15 your mission, and you mentioned this yesterday, was that both in Zenica

16 and Travnik there were a significant number of files missing; is that

17 correct?

18 A. It is absolutely correct, yes.

19 Q. And to quote you from yesterday, you mentioned that "This was a

20 serious flaw in the whole exercise."

21 A. That's correct. It complicated matters insofar as it meant that

22 we had to -- if there were case files unavailable, we then had to use the

23 registers in which they receipted or logged incoming correspondence.

24 Q. Now, your mission in Central Bosnia lasted from the 2nd to the

25 5th of June, 2004; is that correct?

Page 9740

1 A. That's correct.

2 Q. According to the logs which we had, it appears to me that you

3 arrived in Zenica on the 2nd, basically that you spent two days in Zenica

4 and one day in Travnik.

5 A. That's correct.

6 Q. And you were accompanied, as you mentioned yesterday, with

7 Mr. Michael Koehler. Now, he's a member of your team.

8 A. That's correct. He's an investigator.

9 Q. And Mr. Macleod, Alasdair Macleod, is a member of the leadership

10 team.

11 A. That's correct.

12 Q. Now, in response to my colleague yesterday, you mentioned that

13 you were accompanied by an interpreter, but this was not mentioned in

14 your statement, so I looked up in your notes and it appears that there

15 were two interpreters.

16 A. That's correct. Yes, there were two local interpreters with us.

17 Q. They were local, from the area?

18 A. From -- well, they were based in the Sarajevo field office.

19 Q. Thank you. And now, these interpreters, is there a reason why

20 you did not mention this in your statement or should it have been

21 mentioned in your statement? Because if you deal with documents, it's

22 always important to know every person who is there.

23 A. No. Well, that's an oversight on my part. I just took it as

24 common sense that the documentation would be certainly in a language that

25 in this instance myself and Michael Koehler couldn't read and we would

Page 9741

1 need to use the services of an interpreter.

2 Q. And the third person on the team could read B/C/S?

3 A. Yes, Alasdair Macleod can read B/C/S sufficiently to translate

4 the material.

5 Q. And that allowed you to work - the three of you - simultaneously.

6 A. Yes.

7 Q. Now, the purpose of your visit, of course, was to go to both

8 Zenica and Travnik and to visit the prosecution service.

9 A. That's correct, yes.

10 Q. And that -- you were to examine the records held at both offices.

11 A. That's correct, yes.

12 Q. And the objective was you'd review the records and you'd attempt

13 to identify any records of crimes alleged in the indictment for which

14 some kind of report would have been referred to the district military

15 prosecutor.

16 A. Yes, that is correct.

17 Q. I can rephrase the question. Please do not hesitate to tell me

18 if you do not understand my questions.

19 Now, would I be right in taking it that your investigation

20 assumption was as follows: If you find a file about an event alleged in

21 the indictment which was referred to the military prosecutor, this would

22 mean that the General Hadzihasanovic did take measures; and if you do not

23 find such a file, it would mean that General Hadzihasanovic did not take

24 measures to punish? Was that your investigation assumption?

25 A. In very broad terms, I would say that's part of it.

Page 9742

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Page 9743

1 Q. Now, you spent a very short time, in terms of this mission, and

2 you mentioned this yesterday, whereas you said that you were pressed for

3 time; is that right?

4 A. That's correct, yes. It was a short period of time to cover a

5 lot of ground.

6 Q. And you also mentioned that for this reason when looking through

7 all the files you focussed on the specific crimes rather than to look at

8 everything, and that you were focussing on crimes against the person.

9 A. No, not in the initial stages. That's not correct. In the

10 initial stages, the prosecution service in Zenica provided us with all

11 the physical case files that they had or that we had asked for in

12 relation to crimes where the perpetrators were known. They were the case

13 files referred through the district military prosecutor and through the

14 higher public prosecutor where the perpetrators were known. Those were

15 the physical case files that were presented to us.

16 Q. Now, let's just -- you were given, basically, according to your

17 testimony during your examination-in-chief, you were basically given

18 registers and a bunch of files; is that right?

19 A. That is correct.

20 Q. And you explained that amongst those files there were some that

21 were neatly bound in particular or specific piles and others that were

22 simply bundled loosely.

23 A. That's correct, yes.

24 Q. And you also explained yesterday - and I think that's important

25 for the Trial Chamber to understand - that there were three types of

Page 9744

1 registers. One was the KT register, which is the one where there is a

2 known alleged perpetrator.

3 A. Correct.

4 Q. So this would mean that in this register the district military

5 prosecutor receives some type of referral - and there are many types -

6 and if there is someone who is the alleged perpetrator it goes in the KT

7 register.

8 A. That's correct.

9 Q. And there's also a KTN register, and that is when the district

10 military prosecutor receives information where a crime is alleged but

11 there is no suspect. There is no alleged perpetrator so it goes into the

12 KTN register.

13 A. Yes, that is correct.

14 Q. And then you have the KTA register - I'll just spell it for the

15 transcript: kilo, tango, alpha - which deals with miscellaneous

16 correspondence referred to the military prosecutor dealing with either

17 past cases or future cases.

18 A. Yes, that's what it appears to be.

19 Q. Now -- of course, you just mentioned this, and I think this is

20 also very important, because you were actually given separate registers

21 for the district military prosecutor and for the high public prosecutor

22 for the period you were looking for; is that correct?

23 A. That's correct, yes.

24 Q. Now, the reason for this, of course, you are aware is because if

25 the alleged perpetrator is in the military, it is a file that goes to the

Page 9745

1 high public -- sorry, it goes to the district military prosecutor; is

2 that correct?

3 A. Yes, that is correct. Although, we did find circumstances in the

4 KTN civilian or higher public prosecution files where there was a

5 combination of civilian persons and military personnel.

6 Q. Yeah, did -- thank you. Thank you for this answer, because this

7 was my next question. The registers -- they gave you the register of the

8 high public prosecutor because he has jurisdiction whenever an alleged

9 crime was committed by both military and civilians together. And, of

10 course, you were aware of this before you deployed to Bosnia.

11 A. No, not -- not -- no, I wasn't specifically, but I accept that

12 that's my understanding.

13 Q. Now, taking from your statement, you were given registers for

14 both the district military prosecutor, and that is, you were given a KT

15 register, a KTN registers, and a KTA register, so three registers for the

16 district military prosecutor.

17 A. That's correct, yes.

18 Q. And for the high public prosecutor, you were given a KT register,

19 a KTN register, but there was no KTA register.

20 A. That's my recollection, yes.

21 Q. Now, you understand, and it was probably explained to you, that

22 if a file comes at the office of the district military prosecutor, for

23 example, with no alleged perpetrators, it would move into the KTN

24 register.

25 A. No, that wasn't explained to me.

Page 9746

1 Q. No, but I mean -- sorry, we said that already, so I'm just trying

2 to confirm now. I don't want to confuse you. The file arrives, and

3 there's no alleged perpetrator.

4 A. Yes.

5 Q. So it goes in the register where you have no alleged perpetrator.

6 A. That would be the logical sequence of events, yes.

7 Q. Now, later on, if through some investigation a perpetrator is

8 identified, it would then move into the KT register. It would move. The

9 incoming information, they would take it away from the KTN register and

10 then put it in the KT register.

11 A. That's possible. To be perfectly honest, I don't recall seeing

12 any examples of movement beyond files being moved out of the -- away from

13 the military prosecutor.

14 Q. I'm not talking about files. I'm just talking about the entry in

15 the register.

16 A. That's quite possible, yes.

17 Q. Was that explained to you in any way or ...?

18 A. No, it wasn't.

19 Q. Okay. Now, in your statement, you say that because there was --

20 you confirmed that there was no KTA register for the high public

21 prosecutor. KTA.

22 A. There wasn't one that I saw, but I just presumed that it was

23 because the correspondence wasn't in abundance of that nature. Perhaps

24 they shared a register.

25 Q. Well, in your statement you also say that the KTA register that

Page 9747

1 was there was only for the district military prosecutor.

2 A. Yeah, that's probably correct.

3 Q. I can quote from your statement, unless you recall.

4 A. That -- no, I'm pretty sure that's correct.

5 Q. Now, you also say in your statement that because there were so

6 many files, that you decided to make a brief record of all the KT files;

7 is that correct?

8 A. We decided to make a record of the KT files -- case files that

9 were physically present.

10 Q. Now, in your statement, again I quote, you could see for yourself

11 that "There were multiple requests for investigation which had been

12 submitted to the district military prosecutor for a wide variety of

13 offences allegedly committed by military personnel."

14 A. Yes, that's correct.

15 Q. And if I further quote, in terms of your statement. When you did

16 the same exercise with the high public prosecutor files, you said that

17 due to time constraints you did not record the details for the vast

18 majority of these files.

19 A. That is correct.

20 Q. And again I quote from your statement, just to be sure that --

21 you said that during all this exercise you focussed on serious crimes

22 against the person and more particularly on murder and manslaughter.

23 A. Yes, that's correct.

24 Q. Now, there were two reasons probably for this, and I suggest this

25 to you: One was the volume of file referred to the district military

Page 9748

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Page 9749

1 prosecutor. Would that be one of the reasons?

2 A. Yes, that would be one of the reasons.

3 Q. And the second reason could be the limited time at your disposal.

4 A. Yes, that's another reason. And there's also -- also part of the

5 rationale for that exercise was that in the registers, victims' details

6 where known were recorded, and I knew that the victims are also named in

7 our indictment in respect of the murder counts.

8 Q. Yes. Now, when you -- so that's a third reason why you focussed

9 on the crimes against the person, because you had names for victims

10 sometimes in the register -- of the KT register.

11 A. Yes, that's correct.

12 Q. Okay. Now, of course for this reason, if in the indictment there

13 is no alleged perpetrator and there is no alleged victims, then you could

14 not perform this exercise; is that correct?

15 A. Yes, that's -- that's correct. If I don't have the names of

16 victims, it becomes very difficult.

17 Q. Now, when you -- if I look at the crimes against property, you

18 did not look at the alleged crimes against property, because of course

19 there are no alleged victims in the indictment.

20 A. In the Zenica office we did, because there were case files

21 present and all physical case files were checked.

22 Q. But in Travnik you did not.

23 A. No, in Travnik we did not.

24 Q. And so maybe there are some files in Travnik which refer to

25 crimes against property, but you can't tell for sure.

Page 9750

1 A. I would say undoubtedly there are. There were multiple files --

2 sorry, entries in the register of that nature.

3 Q. But I would say, to be more specific, that there could very well

4 be files for crimes against property alleged in the indictment which

5 would be in the Travnik files.

6 A. I would say that's certainly probable.

7 Q. So if I -- if we recap based on this information: Now, we know

8 that in the indictment Counts 5, 6, and 7 deal only with crimes against

9 property.

10 A. Yes, that's correct.

11 Q. And just to give you an example of one incident that you could

12 find maybe in Travnik, and that was evidence that is here in this trial.

13 And I refer you to -- I will now distribute some documents which I would

14 like to show to you.

15 MR. BOURGON: [Interpretation] Mr. President, I've prepared these

16 documents. Although it seems that we have a lot of documents, there are

17 just a few of them that we will address in detail, and we will go through

18 them very quickly.

19 Q. [In English] Mr. Hackshaw, I refer you to documents 2 and 3,

20 about the -- where it says on the top "The Travnik church."

21 MR. BOURGON: And for the record, I say that these are exhibits

22 DH66 and DH67, which are both dated 8 June 1993. One is a criminal

23 complaint, and one is a record on investigation.

24 Q. Now, I take it that when you deployed to Travnik, because this is

25 new evidence which was introduced in the trial, that you probably took

Page 9751

1 these documents with you in order to verify the source of these documents

2 in the Travnik prosecutor's office. Did you do that?

3 A. No. No, I did not.

4 Q. Were you made aware that these two documents were entered in

5 evidence in this trial?

6 A. No, I was not aware of these documents.

7 Q. Thank you. I just ask this because I will ask some questions,

8 but I will move on.

9 Now, just to come back quickly on the issue of missing files.

10 Can you confirm first that there were no KTN files present whatsoever in

11 Zenica.

12 A. Yes, there were none presented to us.

13 Q. Now, if I suggest to you that this was not a surprise, because if

14 the perpetrator is unknown, then the case would still be open.

15 A. Yeah, that makes perfect sense.

16 Q. Now, this, of course, brings about a further difficulty, because

17 you were mentioned by the prosecutor that many of the files which

18 remained open were transferred to the prosecution service within each

19 municipality. Do you recall this information?

20 A. Yes, I do. That was what was explained to me. Yeah, that was

21 what was explained to me.

22 Q. Now, I'd just like to confirm, because when we talk about these

23 files being transferred to the municipalities, to the prosecution service

24 of the municipalities, my understanding is that you are aware that before

25 going on your mission and you understood this, that the legal system at

Page 9752

1 the time was divided into a two-tier system. Whereas if an offence

2 called for a punishment of more than ten years then the case would be

3 referred to the high public prosecutor, and that if a case or alleged

4 offence called for a sentence of less than ten years it would then be

5 given to the municipal prosecutor's office. Did you understand that

6 before you went on your mission?

7 A. No, I didn't. That's a new piece of information to me.

8 Q. Now, were you made aware that these municipal courts, the courts

9 dealing -- and I say with - I do not have the time to go through the

10 exercise of showing to you - but if what I say is correct, were you made

11 aware that these municipal courts existed during the war as well as the

12 office of the municipal prosecutor, that these things existed during the

13 war? Were you made aware of this?

14 A. No, not specifically. No, I wasn't.

15 Q. Now, if again, if what I say is correct, would you agree with me

16 that if an offence during the war is committed by a soldier, by a member

17 of the military, then automatically, that's an easy case, it goes to the

18 district military prosecutor?

