1 Friday, 4
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.17 a.m.
5 THE REGISTRAR: Good morning, Your Honours.
6 Case number IT-95-14/2-T, the Prosecutor versus Dario
7 Kordic and Mario Cerkez.
8 JUDGE MAY: Mr. Nice, there are, I think,
9 three areas, as I recollect, to be discussed; three
10 village dossiers, the tape evidence, and I think, in
11 general, transcripts. I don't know what order is most
12 convenient. The shorter, possibly, first.
13 MR. NICE: Can I make a proposal? Apart from
14 matters of information that I must provide, can I
15 suggest we turn then to the tapes and from the tape to
16 the transcripts, because the transcript issue feeds
17 into or will have consequences for the binder issue.
18 JUDGE MAY: You can take, as it were, them
19 together, but it clearly would be sensible to deal with
20 the tape first as it is the matter which is freshest in
21 our mind and we have to resolve.
22 MR. NICE: Can I, before I come to the tape,
23 deal with a couple of outstanding issues.
24 Affidavit so-called evidence, the Chamber
25 will remember that I mentioned at the beginning of the
1 week that we have finally been informed of the
2 possibility of a request going to Bosnia for the
3 appointment of a Judge who will authenticate
4 signatures. I said at the beginning of the week we
5 will make the request ourselves unless, if the Chamber
6 givers thought to it, the Chamber would prefer to issue
7 the instruction itself, and in any event, the request
8 will have to go or possibly be followed by statements
9 of witnesses and, of course, provision of statements of
10 witnesses to a third party is something that really
11 needs the court sanction.
12 The position is that we have a request that
13 we are in a position to forward today with some witness
14 statements attached to it, and if the Chamber is not
15 itself disposed to seek the appointment itself of a
16 Judge, if it's had a chance to think about it, then we
17 will forward that request, but we would seek leave of
18 the Chamber to append witness statements.
19 JUDGE MAY: Clearly it must be done as
20 quickly as possible. It would seem more expeditious if
21 the Prosecution undertook the task rather than doing it
22 via the Trial Chamber.
23 MR. NICE: Done.
24 JUDGE MAY: Yes. That's what we'll do. You
25 can have leave, if you need it.
1 MR. NICE: Of the four witnesses who had not
2 responded to subpoenas, there was one in respect of
3 whom I notified your Legal Officer I would give further
4 consideration in light of the pressures of time. We
5 consider, in light of those pressures, that it's not
6 justified to seek an affidavit against that one. I can
7 name him. It's the name Ribo. So we don't seek any
8 further action in respect of Ribo.
9 The next point relates to the map provider,
10 Elford. The Defence for Mr. Kordic have served a
11 Rule 94 cross-notice. I suppose seeking, thereby, to
12 both establish that he's an expert and then to try and
13 prove that he's not an expert; a highly technical
15 We don't advance him as an expert. He may,
16 in fact, have expertise. I don't know. Lots of
17 people, when they come to the witness box to give
18 evidence of fact suddenly give bits of evidence of
19 expertise and technical points that aren't taken. So
20 the mere serving of a counter-notice isn't going to
21 achieve some fascinating technical success for the
22 Defence that they might have hoped.
23 They ask for his background. I said I'll
24 provide it without prejudice. I gather he's got
25 degrees in international relations and was an analyst
1 in the Army for a time. He's here as an Army Analyst.
2 No doubt if the negotiation seems to be attractive to
3 Mr. Kovacic, not attractive to those representing
4 Mr. Kordic, they'll be in a position, if it's
5 necessary, for him to be called and him to be
6 cross-examined. That's really as far as I can go on
8 As far as tapes are concerned, we've had the
9 tape listened to by a language speaker. We understand
10 them to be identical. Mr. Stein tells me otherwise and
11 that there are two bleeps or electronic bleeps on one
12 tape and not on the other. Our language assistant
13 tells us they are present on both. I recollect
14 hearing, I think on one tape, if I've got it right, a
15 sound that happens sometimes when a mobile phone is
16 near to an electronic device, but that's all I can
18 Mr. Stein tells us that the conversations 10
19 and 11 are missing. Again, that doesn't accord with
20 our understanding. We understand that they are
21 entirely parallel, one with the other.
22 But I understand that Mr. Stein accepts that
23 apart from those two matters, of which he may make
24 observation, the tapes are, indeed, identical.
25 Our language assistant tells us that there
1 may be some difficulty with or divergence of the index,
2 and probably at the point I had difficulty with the
3 conversations, but that's as far as any comment he has
4 to make is made available to you.
5 So I would ask us to get on with the argument
6 about the tape and bring it to a conclusion.
7 JUDGE MAY: Yes, Mr. Stein.
8 MR. STEIN: Thank you, sir.
9 May it please the Court, first with regard to
10 Mr. Elford, the map expert. It is my hope that by next
11 Monday we will have worked all matters out. However,
12 in an exercise of caution, Mr. Elford is a military
13 analyst. His report, at first reading, is not merely
14 about maps. It's about troop strengths and troop
15 movements, and it's clearly an analysis of testimony in
16 other Tribunal cases, including the testimony of
17 General Blaskic. Except to note my exception to what
18 Mr. Nice just said, I don't want to burden the Court
19 further on something that may be moot.
20 With regard to the audiotape, I'd like to
21 state my own position, as opposed to having the
22 Prosecutor state it for me.
23 This issue gets curiouser and curiouser. The
24 tape that I have before me, the one that was given to
25 us by the Prosecution which has now been marked into
1 evidence as Exhibit Number 2801.1, that which the
2 Prosecutor supplied to us is distinctly less audible
3 than the copy which was given to us by the witness and
4 made a copy of, so I would like Your Honour to consider
5 the following: First, the copy's quality is at wide
6 variance. Second, there are two electronic noises -- I
7 don't know what they are -- on the copy that we
9 JUDGE MAY: Whereabouts in the tapes do the
10 electronic noises appear?
11 MR. STEIN: Yes, sir. As to the first
12 electronic noise, if you turn to Document 2801.2A,
13 Z2801.2A, which is the Croatian transcript, it's on
14 page 2, line 13. And using that same document, there's
15 also an electronic noise at the end of the first side,
16 which would be side B, which would be on page 18. I
17 don't know what they mean, but I'm not prepared to say
18 what they are or are not.
19 Moreover, if we can turn to the English
20 version, 2801.2B, and compare the English version with
21 Exhibit 2801.3, which is the index of the tapes,
22 according to the witness, if Your Honour recalls, the
23 index was prepared contemporaneously to the recording.
24 The index purports to show that there were nine tapes
25 transposed from microcassettes on -- I'm sorry, 11
1 tapes transposed, 11 recordings transposed from
2 microcassettes on side A, and they are listed 1 through
3 11 on Exhibit 2801.3. And then on side B, there are
4 three tapes that have been transposed from the
5 microcassette to the larger cassette. That index is
6 referenced at the witness's ICTY statement dated 4
7 December 1999 at the last page, and that is a listing
8 of the same evidence that appears at 2801.3.
9 When listening to the English -- I'm sorry,
10 when listening to the tape and following it in either
11 English or Croatian, you get to, on the Croatian
12 version, page 17 -- that would be 2801.2 -- and on the
13 English, page 18, and that's the end of the ninth
14 conversation, that conversation allegedly being between
15 Mr. Pero and Mr. D. Grubesic. Numbers 10 and 11 don't
16 exist. You'll find on the English transcript, at page
17 18 and page 19, that which is on the tape, and that
18 which is on the tape is not only inaudible but it's
19 clearly not two conversations. There's no break. It's
20 very short, no more than 30 or 40 seconds, and it
21 certainly does not consistently follow that which is on
22 the index as listed on Exhibit 2801.3, nor on the
23 witness's statement.
24 Indeed, Mr. Nice, when he was ticking off for
25 you exactly where each statement occurred, mentioned at
1 Day 118, the LiveNote version at line 98 -- and I
2 believe the full transcript version would be at page
3 13754 -- that he didn't know himself where
4 conversations 10 and 11 were. Indeed, he said,
5 "Conversation 9 starts on page 14, line 9, goes on to
6 page 18, line 25," so that --
7 JUDGE BENNOUNA: [Interpretation] Mr. Stein,
8 could you clarify for the Trial Chamber, because either
9 you are challenging -- well, you've been asked to
10 verify things yourself to see whether the tapes are all
11 right, as such, and there isn't too much of a
12 difficulty in respect of the tapes and the relationship
13 with the transcript. If you are challenging them,
14 you've got to state that, and at that point we can --
15 as we have provided for, we will ask for a professional
16 translator to write a report about it as quickly as
17 possible. We're not going to go into each line and
18 page by page and types of conversation at this
19 hearing. There's no reason; it's pointless.
20 My question is also to know whether if you
21 are challenging this, you've got to say it.
22 Now, are you also challenging the fact --
23 that's what we're interested in is not the other
24 conversations but rather the conversation where the
25 accused are involved, or the accused Mr. Kordic
1 specifically, and I would conclude by saying are you
2 challenging that this is also the accused on the
3 recording that you listened to? Is that the accused on
4 the recording in question? Are you challenging that as
5 well or do you accept that?
6 If there is a detailed problem that you are
7 challenging in respect of the type of transcription,
8 then you've got to give it to a professional. We're
9 not going to do it here in the hearing.
10 MR. STEIN: Let me respond to both. As to
11 taking the tapes to a professional, the only part of
12 the tapes that should be taken to the professional is
13 page 18 through 19 of the English. There simply is no
14 tape conversation as set forth in the Prosecutor's
15 proffer at 10 or 11, as to whether or not Mr. Kordic
16 appears, his voice appears at some but not all of the
18 JUDGE MAY: I think the relevant part is the
19 first conversation. Is there any dispute about any
20 part of that?
21 MR. STEIN: There is a dispute in the sense
22 of this, Your Honour: We don't dispute that
23 Mr. Kordic's voice appears on that tape. Whether or
24 not it was sliced and diced, put in, we do not accept.
25 And the reason we don't accept it is just the
1 surrounding issues of this tape itself.
2 If you recall the testimony, this was one
3 recording that went on on 24 January, 1993, allegedly
4 the most interesting recording. There were others that
5 went on before. There were times the tape machine was
6 turned on and turned off. The witness who proffered
7 the tape never heard the original conversation, and
8 these conversations were all recorded by individuals
9 under his command. If they have the electronics to
10 listen in, they certainly have the electronics to put
11 together the snatches of conversations. We don't know
12 the time and, indeed, it is in many instances
13 inaudible. Whether it's inaudible because you can't
14 hear or they turned the tape on and turned off is
16 Additionally, the recording then starts off
17 on February 22nd. A full month of electronic
18 surveillance, and then all of a sudden, on the 22nd of
19 February through to the 25th, they're recording for
20 three days running.
21 Now, this goes directly to integrity, and I'd
22 ask Your Honours to consider this: The witness
23 testified that he was under instructions to give up the
24 tape recording in 1993 -- 1996. Pardon me. He
25 testified and his statement is that he gave up the
1 recording to his superiors in the Intelligence Unit.
2 He says, however, he kept something, a copy, and it's
3 unclear whether he kept a copy or the original
4 recording. That's a disparity all over the record. It
5 defies belief and common sense that he would keep the
6 first recording, the original recording, and turn over
7 a copy to archives and his superior. Moreover, it
8 further defies belief that in 1999, this being the only
9 souvenir of the war that he kept, he would again use
10 the came process and turn over to his superiors a third
11 copy, having kept the second. So that what we have in
12 court should be a copy of a copy, and the sound should
13 get progressively worse, but that which we copied
14 today, that which was given to us by the witness, is
15 clearer than that which was given to the ICTY. So it's
16 in confusion.
17 My last point, of course, is the A/B point.
18 And as Mr. Nice again acknowledged, the witness
19 indicates he's recording on side A, but as the
20 transcript shows you, side B is that which is coming to
21 us. Now, is that just a transcription error, a
22 plopping in the tape error? I don't know but I don't
23 think so. If you're taping with new tape equipment,
24 you start with side A. That which appears on the
25 transcript is side B.
1 So the integrity of the process is still
2 being called into question. There are large gaps in
3 the chain of custody of this, allowing for electronic
4 tampering. The witness himself is incredible. In
5 terms of all the souvenirs that he kept this is the
6 only one, and he used it for training purposes,
7 according to his testimony. He kept it for training
8 purposes, but he never trained anyone with it. Then
9 miraculously, in 1999, when they need evidence, he
10 turns it over to his superior --
11 JUDGE ROBINSON: Mr. Stein, you refer to the
12 possibility of your client's voice being sliced, diced,
13 and put in. Is there any technology that can determine
15 MR. STEIN: I believe if you have the
16 original tape you can determine the technology. I
17 don't purport to be an expert, Your Honour.
18 JUDGE MAY: Anything else, Mr. Stein?
19 MR. STEIN: No, sir. I encourage the Court,
20 if the Court is going to have a translator listen to
21 this, only to listen to those two relevant segments
22 to --
23 JUDGE MAY: Is the translator going to help
24 us? Because it's not a translation question. You say
25 there is a sound on the tape, and you say the two parts
1 are missing.
2 MR. STEIN: That's right. And you won't find
3 Mr. Kordic's or Blaskic's voices in 10 or 11 -- in 10,
4 Kordic and Petkovic in 11. It's noted that those are
5 conversations between the two of them, but you won't be
6 able to find that or hear that. So that which -- if
7 anybody is going to check anything, it should be
8 limited to that on page, although I don't think that
9 takes us very far.
10 JUDGE MAY: Pages 18 and the top of 19, in
11 our transcripts.
12 MR. STEIN: Exactly. Line -- well, you have
14 JUDGE MAY: They don't seem to be -- I mean,
15 I note it's described as the conversation starts: "Put
16 the Colonel on. Hello, Dario." but I don't suppose
17 it's going to take anybody very much further.
18 MR. STEIN: Exactly.
19 JUDGE MAY: There is, in fact, I think I'm
20 right in saying, having looked at this transcript,
21 there is one conversation which is of importance,
22 possibly another of marginal importance it seems.
23 MR. STEIN: Yes. And that's the point I
24 forgot. Thank you for jogging my memory. The most
25 important conversation, I think, the Prosecution wants
1 to focus on, and the Court, is the first, which is
2 clear. All of it's perfectly audible save one part,
3 but the rest aren't, and I ask Your Honours to consider
4 that as well. Same device, same technology, same
5 process. It should be the same relative result. It's
6 curiouser and curiouser. Same line, same telephone,
7 same micro-cassette, same major cassette.
8 Now, we're always handicapped six years later
9 recreating what happened, and of course we're
10 absolutely handicapped without the originals.
11 JUDGE MAY: Thank you.
12 MR. STEIN: Thank you, sir.
13 JUDGE MAY: Mr. Nice, I'm looking at the
14 clock. Briefly, please.
15 MR. NICE: Well, I'm not sure this is, as it
16 were, the concluded argument on admissibility or if
17 we're at an interim --
18 THE INTERPRETER: Will you slow down,
19 Mr. Nice, please.
20 JUDGE MAY: We are going to consider it, but
21 if you want to add something, do. We'll consider --
22 there are two things, really, and there are two
23 possible ways of going forward. One is to decide the
24 matter now. The other one is to call for further
25 investigation. But as I've indicated to Mr. Stein, I'm
1 not sure there is any useful investigation which we
2 could undertake. It's not a translation question, it's
3 a question about a bleep and something missing.
4 MR. NICE: As between the tapes, the only
5 further easy exercise that could be engaged in here is
6 for representatives of each side, who apparently held
7 different views and each speak the language, to sit
8 down and listen to the tapes and come to an agreement
9 as to there is or there isn't a passage there. That
10 shouldn't be, in itself, difficult, and that shouldn't
11 hold up proceedings.
12 THE INTERPRETER: Can you slow down,
13 Mr. Nice, please.
14 MR. NICE: -- technical nature -- first
15 apology of the day to the interpreters. I suggest that
16 they have a red card in each window that they put up or
17 rap on the window and I would be happy to oblige. Very
19 As to other inquiries, frankly inappropriate
20 at this stage of the trial, and a reflection of just
21 how completely inappropriate this application to
22 exclude is, Mr. Stein says things about electronic
23 facilities and electronic tampering. He's had the tape
24 for some time, and we know they have the resources.
25 Either it is or is it is not capable of being
1 established whether there has been electronic
3 It may well be that it is possible. Your
4 Honours have heard this tape, in part, the critical
5 conversation, it may be possible to say whether there's
6 an electronic tampering. Of course, what would happen
7 and what should happen is that the tape should be
8 admitted. We have provided every material that we can,
9 and the matter can then be taken forward.
10 Had there been full and complete challenges,
11 as there should have been, to the witness, then we
12 would have been in a position ourselves to consider do
13 we call further evidence? For example, we can call the
14 people who took the original micro-cassettes. At the
15 moment, on the evidence, effectively unchallenged, of
16 the witness, we don't have to. But if they're really
17 going to challenge, cut it, slicing and dicing, we can
18 call the makers of the cassettes. If there's going to
19 be a frank as opposed to a smeared allegation of
20 slicing and dicing, we can consider whether at this
21 stage it's worth calling a scientist.
22 Alternatively, the tape goes in and we await
23 further evidence, if Mr. Kordic gives evidence and says
24 that he never said these things. Why then the matter
25 arises for rebuttal. But one way or another, the
1 evidence has to go in.
2 And can I make this point: It simply won't
3 do, in our respectful submission, to deal with the
4 witness in the way he was dealt with. I have no doubt
5 he's willing to come back after such treatment by
6 innuendo and not dealt with frankly.
7 Mr. Kordic must know not whether he said
8 these particular words, for, of course, nobody would
9 suggest that you'd have that memory, but he must know
10 absolutely whether at the time concerned he was being
11 addressed in the way spoken of as a Colonel, whether he
12 was speaking to Blaskic with the authority that is
13 revealed here, and whether he was taking these sorts of
15 Now, if he did not at the time, page 2, say
16 things like, I don't mean these precise words, he won't
17 remember that: "Let's have the multiple rocket
18 launcher here. Get it ready for Kacuni." If he knows
19 that was not the sort of thing he could have said, then
20 this witness should have been cross-examined frankly
21 and candidly on that point.
22 Likewise, a few lines further on, if it was
23 his case that he never, could never have said:
24 "Prepare everything. Select the targets for the
25 mortars. Let's burn everything." that should have been
1 put clearly, and it simply wasn't. There are plenty
2 more examples of that.
3 These tapes are, of course, utterly revealing
4 of the true nature of the relationship and of other
5 matters. As a matter of interest, at the foot of
6 page 2, the two boys killed from behind at the
7 checkpoint, is a matter for which there is independent
8 evidence, I think, coming from the Blaskic trial.
9 JUDGE MAY: We've had mention of people being
10 killed at Kacuni. I remember it. I think it's been
11 put in cross-examination and, I think, accepted.
12 MR. NICE: Your Honour may be right. We have
13 all sorts of other matters of details. For example, on
14 page 2 of the next sector, lines 22 and 23, Mr. Kordic
15 talking to de la Mota, the sort of matter will easily
16 turn up in other evidence, perhaps in the Defence
17 evidence as being capable of proof.
18 At page 4 we have the clear or at least
19 possibly clear evidence that Blaskic is -- that Kordic
20 is referred to in his absence by two others speaking
21 together, at line 25, as a Colonel, and indeed we know
22 that he's actually sought out as a Colonel.
23 I don't want to waste your time too much, but
24 there are plenty of further references of interest.
25 Yes. There we are. Page 11. These are two people,
1 line 29, out of Kordic's presence, referring to him as
2 a Colonel, a matter of real importance and
3 significance, given the timing.
4 Over at page 12 of the same transcript,
5 Kordic and Blaskic talking together. Very well.
6 Line 10:
7 "The people will go out again.
8 "Blaskic: Well, the people should be
9 informed about that. They should go out and block
10 everything, because the potatoes, if they're not used
11 today, we can throw them away.
13 says Kordic,
14 "call those people in Kiseljak now and tell
15 them the traffic will be blocked unless the potatoes
17 The Chamber will have well in mind all the
18 other evidence that there is of linkage between one
19 issue and another, the evidence of the use of civilians
20 to effect objectives.
21 Page 17, line 30, since there are issues
22 raised about the quality of the tape, I dare say on one
23 day the quality may have been different from another.
24 It might explain why the first tape happens to be
25 better than the last ones. There's plenty of
2 Line -- page -- page 17, line 30. There's
3 plenty of evidence that some at any event, of the time,
4 the line wasn't working very well.
5 "My God, I can't, this phone, /inaudible/
6 cut off."
7 Page 19, line 26. There's a matter of
8 interest. They seem to have in mind, and perhaps this
9 explained why the conversations dried up, that they
10 were being taped.
11 Well, now there is a whole lot more stuff in
12 these interviews that may turn out to be valuable, may
13 very well turn out to be valuable, but the present
14 position is as clear as can be. This is evidence that
15 the witness brings to your Court. Asked whether there
16 were other matters to be dealt with in detail,
17 Mr. Stein declined the invitation, and let's recall,
18 because it's very important, exactly the history.
19 Tape produced; Defence invited to admit the
20 voice; made clear that if they didn't admit the voice,
21 then the tape would be presented either to other
22 witnesses who could identify the voice or to
23 scientists, if they could do it. The voice had to be
24 admitted, but no discreet challenges to the contents
25 have been made.