19 A. Yeah, that's my understanding.

20 MS. HENRY-BENJAMIN: Mr. President, with all due respect, I think

21 my friend keeps addressing the wrong witness with his questions. This is

22 an investigator. This is not a legal person. This is not a lawyer.

23 These questions that are being asked, including the two that went above

24 that I refrained from objecting to, are questions that are better suited

25 to somebody with a legal mind. This witness cannot be expected to answer

Page 9753

1 questions that arise from a legal basis.

2 JUDGE ANTONETTI: [Interpretation] Yes, this question was put

3 yesterday. It's true that if you ask a question of a legal nature, this

4 might be beyond the witness's understanding, unless the witness says that

5 he has knowledge that would allow him to answer such questions. So take

6 care when putting your questions so that you can see whether the witness

7 can state his position with regard to certain legal matters. If that is

8 the case, then do proceed; but otherwise, there's no point in wasting

9 time, and Ms. Benjamin is quite right. This isn't the right witness.

10 MR. BOURGON: [Interpretation] Thank you, Mr. President. I just

11 wanted to have certain clarifications from the main investigator on the

12 basis of his understanding of the system. I wanted to know how he

13 proceeded when -- before going to find the documents. I thought he'd

14 have a minimum of knowledge about this matter. But I'll move on to

15 another issue.

16 Q. [In English] Could you please confirm, Mr. Hackshaw, that you

17 were not aware of what I referred to earlier, the existence of the

18 municipal courts and the municipal prosecutors during the war.

19 A. I have a recollection that the Travnik prosecutor mentioned that

20 there were only military prosecutions conducted at Travnik and some --

21 and I recollect that he mentioned that there were also some basic

22 municipal prosecutions conducted there as well. So based on that, I

23 would say that yes, there probably were some municipal-level prosecutions

24 conducted as well.

25 Q. Now, again, I'll move quickly, because -- to avoid -- my aim is

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Page 9755

1 I'm not at all to put you on the spot and to get you to -- that's not my

2 aim whatsoever. But if, for example, I would ask: Did you go to the

3 Bugojno municipal court to try and obtain records for offences allegedly

4 committed in Bugojno and that are in the indictment?

5 A. No, I did not.

6 Q. Now, you explained that in Travnik you had done about the same

7 exercise as in Zenica but that you had done this in reverse due to a lack

8 of time, which means that you focussed on the register because there were

9 lots of files missing; is that correct?

10 A. Yes, that is correct.

11 Q. Now, the prosecutor also told you that there was a further

12 problem, which was the disorganised state of the archives when the

13 cantonal courts were merged with the municipal courts; is that correct?

14 A. That is correct.

15 Q. And again, there were no KTA files or register present.

16 A. There was a KTA register present.

17 Q. But this KTA was -- it was mentioned to you by the prosecutor

18 that this was only a district military prosecutor KTA register and not a

19 high public prosecutor register.

20 A. That is my understanding, yes.

21 Q. Now, and you can also confirm that there were no -- I mean,

22 zero -- KTN files present. Now, the KTN is the file where is the alleged

23 perpetrator is unknown. There was no files altogether.

24 And I can refer you to your statement, because I don't want you

25 to try and -- I'll just read from your statement, where you say "No

Page 9756

1 actual cases, files prefixed with 'KTN' were physically present." Now,

2 that's on page 3 of your statement.

3 A. That is correct.

4 Your Honours, the delay is I'm just trying to allow the

5 stenographer time to keep up with the Defence.

6 Q. I appreciate this, Mr. Hackshaw, because sometimes I forget, and

7 the interpreters know this. I do my best, and sometimes I do forget.

8 If we look at the fact that in the register you said that you

9 really focussed on murder and manslaughter; is that correct?

10 A. That is correct.

11 Q. So if I look for, for example, files of mistreatment, which would

12 call -- you did not focus your attention on files of mistreatment, did

13 you?

14 A. This is, again, where difficulty arises in this situation. We

15 certainly tried to focus on any serious assaults. Obviously our exercise

16 is totally dependent on the manner in which a particular file is

17 categorised when it is sent or received by the district military

18 prosecutor.

19 Q. Now, I'd like you, Mr. Hackshaw, to simply turn to, in the

20 information that you have in front of you, documents 4 and 5. Now, these

21 were registers that we received from the Prosecution which come from the

22 Zenica cantonal court. Document 4 is a register that deals with

23 investigations, and number 5 is a register that deals with trial action

24 or proceedings.

25 Now, these are -- I do not want to mislead the Trial Chamber --

Page 9757

1 these, of course, are court records. But I'm just asking you: Is that

2 the type of records that you were given? When you say "the registers,"

3 did they look like this?

4 A. They were similar to this, yes.

5 Q. This is the type of information that you were provided with in --

6 to make your mission.

7 A. In terms of the register, yes, the information was in a similar

8 layout to this.

9 Q. Thank you. Let me move on to -- when we talk about -- because

10 you did say that you focussed on murders or manslaughter, or at least

11 where people died.

12 For Dusina, you knew before going on your mission that we have a

13 case referred to the district military prosecutor for Dusina. So I -- my

14 understanding is that you took this with you on your mission.

15 A. No. My understanding is that no, we -- first of all, we didn't

16 take any information, any documentation with us. Secondly, my

17 understanding is that although I've seen limited documentation which I

18 could -- which I believe related to the deaths of people in Dusina, I

19 looked specifically around the time of events that Dusina occurred,

20 namely the 26th of January, 1993 onwards, and I couldn't find any

21 references to this particular crime. And that, to be perfectly honest,

22 surprised me.

23 Q. Can you look at document number 6 in your package. Now, this,

24 Mr. Hackshaw, is Prosecution Exhibit 332, and this is a document referred

25 to the district military court in Zenica, and it's an official note which

Page 9758

1 deals exactly with the case in Dusina. Did you find this document in

2 your research in Zenica?

3 A. No, I didn't see this one.

4 Q. And just for -- in Dusina, did you -- when you were looking for

5 information, although you focussed on the period of 1993 and early 1994,

6 did you obtain any information as to the status of the Dusina

7 investigation, if any?

8 A. No, I didn't.

9 Q. Now, if I mention to you - and this was mentioned previously in

10 this trial - of course, you know that in the indictment you have names of

11 victims for Dusina. You would agree with that?

12 A. I would agree with that.

13 Q. And you would also agree that you also have the name of one

14 alleged perpetrator, namely Serif Patkovic.

15 A. Yes, I agree.

16 Q. And you're also aware that Mr. Patkovic is someone who was a

17 witness in a previous trial before this Tribunal.

18 A. Yes, I'm aware of that.

19 Q. And you know that on this occasion this witness denied being the

20 author of this murder. Are you aware of this?

21 MS. HENRY-BENJAMIN: Mr. President, this witness is an

22 investigator. This witness is not involved in trials. This witness

23 cannot be expected to answer those questions. This is an investigator.

24 This is not a Defence counsel who was on the trial before or even the

25 Prosecution, and it is unfair. My friend continues to do it over and

Page 9759

1 over.

2 JUDGE ANTONETTI: [Interpretation] Yes. But this investigator,

3 who is a high-level investigator, he reads the press like everyone else

4 and was familiar with the activities of the Tribunal, and he may have

5 been familiar with a previous case in which Serif Patkovic apparently

6 testified. So Defence counsel can ask the witness whether he was

7 familiar with someone's testimony. He said yes, and then on the basis of

8 that other questions can be put to the witness. If he's aware of it,

9 he's aware of it; if not, he isn't.

10 So please carry on, Mr. Bourgon.

11 MR. BOURGON: [Interpretation] Thank you, Mr. President. This

12 question is based on the fact that it concerns someone who according to

13 the indictment was the perpetrator of a murder, and the witness is an

14 investigator who was involved in investigating the murder, so I just want

15 to know what sort of investigations he carried out with regard to the

16 alleged perpetrator of the murder.

17 Mr. President, if he knows nothing about, this he can tell me

18 that. I suggest that this person, Serif Patkovic, testified in a case

19 and the witness said that was the case.

20 Q. [In English] Mr. Hackshaw, you are aware of the contents of the

21 testimony of Mr. Patkovic in this other case?

22 A. I'm aware that he testified. I'm not aware of the specific

23 detail. I am certainly aware that he denied involvement in the murder.

24 Q. Now, and are you aware that today in Zenica there is a trial

25 going on with respect to the Dusina events?

Page 9760

1 A. Yes, I am aware.

2 Q. Are you aware that as part of this trial Mr. Patkovic is a

3 witness and the accused is named Hakanovic and that he is the only person

4 who is being charged with the Dusina events?

5 A. I'm aware that a person by the name of Hakanovic is being tried

6 for crimes that were committed in Dusina during 1993. I personally

7 wasn't aware that Mr. Patkovic was a witness in that matter.

8 Q. Thank you. Let me move on to Susanj. And I'd like to refer you

9 to a further document which is before you in your package, and that's

10 documents 7 and 8. Now, Susanj is mentioned in the indictment, albeit

11 not for crimes related to murders but at least to property.

12 Is this document - Defence Exhibit 259, for the record - is this

13 an exhibit that you are familiar with or that you have located in the

14 district military prosecutor's files in Zenica?

15 A. No, I don't recall personally having seen this.

16 Q. Thank you.

17 MR. BOURGON: [Interpretation] Mr. President, I would like to go

18 into private session, please.

19 JUDGE ANTONETTI: [Interpretation] Very well. Let's go into

20 private session.

21 [Private session]

22 (Redacted)

23 (Redacted)

24 (Redacted)

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15 [Open session]

16 THE REGISTRAR: Your Honours, we're in open session.

17 JUDGE ANTONETTI: [Interpretation] Please put your question to the

18 witness again.

19 MR. BOURGON: [Interpretation] Thank you, Mr. President.

20 Q. [In English] I'd like to refer you to document number 9, to take

21 a look at the summary translation. Actually, it's not a summary

22 translation. It's the full translation of the first part of this

23 document. I would simply ask if you recall seeing this document, which

24 deals with the killing of four people and the abduction of an HVO

25 commander called Totic which was referred to the district military court.

Page 9764

1 Do you recall seeing these documents as part of your mission?

2 A. No, I don't recall seeing this material, this part of my mission.

3 Q. Now, Mr. Hackshaw, considering that you are -- you said yesterday

4 that you were aware of the issues in this case. Would you agree with me

5 that the Totic incident, although not charged in the indictment, is an

6 issue in this case?

7 A. Yes, I would agree. And I think anything with Mr. Totic's name

8 in it should have been of interest to us.

9 Q. I'd like to move quickly to the document number 10, which is in

10 your file before you. This is a document that we looked at yesterday.

11 And it talks in there -- this is a report from the Military Police

12 Battalion. We've looked at it yesterday. I have one quick question: It

13 says in this report "377 criminal reports were filed by the 3rd Corps

14 Military Police Battalion." Can you confirm that it is not possible for

15 you to say today whether you have seen these 377 criminal reports or if

16 you have made a cross-reference between these reports and the documents

17 you found in the Zenica prosecutor's office?

18 A. Yeah, this -- yes, I would -- first of all, I would agree with

19 you. It wasn't possible and we didn't check every single case file that

20 was referred through, because, as I've explained, some were missing.

21 However, I would -- I would in fact say that there were probably more

22 than 377 cases.

23 Q. There were way more.

24 A. Yes.

25 Q. And that would be normal, because that's only the military police

Page 9765

1 of the 3rd Corps. But --

2 A. Oh, sorry.

3 Q. Other units may also have referred complaints.

4 A. Yes, sorry, that's my misinterpretation. Yes, I would say that

5 you're totally correct.

6 Q. Now, I'd like to refer you quickly to document number 13. This

7 is Prosecution Exhibit 284, which I mention for the record, and it is

8 dated the 10th of August, 1993.

9 A. Sorry, which -- which one are we looking at again? Sorry.

10 Q. We're looking at the document number 13, and it is called

11 "Legality in the army of the Republic of Bosnia and Herzegovina." And

12 it's called -- at the top you see "Exhibit P284/English."

13 A. Yes, I have it.

14 Q. Now, this is a Prosecution exhibit. Are you familiar with this

15 exhibit, Mr. Hackshaw, given that it is a Prosecution exhibit?

16 A. No, I'm not personally familiar with this document.

17 Q. Then I will simply move on, given that you are not familiar with

18 the document. But just one question: Are you aware that this document

19 was given to the Prosecution expert in order to make his opinion on

20 whether measures were taken or not?

21 A. My understanding is that there was a vast quantity of material

22 given to the --

23 Q. You could not say if this document --

24 A. -- expert witness. No, I couldn't. I couldn't comment on

25 individual ones, no.

Page 9766

1 Q. Thank you. I would refer you to another quick document, which is

2 document number 14. And what I have for you in this document, it's

3 called Prosecution Exhibit 192/E for English, a document dated 21 August

4 1993. I only include one page or two pages of this document, namely the

5 front page, last page and page 13 which I wanted to refer to. Is this a

6 document that you are familiar with as the leader of investigation team

7 number 9?

8 A. Sorry, I apologise. I'm struggling to find the --

9 Q. Sorry, I will -- there's a big report in the middle, and it's

10 called "Exhibit P192/E."

11 A. Yes. I have it.

12 MS. HENRY-BENJAMIN: Mr. President, my friend quite correctly

13 tell it is witness that "I pull out one page," and then he turns to the

14 witness and he says, "Are you familiar with this report?" Now, is that

15 fair to the witness? He's pulled out one page and then he refers to

16 report. Now, how could the witness be expected to comment on a page that

17 he has pulled out of a report?

18 JUDGE ANTONETTI: [Interpretation] Very well. This difficulty

19 could be dealt with if the registrar provided the entire document, P192.

20 Mr. Registrar, could you find document P192. That would be the

21 simplest thing to do.

22 MR. BOURGON: [Interpretation] Thank you, Mr. President.

23 I think that the objection was a pit premature. It's easier for

24 the witness not to recognise a document if he's only provided with one

25 page. The witness could have said, "I can't recognise the report on the

Page 9767

1 basis of this one page," but we can now go a little further once the

2 witness is shown the entire document.

3 JUDGE ANTONETTI: [Interpretation] This is a document that the

4 chief of investigations should remember.

5 MR. BOURGON: [Interpretation] Thank you, Mr. President.

6 Q. [In English] Mr. Hackshaw, I'd like to turn to page 13 of this

7 document, and there's simply one paragraph I'd like you to look at and to

8 tell me, not on the basis of this document itself, but whether this

9 paragraph relates to an issue, an investigation issue in this case.

10 A. Sure.

11 Q. And page 13, the third paragraph, which begins with "Special

12 purpose production ..." Do you have this paragraph?

13 A. Oh, yes, I do.

14 Q. I would simply quote for the record: "Special purpose

15 production. The military prosecutor's office and the military court also

16 have an impact on command and control. Special purpose production

17 manufactures items without prior consultation with the highest command,

18 which should give priority to certain products at a particular time,

19 depending on the development of combat operations."

20 And then the important comment, where it says: "The military

21 prosecutor's office and the military court are in the first place

22 inefficient and they are not adjusting themselves to the need to change

23 certain legal regulations." End of paragraph.

24 My question to you, Mr. Hackshaw, is whether you knew that

25 General Hadzihasanovic on a number of occasions had queried his superior

Page 9768

1 command about the issue of the inefficiency of the court system, because

2 for him it was an important issue?

3 A. I'm not aware -- no, I'm not aware of specific incidences where

4 the general did that. However --

5 Q. I'd like to refer you quickly, Mr. Hackshaw, to another document,

6 document 19 -- no, sorry. Sorry, I will issue this document which I have

7 with me.

8 MR. BOURGON: [Interpretation] Mr. President, this is a document

9 which is already in evidence. This is DH158. This is the fifth document

10 in the bundle.

11 Q. [In English] I would ask you, Mr. Hackshaw, whether you are

12 familiar with the existence of a military disciplinary court within the

13 3rd Corps Command.

14 A. Yes. This document appears to be -- "In order for the military

15 disciplinary court of the 3rd Corps Command to become operational." So

16 yes. Clearly from this document it appears that they're trying to get

17 the necessary appointments to get such an organ in place.

18 Q. And is this an issue that you are familiar with in your capacity

19 as team leader for investigation team 9?

20 A. I would say only vaguely.

21 Q. Okay. Then I will move on. Thank you very much, Mr. Hackshaw.

22 I'll move on to the last part of my cross-examination, simply

23 dealing that -- about -- would you agree with me that in terms for the

24 military commander to take the necessary and reasonable measures to

25 punish - now, I'm not referring to prevent, which is a different issue -

Page 9769

1 you would agree with me?

2 A. Yes.

3 Q. Now, in terms of the measures to punish, would you agree with me

4 that there are other measures that a commander may take to punish the

5 perpetrator of an alleged crime?

6 MS. HENRY-BENJAMIN: Mr. President, I hate to be a nuisance.

7 This witness is not a military expert. This witness does not have any

8 legal expertise. This is a mere investigator who is out investigating

9 documents. He cannot be expected to give an opinion that involves the

10 military and involves law. It is totally unfair to the witness. And I

11 think my friend has to find the correct witness.

12 JUDGE ANTONETTI: [Interpretation] Yes. Again your question was

13 too technical for the witness. And I would like to say that when you put

14 questions to him he automatically turns to the right, and this shows that

15 the question is ill-suited for him.

16 MR. BOURGON: [Interpretation] Thank you, Mr. President. I'm

17 going to rephrase the questions, and I will be more precise in order

18 to -- not to embarrass the witness.

19 Q. [Previous translation continues] ... [In English] Would you

20 confirm that -- we know that you've been involved in this investigation

21 since 1999. Have you investigated other areas than issues forwarded to

22 the district military prosecutor in order to find out whether measures

23 had been taken or not?

24 A. Sorry, I don't really understand. If you're asking me whether

25 Mr. Hadzihasanovic had other means to deal with crimes, I would say he's

Page 9770

1 in a much better position to answer that than myself, given that he was

2 the commander and given his previous background with the military police.

3 I would say -- I personally can only assume that a military commander is

4 bound by the rules and regulations of either the law or military law. If

5 there is specific flexibility within those laws to deal with serious

6 criminal offending through other means than the court, then so be it, but

7 I don't believe that I'm the right person to give a professional opinion

8 on that.

9 Q. Thank you very much, Mr. Hackshaw. I'm simply asking you -- my

10 question is very, very clear, in terms of -- you investigated in Zenica

11 whether cases had been referred to the district military prosecutor.

12 A. That's correct.

13 Q. Did you do other investigation of other types linked to the issue

14 of whether measures had been taken or not?

15 A. I didn't personally, but I know others did.

16 Q. And what would you have looked at?

17 A. We -- persons who, I suppose, could be considered experts or

18 specialists in these roles were spoken to, and certainly the court

19 records, I understand, at both the Zenica and Travnik court were also

20 looked at.

21 Q. Thank you. I'll move quickly based on this answer, because I had

22 a couple of questions related to. But if I ask you whether you looked

23 at -- because you looked at court records -- did you look at whether

24 there were any trials which took place before the special military court?

25 Is this an issue that you investigated?

Page 9771

1 A. Certainly not that I did. I understand that we looked -- or

2 members of the team looked at the records that were kept at the Zenica

3 and Travnik courts; however, no detailed analysis was done of that,

4 because my understanding is that it didn't encapsulate necessarily all

5 that had or should have been referred through the district military

6 prosecution service. For example, if a file was stayed or if a file was

7 rejected, then it would never get through to the court.

8 Q. Just to make it -- to avoid any confusion, are you familiar with

9 the body called special military court?

10 A. Yes, I am.

11 Q. So if you are familiar, you know that this court is one which can

12 be convened only by a brigade commander and up, on the authorisation of a

13 superior commander.

14 A. I'll be guided by what you say on that.

15 Q. No, I'm asking you --

16 A. I --

17 Q. Because that's important. Because if you tell me you're

18 familiar, I just want to know to what extent you're familiar, in terms of

19 looking for whether this body ever worked.

20 A. No, I'm not specific of the -- I'm not knowledgeable of the

21 specifics of workings of these organs.

22 Q. Did anyone your team look in the records to find out any traces

23 of trials or referrals to a special military court?

24 A. I would have to research that question further. I can't give you

25 a categorical yes or no. I'm sorry.

Page 9772

1 Q. And if I talk about the military disciplinary court of the

2 3rd Corps, is this a body that you are familiar with?

3 A. Yes, I am.

4 Q. Have you or someone in investigation team number 9 looked for the

5 records of the military disciplinary court to see which complaints had

6 been handled by this court?

7 A. Again, I'm not 100 per cent sure. I'm sorry.

8 Q. And would I be correct in saying that any disciplinary action

9 handled by a brigade commander, the records within each unit -- that no

10 one ever looked at the disciplinary records within all the brigades?

11 Would that be a fair statement?

12 A. I'm not sure if it would be fair. I don't know. I don't know

13 whether anybody specifically looked at those records.

14 Q. Now, did you know that of course -- and again, this is a

15 technical question. I think it's basic for your investigation, but if

16 you don't know, please answer you don't know. Did you know that if a

17 soldier committed an offence, as a citizen of Bosnia he was liable for --

18 or liable to the law as any other citizen? Did you understand this?

19 If you did not understand this, please say so. I just thought

20 that -- was this a factor in your investigation?

21 A. Well, it was certainly evident that soldiers were subject to the

22 provisions of the law.

23 Q. Okay. I think I will simply ask you two more questions and this

24 will be it, and one is: The fact -- no, I will refrain from this

25 question, because maybe you're not, I guess, qualified for the question,

Page 9773

1 because it's more legal.

2 One last question: With respect to the music school. Now, the

3 music school is an issue that was an issue in this case; would you agree?

4 A. Yes, absolutely.

5 Q. Are you aware that the music school is an issue whereby there is

6 a trial going on right now in Zenica?

7 A. No, I'm not aware of that. No.

8 Q. Thank you, Mr. Hackshaw. I have no more questions.

9 MR. BOURGON: [Interpretation] Mr. President, there are two

10 documents that I would like to tender into evidence either immediately or

11 later on at your convenience.

12 JUDGE ANTONETTI: [Interpretation] Maybe later would be best.

13 The other Defence team, do they have any questions for this

14 witness?

15 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President. Yes,

16 we do have a few questions for this witness.

17 Cross-examined by Mr. Ibrisimovic:

18 Q. [Interpretation] Good morning, Mr. Hackshaw. Mr. Bourgon has

19 asked you whether you're familiar with the case that is being tried in

20 Zenica with regard to the music school and you said that you were not

21 familiar with that; is that correct?

22 A. That's correct, yes.

23 Q. In the prosecutor's office in Zenica, they didn't tell you

24 anything about a trial being conducted in Zenica with regard to the

25 developments in the music school; is that correct?

Page 9774

1 A. They didn't mention that court case at all.

2 Q. You will probably be surprised if I tell you that already in

3 November 1995 the public prosecutor's office in Vitez instigated an

4 investigation regarding the developments in the music school during the

5 year 1993. Is this going to come as a surprise to you if I mention that?

6 A. No. To be perfectly honest with you, it doesn't come as a

7 surprise at all. I think the events that occurred in the Zenica Music

8 School were certainly no public secret, even during the time that this

9 detention facility was running. So no, it's no surprise to me at all

10 that the local authorities eventually took some affirmative action.

11 Q. In order to avoid confusion, the public prosecutor's office in

12 Vitez forwarded all these documents to the public prosecutor's office in

13 Zenica.

14 MR. IBRISIMOVIC: [Interpretation] Mr. President, I'm going to be

15 putting questions to the witness, and I'm going to show him a document

16 that the Prosecutor deems to be confidential. I would kindly ask you to

17 order to move into private session.

18 JUDGE ANTONETTI: [Interpretation] Yes, we will move into private

19 session.

20 [Private session]

21 (Redacted)

22 (Redacted)

23 (Redacted)

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3 --- Recess taken at 10.25 a.m.

4 --- On resuming at 10.55 a.m.

5 [Open session]

6 JUDGE ANTONETTI: [Interpretation] Before I give the floor to the

7 Prosecution to see whether they have any re-examination, the Defence

8 asked us to admit into evidence a document that the Defence has obtained.

9 We would like to be clear on one thing: You have been put a question,

10 but the question was complex. I would like to ask the question again.

11 [Trial Chamber and registrar confer]

12 JUDGE ANTONETTI: [Interpretation] We are going to go into private

13 session, Mr. Registrar, please.

14 [Private session]

15 (Redacted)

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8 [Open session]

9 THE REGISTRAR: Your Honours, we are in open session.

10 JUDGE ANTONETTI: [Interpretation] Ms. Benjamin, you may ask your

11 question again in open session now.

12 MS. HENRY-BENJAMIN:

13 Q. And, Mr. Hackshaw, it refers to the investigations and to how the

14 conduct of the investigations re the pre-trial stage, indictment stage.

15 Could you please answer for the record, please.

16 A. Yes. Investigations continue through all phases that you've

17 mentioned.

18 Q. And my learned friend alluded to the system of the courts, and

19 I'm not sure -- and for the benefit of the Trial Chamber maybe you can

20 explain to us -- was it -- did you find a flaw in the court system or was

21 the flaw in the exercise of your duties, how you conducted the

22 investigations?

23 A. The specific relationship to the exercise that we carried out

24 between the 2nd and the 5th of June, 2004 -- it's correct that I

25 mentioned that there were flaws. Those flaws, I believe, occurred

Page 9781

1 because of a number of reasons, but principally it was because we were

2 reliant on the information that was available to us.

3 Q. Now, as team -- or as acting team leader, sorry -- you had in

4 your command -- under your command how many subordinates?

5 A. I have immediately available to me seven investigators, three

6 criminal analysts, and four language assistants.

7 Q. Is it possible, then, that you would not physically see all

8 documents that are recorded specifically for this trial? Is it possible?

9 A. It's absolutely correct.

10 Q. Thank you.

11 MS. HENRY-BENJAMIN: Mr. President, this is the end of the

12 re-examination.

13 JUDGE ANTONETTI: [Interpretation] Very well. I'll ask you a few

14 general questions, and the Judge to my left will ask you more specific

15 questions about what you did when you visited the courts.

16 Questioned by the Court:

17 JUDGE ANTONETTI: [Interpretation] In general terms, and I will

18 be very rapid, before you were a policeman, did you serve in the army in

19 New Zealand?

20 A. No, I didn't serve prior to joining the police. I didn't.

21 JUDGE ANTONETTI: [Interpretation] As a policeman in New Zealand -

22 you said that you worked as a policeman for 15 years - did you get

23 involved in problems that had to do with the New Zealand army? Did you

24 have any military competence?

25 A. Very, very limited, Your Honour. Very limited. I mean, I can

Page 9782

1 only specifically recall a number of incidents where military personnel

2 were arrested for what I would consider low-level incidents. And beyond

3 those, other than playing Rugby Union for an army rugby team, it's very

4 limited.

5 JUDGE ANTONETTI: [Interpretation] We have been told that you were

6 the chief investigator of team 9. When the investigation started, what

7 was the name of the chief in team number 9?

8 A. The team leader at that point in time was -- his name was Nikolai

9 Mikailov.

10 JUDGE ANTONETTI: [Interpretation] So thanks to you we've been

11 told that the Prosecution had a number of teams and they were numbered.