1 I think it was suggested by Mr. Stein -- I
2 haven't been able to have access to LiveNote until just
3 now, but I think it was suggested that the witness
4 couldn't say whether there had been the odd inserted
5 word here or deleted word there. There's no point to
6 which he refers where the addition or deletion of the
7 word, even if scientifically possible, could change the
8 sense. They've had the tape long enough to deal with
10 [Trial Chamber deliberates]
11 JUDGE MAY: We're now in a position to rule
12 on this matter. What we have to decide is whether the
13 evidence relating to this tape should be excluded.
14 The case mounted by the Defence can be
15 summarised in this way: that there has been no
16 evidence from the monitors who heard the tape. We have
17 the evidence of the Intelligence Officer who took
18 charge of it. I think he put it on a tape himself and
19 had custody of it and eventually handed it over, via
20 his superior, to the Office of the Prosecutor. Really,
21 what is said is that there was an opportunity, during
22 the time that the tape was handed over, some three
23 weeks, for somebody to have tampered with it.
24 It was not suggested to the Intelligence
25 Officer that it had been in any way tampered with by
1 him or his two monitors, and it was specifically stated
2 that there was no suggestion that the Office of the
3 Prosecutor had tampered with it.
4 It is also suggested that there are some
5 differences between the tape which the witness handed
6 over and the tape which he kept and was eventually
7 played here, he having brought it with him. Mr. Stein
8 points out that there are two noises and that part of
9 the conversation is missing on one of the tapes.
10 That being the position, we have to ask
11 ourselves, under Rule 95, having ruled as we have done,
12 if the tape should be excluded because it was obtained
13 by methods which cast substantial doubt on its
14 reliability. I pause to note the words "substantial
15 doubt upon its reliability."
16 I venture to say this: that this witness who
17 was called appeared credible -- I say no more about it
18 at this stage -- in the account which he gave. It is
19 true, as the Defence point out, that he kept no other
20 souvenirs from the war but he kept this one, but he did
21 give an explanation for that.
22 In our judgement, there is nothing to
23 suggest, in the arguments which have been put forward,
24 that this evidence was obtained by methods which cast
25 substantial doubt on its reliability. That said, we
1 shall exclude the parts which are said not to appear on
2 one of the tapes, and that is conversations 10 and 11.
3 They were described on the English transcript, that is,
4 beginning lines 27 and over the next page on page 18,
5 and ending over the next page, page 19, line 10. That
6 part will be excluded. If there's any further argument
7 in due course about that, we will hear it.
8 Now, the fact that the evidence has been
9 admitted, of course, takes the matter no further than
10 that, and it will be a matter for us to determine, in
11 due course, what weight, if any, we place upon the
13 We note, I should also add, that there has
14 not been a challenge or a substantial challenge that
15 the voices of Mr. Kordic are those of Mr. Kordic, and
16 therefore, as I say, we will admit this evidence and
17 determine, in the ruling finally, making our judgement,
18 what weight to give it.
19 MR. STEIN: May it please the Court, only for
20 record purposes, I'm sure Mr. Nice didn't realise he
21 was speaking in error. We received only the first
22 conversation on 9 December 1999. We're then asked to
23 admit or whether we challenged whether it was
24 Mr. Kordic's voice on that, a conversation.
25 On January 18th of this year, we received
1 Mr. Husic's statement and, around that time, the
2 remaining conversations on the tape, and it was only at
3 the date of the hearing that we actually got the
4 wrapper or cassette index itself. I don't think
5 Mr. Nice intentionally miss-spoke, but for the record
6 purposes, if that becomes an issue, I would like to
8 Thank you.
9 MR. NICE: As to the evidence of the tape, of
10 course there should be a public record. But in the
11 event, the first and obviously most important tape was,
12 I think, both played and translated to the public
13 arena. Unless the Court takes a different view, I
14 don't desire particularly to make a public record of
15 the remaining conversations that have been admitted.
16 They are available for the Chamber to consider. If the
17 Defence take a different view, why, of course I would
18 not object to the time being taken in the reading of
19 those interviews. But otherwise I would have thought
20 we could simply leave them with the Chamber for review
21 later on.
22 MR. STEIN: I'll confer with my colleagues
23 and Mr. Kordic, but our preliminary position is we
24 don't think it's necessary to reinvent the wheel and to
25 replay the tape.
1 JUDGE MAY: We'll hear, in due course, what
2 you say about it. I would have thought it was
3 unnecessary. The most important one has been played,
4 and the others, Mr. Nice has gone through what he
5 thinks is important.
6 MR. STEIN: Well, that's certainly the way
7 the emphasis has been put. I suggest there are some
8 different ways to look at that tape, but --
9 JUDGE MAY: I think you should have the
10 opportunity, if there are some matters you would want
11 to draw our attention to, which you would normally do
12 possibly through cross-examination or the like. If
13 there are matters on the tapes which you want to draw
14 our attention to, could you do it fairly soon.
15 MR. STEIN: Very good, sir.
16 JUDGE MAY: At the suitable moment.
17 MR. STEIN: Thank you, sir.
18 MR. NICE: We now turn to the question of
19 transcripts. I'm going to ask Mr. Scott to deal with
20 that on behalf of this office.
21 MR. SCOTT: If I stand right by here, I can
22 still split, if it's acceptable to the Court, rather
23 than reshuffle things at the desk.
24 Your Honours, may it please the Court, our
25 position on the transcripts is rather straightforward.
1 I'm only going to make a couple of comments about it
2 now. I suspect that there may be things to be said in
3 response to questions the Defence may raise, but
4 suffice it to say for our purposes it's actually, we
5 think, fairly straightforward.
6 We have tendered, Your Honours, to the
7 Defence, over the past several days, first one version
8 and then a second version, and provided to the Court
9 staff yesterday yet another chart, if you will, some 17
10 pages listing, in alphabetical order, the witnesses
11 which we now propose to present by transcript.
12 I'll pause and say that I think that with
13 perhaps one or two exceptions, but perhaps no
14 exceptions, most of these transcripts come from the
15 Blaskic case.
16 A number of these have been discussed and
17 noted in the past number of months, Your Honours.
18 There has always been, I think, frankly, some
19 contemplation, dating back to at least the
20 consideration of the Tulica dossier, that the
21 Prosecutor would, in fact, ultimately seek to present a
22 number of witnesses by this transcript method.
23 The Court ruled, as I'm sure the Court
24 recalls, in the Tulica decision on July 29th, 1999. At
25 page 11 in its ultimate ruling, in connection with the
1 Tulica binder, the Court stated at paragraph 28:
2 "Accordingly, the Trial Chamber holds that
3 the transcripts of Witnesses NN, OO, and PP,"
4 which are also listed on our chart, Your Honour, and I
5 will not say the names of the witnesses here in public
6 session, but the names are on the chart available to
7 the Court. Continuing with the quote:
8 "... are admissible, since the witnesses
9 have been cross-examined in Blaskic, a case in which
10 the Defence have a common interest with the Defence in
11 this case. However, this ruling will not preclude the
12 application by the Defence to cross-examine the
13 witnesses on the ground that there are significant,
14 relevant matters not covered by cross-examination in
15 Blaskic which ought to be raised in this case."
16 And the chart we have prepared,
17 Mr. President, provides exactly for that. It's a
18 rather straightforward chart. If the Court has it in
19 front of it, and I hope it does, there is simply listed
20 the name of the witness, again a summary of what this
21 witness addresses, which Mr. Cerkez' Counsel asked us
22 to add and we did so. There's simply a mark and a
23 place to mark whether the transcript is agreed, and
24 then there is a column for specific objections to the
25 transcript or a statement of the nature and basis of
1 any request for live cross-examinations.
2 We certainly understand, as we think
3 consistent with the Aleksovski Appeal Chamber ruling
4 and this Court's Tulica decision, if I can call it
5 that, that the Defence does have the opportunity to
6 specifically say why they need some additional live
7 cross-examination of the witnesses. While we certainly
8 recognise that opportunity, Your Honour, I take the
9 opportunity -- I guess I take the opportunity to say we
10 can't imagine many instances in which it would be
11 necessary. Many of these are what we've come to call
12 in this case "village witnesses," not entirely but
13 many, and they simply go to the crimes on the ground,
14 so to speak.
15 These identical issues were presented in the
16 Blaskic case. I would say in this case, Your Honour,
17 the relationship or the commonality of interest between
18 the Blaskic Defence and the Kordic Defence is extremely
19 close. They both simply -- apart from evidence that
20 was specific to Kordic or specific to Blaskic,
21 presumably both Defences were intent on proving such
22 things as it wasn't the HVO in the attack, the village
23 was a defended place, certain things, alleged events,
24 didn't in fact happen. Those issues are exactly the
25 same, whether they were presented in the Blaskic case
1 or the Kordic case.
2 Your Honours, that's basically our position.
3 As I say, it's rather straightforward, we think.
4 We have reassessed in the last number of
5 days, in terms of the Court's guidance on scheduling
6 and time limits, this is the most efficient way of
7 presenting this evidence. Frankly, there's a number of
8 these witnesses that, given time, we might very well
9 call live, but we are trying to bring the trial or at
10 least the Prosecution case to a close, and this is the
11 most efficient way of doing so.
12 Thank you.
13 JUDGE BENNOUNA: [Interpretation] Mr. Sayers
14 is going to speak. Before you do, I would like, on
15 this point, really to draw your attention to what the
16 representative of the Office of the Prosecutor has just
17 said, Mr. Scott. That will save some time in the
19 You know that in the Blaskic case and in this
20 case, the events on the ground, as has just been said,
21 are almost the same; that is, there are a certain
22 number of events that happened, acts that happened
23 during the war, crimes, crimes that were committed.
24 There were atrocities in various parts of Central
25 Bosnia. These are facts which in and of themselves
1 have a certain level of objectiveness or objectivity.
2 There is the participation or involvement of the
3 accused, and the relationship between the accused and
4 those events, that's another point.
5 Therefore, we must concentrate on the issue
6 of the events, that is, transcripts that were prepared,
7 because this is the same Tribunal. We must not forget
8 that the International Criminal Tribunal for the Former
9 Yugoslavia, despite the fact that it has several Trial
10 Chambers, is really one Tribunal, and even if the
11 accused are being heard and tried in different
12 Chambers. Therefore, you must focus on that and make
13 the distinction, if you can. This would be extremely
14 helpful to us, of course, the Trial Chamber, this one
15 or others. To go back to facts already proved in other
16 places, it would be totally absurd, and I'm speaking of
17 the facts themselves.
18 Now, the involvement of the accused, that's
19 another question that has to be judged on a
20 case-by-case basis, but there is relative authority on
21 the things that are being heard. That's the point
22 we've reached, and I would ask you to focus on that
23 because it would be extremely helpful to us.