12 How many teams are there in all?

13 A. At moment -- there were 11; some of them have now been merged.

14 There is now less than 11.

15 JUDGE ANTONETTI: [Interpretation] Very well. So among the teams,

16 were there common working meetings? For example, yesterday it was said

17 that there was the Blaskic case that had been dealt with by another team.

18 But did all the teams meet to exchange ideas, discuss the methods you

19 followed and the information you had? Were there such exchanges that

20 involved all the teams?

21 A. On a global level, it's my understanding that the senior trial

22 attorneys meet on a regular basis, I think normally every morning. And

23 I've never been party to those meetings; however, I understand that all

24 sorts of issues are discussed that impact the entire OTP.

25 JUDGE ANTONETTI: [Interpretation] Were there working meetings

Page 9783

1 between the Deputy Prosecutor, the investigators, and all the teams? Did

2 these meetings have to do with specific themes, or was there

3 communication that was exchanged between everyone; or was everyone

4 involved in his own particular field and there were no links established

5 between these people? What was your experience as an investigator?

6 A. Within our own team, we used to hold regular weekly meetings

7 where all the team were -- who were in the office were expected to

8 participate. These were chaired by the senior trial attorney and in his

9 absence, the deputy chief of investigations. At these meetings, all

10 range of issues were discussed. Beyond that, where there were specific

11 issues for specific investigation projects, there were regular meetings

12 held when and if issues arose or matters needed to be discussed.

13 JUDGE ANTONETTI: [Interpretation] What degree of autonomy did an

14 investigator have with regard to the deputy? The chief investigator -

15 and that's what you were - did the chief investigator have very precise

16 instructions? Or did the investigator have a degree of autonomy, as far

17 as how he conducted his investigation was concerned? Or did the

18 investigator simply do what he was told to do?

19 A. No. The investigator or the senior trial attorney or one of the

20 trial attorneys or one of the analysts would -- in common terms would

21 identify issues that they believed we needed to focus on, and those were

22 generally discussed in a group forum and where decisions were ultimately

23 made generally by the senior trial attorney or pre-indictment by the

24 trial attorney, where subsequent action was discussed and agreed upon.

25 JUDGE ANTONETTI: [Interpretation] Very well. But you're not

Page 9784

1 answering my question, which is very specific. But I will help you.

2 You went to visit the local courts and to visit the archives.

3 We'll go back to that. But, for example, if you discover in files that a

4 case that's been registered with the military prosecutor was transferred

5 to the civilian prosecutor, in such a case did you have the autonomy to

6 go to see the civilian prosecutor to check this without having to phone

7 the Prosecutor to receive instructions? As you can see, my question is

8 very specific. In such a case, what would you do? Would you conduct

9 your investigation quite independently, or would you come back here or

10 phone in order to request instructions as to how you should proceed?

11 A. In the majority of cases, you would -- if you were in the field

12 and you discovered that there was a tangent that you felt merited further

13 investigation, the common practice would be that you would report back to

14 either the trial attorney or the senior trial attorney or whoever was

15 available to take your call and you would obtain some form of direction.

16 JUDGE ANTONETTI: [Interpretation] But why draft a report if you

17 yourself could go and check matters? One has the impression that you

18 wouldn't do anything without contacting those above you, whereas an

19 investigator should be able to do things without having his superior

20 authorising him to do so. That's -- those are the basics. In the case

21 that I mentioned, were you obliged to submit a report, to make a report?

22 A. No. You -- but where possible you were obliged to exercise

23 common sense. And there are -- beyond the actual investigation issues,

24 there are another number of issues that need to be considered before you

25 go off doing something which is not part of the original plan. For

Page 9785

1 example, if got the opportunity to have an impromptu meeting with

2 somebody who may be of future reference to the case, then naturally you

3 would go off and you would have that particular meeting. But if you were

4 going off to interview -- if a new witness came to light, then common

5 sense says that you, first of all, want to obtain as much information

6 about that person as possible. So therefore, if time allows, you take

7 the necessary precautionary measures.

8 JUDGE ANTONETTI: [Interpretation] Very well. I have one last

9 question. As you can well imagine, I have a lot of other questions I

10 could put to you, but I'll let the other Judges ask you their questions.

11 My last question is as follows: You conducted an investigation

12 into how the 3rd Corps operated. This involved high-level officers,

13 grass roots officers, et cetera. In a classical type -- in a traditional

14 type of investigation, in New Zealand, for example, if there is a group

15 that may be charged with violations of some kind, wouldn't the police

16 procedure involve hearing all the members of that group and then, in the

17 case of the 3rd Corps, wouldn't it have been necessary for a policeman to

18 take written statements from all the members of the military within the

19 3rd Corps? I would like to hear what your opinion is about this subject;

20 that is to say, about the chief, the deputy chief, the third in command,

21 et cetera, right down to the rank and file. So why does it appear that

22 this wasn't done in this investigation? If you can answer the question,

23 say so; but if not, just say that you aren't capable of answering it.

24 A. I think I can answer it. I think we have to exercise caution. I

25 think if we endeavoured to interview every personality involved, one, we

Page 9786

1 would face serious problems with time constraints. I think also we have

2 to assess individual culpability, and yeah, I think, really, each

3 individual we speak to has to be assessed on their merits.

4 JUDGE ANTONETTI: [Interpretation] But in terms of an

5 investigator's technique, initially the investigator shouldn't have any

6 assumptions and within the framework of an investigation the investigator

7 should interview a number of witnesses without these witnesses being

8 accused or suspects. So this is a very general technique. One

9 interviews a number of people and one obtains certain information,

10 certain basic information that guides you. This is what you must have

11 done in New Zealand. You weren't told to interview such and such a

12 person if there was no information to start with. Why didn't you follow

13 such a procedure rather than just target certain people, rather than just

14 select certain people? Is there any explanation that you could provide

15 us with?

16 A. No, not really, other than to say that, as I think I mentioned

17 before, certainly at home and the practice is similar here, you would try

18 and make a fair assessment of anybody that you wanted to speak to prior

19 to speaking to them. So in many respects, often it's difficult to go in

20 without making an assumption, because information that you're provided

21 with, particularly about criminality of people, is relevant to the task

22 at hand.

23 JUDGE ANTONETTI: [Interpretation] Very well. Thank you.

24 One of the other Judges has some questions for you now.

25 JUDGE SWART: Good morning, Mr. Hackshaw. I would like to

Page 9787

1 discuss with you the way you proceeded with your investigation, how you

2 did it, what problems you met, and what conclusions you could make or

3 draw or not draw on the basis of what you then did.

4 Now, we listened to you this morning and yesterday, and we also

5 received - it is perhaps good for you to know - a written statement that

6 was not signed, not dated, but of which you said yesterday, "This is

7 something I have written in preparation of my hearing as a witness."

8 Well, if you look at the written declaration and what you said

9 yesterday and this morning, I would be inclined to conclude that most of

10 the things you have written in your declaration you have also said and

11 confirmed during the hearings of yesterday and tomorrow [sic], especially

12 due to the questions put to you by the Defence. There are still some

13 details that you have not brought forward during these meetings of today

14 and yesterday, and I take the liberty to put to you questions on that

15 too, and I hope that the parties will not object to that.

16 The first question that I have to put to you concerns a matter

17 that has already been raised this morning, and they relate to the nature

18 of the files you have seen, the registers you have seen in Zenica and in

19 Travnik. You said there were three registers: KT, KTN, KTA. The fact

20 is that we also have been given by the Prosecution documents with the

21 same letters, "KT," "KTN." And my question to you would be: Could you

22 compare some pages of the documents we have gotten from the Prosecution

23 to decide on the admissibility of these documents with what you have seen

24 physically in Travnik and Zenica as being the registers of the

25 Prosecution?

Page 9788

1 I have some reasons -- several reasons to ask you this, and I

2 will explain them to you, of course, but first I would like the registrar

3 to show you a few pages from the contested exhibit 506, if you have them.

4 Otherwise, I could provide it to you personally, if you want that.

5 We received a few weeks ago - no, I must say some ten days ago,

6 perhaps - six binders of material from the two military district courts

7 -- district military courts; all in all, I think some 1.000 pages maybe.

8 And my question to you is: Look at these pages carefully. They are in

9 B/C/S. I have a translation -- a provisional translation of pages -- I

10 show it to you in English if you need. But on the face of it, what you

11 are seeing now, are you able to tell us whether these are the same

12 registers as you have seen on the spot?

13 A. They look similar, but there -- from memory, the actual registers

14 we reviewed were prefixed with "KT," "KTN," or "KTA." Now, the first

15 column should have -- should reflect those numbers, But I'm -- I couldn't

16 be --

17 JUDGE SWART: I think one of the counsel for the Defence want to

18 intervene.

19 MR. BOURGON: [Interpretation] Thank you, Mr. President.

20 Could we place this on the ELMO so that we can follow?

21 JUDGE ANTONETTI: [Interpretation] Yes. Let's place it on the

22 ELMO.

23 JUDGE SWART: For clarification, I may say that these are pages

24 that are rather similar to what you showed the -- but different pages,

25 nevertheless.

Page 9789

1 A. Yes. These -- again, it certainly looks a similar format to that

2 which was contained in the registers we looked at.

3 JUDGE SWART: But not quite the same, maybe.

4 A. If my memory serves me correctly, in the registers we looked at

5 they would have the KT reference number - for example, number 1 - and

6 then it would be a "/" and then the year that they related to. But I

7 could be completely wrong there.

8 JUDGE SWART: Well, one of the reasons I'm asking you this is the

9 following: You mentioned several times that you found names of victims,

10 individual victims on the registers of the district military prosecutor.

11 A. That's correct.

12 JUDGE SWART: Now, in the pages that I show you, there is no

13 special place to note the names of the victims. There are 30 numbers on

14 top, as you see, and each correspond to a certain type of data. There is

15 no separate row or column on data with regard to victims, and that is one

16 of the reasons why I ask you are these the same documents or are they

17 different.

18 A. Then they must be different. The front of it has the reference

19 prefix "KI" and that I'm not familiar with. Although, I understand -- I

20 think "KI" relates to a --

21 JUDGE SWART: Known accused or known suspect.

22 A. "KT" were the files -- the registers that we reviewed that

23 related to known perpetrators.

24 JUDGE SWART: "KT" and "KTN." Yes.

25 A. Yes.

Page 9790

1 JUDGE SWART: And this is KI.

2 A. Yeah, kilo India.

3 JUDGE SWART: Yes.

4 A. Now, I can't confirm, but I think that relates to investigations.

5 JUDGE SWART: It may be, yes.

6 Have you seen on the spot in both places not only the registers

7 you have told us about but also this kind of registers?

8 A. No, I didn't see any of those personally.

9 JUDGE SWART: And are you familiar with the way tribunals or

10 courts in general in different jurisdictions do file cases? Have you

11 been told about a system of filing cases in Zenica and Travnik?

12 A. No, not beyond what was explained to me at the offices of the

13 prosecution service.

14 JUDGE SWART: Well, let me give you an example of why I'm -- of a

15 situation which may explain why I'm asking the question.

16 In some countries, for instance, the public prosecutor and the

17 courts have registrarily -- separate registration systems, totally

18 independent from each other. In other countries, certainly in the past

19 they would use the same registration system. So there would be a general

20 registration system both for the courts and judges on the one hand, and

21 the prosecutor. And that is a type of -- that is a kind of method you

22 may still find in many European countries, although these things are

23 changing.

24 So this is a question for me: What type of registration was used

25 in Bosnia at the time? Did they have a common registration system or did

Page 9791

1 they have separate registration systems? But I think you cannot -- not

2 answer that question.

3 A. I can only tell you what I encountered at the offices of the

4 prosecution service in both Zenica and Travnik.

5 JUDGE SWART: Yeah.

6 A. And that was the KT system, the KTN system, and the KTA system.

7 JUDGE SWART: Yeah. Now, as you may have gathered from these few

8 pages that I have given you, this is quite an extensive or quite a broad

9 manner of recording data. It begins with the date the case came in or

10 the documents came in, the name, other data. Then you have quite a few

11 positions for articles in the Criminal Code, and then you have still more

12 positions for what happened with the case. Has an investigation been

13 asked? Has there been an indictment? Has there been a conviction? Has

14 there been an appeal? Et cetera. So it's a very broad range.

15 A. Yes.

16 JUDGE SWART: Did you see the same range in the registers you

17 consulted?

18 A. Yes, I did.

19 JUDGE SWART: The same details and same possibilities of

20 registering all kinds of data?

21 A. Yes.

22 JUDGE SWART: So, so far about these registers. You may take --

23 give back the ...

24 Now, to continue our discussion of your investigation. Did you

25 with your team before you went to Zenica and Travnik, did you have a look

Page 9792

1 at those documents I showed you?

2 A. I didn't. I think one of the other members on the team had been

3 involved in collecting records from the Zenica and Travnik courts.

4 JUDGE SWART: Yes.

5 A. But as I mentioned before, no detailed analysis of that was

6 conducted, because it was, based on the information that we had received,

7 it appeared to be a flawed exercise.

8 JUDGE SWART: But you didn't discuss in your team together what

9 he had seen or what he had --

10 A. No, I didn't discuss it with him.

11 JUDGE SWART: No?

12 A. No. I can't say categorically that he didn't discuss it with

13 members of the trial team, but ...

14 JUDGE SWART: If you didn't have a look at these documents before

15 you went to Bosnia, then I take it that you could not predict what kind

16 of material you would need and how much time you would need to study that

17 material.

18 A. No. That's a very fair assumption.

19 JUDGE SWART: So in that sense, they must have been a surprise to

20 you.

21 A. A surprise in what nature?

22 JUDGE SWART: There must have been a surprise that the material

23 was far more voluminous than you thought when you went to Bosnia.

24 A. Yes. There was always the potential for that.

25 JUDGE SWART: Yes?

Page 9793

1 A. Yes.

2 JUDGE SWART: Because you said that was three-days exercise.

3 Those are your words of yesterday. Tomorrow again you said, "We have

4 spent two days in Zenica and one in Travnik," all in all three.

5 A. That's correct.

6 JUDGE SWART: And that may have been too short to realise what

7 you intended to do.

8 A. Yes.

9 JUDGE SWART: Yes?

10 A. Yes. Definitely.

11 JUDGE SWART: Definitely. Okay.

12 One other question of an introductory nature: The kind of

13 investigations that you were doing at the time is a type of investigation

14 that is often done by professional criminologists or social scientists

15 for different purposes, of course, but the research consisting of a

16 systematic analyst of police documents or public prosecutor's documents

17 or court documents is often done in that field. And my question to you

18 is: Was any of the three of you - because I understand you were three -

19 A. Yes, that's correct.

20 JUDGE SWART: -- familiar with analysing techniques used in

21 criminology or social science?

22 A. There is -- I would say probably the most likely candidate - and

23 I can't say categorically - would be Alasdair Macleod, who's part of the

24 leadership research team. He's -- a lot of his work is more

25 document-orientated and analysis-orientated. And he would have -- yeah,

Page 9794

1 he would have probably had a greater understanding than myself or Michael

2 Koehler.

3 JUDGE SWART: Okay. It is -- basically it is a quantitative

4 analysis, isn't it? And that is different from interviewing a witness

5 or looking at the authenticity of a document or that kind of thing.

6 A. Yes, it is. Although, in saying that, it's still simply -- I

7 mean, in its most simple form, it's still reviewing material, written

8 material and subsequently making an analysis of it.

9 JUDGE SWART: Now, I come to the second topic to discuss with

10 you, the missing material and the place where the missing material might

11 be. I understand that from your testimony this morning and yesterday and

12 also from your written statement that when you arrived in Zenica not all

13 files were present. And if I say "all files," you would -- I would say

14 all files that -- of which you would find the reference in a register.

15 A. Yes, that is correct.

16 JUDGE SWART: You said all the KTN files -- none of the KTN files

17 were there.

18 A. Correct.

19 JUDGE SWART: So there are two kinds of case files: There are

20 the KT files and there are the KTN files. And in the third place you

21 have the KTA with correspondence, but that doesn't contain its own files,

22 I suppose; or am I mistaken?

23 A. I didn't get the opportunity to review any of the actual -- that

24 correspondence beyond what was collated in the register. So I can't

25 comment.

Page 9795

1 JUDGE SWART: So there were KT files present and there were KTN

2 files that were not present.

3 A. That's correct, sir.

4 JUDGE SWART: As far as the KT files are concerned, did you have

5 a complete collection or -- or were even in this category some files

6 missing?

7 A. No. There were clearly a number of files missing.

8 JUDGE SWART: Could you express how many?

9 A. No. I mean, I -- not accurately. I would have to physically

10 count the number that we checked and --

11 JUDGE SWART: So it's somewhere in --

12 A. Yes, it is. But I would have to check --

13 JUDGE SWART: You recorded it, anyhow.

14 A. We recorded -- for the KT files that went through the military --

15 district military prosecutor, we recorded details of every case file that

16 we reviewed.

17 JUDGE SWART: And would you be able to express this in a

18 percentage? Say you have the KT registers and they make clear how many

19 cases have been registered and you could compare the actual case files

20 with the register and say, "Well, I've seen 80 per cent or 90 per cent or

21 40 per cent," or whatever.

22 A. Yes, that would be possible, Your Honour, but I would have to

23 physically do that.

24 JUDGE SWART: You can't recall at the moment?

25 A. No, I can't. I'm sorry.

Page 9796

1 JUDGE SWART: Not even in the vaguest sense? It is important for

2 me to know, so ...

3 A. In the vaguest sense, I would probably say 50 per cent.

4 JUDGE SWART: 50 per cent.

5 So. And the KTN files were not present; that is 100 per cent, so

6 to speak; right?

7 A. Absolutely, yes.

8 JUDGE SWART: Could you tell us, if you recall, how many cases

9 were registered in both categories, in both kind of registers?

10 A. Yes. I think -- I think in -- I think I have a note in my

11 notebook that in the KT military prosecution register --

12 JUDGE SWART: Yes.

13 A. -- for 1993, I think there was 780.

14 JUDGE SWART: 780.

15 A. Yes.

16 JUDGE SWART: And can you recall what was the number for the KTN?

17 A. No, I can't. I would have to refer to my notebook.

18 JUDGE SWART: Would it be more? Less?

19 A. I would say less.

20 JUDGE SWART: How much less would you say?

21 A. I believe -- if it's all right to be vague, I would probably say

22 50 per cent less.

23 JUDGE SWART: 15?

24 A. 50. Five-zero. Considerably less.

25 JUDGE SWART: Okay. So almost half then.

Page 9797

1 A. Yes.

2 JUDGE SWART: So the number of KT files were more numerous than

3 the number of the -- the KT cases were more numerous than the KTN cases.

4 A. Yes, definitely.

5 JUDGE SWART: But you haven't quite kept details on that.

6 A. No, not in my head, sir, no.

7 JUDGE SWART: I don't know whether these documents I showed you a

8 fragment of would enable us to make a count, but that has to be seen.

9 Now, the KTN files, you said, were not available. Did you ask

10 why they were not available?

11 A. No, I didn't. I asked only why there appeared to be files

12 missing, and the only explanation I was given at the Zenica office --

13 JUDGE SWART: Yes.

14 A. -- was that there were likely to be files missing because they

15 had been forwarded at the closure of the district military prosecution

16 files, files were forwarded out to the municipal level.

17 JUDGE SWART: Yes. So these were the files that you were

18 already -- discussed tomorrow with Mr. Bourgon.

19 As far as the KT files are concerned, that cannot be the

20 explanation because they were known perpetrators.

21 A. Well, yes, because there were KT files, because -- that we

22 established from the registers that had been farmed out to a municipal

23 level.

24 JUDGE SWART: Oh, there were.

25 A. Yeah, there were. And it was only those in Zenica -- the only KT

Page 9798

1 files that were missing that we checked or cross-checked in the register

2 were those for serious crimes against the person. And there were, there

3 were files that had been -- well, that according to their explanation was

4 still open at the end of the war and subsequently forwarded to the

5 municipal level. Now ...

6 JUDGE SWART: So just to be absolutely sure what you're saying,

7 because it's very easy to make mistakes for me. The KT files were known

8 perpetrators but not all cases were closed and those who had not been

9 closed were referred to the municipal authorities.

10 A. That was exactly the explanation I received.

11 JUDGE SWART: Okay. And what then happened with the KTN files?

12 A. I don't know.

13 JUDGE SWART: You didn't -- they didn't tell you?

14 A. No, they didn't.

15 JUDGE SWART: And you didn't ask them?

16 A. No, I didn't.

17 JUDGE SWART: You have not the slightest idea where they might

18 be.

19 A. No, I don't.

20 JUDGE SWART: I see.

21 The same is true for Travnik or even more so, I have the

22 impression. You said yesterday and this morning there were no case files

23 in Travnik.

24 A. Yes.

25 JUDGE SWART: Only registers.

Page 9799

1 A. No. There were KT files.

2 JUDGE SWART: There were KT files.

3 A. Yes, there were.

4 JUDGE SWART: Yes. But was the collection of KT files complete,

5 or were a number of again missing?

6 A. Yes, sir. In many respects, although the prosecutor that we

7 spoke to clearly indicated that the archives were in a disorganised

8 state, those that took care of us had assisted us considerably in some

9 preparation that they had done prior to us getting there. And one of

10 the -- it's my understanding one of the things they had done was they had

11 got an intern who was working there to go through the files and to

12 identify those that were missing, and that allowed us to move through the

13 operation much more quickly, and effectively work in reverse as a

14 consequence.

15 JUDGE SWART: I'm not sure that I understand you completely, but

16 let me ask the following question: Due to the disorganised state of the

17 documentation or the archives which you also mentioned in your report,

18 could there have been a number of case files that were in the building,

19 so to speak, without you being able to consult them?

20 A. That is certainly a possibility.

21 JUDGE SWART: That is a possibility.

22 A. Yes, it is.

23 JUDGE SWART: Okay. Yes. And you cannot make a quantitative

24 estimate about it, I think.

25 A. No, I can't. All I can say is that on occasion - and I think it

Page 9800

1 was -- I think it was only once - there was a file that was supposed to

2 be missing that we actually found amongst the actual case files.

3 JUDGE SWART: Okay. And could you tell me, which will be

4 difficult, I understand now, but could you give me an estimate of how

5 many KT files you found in relation to how many entries in the KT

6 registers? What percentage would you have seen in Travnik?

7 A. That's very difficult, because what we did at Travnik was we --

8 as I mentioned, we worked in reverse. So we effectively --

9 JUDGE SWART: Yeah.

10 A. -- and at Travnik we only focussed on the serious crimes against

11 the persons. So what we did was we, first of all, was we compiled lists

12 from the register of the offences or the codes --

13 JUDGE SWART: Yeah, I understand.

14 A. And then we identified those that were related to murder,

15 manslaughter, involuntarily manslaughter and serious assaults. And we

16 then went through the case files that related to those specific entries.

17 JUDGE SWART: Yes. The reverse method, you called it.

18 A. Yeah. That's right.

19 JUDGE SWART: An appropriate name, I would say.

20 A. Thank you.

21 JUDGE SWART: And the KTN files there, were none of them

22 available or present in Travnik?

23 A. That's correct.

24 JUDGE SWART: And again, my question is: Did you discuss with

25 the authorities there where they might be or have gone?

Page 9801

1 A. No, I didn't.

2 JUDGE SWART: No? Why not, I must say?

3 A. I think because we were so busy going through the physical

4 material that was present that we just focussed on what was there.

5 JUDGE SWART: Well, if you realised that in both places - Zenica

6 and Travnik - the KTN files are missing and not the KT files, that might

7 suggesting that there is some sort of reason for it, that they might be

8 stored somewhere else or ...

9 A. That's correct.

10 JUDGE SWART: It seems more than a coincidence, I might say,

11 although you never know.

12 A. No. My opinion would be that because they are unknown

13 perpetrator files, they may well be archived elsewhere.

14 JUDGE SWART: That's your estimate.

15 A. That's my assumption, yes.

16 JUDGE SWART: Assumption, rather. Okay.

17 Well, now, you have this morning especially said, "We made a

18 selection. We limited ourselves to crimes against the person or to --

19 only to murder and manslaughter," for instance.

20 A. That's right.

21 JUDGE SWART: This is something that I would like to put to you

22 questions about, and I need to some extent your written text for that,

23 because you used different formulas for describing what you did, and I

24 would like to check whether all these formulas are of the same content.

25 The first category I met in your report, and you said it also

Page 9802

1 this morning, were crimes against a person, particularly murder and

2 manslaughter. That particularly is, of course, fascinating, and crimes

3 against a person is a very vague concept. So what do you mean if you say

4 "crimes against a person, particularly murder and manslaughter"?

5 A. Simply, I suppose it's a colloquialism from my days in the New

6 Zealand police.

7 JUDGE SWART: Yes.

8 A. We really roughly categorise crimes into two distinct areas,

9 crimes against the person and crimes against property.

10 JUDGE SWART: Yes.

11 A. Crimes against the person - and it's a loose definition,

12 obviously - but crimes against the person, I mean where you have -- the

13 victims have been subjected to some form of violence or -- yeah, I mean,

14 even aggravated robbery I would put into the category of a crime against

15 the person, because it involves -- although it may not involve actual

16 physical violence, it can certainly involve threats of actual physical

17 violence.

18 JUDGE SWART: Threats would count as violence.

19 A. Yes, of course.

20 JUDGE SWART: Okay. Now, a second formula that I've found in

21 your report is more extensive. It says "serious crimes against a person,

22 including grevious bodily harm, robbery, and aggravated robbery or

23 burglary." That corresponds with what you said a few seconds ago. Does

24 this cover a larger field than your first formula, or is it intended to

25 express the same thing?

Page 9803

1 A. That's intended to express the same thing, sir.

2 JUDGE SWART: Okay. So if you read "crimes against a person,

3 particularly murder and manslaughter," you must be aware that this may

4 also include aggravated burglary then.

5 A. Yes, that's right. Aggravated burglary, aggravated robbery.

6 JUDGE SWART: Yes. Well, the third and last formulae is crime

7 related to murder, manslaughter, involving grievous bodily harm, violent

8 acts of behaviour, robber and aggravated robbery. That again is the same

9 thing, I understand.

10 A. Yes. Yes.

11 JUDGE SWART: So the basic distinction is crimes against the

12 person and crimes against property.

13 A. That's right.

14 JUDGE SWART: This is the basis of your distinction.

15 A. Those are the two loose categories I refer to.

16 JUDGE SWART: And if one would meet a person in the street with

17 valuable goods, one would say, "You get me the goods or otherwise I do

18 something to you," would that be burglary?

19 A. No, I would say -- I would categorise that as a robbery or an

20 aggravated robbery.

21 JUDGE SWART: Because of the element of threat.

22 A. Absolutely.

23 JUDGE SWART: And if you take goods from a person who is not

24 present, he's away, he's not in his house or whatever?

25 A. That's --

Page 9804

1 JUDGE SWART: Then that would not be a crime against the person,

2 then.

3 A. No, sir. I would categorise that as a theft or a burglary.

4 JUDGE SWART: Okay. And an aggravated burglary is something

5 involving physical violence.

6 A. Or aggravating features to the crime.

7 JUDGE SWART: The following question is: Your category, you

8 suggested more or less that -- your distinction between these kinds of

9 crimes came from your own background in New Zealand.

10 A. That's correct.

11 JUDGE SWART: That's right. And what I would like to know is

12 whether you used this distinction also looking at the registers. In

13 other words, were you looking at the articles mentioned in the registers

14 to determine?