24 Thank you so much.
25 MR. SAYERS: Thank you, Your Honour, and to
1 use the vernacular, let me say that I think, from the
2 outset, your comments are pretty much right on the
3 money, and we don't necessarily disagree with any of
4 the points that have been made, other than to say
6 In the Blaskic case, I think the defendant in
7 that case had, for whatever reason, made challenges to
8 the existence of some of the events on the ground. He
9 had his own reasons to do so. We're not necessarily --
10 and I don't think that we have made the same kinds of
11 challenges in our case.
12 In addition, in the Blaskic case the
13 Prosecution articulated a theory of a unitary chain of
14 command in that case, whereas in this case they appear
15 to be articulating a theory that's completely
17 So there are some differences in the Defence
18 objectives, if you like, in the Blaskic case as well as
19 in the Prosecution theory.
20 But if I may, let me just step back a little
21 bit and say a few things. First, as I understood it,
22 we were only going to be arguing about eight transcript
23 witnesses today, and I would point out that those
24 aren't village witnesses at all. And those eight
25 witnesses are included in the 49 witnesses.
1 THE INTERPRETER: Could you slow down,
2 Mr. Sayers, please.
3 MR. SAYERS: We have, for example, a Member
4 of Parliament, the British parliament, Mr. Ashdown. We
5 have a confidential witness who testified in closed
6 session, whose name I obviously can't repeat, but he's
7 a highly placed Diplomat. We have a number of yet
8 more, if I may say, European Community Monitoring
9 Mission monitors and many soldiers in the British
10 Army. Of course, we have heard a lot of that
12 But I'm prepared to address the eight
13 transcript witnesses specifically. I also would like
14 to address, perhaps this is the best way to start out,
15 the Aleksovski Appeals Chamber decision, because I
16 think there's been some lack of attention paid to
17 precisely what that decision says, and I'd like to go
18 through it in some detail with the Trial Chamber. I'd
19 like to present that argument, and then Mr. Stein will
20 address the more general issue of these transcript
21 witnesses, and I'm sure he will point out that
22 approximately 50 per cent of the case that the
23 Prosecution, therefore, seeks to make out against
24 Mr. Kordic will come in by way of transcript evidence
25 from witnesses that he's never had the opportunity to
1 confront or cross-examine. I think that that's a
2 potentially significant problem, generally speaking.
3 JUDGE MAY: Can I interrupt? Are there any
4 transcripts which you would be prepared to admit?
5 MR. SAYERS: Yes.
6 JUDGE MAY: Can we start with that and then
7 we know what's left.
8 MR. SAYERS: If I might, Mr. President --
9 perhaps it makes sense just to articulate our view of
10 the Aleksovski decision and then proceed to the
11 transcripts that we don't have a problem with.
12 Fundamentally, I think, and of course,
13 Mr. President, since you were the author, I'm -- you'll
14 correct me if I'm wrong, I'm sure, but the decision in
15 Aleksovski was fundamentally a hearsay decision, and
16 really, a decision was made on two separate points.
17 One is called the first decision, and that's paragraphs
18 14 through 21 of the decision, and then under an
19 equality-of-arms rationale, the Court made a decision
20 on the so-called second decision, paragraphs 22 to 28.
21 I think it's important to underscore the
22 procedural context in which the applications for the
23 admission of transcript evidence came before the Trial
24 Chamber in Aleksovski. Notable --
25 JUDGE MAY: We should have the Aleksovski
1 decision in court.
2 MR. SAYERS: I've a copy of it here if you
3 need, Your Honour.
4 JUDGE MAY: I see. We have it on the Bench.
5 MR. SAYERS: Very well. Procedural context
6 was as follows: The Prosecution's case-in-chief lasted
7 three months, from January to March of 1998. The
8 Defence then presented its case. The Prosecution
9 presented rebuttal evidence on one day, September the
10 22nd, 1998, and an application to receive the evidence
11 of Admiral Dvor Domazet, who testified in Blaskic on
12 September the 10th, was made on December the 29th,
13 which was after the Prosecution had presented its
14 rebuttal case. The Prosecution obviously objected.
15 The Trial Chamber's decision in that case was entered
16 on 22nd of October, which was two days after the
17 Defence rejoinder case had closed.
18 The Trial Chamber's decision had, and we
19 would submit -- and you can find this at page 4,
20 paragraph 7(A) and 7(B) of the decision -- two
21 significant underpinnings. The first was -- and I
22 think this is extremely important from the perspective
23 of this proposal to have the Aleksovski decision serve
24 as a wholesale passport for huge quantities of evidence
25 from other cases into this case. In fact, I think the
1 49 or 46 witnesses referred to on the document that we
2 received yesterday spend no less than 13,000 pages of
3 testimony, and I would point out to the Trial Chamber
4 that that's exclusive of General Blaskic's testimony
5 which in itself spans some 6,000 pages.
6 But the point that the Aleksovski Court made
7 was -- the Aleksovski Appeals Chamber, was that the
8 evidence first has to be of indisputable probative
9 value, and that was on the international armed conflict
10 issue in that case. But equally significant was the
11 situation was exceptional, and it was exceptional
12 because Admiral Domazet was not available to testify.
13 The trial had reached its final phase, Mr. Aleksovski
14 had been in custody for one a half years, but more
15 importantly, it was the Prosecution, Your Honours, the
16 Prosecution that had already had the opportunity to
17 examine and cross-examine Admiral Domazet and had done
18 so at great length in that case.
19 So the very party against whom, if you like,
20 the testimony of Admiral Domazet was being introduced,
21 the very party against whom that testimony was being
22 introduced had had the opportunity itself to
23 cross-examine that witness at length. And of course,
24 as was pointed out in the dissent in Aleksovski,
25 Admiral Domazet was actually an expert witness.
1 Now, there were two separate rulings, and I
2 think that those rulings are significant because
3 they're -- they proceed on two different bases. The
4 first argument relating to Mr. Aleksovski's argument
5 that Admiral Domazet's testimony should be introduced
6 had a hearsay underpinning. Hearsay had to be
7 reliable, and the Court obviously cited the Tadic
8 factors, but this was an exception to the general
9 principle that witnesses should be heard directly under
10 principle of orality enshrined in Rule 90(A), but that
11 was found to be subject to the discretion of the Trial
12 Chamber. And the Aleksovski decision found that the
13 Trial Chamber had not abused its discretion. The Trial
14 Chamber had the discretion under Rule 90(A) to admit
15 relevant and reliable information in those exceptional
16 circumstances. One transcript we were talking about in
17 the Aleksovski case.
18 And under the consideration that the witness
19 was not immediately available himself to testify in
20 person, which apparently was what the defendant in
21 Aleksovski had preferred, in the absence of the
22 declarant, to use a hearsay term, being available, the
23 Court said that was an essential circumstance and in
24 existential circumstance, given the stage of the case
25 and the fact that the Prosecution had already
1 cross-examined him, that was an appropriate
2 application, and the Appeals Chamber said that since
3 that was a matter of discretion, it could not say that
4 the discretion had been abused in that one instance.
5 Furthermore, the Court proceeded to observe
6 in Aleksovski that no attempt had been made by the
7 Prosecution to show any particular line of
8 cross-examination that would have been both relevant
9 and significant that was not already pursued in the
10 Blaskic case.
11 Now, the second decision was reached on a
12 point that was completely different from the first
13 decision, and it was an equality-of-arms decision. The
14 Prosecution had argued that if the Defence should be
15 permitted to introduce Admiral Domazet's testimony
16 under the unusual and exceptional circumstances in
17 which that application had been made, then under an
18 equality of means or equality of rights, I'll avoid the
19 term "equality of arms," but under an equality of means
20 analysis, then the testimony of the confidential
21 witnesses that the Prosecution sought to be adduced,
22 that that should be permissible too, but that was only
23 because, in the first instance, in the exceptional
24 circumstances evidence of indisputable probative value
25 had been permitted to be introduced by way of
1 transcript at the application of the Defence.
2 So you have a hearsay analysis, exceptional
3 circumstances which are the hallmarks of the first
4 decision, and then the second decision is an
5 equality-of-arms decision.
6 Now, there was a vociferous dissent --
7 THE INTERPRETER: Could the Counsel please
8 slow down.
9 MR. SAYERS: The dissent in the case made the
10 point that the right to cross-examination is an
11 essential component of most systems of law and,
12 arguably, the failure to provide for such a right is
13 inconsistent with the international covenant on
14 civilian and political rights.
15 But I think what we were -- what was under
16 consideration in Aleksovski was, I believe, three
17 transcripts. One that the defendant sought to have
18 introduced and then, two, under an equality-of-arms
19 theory that the Prosecution sought to have adduced.
20 That brings me -- and I think I've accurately
21 represented what the holding of the Court was, what the
22 procedural context was, and what the essential point
23 made by the dissent was. And that brings us, if we
24 may --
25 JUDGE MAY: You can remind me where the point
1 is made about exceptional circumstances in the first
3 MR. SAYERS: Yes, Your Honour. Paragraph
4 7(B), page 4, where the Court --
5 JUDGE MAY: This is the Trial Chamber
7 MR. SAYERS: Correct. The situation was
8 exceptional, Admiral Domazet was not immediately
9 available due to the nature of his duties, the trial
10 had reached its final phase, and the accused Aleksovski
11 had been in custody since April the 29th, 1997. As you
12 point out, Mr. President, that was what the Trial
13 Chamber ruled in deciding that the testimony of Admiral
14 Domazet in the Blaskic case should be imported into the
15 Aleksovski case. The point that I was making was that
16 the Appeals Chamber said that that decision was not an
17 abuse of discretion.
18 So the first decision, if you like, the
19 hearsay decision, was really reviewed or really -- the
20 basis of it was an abuse of discretion, and the
21 analysis was had -- under the circumstances presented,
22 had the Trial Chamber in Aleksovski abused its
23 discretion? It was no.
24 JUDGE ROBINSON: What part of the judgement
25 supports that, that the Appeals Chamber's ruling was in
1 support of what you have just referred to, the
2 exceptional nature and there was no abuse of
4 MR. SAYERS: Paragraph 21, Judge Robinson --
5 or Your Honour. I'm sorry. It says: "It follows that
6 no criticism had been made of the Trial Chamber in the
7 exercise of its discretion, and the appeal against the
8 first decision fails." That's on page 10 of the
10 JUDGE MAY: And pages 9, at the very bottom,
11 paragraph 19. "These circumstances, the Trial Chamber
12 was entitled to take account, at the stage of the
13 trial, the length of time that the accused had been in
14 custody and its finding that the witness was not
15 immediately available in exercising its discretion to
16 admit the evidence."
17 MR. SAYERS: Yes, Mr. President. That's
18 precisely -- that's precisely right.
19 According --
20 JUDGE MAY: You're saying that it's only in
21 exceptional circumstances that transcript evidence
22 may be admitted.
23 MR. SAYERS: Actually, if I may be a bit more
24 pragmatic than that, Mr. President. We are fully aware
25 that these trials take a long time. We don't want to
1 drag them out for any longer than they have to.
2 Looking at the Aleksovski decision, we do
3 take the view of it that it is an exception rather than
4 the rule, but that exception -- our interpretation of
5 the exception, if you like, has to be tempered by a
6 certain pragmatism, and I think that it is appropriate
7 to take a look at each individual witness to see
8 whether they offer testimony that is particular to the
9 accused. If the evidence, of course, is particular to
10 the accused then there is an elevated need for
11 cross-examination of that witness.
12 If, on the other hand, the witness testifies
13 basically to, as His Honour Judge Bennouna said,
14 objective events about which there can be little
15 contest and which have been extensively cross-examined
16 by someone who had an interest that's allied with the
17 defendant in this particular case, then a very good
18 argument could be made that there's very little reason
19 for the transcript of such a witness not to be
20 introduced in this case. And it's with that
21 observation that I turn, if I may, to each of the
22 individual witnesses.
23 I take it from your comments to me yesterday,
24 Mr. President, that you have in mind the November the
25 10th, 1999 document that was delivered to us. Let me
1 just address these issues -- each witness, witness by
3 THE INTERPRETER: Please slow down,
4 Mr. Sayers.
5 JUDGE MAY: The witnesses are repeated in the
6 overall document. We have 46 witnesses.
7 MR. SAYERS: I believe that's correct, Your
9 JUDGE MAY: Yes. We could find them. Yes.
10 MR. SAYERS: Now, turning to the first
11 witness. I believe that this witness testified in
12 closed session in both the Blaskic and the Kupreskic
14 JUDGE MAY: We've got it. We better get the
15 number on the new document.
16 MR. SAYERS: The new number is on page 4,
17 witness number 10, Your Honour.
18 Now, let me just start out by -- a few
19 comments are appropriate in connection with this
20 witness, Your Honour.
21 If you take a look at the summary that
22 appears on page 4 of the most recent document delivered
23 to us by the Prosecution, I just draw your attention to
24 the last sentence. This witness supposedly talks about
25 killings in Busovaca that were ordered by Kordic.
1 In the Blaskic case, this witness testified
2 over a span of 276 pages, and there is not a reference
3 to any such contention in any page of that testimony,
4 and I invite the Prosecution to draw the Court's
5 attention to any such page where such testimony is
6 given. I do -- I believe that there is not any.
7 In the Kupreskic case, the witness testified
8 for 117 pages and the same is true; no contentions to
9 support that -- or no testimony to support the
10 contention made on page 4.
11 But let me say with respect to this witness,
12 Your Honour, this is an important individual. He was a
13 Muslim who was -- I mean, he had a remarkable career.
14 He was in the HOS. He was in the Patriotic League for
15 a time. He, I believe, spent time in the TO. He spent
16 some considerable time in the HVO, believe it or not,
17 and not merely in the HVO, he -- actually, it might
18 make some sense if we could go into private session,
19 given the fact that the -- what I'm about to say may
20 identify the witness.
21 JUDGE MAY: Yes.
22 [Private session]
13 page 13935 redacted – in private session
11 [Open session]
12 JUDGE MAY: No reliance will be placed upon
13 summaries. Clearly, transcripts will have to be read.
14 I'm concerned about the burden which this is going to
15 place on everybody.
16 Do we know which -- which transcript is it?
17 Is it the Blaskic or the Kupreskic transcript that
18 we're talking about here or both?
19 Is it both, Mr. Scott?
20 MR. SCOTT: It's both, Your Honour.
21 JUDGE MAY: Are they really 13,000 pages you're
22 asking for?
23 MR. SCOTT: I can't tell the Court off the
24 top of my head. I apologise.
25 JUDGE MAY: Let's move on, shall we. Thank
1 you. But there is not an objection as far as this
2 witness is concerned.
3 MR. SAYERS: No, Your Honour, there is not.
4 JUDGE MAY: Very well. Let's hear from
5 Mr. Kovacic.
6 MR. KOVACIC: [Interpretation] Your Honours,
7 we're still in the process of analysing this, but I do
8 know this witness because we received the documentation
9 earlier. We believe that that witness, as my learned
10 colleague Mr. Sayers has said, testified very
11 extensively on the topics that he was asked about.
12 There are a number of contradictions, and he is not
13 relevant for us. I can say that we shall be against
14 having his transcript introduced. We would like to
15 cross-examine this witness, and the Trial Chamber is,
16 I'm sure, well aware of the following: The
17 hierarchical structure within the HVO in Vitez, in
18 which Colonel Blaskic, among others, was, and the
19 Defence of Mr. Blaskic did cross-examine this witness,
20 and then in this structure we also have Cerkez. But
21 this need not be necessarily the same because of the
22 institution of the HVO itself and the type of
23 institution it is.
24 JUDGE MAY: Very well.
25 MR. KOVACIC: [Interpretation] However --
1 JUDGE MAY: [Previous translation
2 continues] -- get the detail.
3 MR. KOVACIC: [Interpretation] Of course, Your
4 Honour. I just wanted to one point by way of
5 illustration to what my colleague has said. We have
6 received new information about that witness. For
7 example --
8 JUDGE BENNOUNA: [Interpretation] Mr. Kovacic,
9 I think we've got to organise ourselves rationally
10 because there are 46 transcripts being mentioned. You
11 start by saying you didn't have the opportunity to
12 analyse the transcript in depth so that you could speak
13 about it. That would close this discussion for the
14 time being. Take the time, and then you can give us
15 your opinion about the transcript either in writing,
16 briefly in writing, when you have the time to analyse
17 it in depth, the transcript itself.
18 There's no point of your giving us
19 impression. We know what the criteria are now. We've
20 just spoken about criteria for evaluating the
21 transcript. Therefore, you must look at it, and when
22 you're prepared, you can inform us of your opinion. I
23 think there's no point in speaking about impressions
24 that don't take us anywhere.
25 [Trial Chamber confers]
1 JUDGE MAY: Now, are there any transcripts
2 which both Defence Counsel are prepared to admit?
3 Shall we start with you, Mr. Sayers? Are
4 there any that you are prepared to admit?
5 MR. SAYERS: Looking at the November the 10th
6 document and just tracking down, Your Honour, Mr. Stein
7 will address number 2. Number 3 and number 4 fall into
8 the same category. We don't necessarily object to
9 having the transcripts admitted, but we would urge upon
10 the Court that these witnesses are cumulative --
11 JUDGE BENNOUNA: [Interpretation] I don't know
12 whether we are looking at the same document, because
13 you said that we were on number 10 of page 4. Is this
14 still the same document that we're using? This is the
15 one that I have, in any case. It's a summary
16 document. You spoke about a witness number 10 on
17 page 4. If you could use the same numbers. Is that
18 what you're doing, because I'm having difficulty
19 following you.
20 MR. SAYERS: Sorry, Your Honour. There are
21 two documents, one that we got yesterday that has
22 49 names -- or 46 names. I keep on saying "49,"
23 sorry. Then there's a second document that concerns
24 the witnesses that we were addressing today.
25 JUDGE MAY: We are simply not getting
1 anywhere. Can you tell us, simply, whether any of the
2 transcripts are agreed, and if so, which one, please?
3 MR. SAYERS: Two.
4 JUDGE MAY: Number 2 on the November
6 MR. SAYERS: Yes, Your Honour.
7 JUDGE MAY: Which is number 2, by chance, on
8 this document.
9 MR. SAYERS: Yes.
10 JUDGE MAY: Thank you.
11 MR. SAYERS: We do not object to number 3,
12 which is number 26 on the most recent document,
13 although we do take the position that that's
14 irrelevant. We do not object to number 4, which is
15 number 36 on the most recent document. We do object to
16 number 5.
17 JUDGE MAY: Just hold on, please. Number
19 MR. SAYERS: Yes.
20 JUDGE MAY: Yes. Thank you.
21 MR. SAYERS: We object to number 5, who is
22 number 28 on the most recent document.
23 JUDGE MAY: Yes.
24 MR. SAYERS: Number 6, Your Honour, is
25 Colonel Stewart, and his testimony is already in
2 Number 7, there's outstanding correspondence
3 between us and the Office of the Prosecutor.
4 Apparently a diary was maintained by this witness. It
5 was used in cross-examination. We have requested
6 access to that diary and it has not yet been provided,
7 so we're not in a final position to say yea or nay with
8 respect to that particular witness, but our preliminary
9 inclination is to say that there would be no objection
10 to that witness, and he is number 3 on the most recent
12 [Trial Chamber confers]
13 JUDGE MAY: Yes.
14 MR. SAYERS: Then the final witness, Your
15 Honour, a similar situation --
16 JUDGE MAY: I'm sorry, did I get -- yes.
17 Seven we had on that list. Eight.
18 MR. SAYERS: Eight is number 46 on the most
19 recent document.
20 JUDGE MAY: Yes.
21 MR. SAYERS: And apparently six diplomatic
22 dispatches were provided to Defence Counsel, and there
23 was fairly significant questioning based upon those
24 diplomatic dispatches. We have requested access to
25 those and those have not been provided as of yet, but
1 our initial inclination is to think that we would not
2 require that witness for cross-examination, but that is
3 subject to review of the diplomatic dispatches, Your
5 JUDGE MAY: Very well.
6 MR. SAYERS: Thank you.
7 JUDGE MAY: Now, as far as the other
8 witnesses are concerned, how long do you think it's
9 going to take you? I mean, it may be sensible to look
10 at another batch next week, because we shall not be
11 here the week after.
12 MR. SAYERS: I think it's the other way
14 JUDGE MAY: Have I got the dates wrong?
15 [Trial Chamber confers]
16 JUDGE MAY: I got the weeks wrong. It's next
17 week we're off.
18 [Trial Chamber confers]
19 JUDGE MAY: What we're going to do is this:
20 I suspect we're coming up to the break before we go on
21 to the village dossiers. Next Friday, your response,
22 rather than trying to deal with it in this piecemeal
23 fashion, in writing, but not at length. If you accept,
24 you may need say no more. Object, references to X, Y
25 or Z, whatever it is. If you accept in part, say so,
1 but you can do it in short turn.
2 MR. STEIN: Very good, sir. We will do
3 that. We can take this template, use it or add another
4 column as we see, and we will do that.
5 May I observe the following: Our job in
6 doing, of course, in some measure is handicapped by two
7 factors yet to be mentioned. First, none of the
8 transcripts are in a language the accused understands,
9 so we have to explain what it is that we're doing and
10 why we're agreeing or not agreeing. Second, some of
11 the individuals have testified in closed session. Now,
12 that is a specific problem by problem.
13 For instance, the second witness we talked
14 about had substantial portions of his testimony that we
15 didn't have until it was presented to us in the village
16 binder. That problem keeps raising its head. It may
17 go away, but it's of a concern to us that we want to
18 know everything that is out there, particularly with
19 regard to Colonel Blaskic.