15 A. Yes, we were, sir.

16 JUDGE SWART: So you had a Criminal Code next to you and you --

17 or this was explained to you, this is a crime against a person, or this

18 is a --

19 A. Yes, the -- we had a republic Criminal Code, and the intern that

20 assisted us throughout the day had that present at Travnik.

21 JUDGE SWART: So she or he basically said this number, 193, is a

22 crime against a person.

23 A. That's correct. Or -- no, no, sorry. That's not correct. They

24 would give us the specific article title from the Criminal Code.

25 JUDGE SWART: Yes. So this has already been discussed this

Page 9805

1 morning, this your limitation here or your criterion would exclude all

2 the facts or alleged facts described in the Count 5, 6, and 7 of the

3 indictment.

4 A. Yes.

5 JUDGE SWART: And deciding to base yourself on this distinction,

6 you would automatically leave them aside.

7 A. Yes.

8 JUDGE SWART: You're not going to investigate them.

9 A. No. And two reasons predominantly for that rationale: Firstly,

10 the registers, as far as I'm aware, didn't contain victim -- no, my

11 apologies. The indictment itself doesn't contain specific names of

12 victims, which makes it very difficult for us to cross-reference. And

13 secondly, I don't have any knowledge of how they reached a classification

14 of a crime at the time that these reports were formulated or at the time

15 the registry was logged, so therefore a theft or a burglary may well have

16 been a reported looting, but in many respects it would have been

17 impossible for me to determine that.

18 JUDGE SWART: But this is still within the category of crimes

19 against property.

20 A. Yes, sir. Yes, that's right.

21 JUDGE SWART: And there you have the problem: Can I recognise

22 something as being looting in terms of the indictment.

23 A. Exactly, Your Honour.

24 JUDGE SWART: That was the difficulty.

25 A. Yes.

Page 9806

1 JUDGE SWART: Was it also difficult, you said -- "We'll refrain

2 from doing so at the moment; we have no time. "

3 A. That's correct. And it would -- the reality of it is that it

4 would require extremely time-consuming and complex analytical work.

5 JUDGE SWART: Yes. It would be an investigation rather different

6 from the one you conducted. I agree with you there.

7 Well, I still have some other questions on your methods. You

8 limited yourself to crimes against a person, that is clear, with a number

9 of consequences. But when speaking about crimes against persons, I have

10 the impression that your main tool was to work with names of individual

11 victims, either in the indictment or in the case registers.

12 A. That's correct, yes.

13 JUDGE SWART: Then you tried to ascertain whether there would be

14 a match.

15 A. That's correct.

16 JUDGE SWART: If there would have been a match, that would show

17 that a case that is relevant to the indictment has arrived at the

18 prosecutor's office.

19 A. Correct.

20 JUDGE SWART: That's the idea, isn't it?

21 A. Correct, yes.

22 JUDGE SWART: But then the question arises: What's the

23 significance of the fact that you have not found a match? And that is

24 something that I would like to discuss with you. I must also say - but

25 you have recognised this already this morning - that as far as

Page 9807

1 ill-treatment or inhumane treatment of prisoners, you have only a very

2 few names in the indictment. Most of them, presumably, were not known.

3 A. That's correct, yes.

4 JUDGE SWART: At the time. And if you have no names of prisoners

5 in the indictment and if you have no names of prisoners in the registers,

6 then you have a problem; no? Your method doesn't work.

7 A. We have a significant problem, Your Honour.

8 JUDGE SWART: Okay. Well, let's suppose that there is a name in

9 an indictment and not in the register, or let us suppose the opposite

10 thing. First, if a victim's identity is not mentioned in the indictment,

11 then that's the end of the search. You, even if his name or her name

12 would be present in an indictment -- in a register, you would be unable

13 to make a match or to do something similar. You need two names;

14 otherwise, you cannot match.

15 A. Need ...? I'm not sure if I understand the question. Sorry,

16 Your Honour.

17 JUDGE SWART: I'm not quite sure myself. I'll try to make it --

18 let me try again.

19 My point is the following: If there were names of victims in the

20 registers where victims of events that have been described as real in the

21 indictment --

22 A. Yes.

23 JUDGE SWART: If their names were not mentioned in the indictment

24 itself, then the possibility would exist that there are cases in the

25 prosecutor's office related to events in the indictment.

Page 9808

1 A. Yes.

2 JUDGE SWART: That is what I wanted to say.

3 A. Yes, that is possible.

4 JUDGE SWART: Okay. Now, if the name was not mentioned in the

5 indictment, you had a name, say Mr. X, in the register and you couldn't

6 find the same name in the indictment, that would not exclude the

7 possibility that the prosecutor may have heard him as a witness.

8 A. That's correct. Yes, that possibility exists.

9 JUDGE SWART: We have had a number of witnesses who claimed to be

10 a victim of ill-treatment, inhumane treatment, and whose names were not

11 mentioned in the indictment.

12 A. Yes.

13 JUDGE SWART: So that is also a restriction of -- a limitation to

14 your investigation; yes?

15 A. Yes, it is.

16 JUDGE SWART: The other possibility is that -- and I am just

17 checking with you where we are in this field -- the other possibility is

18 that you have names of persons in the indictment but names that were not

19 known at the time the case was investigated, but names that became

20 apparent later; for instance, as a result of an investigation by your

21 OTP.

22 A. Well, no, not entirely, because I've seen in -- particularly in

23 respect of the alleged crime as Dusina --

24 JUDGE SWART: Yes.

25 A. I've seen a record - and I think the record was a list of persons

Page 9809

1 names and they were the victims from Dusina where they were subjected to

2 some form of paraffin testing, and this -- which occurred at the Zenica

3 hospital or the Zenica morgue. And my understanding is that this list

4 was compiled within a matter of a few days or weeks of the alleged event

5 on the 26th of January, 1993. So for the case of -- specifically of

6 Dusina, I would say that, you know, if they had a list of the victim

7 names within that short a time frame, then there should have been

8 something in the register which reflected that.

9 JUDGE SWART: I understand your reasoning, and this relates, of

10 course, to murder or manslaughter --

11 A. That's correct.

12 JUDGE SWART: -- cases in which there is a dead body.

13 A. That's correct.

14 JUDGE SWART: If there is a dead body, normally the dead body is

15 identified.

16 A. That's correct.

17 JUDGE SWART: There may be unidentified dead bodies, but if the

18 body is identified, you may be able to match.

19 A. Of course. And there certainly were situations where the victim

20 was clearly shown as being unidentified.

21 JUDGE SWART: Yeah. But as far as victims of inhumane treatment

22 are concerned, for instance, or persons who claimed to have been victims

23 of that or remained in a prison or in another building. These names may

24 not have been known at the time of a complaint or investigation.

25 A. Well, it depends, I suppose, on who's making the complaint.

Page 9810

1 JUDGE SWART: Yes.

2 A. If it's the victim themselves, then clearly there is no excuse

3 for a name not to be registered or -- unless, of course, they choose to

4 do so anonymously. I can't think of any logical explanation for that.

5 JUDGE SWART: Well, your assumption is that these cases only

6 originate from complaints by individual persons and that you otherwise

7 would not have a case.

8 A. That is -- yeah, that is an assumption on -- to some proportion

9 of complaints.

10 JUDGE SWART: That may correspond to reality to some degree, but

11 there may also be instances in which someone decides to investigate a

12 certain situation.

13 A. That's correct, sir, yes.

14 JUDGE SWART: So we note a fact that you repeatedly said in your

15 report this morning and yesterday, there was no match as a result of this

16 method of crossing names. But then what does it say? What could you

17 conclude from it?

18 A. I could only conclude that certain matters weren't referred

19 through the district military prosecutor.

20 JUDGE SWART: Given the uncertainties that we have discussed, I

21 wonder whether you could really conclude that.

22 A. Well, certainly for the cases of murder, I think that's the only

23 logical conclusion that I can draw.

24 JUDGE SWART: Yes. But not for the other cases.

25 A. Absolutely not. And I'm not -- I hope I haven't misled the Court

Page 9811

1 and given the impression that I --

2 JUDGE SWART: No, no, no.

3 A. -- that I'm asserting that at all.

4 JUDGE SWART: No. You just state a fact without attaching any

5 consequences or any interferences from it at all.

6 A. That's correct, sir.

7 JUDGE SWART: That's what I'm trying to establish.

8 A. Absolutely. I mean, if there was a failure to report something

9 through to the district military prosecutor or if somebody made a

10 determination immediately upon looking at a particular case and it didn't

11 get referred through to the district military prosecutor, I can't make

12 any comment on that.

13 JUDGE SWART: So the basic problem is there here: Even if you do

14 not find the correspondence, except, as you say, perhaps for murder and

15 manslaughter, this doesn't say at all, or this doesn't say with certainty

16 that there have not been cases reported.

17 A. I would agree with that. I would agree with that wholeheartedly.

18 JUDGE SWART: That's the main point that we have been discussing,

19 I think.

20 A. Yes. And I would agree with that wholeheartedly.

21 JUDGE SWART: Now, I come to my last series of questions to you.

22 It is obvious from the beginning of your testimony yesterday and tomorrow

23 and in answering my questions that you had to face two enormous

24 difficulties. On the one hand, there was this enormous volume of cases,

25 number of cases and registers, and less so case files; on the other hand,

Page 9812

1 you were sent for three days.

2 A. That's correct.

3 JUDGE SWART: You mentioned this as two different problems, but I

4 would say this is the same problem.

5 A. It's certainly --

6 JUDGE SWART: Either you have sufficient time for a large volume

7 of cases or you haven't. So it all boils down, then, to a problem of

8 time.

9 A. Yes, it does. But unfortunately the time element still doesn't

10 resolve those files that were missing.

11 JUDGE SWART: Absolutely sure, that is. And you're absolutely

12 correct that even if you had ten times more days at your disposal, you

13 could not solve all these difficulties you encountered. But

14 nevertheless, you made a number of important choices in relation to the

15 time you had available. For instance, the choice to limit yourself to

16 crimes against a person is such a choice.

17 A. That's correct, sir, yes.

18 JUDGE SWART: And the choice to limit yourself to registers

19 rather than consulting the files themselves is also such a choice.

20 A. That, in many respects, is a choice that we had to make, because

21 if the files weren't there, then the --

22 JUDGE SWART: Yes.

23 A. -- next option was the registers.

24 JUDGE SWART: Yes, of course but if the files are not there, I

25 understand that no matter how much time you would have, you would not be

Page 9813

1 able to advance.

2 A. Precisely.

3 JUDGE SWART: Another aspect might be that if you had had more

4 time, you had probably more discussions on the question where are the

5 missing files and where can we find them.

6 A. Yes, we would have.

7 JUDGE SWART: Yes. And because you had three days at your

8 disposal, there was not the remotest possibility that you could ever do

9 such a thing.

10 A. No, I would say that the failure to ask that question is mine and

11 it's mine alone. I accept responsibility for that.

12 JUDGE SWART: If somebody would have said to you, "Oh, yes, we

13 know. They are in Sarajevo," in such-and-so street, you would have still

14 another problem; yes?

15 A. Yes, we would have. We would have had another problem, but that

16 could be addressed in some form.

17 JUDGE SWART: You also said at the beginning of our conversation

18 that you did not foresee what would be awaiting you, so you came in a

19 predicament, so to speak. If you had known before, you would have

20 planned this investigation in a different manner; or wouldn't you have?

21 A. I would have certainly perhaps either tried to spend some extra

22 time there or take some extra resources with me to try and complete the

23 job in more detail.

24 JUDGE SWART: So you would need a larger team and more time, so

25 to speak.

Page 9814

1 A. Yes.

2 JUDGE SWART: To do the work properly, within parenthesis.

3 A. Yes.

4 JUDGE SWART: Properly is my qualification, do it more

5 thoroughly, then.

6 A. Yes.

7 JUDGE SWART: Okay. Could you give me an estimate of what you

8 would really need to do the work in a very thorough and methodical manner

9 and not having to confront all these limitations that you were pressed or

10 to apply them?

11 A. Yes. If we wanted to cover all the crimes against -- or

12 property-type crimes, anything that could be looting or plundering, I

13 think we would have probably needed another three or four days. If we

14 had had access to every single case file and had tried to review every

15 single case file, then it would have taken us a considerably longer

16 period of time.

17 JUDGE SWART: Well, this sounds optimistic, I must say.

18 Well, I think I have put my questions. Thank you very much for

19 your answers.

20 JUDGE ANTONETTI: [Interpretation] Judge Swart asked you some very

21 complete questions. I would just like to ask you for some

22 clarifications, in view of the answers that you have already provided us

23 with.

24 In a case of this kind in which there are victims who are known

25 or unknown, there are violations of various kinds, crimes of various

Page 9815

1 kinds, when you were involved in the investigation what were the

2 guidelines that you were given to investigate? What sort of guidelines,

3 what sort of instructions were you given in order to search for the truth

4 in relation to these various crimes? This is something that occurred

5 over five years ago, but do you remember what you were told to do, which

6 procedure you were told to follow?

7 A. Sorry, Your Honour, I'm a little confused. Are you talking about

8 the entire investigation or are you talking about this particular

9 mission?

10 JUDGE ANTONETTI: [Interpretation] No, I'm talking about

11 investigations in general.

12 A. In general terms, the first and foremost criteria is to establish

13 the truth. I mean, that's the whole -- the ultimate objective of any

14 interview. But then beyond that, if we have a series of crimes that we

15 are looking at, then we want to get ultimately as much corroborative

16 evidence in respect of those crimes that's available, and we are clearly

17 told that the best means of establishing that truth and that evidence is

18 through interviewing witnesses, searching for documents, and just, you

19 know, normal investigative procedures.

20 JUDGE ANTONETTI: [Interpretation] So there are a number of

21 witnesses, some of whom have testified before the Trial Chamber and some

22 were certainly in a position to recount what happened to them. On the

23 basis of the names of the witnesses that you disposed of, did you tell

24 yourself that it was necessary to check in the military police's

25 registers or in the civilian police's registers whether there were any

Page 9816

1 investigations in which the names of these witnesses might appear? Was

2 this done? If you had the names of the victims who were witnesses, did

3 you have a look at the registers of the military police or at the

4 registers of the civilian police, the MUP? Did you check to see whether

5 there were any investigations conducted?

6 A. No, not in the field itself. Throughout the history of the OTP,

7 obviously volumes of information has come in, and if such information

8 came in about a potential witness and if thorough checks are done

9 beforehand, then those type of things -- before you interview the

10 person -- then those type of details should become obvious.

11 JUDGE ANTONETTI: [Interpretation] You have read the indictment,

12 haven't you?

13 A. Yes, I have.

14 JUDGE ANTONETTI: [Interpretation] Very well. In the indictment,

15 there are the names of some individuals who were killed.

16 A. Yes.

17 JUDGE ANTONETTI: [Interpretation] On the basis of these names, a

18 low-ranking investigator would have to go to check these names in the

19 registers of the military police or the civilian police to see whether

20 there were investigations that had been conducted when these events

21 occurred; isn't this what one should do? Was this done?

22 A. No. No, that wasn't done, sir. No. Certainly it would have

23 been a valuable exercise, in hindsight, to have looked at -- if it was

24 even humanly possible, to --

25 JUDGE ANTONETTI: [Interpretation] As far as you are aware, why

Page 9817

1 wasn't this done? Why wasn't it done?

2 A. No, I can't give you any explanation.

3 JUDGE ANTONETTI: [Interpretation] You went to check the registers

4 in the court, but the registers need to be provided with documents by

5 investigatory officials. In a court, there are two sources of

6 information, either victims who send a letter to the military or civilian

7 prosecutor saying that my house was burned and such-and-such a thing

8 occurred; or the prosecutor is contacted by the investigators, by the

9 military or civilian police and he initiates a procedure and refers the

10 matter to the prosecutor. What is your opinion of this?

11 A. Yes, I would say that those are two quite legitimate sources of

12 how a complaint could commence.

13 JUDGE ANTONETTI: [Interpretation] Very well. Because you know as

14 a policeman that a prosecutor receives information either from victims or

15 from policemen, from investigators, and before he goes to examine the

16 prosecutor's -- before one goes to examine the prosecutor's registers,

17 wouldn't it be best to check to see whether the military or civilian

18 police had forwarded reports to the prosecutor? You're telling us that

19 this is something that wasn't done.

20 A. That's correct. Your Honour, the information that I was provided

21 with prior to conducting this exercise was that all such referrals should

22 have gone through the district military prosecutor. So therefore, that

23 is the simplest point at which to, I understand, to check that these

24 procedures have been in place. Otherwise, one would have to look at a

25 multitude of different agencies.

Page 9818

1 JUDGE ANTONETTI: [Interpretation] When you spent the two days

2 there, you said you were at the site. At that time -- did you meet the

3 prosecutor at that time? Did you see him and did you speak to the

4 prosecutor?

5 A. Yes. In both courts, I spoke to the prosecutor upon my arrival,

6 but not subsequent to that.

7 JUDGE ANTONETTI: [Interpretation] Very well. When you spoke to

8 the prosecutor on these two occasions, you must have told the prosecutor

9 why you were there, because if he saw someone coming from The Hague, he

10 probably wanted to know what you were doing there. So you must have told

11 him what you were doing there.

12 A. [No audible response]

13 JUDGE ANTONETTI: [Interpretation] So you are nodding. When you

14 explained what you were doing there, what was his reaction? What did he

15 say? Did he say, "There are no problems. I'll provide you with all the

16 documents so that you can examine them"? Or did he say that "You will

17 perhaps find certain references but it's necessary for us to have been

18 provided with complaints or information from investigators"? What did he

19 tell you when you told him what you were dealing with?

20 A. Sorry, I thought I'd made it clear yesterday that in advance of

21 this particular mission, when preparation for it [sic], the prosecutors

22 had been contacted before we went.

23 JUDGE ANTONETTI: [Interpretation] Say it again, please.

24 A. Yes. Sorry, in preparation of going down to conduct this

25 mission, the prosecutors had been contacted in advance and they had been

Page 9819

1 asked to provide us with all the case files that had been referred

2 through the district military prosecution service for 1993 and the early

3 part of 1994. So when we arrived, he was expecting us and the material

4 was available for us.

5 JUDGE ANTONETTI: [Interpretation] So just a minute. I'm reading

6 the transcript now. You said that he was asked to provide you with all

7 the files, with all the case files, when you arrived there, were you

8 faced with a pile of files or did you just have registers with numbers on

9 them? When you arrived there, what did you see? Did you see all these

10 case files or did you see a number of registers? Because if there were

11 case files, there must have been volumes of them.

12 A. Yes. We were escorted eventually to a room that was made

13 available for our purposes, and the case files were there, physically

14 there, in the room. And you're quite right; there was volumes of case

15 files, some bound neatly and others in loose piles.

16 JUDGE ANTONETTI: [Interpretation] If I have understood you

17 correctly, you were there and you said that there was an assistant who

18 was also present. But if I have understood you correctly, this was

19 someone under the prosecutor, someone who assisted the prosecutor. It's

20 not someone who went there with you. Because since you have no knowledge

21 of B/C/S, seeing case files in B/C/S would not be useful, so it was

22 necessary for someone to have an understanding of the B/C/S. The person

23 who had a look at the case files -- was that person the prosecutor's

24 assistant or is it someone who accompanied you when you went there?

25 A. The person who interpreted the content of the case files or the

Page 9820

1 material recorded in the register was an interpreter that we took with

2 us.

3 JUDGE ANTONETTI: [Interpretation] But this person was someone

4 whom you took there with you. It wasn't an employee of the prosecutor.

5 The person who read the documents was someone that went there with you

6 from The Hague; is that correct?

7 A. They went there with us. We met them at the Sarajevo field

8 office. They -- both interpreters are local interpreters who are

9 employed by the Sarajevo field office of the ICTY.

10 JUDGE ANTONETTI: [Interpretation] I'm not talking about the

11 interpreter. I'm talking about the person who was by your side in this

12 room, the person who had a look at the case files in that room, who had a

13 look at case file number 1. The person who had a look at the case files,

14 who examined the case files. Who was this person? It can't have been

15 you, as you don't know B/C/S. Who was the person who examined the case

16 files?

17 A. That was one of our -- one of either of two interpreters that we

18 took with us. They read the case files and we recorded the notes.

19 JUDGE ANTONETTI: [Interpretation] Very well. But the interpreter

20 is not a police officer or a judge or a prosecutor or a lawyer. So the

21 person who had a look at the case files apparently didn't have any

22 particular knowledge of criminal law or of international humanitarian

23 law, so this way of proceeding seems to be somewhat amateurish. Why

24 didn't you take a professional with you, someone who upon examining the

25 case files would immediately know whether it concerned aggravated theft,

Page 9821

1 simple theft, murder? Why didn't you take a professional with you? It's

2 our impression that you asked an interpreter to tell you what the case

3 files contained. Is that what happened?

4 A. That is precisely it. We asked the interpreters to review, read

5 and tell us what the contents of each case consisted of, and we made the

6 determination.

7 JUDGE ANTONETTI: [Interpretation] Very well. But to read the

8 legal documents takes a lot of time. It's very complicated. And if you

9 had volumes of material in a room, how is it that you had enough time to

10 work in a serious manner? In your opinion, this way of proceeding was a

11 serious way to approach the problem or not?

12 A. It was, in my opinion, it was the only practical way of

13 approaching it, and it is the same manner that we --

14 JUDGE ANTONETTI: [Interpretation] I'm not asking whether this was

15 the only possible way. In terms of technical efficiency, was that a good

16 way to proceed? Were there no other more efficient ways to proceed in

17 order to eventually be able to answer the judge's questions, the

18 prosecutor's questions, the defence's questions? Was there no other way

19 than to place your trust in an interpreter to translate for you very

20 complicated legal documents? So was -- an interpreter was not capable of

21 assessing the contents of the file. Could you not approach that whole

22 exercise in a more scientific way?

23 A. No, I don't think the outcome would -- I don't think the outcome

24 would have differed. I mean, a request for an investigation was prepared

25 by a -- well, one of the -- either the military police or the military

Page 9822

1 security organs. So it wasn't -- I don't believe it would be a

2 scientifically difficult document to interpret. And then if an

3 indictment was issued as a consequence, again, I don't believe that it

4 requires a scientific background to interpret that. We certainly weren't

5 asking the interpreter to make a scientific assessment.

6 JUDGE ANTONETTI: [Interpretation] Very well, then.

7 It is half past 12.00, and we will resume in about half an hour.

8 We will give the floor to the Defence counsel for re-examination. Thank

9 you.

10 --- Recess taken at 12.32 p.m.

11 --- On resuming at 1.00 p.m.

12 JUDGE ANTONETTI: [Interpretation] After the Judges' questions, I

13 am looking at the Defence counsel.

14 Mr. Bourgon, do you have any more questions? You have

15 three-quarters of an hour.

16 MR. BOURGON: [Interpretation] Thank you, Mr. President. This is

17 a Prosecution witness, so I would like to Prosecution to go first if they

18 have any re-examination.

19 JUDGE ANTONETTI: [Interpretation] The Prosecution, do you have

20 any re-examination?

21 MS. HENRY-BENJAMIN: Yes, Mr. President, just one.

22 Further examination by Ms. Henry-Benjamin:

23 Q. Mr. Hackshaw, for clarification sake, could you please tell us

24 from whom you receive your instructions.

25 A. I received my instructions in relation to this specific mission

Page 9823

1 from both Daryl Mundis and Tecla Benjamin.

2 Q. Okay. But my question refers to the general basis. As acting

3 team leader of team 9, and even as an investigator, from whom do you

4 normally receive instructions?

5 A. From either a member of the trial team or the deputy chief of

6 investigations.

7 Q. So you could take instructions from an investigator below you?

8 Is that it?

9 A. Yes. I would certainly not be afraid to take instruction from an

10 investigator.

11 Q. No, no, no. It's not what you'd be afraid. What is the norm?

12 Who -- let's say a mission is supposed to be instituted. Normally who

13 institutes instructions with respect to missions with investigations,

14 generally?

15 A. The deputy chief of investigations through the chief of

16 investigations.

17 Q. Thank you.

18 JUDGE ANTONETTI: [Interpretation] And what is his name, the chief

19 investigator's name, that is?

20 THE WITNESS: It's Mr. Patrick Lopez-Terres, and the deputy chief

21 of investigation is Mr. Bob Reid.

22 JUDGE ANTONETTI: [Interpretation] Thank you.

23 And now on to Mr. Bourgon, if there are any additional questions.

24 MR. BOURGON: [Interpretation] Thank you, Mr. President. With

25 your permission, I would like the witness to be shown the three documents

Page 9824

1 that he was shown previously. I will base my questions on those three

2 documents.

3 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, can we have

4 these documents, please.

5 What are the documents?

6 MR. BOURGON: [Interpretation] I would like to begin with the

7 document bearing the -- bearing number "6." I am going to be referring

8 to documents from 6 to 12.

9 In order to facilitate the procedure for the Chamber, I would

10 like to say that these documents refer to Dusina, Susanj, Totic, and the

11 documents that refer to the investigations.

12 JUDGE ANTONETTI: [Interpretation] Go ahead.

13 MR. BOURGON: [Interpretation] Thank you, Mr. President.

14 Further cross-examination by Mr. Bourgon:

15 Q. Mr. Hackshaw, I have a few quick questions for you, and my first

16 one relates to something further to your response to the Presiding Judge

17 concerning Dusina. You mentioned concerning Dusina that the names of the

18 people involved were known early because you did see some kind of a

19 document about some paraffin test. Is that correct?

20 A. That's correct. I'm talking specifically about the victims'

21 names.

22 Q. And then because there was the names were known early, you

23 concluded that there should have been a document referred to the district

24 military prosecutor.

25 A. Yes, that's correct.

Page 9825

1 Q. And in response to my question earlier on, you said that you did

2 not find any documents about Dusina and that you were in fact surprised

3 about this issue.

4 A. Yes, I was. That's correct.

5 Q. And when I showed you the document number 6, you did not find

6 this document in the district military prosecutor's archives; is that

7 correct? That's the document about Dusina, which is number 6.

8 A. Yes. That's correct.

9 Q. Let me move on to document number 7, and that is Susanj. Can you

10 confirm that Susanj was indeed an investigative issue, as the leader of

11 team number 9?

12 A. Yes, I can.

13 Q. Can you confirm that the document which you see, document

14 number 7, which is a document from the district military court in Zenica,

15 that you did not find this document during your mission in June of 2004?

16 A. Yes, I can confirm that.

17 Q. Thank you. I move quickly to document number 9, and I don't want

18 to repeat, because this was covered in the examination-in-chief, but just

19 to say it once again that Totic is an investigative issue in this case.

20 A. He certainly is, yes.

21 Q. And that you did not find this specific document during your

22 mission in 2004.

23 A. That's correct.

24 Q. Let me move on to document number 10, please. Document number 10

25 is a document from the Military Police Battalion. Do you have this

Page 9826

1 document, a document dated the 20th of March, 1994?

2 A. Yes.

3 Q. Now, we already confirmed based on -- at paragraph A that from

4 the 14th of September, 1992 until 1 March of 1994 there were 377 criminal

5 reports filed.

6 A. That's correct.

7 Q. Now, in response to a question, you did say that the number of

8 files you saw yourself in Zenica was much higher.

9 A. That's correct.

10 Q. Which -- we can conclude, I suggest to you, that it means that in

11 addition to the 3rd Corps Military Police Battalion, other units in the

12 3rd Corps also submitted complaints.