20 I do not want to pass over the fact that
21 there are roughly 13,000 pages of transcripts that
22 we'll look at first. We are now at roughly 14,000
23 pages of transcript from this case. It would be highly
24 anomalous, when we look at the end of the Prosecution's
25 case, to have, of the 100 witnesses, 40 or so who have
1 never appeared in court, of the 15,000 to 20,000 pages
2 of transcript adduced on this record, to graft another
3 12,000 or 13,000 pages. We, nonetheless, will make the
4 individualised effort to go through each of these and
5 have a pragmatic solution to this problem.
6 It's going to be a very busy week for us. We
7 will undertake it and we will have it done by Friday.
8 JUDGE MAY: Thank you. Mr. Kovacic, will you
9 do the same, please.
10 MR. KOVACIC: [Interpretation] I don't know,
11 Mr. President -- I don't want to make any false
12 promises and mislead you. And as my colleague said, it
13 is 13,000 pages, roughly. We have started the work,
14 and it's easier for us, perhaps, because quite a number
15 of witnesses, in fact some 22 -- 24, actually, I think,
16 are outside the time span and the locality.
17 JUDGE MAY: Very well. Mr. Kovacic, do your
18 best, and we'll hear what you've got to say.
19 MR. KOVACIC: [Interpretation] Mr. President,
20 may I just ask one thing?
21 Mr. Stein said that the translations will be
22 critical. Of course, I'm not asking the Prosecution to
23 supply us with all the translations. That would be
24 unrealistic. But after we narrow down the critical
25 ones over the next few days, and I don't think there
1 will be more than seven or ten at the maximum, then
2 we'll say we need translations for those, because they
3 will be the witnesses which I shall have to interview
4 the accused about.
5 That's what I wanted to say. Thank you.
6 JUDGE BENNOUNA: [Interpretation] Mr. Kovacic,
7 you must not count on the translation because there are
8 translation problems in the Tribunal that you are aware
9 of, that we're all aware of.
10 You speak the two languages very well, I've
11 heard you speak English here, so you could translate
12 for your client the passages dealing with him. And
13 don't expect to have the translation into B/C/S on
14 time. You won't. So you must inform your client
15 yourself, because this is part of your work.
16 We are in an International Tribunal which has
17 its own constraints, and therefore you have to inform
18 the party that you have trust -- there is a trust
19 between you and your client, and there should be no
21 MR. KOVACIC: [Interpretation] Of course, Your
22 Honour Judge Bennouna, that is something we are doing.
23 But for some things, we do need some input from our
25 Secondly, due to the constraints of time, we
1 don't have time to sit in the Detention Unit and read
2 through all the documents and the translations. We
3 would need much more time for that, and I don't think
4 there's any sense in -- and that is, in fact, why we're
5 trying to find a middle road.
6 So we're not asking for all the translations
7 in general but just the critical -- the vital cases,
8 where we must know what is being said exactly.
9 Thank you, Your Honours.
10 JUDGE MAY: Mr. Nice, I wonder if you can
11 assist in this.
12 I'm concerned about the amount of material
13 there is here, and I'm going to invite the Prosecution
14 to review it not on the ground of whether it's
15 admissible or not but really how much is necessary in
16 the case. I mean the suggestion that the Chamber, let
17 alone the Defence, has 13,000 pages of transcript,
18 whether that's right or not, to assimilate at this
19 stage is a burden of a very considerable kind, and I
20 really wonder whether it's necessary to have this
21 number of witnesses.
22 I'm looking at one, 19, Major Hughes. He
23 gave evidence, I seem to remember, in Kupreskic. I may
24 be wrong. Now, of course there are one or two details
25 which he adds, but we really do have a very clear
1 picture, I think, of what happened in Ahmici. The
2 question must be whether it's going to assist us to
3 have even more detail. It may well be that what the
4 witness said isn't in dispute.
5 But you might like, during the week, to
6 conduct a further consideration with a view to
7 concentrating on those witnesses which are really
9 MR. NICE: Of course, we will do that. At
10 this point, though, the number of pages reflects
11 frequently the fact that witnesses have given evidence
12 on more than one occasion and probably, in procedural
13 terms, less efficiently than perhaps witnesses who have
14 been giving evidence here.
15 Secondly, although the whole transcript is
16 identified, Your Honour is quite right, it might only
17 be for one short point that the transcript is
19 Thus far, the Defence have, I think, taken
20 the position publicly that a part in all in, and of
21 course if we were to put in the transcript or seek to
22 put in the transcript of the witness Hughes for one
23 point, a piece of artillery or something of that sort,
24 and there was a part that they wanted, of course it
25 would go before you in those circumstances, this
1 without prejudice to the Blaskic argument. But that
2 doesn't require the Judges or any of those working with
3 the Judges to read all of the transcript, because in
4 due course there would be direction as to which parts
5 would be required to be read.
6 Apologies to the interpreters.
7 JUDGE MAY: Perhaps you might like to look at
8 it from this point too. It is often said in these long
9 cases that -- and juries, as you know, are always
10 warned not to lose sight of the wood for the trees.
11 Now, even professional Judges would have to warn
12 themselves in the same way, and the question is does it
13 assist us to have this huge amount of detail as opposed
14 to concentrating on what are emerging as the central
15 issues in the case. With that in mind, I would suggest
16 that a great number of these witnesses could be culled
17 from the list.
18 As far as I can see, most of the indictment,
19 if not all of it -- I haven't checked -- has been
20 covered. Of course, if there was some particular
21 matter, then you would be entitled to call evidence.
22 But where it's repetitive of evidence that we've
23 already heard and there has been little or no
24 challenge, or challenge purely of a formal nature, it
25 may be that the Prosecution could take a view about the
2 MR. NICE: We'll be responsive to Your
3 Honour's suggestion. I well understand it, and it may
4 be that our response will take two forms; one to delete
5 names, the other to say, "But this witness would only
6 be required by the Prosecution on this narrow topic."
7 JUDGE MAY: Yes, Mr. Stein.
8 MR. STEIN: May I point out one other
9 problem, and of course you'll immediately see I'm doing
10 it to my advantage, and that is that should a large
11 amount of transcript be grafted onto this proceeding,
12 it would be our position it would be necessary for the
13 Court to review that in order to rule on our motion for
14 judgement of acquittal. The smile on my face is
15 because I would then say, "Then perhaps you want to
16 give us a little more time."
17 JUDGE MAY: No. I mean clearly by the end of
18 the case, we would have had to have reviewed all the
19 evidence. We couldn't do otherwise.
20 MR. STEIN: Unless we, by agreement, extend
21 the time for that motion and thereby extend the time to
22 start our case, and that's why I thought I would
23 announced I was trying to be a tad, shall we say,
25 JUDGE MAY: Yes.
1 MR. SCOTT: Your Honour, I apologise for
2 being in tandem with Mr. Nice on this, but if I could
3 make a couple of comments, only because I think it
4 would move us forward. I had not yet had a chance to
5 respond to a couple of points made by the Defence.
6 Let me tell the Court, these summaries are,
7 if you will, general-purpose summaries. We have not
8 had time to generate yet another version of summaries.
15 JUDGE MAY: Yes.
16 MR. SCOTT: If there are things in the
17 summary, for instance, some of the things pointed out
18 like the last sentence of the summary in his particular
19 case, and if that's not in the transcript, then there's
20 really no reason for the Defence to be concerned about
21 it. That evidence simply won't come in. There are
22 instances, I think we can tell the Court now, Your
23 Honour, the Prosecution will lose -- the Prosecution
24 will lose some evidence by not calling these witnesses
25 live, because they simply didn't occur -- they simply
1 weren't asked those questions in the prior proceeding.
2 So we're quite mindful of that, Your Honour, but if
3 it's not in the transcript, the Defence need not worry
4 about it.
5 Further, Your Honour, it would be very
6 helpful, and I'll tell the Court why, when the Defence
7 makes its responses to the 46 items, that they -- and
8 what is now the last column in our chart, if they tell
9 us with some specificity what the objections are or
10 what the reasons are for cross-examination. I say that
11 because it very well might be possible to either
12 clarify or omit certain passages if we simply say, "All
13 right, we delete lines 23 to 28 of page 16 that you
14 don't like because we don't need it."
15 So we need, I request, Your Honour, some
16 specificity from the Defence, because we may be able to
17 obviate many of the problems.
18 JUDGE MAY: Does the Defence hear that? If
19 there are -- particularly for passages which are
20 objected to, again if that could be identified, the
21 rest of the evidence could go in but with a deletion.
22 MR. STEIN: Yes, sir, and we will take that
23 to heart.
24 I remind everyone, however, we have some
25 other things going on next week like exhibits,
1 dossiers, et cetera. Additionally, let's not forget,
2 we've kind of switched the burden on us, nicely and
3 artfully, to generate what we find objectionable, when
4 under the Rule the burden is on the Prosecution to
5 justify its application, and I don't want to take for
6 one minute our pragmatic, co-operative approach to
7 waiving all those rights that Mr. Sayers talked about.
8 JUDGE MAY: We'll adjourn now for a break.
9 Twenty minutes.
10 --- Recess taken at 11 a.m.
11 --- On resuming at 11.25 a.m.
12 JUDGE MAY: Yes. We turn to the village
13 dossiers, and let me remind you of what we held in
14 Tulica, which, summarising the matter, was that we were
15 against the witness statements. We allowed the
16 transcripts of witnesses who had not given evidence,
17 subject to the Defence being able to point out matters
18 for cross-examination. We broadly, as I recollect it,
19 admitted photographic stills and videos and maps and
20 exhumation documents.
21 Now, I think it very likely that we will rule
22 in the same way in relation to any other village
23 dossiers. That being so, are there any matters which
24 anybody needs to argue about these dossiers?
25 Perhaps I could ask for the first one,
1 Zenica, please. Can we start with Zenica?
2 MR. STEIN: By the way, Your Honour, we, by
3 agreement with Mr. Scott, have agreed to discuss
4 Zenica, Busovaca, and Zepce.
5 JUDGE MAY: Yes. Those were the three that
6 were mentioned yesterday which we have in mind.
7 Starting with -- Mr. Lopez-Terres, on Zenica,
8 on the list of witnesses, John Hamill is mentioned. Is
9 he going to be called?
10 MR. LOPEZ-TERRES: [Interpretation] Yes, Your
12 JUDGE MAY: The other matters, a great number
13 of the exhibits, I understand, have already been
14 tendered, so there's no problem about them.
15 There are some other transcripts. Are those
16 witnesses on the list of transcript witnesses that
17 we've been dealing with?
18 MR. LOPEZ-TERRES: [Interpretation] For the
19 statements, the transcripts of the statements, there
20 are several witnesses who appear on the list about whom
21 we were speaking before the break. I'm going to speak
22 about Mr. Beganovic. He is number 6, Witness number
23 6. There is the other witness, 33. I prefer not to
24 state his name, for security reasons. There is Witness
25 43, 643.
1 JUDGE MAY: Yes.
2 MR. LOPEZ-TERRES: [Interpretation]
3 Unfortunately, one of the witnesses who appears in the
4 case file for Zenica who has been omitted from the list
5 that was prepared and which was given to you, that is a
6 witness who testified in the Blaskic case as well, and
7 he was a photographer who took pictures shortly after
8 the shelling. That person testified in the Blaskic
9 case and, of course, he authenticated the photographs
10 that were taken as well as a video clip that was
11 produced by Bosnian Television shortly after the
12 shelling of Zenica.
13 JUDGE MAY: Is he --
14 MR. LOPEZ-TERRES: [Interpretation] He is on
15 our list of witnesses.
16 JUDGE MAY: Mr. Lopez-Terres, is he
17 number 7?
18 MR. LOPEZ-TERRES: [Interpretation] Yes, yes.
19 On the list referring to the Zenica shelling, it is
20 Witness number 7.
21 JUDGE MAY: Now, the other matters, as I
22 understand it, are exhibits, most of which have already
23 been tendered. Is that right?
24 MR. LOPEZ-TERRES: [Interpretation] Some of
25 the exhibits have already been tendered and they were
1 admitted. We listed them simply as a reminder in the
2 index. And as relates to the other documents for which
3 admission has been asked, these are documents which
4 relate directly to the witness about whose -- he
5 intends on asking for admission, because it refers to
6 what they said in the Blaskic case, we consider that
7 forms a whole set.
8 JUDGE MAY: Very well. Thank you.
9 Mr. Stein or Mr. Sayers, whoever is dealing
10 with this -- Mr. Sayers, the position is that these are
11 mostly exhibits, except for various transcripts.
12 You're going to respond on the transcripts in due
14 Is there anything that you want to say about
15 this binder?
16 MR. SAYERS: It seems to me, Mr. President,
17 that the Tulica decision absolutely deals with this.
18 With respect to the photographs, there is no objection,
19 obviously, for the reasons stated in the Tulica
21 With respect to the transcripts, we will
22 respond in due course.
23 With respect to the maps, I do not think we
24 have any objection to maps. That's item B on page 3.
25 With respect to the documentary evidence
1 that's recited in page 3, it seems all to be in
2 evidence already.
3 That only leaves item D, the transcripts of
4 Defence witnesses in Blaskic, and we note that there
5 are only a few pages from the first one, Mr. Marin.
6 And with respect to the second witness, Mr. Ivica Zeko,
7 we note that many pages of Mr. Zeko's testimony were
8 given in closed session, and we have not been provided
9 or given access to those. We would like to see those,
10 all of the testimony, before we present our position on
11 that, with the Court's permission.
12 JUDGE MAY: Very well. No doubt that could
13 be provided, Mr. Lopez-Terres, and we'll hear from the
14 Defence when it has been.
15 Shall we move to the next binder. If I could
16 hand this one back. Thank you very much. The next
17 one, I think, was Busovaca. Thank you.
18 The index there refers to various witness
19 statements. In Tulica, we ruled against the admission
20 of the witness statements. And the next item is
21 witnesses already called, and again we ruled against
22 the admissibility of those matters.
23 On the other hand, there are maps, various
24 documents, which, as far as I can see, have all been
25 produced. There's a reference to a document based on
1 the 1991 census, which I don't think has been
2 produced. I may be wrong. Various video footage and
3 death certificates. Well, again, we have broadly
4 admitted most of the documentary evidence, strictly
5 speaking. We've excluded witness statements and
6 transcripts of the witnesses already called. As I say,
7 I think it might go that we will follow the same
8 position in regard to Busovaca.
9 Yes, Mr. Lopez-Terres.
10 MR. LOPEZ-TERRES: [Interpretation] I'm simply
11 calling attention to you that it is not the Tulica
12 decision, about that decision, that we brought in some
14 The Busovaca binder was set up at a point
15 when some of the witnesses who were listed had not yet
16 appeared. It was given to the Defence on the 15th of
17 December. Some of the witnesses for whom the
18 statements were disclosed since that point have
19 appeared; that is, Witness number 2 on the list in the
20 Busovaca binder. As regards Witness 3, you know that
21 he is covered by a compulsory appearance order which is
22 still pending. That person was called in by us in June
23 last year, refused to have any contact with the Office
24 of the Prosecutor, and we asked for an order be issued
25 that he be required to come in. But that is still
1 pending. Now, as refers to number 4, this is an
2 individual who will come to testify in the week of the
3 14th of February.
4 JUDGE MAY: Very well. Thank you.
5 And as for the other exhibits, the other
6 documents, have they, in fact, all been produced?
7 MR. LOPEZ-TERRES: [Interpretation] As far as
8 I know, documents that were not yet produced are death
10 JUDGE MAY: Well, we admitted them in
12 Anything that the Defence want to say about
14 MR. SAYERS: Just tracking down on the
15 categories indicated on the index, Mr. President, item
16 number 2, we remain opposed to the admission of witness
17 statements and we have nothing to add to our previous
18 positions on that.
19 JUDGE MAY: I mean that's not sought, to
20 admit them.
21 MR. SAYERS: With respect to the transcript
22 references, nothing to add.
23 With respect to the maps, I think they're
24 already in evidence.
25 And with respect to the documentary evidence
1 and death certificates and video footage, no objection,
2 Your Honour, but we would simply point out that the
3 death certificates refer to people who apparently died
4 in a wide variety of places under circumstances which
5 we do not know, and I don't think there's been any
6 explanation of the individual circumstances of most of
7 these people's death. But I can't say that we object
8 to the death certificates, for what it's worth.
9 Thank you.
10 JUDGE MAY: As I recollect, there's been
11 evidence about the deaths of some of these people. An
12 early witness did deal with that, aspects of it,
13 funerals and that sort of thing.
14 MR. SAYERS: Yes, Your Honour. I think
15 that's right.
16 JUDGE MAY: But, of course, some of them are
17 unexplained, yes. These documents can only be
18 introduced for what they show, presumably death and a
20 Yes, Mr. Kovacic.
21 MR. KOVACIC: [Interpretation] Your Honours,
22 we also agree that a standard has already been set by
23 your ruling on Tulica, and we are quite happy with
24 that. However, I should like to ask you one thing.
25 At that time, we already responded, when we
1 were dealing with Tulica, because we were asked to do
2 so. In this particular case, I do not think we should
3 pronounce ourselves on each and every one of those
4 village binders, because like the Zenica, for instance,
5 and we're yet to come to Vares and other places, all
6 these places fall beyond the area for which our client
7 was indicted. That is, he has not been indicted for
8 various things that happened in --
9 JUDGE MAY: There's no need for you to
10 trouble -- no need for you to trouble on matters which
11 don't concern you, of course.
12 MR. KOVACIC: [Interpretation] Yes. The only
13 thing I wanted to say was that in the case of Tulica,
14 you asked both Defences to pronounce themselves, and we
15 did that. Now you tell me I don't have to. Of course,
16 we shall be reacted to those binders which concern the
17 localities and areas for which Cerkez is indicted.
18 JUDGE MAY: Very well. Yes.
19 MR. NICE: I'm now returning to the third
20 village binder.
21 JUDGE MAY: Yes.
22 MR. NICE: Just before we do, while
23 Mr. Lopez-Terres and Mr. Scott change places, I think,
24 there's a general point that I want to raise. It
25 arises from the precise wording of your decision in
1 Tulica in relation to statements. It's at page 9, and
2 what the Chamber said was that it's of the view that
3 whilst it could admit the witness statements under Rule
4 89(C), this is not an appropriate case for the exercise
5 of its discretion under that provision, as it would
6 amount to the wholesale -- for these purposes, I
7 emphasise that word; it's not otherwise emphasised --
8 the wholesale admission of hearsay untested by
9 cross-examination, mainly the attack on Tulica, will be
10 of no probative value. The Trial Chamber therefore
11 declines to admit the witness statements into evidence;
12 however, draws attention to Rule 94 ter of the Rules.
13 Since then, and indeed before then, we've
14 been tussling with and making the slowest possible
15 progress with 94 ter, but the ruling plainly allows of
16 the possibility of adduction for evidence of witness
17 statements, and we are now in the position, of course,
18 where the honing down of the case means that there are
19 only one or two witnesses, or whatever it is, per
20 village on whom we rely now to prove the facts of the
21 crimes on the ground.
22 I have to say that if and when those
23 witnesses come to give evidence, they'll be taken very
24 shortly, and it may indeed be the time has come for
25 literally, "I adopt my statement," particularly if the
1 witnesses say absolutely nothing about either
2 defendant, and it will be regrettable in the extreme if
3 their evidence, given in that way or in any other way,
4 is subject to no cross-examination.
5 There are two ways in which this material
6 could be presented to the Chamber more efficiently and
7 more swiftly where there is really no contest. One is
8 the Defence could approach us and say, "Yes, well, we
9 don't need that witness. That witness can, in fact, be
10 read." I've made so many requests in the past that I'm
11 not going to embarrass myself by a further solicitation
12 that is likely for me to get nowhere, but they could do
14 The alternative is, quite in line with your
15 ruling, in respect of these individual witnesses who
16 simply prove the on-the-ground attacks, the Chamber
17 could possibly invite the Defence to indicate what, if
18 any, significant cross-examination there is to be,
19 because in the absence of any, it might be that the
20 attendance of witnesses, simply to acknowledge their
21 statements or to give the shortest possible evidence,
22 could be avoided.
23 JUDGE MAY: Are there any witnesses whom you
24 want to deal with by way of a statement? And I'm not
25 going to encourage you to do that, because our ruling,
1 although it did allow the possibility of it, was
2 largely against such a course. Then I think you must
3 indicate who the witnesses are, and we'll consider
5 MR. NICE: Mr. Scott may do that in Zepce,
6 and I'll have another word with Mr. Lopez-Terres while
7 he's doing so.
8 JUDGE MAY: Mr. Scott, there seems to be --
9 there's a summary which I didn't mention, but unless
10 you're seeking to get it in in Tulica, we rule the
11 summary out.
12 MR. SCOTT: Yes, Your Honour.
13 JUDGE MAY: That's merely there, as I
14 understand it, for your -- to assist us.
15 MR. SCOTT: Yes.
16 JUDGE MAY: But that's not admissible.
17 Then we have a map, we have a census, a
18 video. We then have three statements.
19 MR. SCOTT: Yes, Your Honour. Those are the
20 statements of the two witnesses in that particular
21 regard that we would propose to call as live -- short
22 of what Mr. Nice has just stated, that we would propose
23 to call.