13 A. Yes.

14 Q. Now, you never saw these 377 complaints.

15 A. No, I don't believe I did.

16 Q. And if we look at the next page -- no, sorry, don't look. We'll

17 just say -- I'll keep it short. So you never saw these documents.

18 Now, would I be right in saying that you did not possess this

19 information until it was actually filed by the Defence as an exhibit,

20 DH155, second document in a series of documents? Is that correct?

21 MS. HENRY-BENJAMIN: I do not think that he should be asked to

22 answer that question. He is not a part of this trial, Mr. President, and

23 I reiterate that this is not the witness -- aside from the fact that this

24 did not arise out of the Judges' questions.

25 JUDGE ANTONETTI: [Interpretation] After the Judges' questions,

Page 9827

1 your questions have to arise from the Judges' questions, as Mrs. Benjamin

2 has rightly said. Your question does not arise from any of the Judges'

3 questions.

4 I have a question of a general nature for you, Witness. There

5 was an investigation. A procedure was underway. There was a team of

6 investigators which always existed, team number 9. During the procedure,

7 did you continue to follow the developments in the proceedings? Were you

8 as a team of investigators able to follow the developments either

9 officially or unofficially? In your capacity as an investigator, would

10 you not be curious as to find out what the result of your investigation

11 was? Are you abreast of what is going on in the process that you were

12 involved with? So this is a very general question.

13 THE WITNESS: Yes. And -- in general terms, yes; we were

14 involved in ongoing -- all ongoing aspects to have case.

15 JUDGE ANTONETTI: [Interpretation] To follow up on the question

16 that was put to you: For example, during a trial there are documents

17 that arrive, and the investigator did not see them. Would that not be a

18 problem for you? Would you not find this a problem?

19 THE WITNESS: Yes, it -- that could be seen as a problem. There

20 are certain persons who perform certain tasks who obviously have a -- and

21 for example, in relation to documents, one of the criminal analysts on

22 the team would be responsible for processing such documents, bringing

23 them to the attention of the trial team for their more learned

24 assessment. So although in general terms you could say yes, most people

25 had a reasonable knowledge of all aspects. Detailed knowledge was

Page 9828

1 reserved for certain persons.

2 JUDGE ANTONETTI: [Interpretation] Very well.

3 Proceed, Mr. Bourgon.

4 MR. BOURGON: [Interpretation] Thank you, Mr. President. I would

5 like to inform the Chamber that my -- that as a matter of fact it would

6 be very important to know how come that an investigation is carried out,

7 how it should be organised, what instructions an investigator receives.

8 I would like to put those questions to the witness and hear from the

9 witness how the instructions influenced the investigation. If you will

10 allow me, I would like to ask him that as the team of investigators [as

11 interpreted].

12 JUDGE ANTONETTI: [Interpretation] Yes, you may put that question.

13 Anything that may help us to arrive at the truth is more than welcome.

14 Go ahead.

15 Q. [Previous translation continues] ... [In English] Item number 11

16 is a work entitled "On the work of the Travnik military prosecutor's

17 office," and it is a document dated 10 January 1994. It is a document

18 which bears the exhibit number DH119, and it is a document which was

19 obtained by the Defence from the district public prosecutor's office in

20 Travnik. Do you have this document, Mr. Hackshaw?

21 A. I'm just checking now.

22 JUDGE ANTONETTI: [Interpretation] He has the document. The

23 witness has the document.

24 MR. BOURGON:

25 Q. Do you have the document now, Mr. Hackshaw?

Page 9829

1 A. Yes, I do. I have 119. Yes.

2 Q. Yes, that is correct. That is the right document.

3 I would like to refer you to -- on this document to page 3,

4 simply to confirm that on this page 3, paragraph 2 there is a mention

5 that 823 criminal reports concerning 1.044 persons were received by the

6 military district prosecutor of Travnik. Is this what you see on this

7 document? That's page 3, paragraph 2, with the number 2.

8 A. Yes, that's what it says.

9 Q. And if we turn to the next page on paragraph 5. The paragraph

10 bears the title "Breakdown of persons charged." And we see in this

11 paragraph, if you can confirm that, 627 members of the Army of Bosnia and

12 Herzegovina were charged during this period. Is this what you can see

13 from this document?

14 A. That's precisely what I can see.

15 Q. Now, I would like to know if this information was ever made known

16 to you in your capacity as team leader for this investigation; if and

17 when this information was ever made available to you.

18 A. As far as I recollect, this information wasn't something that I

19 was familiar with.

20 Q. Would it be correct to say that if you were not familiar with

21 this information, that you as the leader of team number 9 are not able to

22 say what the 823 criminal complaints were about?

23 A. No. My -- the only way I would know what those individual

24 complaints were about would be by performing the exercise that I tried to

25 perform.

Page 9830

1 Q. Thank you. If I move quickly to the next document, which is

2 document number 12. And document number 12 is a document which bears the

3 evidence number DH274. It is a document dated 12th of December, 1993,

4 and it was a document which the Defence obtained from the Zenica district

5 military court. Do you have this document, Mr. Hackshaw?

6 MS. HENRY-BENJAMIN: Mr. President, may I ...?

7 JUDGE ANTONETTI: [Interpretation] Ms. Benjamin.

8 MS. HENRY-BENJAMIN: I am not sure if we are following the normal

9 path. I got the impression that this session was in respect to the

10 Judges' questions, the issues that arose out of the Judges' questions.

11 It seems to me that my friend is having cross-examination a second time

12 around. He had this list before. He had the opportunity to do just

13 this, and he failed, and it seems to me he wants another bite of the

14 cherry, and I don't think it's very fair, unless the Prosecution is going

15 to be given the opportunity to reply.

16 JUDGE ANTONETTI: [Interpretation] The Prosecution is going to be

17 given the opportunity to reply. The questions that you are putting to

18 the witness, can you please clarify what they arise from.

19 MR. BOURGON: [Interpretation] As I've already explained, I'm

20 going to use the 13 documents and the scope is to find out why he carried

21 out the mission, what instructions he had received, and what information

22 did he have before arriving in Bosnia. And I wanted to find out what was

23 the information pertinent to his mission in Bosnia.

24 JUDGE ANTONETTI: [Interpretation] Yes, you may ask the questions

25 about the last document.

Page 9831

1 MR. BOURGON: [Interpretation] Thank you, Mr. President.

2 Q. [Previous translation continues] ... [In English] And on the

3 first page, and that is on the fourth paragraph, I believe. Yes, a

4 paragraph which begins with "During." Now, this is something that we saw

5 yesterday. That's just to establish the basis for my question. And

6 yesterday you confirmed that during that year the Zenica district

7 military court received 432 criminal cases involving 869 individuals. So

8 that was confirmed yesterday. Would you agree?

9 A. That was something that was presented to me, was it?

10 Q. Yes.

11 A. Yes, then I would agree.

12 Q. Now, I would like to know if this information was made available

13 to you in any way, and if so, when was it made available and in what

14 form.

15 A. No. That information wasn't made available to me. I didn't have

16 any idea -- any preconceived idea about the quantity of information that

17 would be available to us.

18 Q. So would I be right in saying, Mr. Hackshaw, that you are not

19 able to say what exactly the number of complaints, the 432 criminal

20 complaints filed, what they were about?

21 A. No. You would be correct in saying that.

22 MR. BOURGON: [Interpretation] Thank you, Mr. President. I have

23 no further questions.

24 I just wanted to introduce documents. I want to tender these

25 documents once we've finished.

Page 9832

1 JUDGE ANTONETTI: [Interpretation] The other Defence team, any

2 questions?

3 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President.

4 Can we please go into private session before I start putting my

5 questions?

6 JUDGE ANTONETTI: [Interpretation] Yes. Mr. Registrar, can we go

7 into private session, please.

8 [Private session]

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Page 9835

1 THE REGISTRAR: Your Honours, we are in open session.

2 Further examination by Ms. Henry-Benjamin:

3 Q. Mr. Hackshaw, on a daily basis how often do you watch the trials

4 in the ICTY, and in specifically the Hadzihasanovic/Kubura trial?

5 A. Very rarely.

6 Q. Are you presented at any time with an update as to documents that

7 are being marked for identification or tendered into evidence in this

8 trial?

9 A. No. No, I'm not.

10 Q. And as far as you're aware -- the team 9 is composed of many part

11 parties, but as far as you're aware, who heads the party that deals with

12 the matter Hadzihasanovic and Kubura?

13 A. Daryl Mundis.

14 Q. And before Daryl Mundis, who had conduct of this trial?

15 A. Ekkehard Withopf.

16 Q. Would you agree with me if I say that the acting team leader and

17 the deputy chief of prosecution has no conduct of this trial in any way?

18 A. No, we do not conduct this trial.

19 Q. Thank you.

20 JUDGE ANTONETTI: [Interpretation] Thank you.

21 I'll hand document DK6 back to the registrar.

22 This concludes your examination, Witness. As you know, sometimes

23 investigators have to testify. This is the case in a number of

24 countries, and it's quite normal for the chief of investigations to

25 testify before judges. It is our understanding that this is your first

Page 9836

1 time. This is the first time you have testified. You have answered all

2 the questions put to you and the questions put to you by the Prosecution,

3 by Defence counsel, and by the Judges, who would like to thank you for

4 having contributed to assisting the Judges in understanding the

5 situation, and we wish you all the best in team number 9.

6 I will now ask the usher to escort you out of the courtroom.

7 THE WITNESS: Thanks very much, Your Honours.

8 [The witness withdrew]

9 JUDGE ANTONETTI: [Interpretation] Very well. As far as the

10 documents are concerned -- Mr. Bourgon, I can see that you're already on

11 your feet. I haven't even had the time to turn towards you. What is it

12 that you would like to say?

13 MR. BOURGON: [Interpretation] Thank you, Mr. President. With

14 regard to the two documents that I would like to tender into evidence

15 following the testimony of Mr. Hackshaw. On the list of documents we

16 have provided, we have document number 1, which is a letter dated the

17 4th of June, 2004. The title is "Cases referred to district military

18 courts relating to crimes set forth in the Third Amended Indictment."

19 The witness had the opportunity, Mr. President, of discussing the letter,

20 and he was familiar with the contents of the letter. As a result, we

21 would like the letter to be admitted into evidence.

22 And my second request concerns document number 9, Mr. President,

23 which is a document dated the 15th of April, 1993. And the title of the

24 document is "Record on investigation." This document comes from the

25 district military court in Zenica and deals with the events surrounding

Page 9837

1 Mr. Totic's kidnapping. The witness also stated that the kidnapping of

2 Mr. Totic -- in fact, he spoke about everything that surrounded this

3 event. The witness said that his attention was drawn to this issue.

4 This is an official document that comes from the court's register, and we

5 would like this document to be admitted into evidence. Thank you,

6 Mr. President.

7 JUDGE ANTONETTI: [Interpretation] As far as the documents that

8 Mr. Hadzihasanovic's Defence counsel has produced, we have two numbers.

9 One relates to a letter dated the 4th of June, and the other document is

10 dated the 15th of April, 1993.

11 Ms. Benjamin, are there any objections to these two documents

12 which were shown to the witness and the witness said that these documents

13 were some that he had dealt with as an investigator? Are there any

14 objections you would like to raise?

15 MS. HENRY-BENJAMIN: I'm not sure that we should raise any

16 objections if in fact the witness had dealt with the documents, but I

17 think the witness in some instances said that he was now seeing them for

18 the first time and on the face of it, it looks okay. That to me would

19 not have been the proper foundation that we would want from a witness in

20 order to tender same into evidence. But if the Trial Chamber is

21 satisfied with the foundation that was laid, the Prosecution has no

22 objections.

23 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, could we have

24 two final exhibit numbers for these two documents, please.

25 THE REGISTRAR: Your Honours, the document dated the 4th of June,

Page 9838

1 2004 gets the exhibit number DH339. The document dated the 15th of

2 April, 1993 gets the exhibit number DH340, and its English translation

3 gets the exhibit number DH340/E.

4 JUDGE ANTONETTI: [Interpretation] We have one last document which

5 was presented by Mr. Kubura's Defence counsel. This document refers to

6 another document that was admitted. There is a correlation between these

7 two documents.

8 Ms. Benjamin, any objections to raise?

9 MS. HENRY-BENJAMIN: Yes, Mr. President. And definitely this one

10 we're going to object to because this witness has nothing to do with this

11 document. He knew not of the document. And he couldn't assist the Court

12 in any way, and I can't see how my friend could want a document like this

13 to be tendered through a witness like this. This is not the appropriate

14 witness.

15 [Trial Chamber confers]

16 JUDGE ANTONETTI: [Interpretation] Very well. We will give this

17 document a final exhibit number but it will be under seal, as it should

18 be considered as a confidential document.

19 THE REGISTRAR: Your Honours, the document will have the number

20 DK14, under seal.

21 JUDGE ANTONETTI: [Interpretation] DK14, under seal. Thank you.

22 Any other issues to raise, Mr. Bourgon? I was going to turn to

23 the issue of the other documents that we mentioned yesterday.

24 MR. BOURGON: [Interpretation] Mr. President, I would just like to

25 say that tomorrow I will be making submissions to clarify the situation

Page 9839

1 about the files that were shown by one of the Judges to the witness. I

2 would like to clarify the situation, to show where the documents came

3 from. I'll do that tomorrow, Mr. President. Thank you.

4 JUDGE ANTONETTI: [Interpretation] Very well. Yesterday the

5 Prosecution -- but we will go into private session first.

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24 I will see everyone tomorrow at 9.00. Thank you.

25 --- Whereupon the hearing adjourned at 1.50 p.m.,

Page 9844

1 to be reconvened on Wednesday, the 30th day of

2 June, 2004, at 9.00 a.m.

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