24 JUDGE MAY: Very well.
25 Then as far as the documents are concerned,
1 there's a list of deceased persons, a list of
2 detainees, another map and various plans, further lists
3 of detainees, and death certificates. Yes. You seek
4 to admit all those.
5 MR. SCOTT: Yes, Your Honour.
6 JUDGE MAY: Very well.
7 Mr. Sayers -- Mr. Stein, the witnesses are
8 apparently to be called.
9 MR. STEIN: Well, let's deal with that first,
11 The witness at 44.7, Fahrudin Poturovic, has
12 been specifically excluded by Your Honour's June 3rd,
13 1999 order, irrespective of Tulica, for late
14 disclosure. That was the subject of a Prosecution
15 appeal to the Appeals Chamber, which was turned down.
16 Those issues are adequately set out at day 27 of the
17 June 3rd, 1999 record.
18 JUDGE MAY: Mr. Stein, let me stop you for a
19 minute. You're saying that we ruled this evidence
21 MR. STEIN: That's correct, sir.
22 JUDGE MAY: Fahrudin Poturovic. I must say
23 it escaped my memory, that -- specifically that
25 MR. STEIN: Yes. There were at least three
1 or four that were subject to the exclusionary rule that
2 Your Honour applied. It was all due to late
3 disclosure. They're specifically set out at the
4 Prosecution's appeal. Yes. There were four, Ifran
5 Ajanovic, the witness in question, Mr. Babic, and
6 Mr. Huremovic. All four were excluded on the basis of
7 that order. The Prosecution appealed. I think there's
8 no sense to beat a dead horse.
9 JUDGE MAY: What about the other matters? Is
10 there any dispute about any of them?
11 MR. STEIN: I would note, sir, that as to the
12 census, there's the two pages. I don't want to stand
13 on much ceremony. The first makes no sense. The
14 second is indeed a summary as set out in the three
15 footnotes. It's a Prosecutor's summary. It's really
16 not the census. For what it's worth, it's worthless.
17 It may or may not be in evidence.
18 We have no objection to the video. As to the
19 documents, we have no objection to 5.2, the lists of
20 the deceased. That's already in evidence. The rest of
21 the documents, there's no source attached; that is to
22 say, there is a list of names of persons imprisoned in
23 the elementary school at 5.3. There's no source
24 given. At 5.4 is a hand-drawn map by the witness
25 Maglic. Same thing with 5.5, hand-drawn cells. I
1 really don't think they'll be helpful. As well as 5.6,
2 hand-drawn maps of the Silos. Besides being no proper
3 foundation, I don't think they're going to help the
5 More germane, 5.7 and 5.8 are names of
6 Muslims held in the five hangars and lists of Muslims
7 captured. There's no source given to how those lists
8 came into being, whose lists they are, or the basis.
9 JUDGE MAY: It's a matter of weight, isn't
11 MR. STEIN: Of course, sir. You just don't
12 even know who to put it to, who to attach it to. And
13 then the death certificates, of course, we have no
14 problem with.
15 [Trial Chamber confers]
16 JUDGE MAY: We'll admit the documents, but,
17 Mr. Scott, if it's right that Mr. Poturovic is already
18 the subject of a ruling, then there's no need --
19 there's no possibility of your calling him.
20 MR. SCOTT: Your Honour, I specifically
21 wanted to raise that and Mr. Ajanovic with the Court
22 and had it on my notes to do so.
23 JUDGE MAY: Yes.
24 MR. SCOTT: I don't wish there to be any
25 impression that we were trying to slide that by, but in
1 the order of things we went to the documents.
2 Your Honour, the three witnesses that we
3 would present, select to call live, and Mr. Stein is
4 absolutely correct on this point, include
5 Mr. Poturovic, and I come to also include this morning
6 and ask the Court's leave to call Mr. Irfan Ajanovic.
7 Before we turn back to those, the third is Taib Sehic,
8 about whom there apparently is no dispute.
9 Let me do this very briefly, Your Honour. We
10 have said, as the Court knows, virtually from day one,
11 perhaps even before the trial started, that there were
12 some -- there began to be some notions of something
13 like two witnesses per village, never written in stone,
14 but something along those lines. It's absolutely
15 correct that Mr. Poturovic and Mr. Ajanovic were among
16 those two of the four that were excluded, I think in
17 June, on the 3rd of June last year. We absolutely say
18 that openly, acknowledge that.
19 We asked the Court to review that, and your
20 argument is this: There is no disclosure issue
21 concerning these two. These statements have now been
22 turned over, were turned over in May. There simply can
23 be no surprise to the Defence. As we try to conclude
24 this case, Your Honour, as we're trying very hard to do
25 by the 10th of March, these are, if we have to pick and
1 choose the witnesses to present on the two-per-village
2 rule, these would be among those that we would choose
3 to provide, Your Honour, recognising that we're now at
4 a point in the trial, the Prosecution has to pick those
5 witnesses and that evidence to present in the final
6 stages before the 10th, and I would ask the Court,
7 respectfully, that there being no bona fide disclosure
8 issue, having been disclosed some eight months ago, but
9 as we conclude the case, the Prosecution should be able
10 to call what it views to be the best witnesses on this
11 particular city or village, Zepce.
12 We think there's simply no prejudice to the
13 Defence at this point, and we would ask the Court,
14 acknowledging the Court's prior ruling, that we ask the
15 Court to allow us to call -- to make our selection of
16 those village witnesses to include those two
18 JUDGE MAY: You've had at least one witness
19 on Zepce.
20 MR. SCOTT: Yes, Your Honour. I don't think
21 it's in closed, is it? It's a protected witness, Your
22 Honour, but the Court is correct. If it's sufficiently
23 important we go to private session, but there is --
24 there's only been, Your Honour, to date one witness on
1 [Trial Chamber confers]
2 JUDGE MAY: We've ruled in the case of one
3 witness, and Judge Robinson points out that it's a
4 matter which is res judicata, I suppose there may be
5 discretion to reopen old decisions, but if there is,
6 we're not going to take it.
7 Now, that's the binders. There are a number
8 outstanding. Those are the ones for today.
9 Kiseljak, Vitez.
10 MR. NICE: Yes. There is a discreet issue in
11 relation to Tulica itself, but Mr. Lopez-Terres
12 suggests that it can probably be dealt with when
13 Kiseljak is reviewed. Parties have staked out
14 positions in correspondence, and I don't think there's
15 much point in taking time with it today. We can deal
16 with it with Kiseljak, which I think we'll be dealing
17 with on the 14th when we're going to deal with all
18 outstanding village binders, I hope.
19 We will, I trust, between now and then,
20 notify the Defence of any witnesses who we say should
21 be read, and we'll try and notify the Chamber between
22 now and then similarly of what witnesses we say should
23 be read or could be read in order to save time.
24 There are no witnesses in respect to the two
25 villages Mr. Lopez-Terres dealt with who we'd asked to
1 be read, either because they are witnesses who have to
2 come for one reason or another or because their
3 attendance is, frankly, already been organised, so they
4 might as well come.
5 That leaves me with about four tiny points to
7 JUDGE MAY: Before 12 o’clock, if you could.
8 MR. NICE: Now that the tape and its
9 transcript have been admitted, the outstanding small
10 issue on Hadzihasanovic seems to be capable of being
11 disposed of. We don't require him. The Court has
12 already indicated it doesn't either. He, therefore,
13 won't come.
14 The same topic. The Chamber will recall that
15 at the application to exclude, the evidence was read of
16 the telephone official who diverted the call. That's
17 part of the transcript. I don't know that I
18 particularly need that witness for my case in any
19 event, although he has presently arranged to come in
20 the week after next. All he's going to say is what's
21 contained in the statement. I don't know whether the
22 Defence are going to make any point about the
23 admissibility of what he's already said in the
24 statement, in the trial, or whether they're going to
25 admit it or what.
1 I better not give the name in case he seeks
2 protection, but the Chamber will probably be able to
3 find it, and if not, I probably will be able to provide
4 a copy. Maybe I'm --
5 JUDGE MAY: Is he on the list which we have?
6 MR. NICE: Yes, he -- no. I'm not sure that
7 he is on --
8 JUDGE MAY: No matter. No matter. Is there
9 any reason why the Defence want him?
10 MR. STEIN: No, not at all. We agreed to
11 have him read out as part of the preliminary matter.
12 It's, in our view, incorporated by reference in the
13 record, as I said. I'm surprised there's an issue.
14 JUDGE MAY: Very well.
15 MR. NICE: I'm grateful. I think that is,
16 and I might be wrong, the first statement that's --
17 read statement that's gone in. I'm grateful.
18 The next issue is documents generally and the
19 document production. As we know, the Defence are going
20 to notify us as soon as may be of any documents the
21 provenance of which is doubted. The date was to be
22 today but has understandably has been extended.
23 We know so far of only a few documents whose
24 provenance is challenged, and we are making
25 arrangements to call witnesses to prove those. It will
1 obviously be more satisfactory if we can deal with that
2 issue on a -- as a single topic and call the witness or
3 witnesses necessary at an identified date.
4 May we have, perhaps, a revised timetable of
5 when we'll be notified of what documents are challenged
6 as to their provenance? It will assist us.
7 And before I sit down, because the following
8 topic, short as it is, may also require an order, I
9 don't know, videos, for example, videos of meetings
10 involving Mr. Kordic, that sort of thing, there has, I
11 think, been an issue as to whether they can be produced
12 other than by a participating witness. That, with
13 respect, must, I think, be wrong. A witness can simply
14 produce a video. "I produce this video," says the
15 witness. "It was handed to me by 'X' or 'Y.'" But in
16 fact, I think, it's clearly the case in this Tribunal
17 that -- not necessarily this Chamber but in this
18 Tribunal that such material is typically accepted
19 without any cumbersome procedure as to receipt and
20 provenance where there's no purpose to be served in
21 those issues taking the time of the Court.
22 The Chamber will remember, I think, a social
23 anthropologist whose tape was simply played, and it may
24 have been introduced by an expert nominally, but the
25 tape was simply played.
1 We've got a number of tapes, videotapes of
2 one type and another, and in principle, providing they
3 meet the test of relevance, it's our view that they
4 should simply be admitted without the cumbersome
5 procedure of producing someone to produce them, whether
6 a participating witness or otherwise. It will be
7 rather like the aerial video. Of course Colonel
8 Capelle was able to say something about it, but if he
9 hadn't been around, probably it would have been
10 acceptable and admissible because it spoke for itself.
11 Those are the only matters that are
13 JUDGE MAY: Yes.
14 MR. STEIN: May it please the Court. We'll
15 have our work done by Monday, the 14th. All of it, I
17 JUDGE MAY: Very well.
18 MR. STEIN: However, let me be clear on two
19 things. As to the documents, it is my view that we
20 will have a template or working with the Prosecution to
21 get our computer, their computer, and literally give
22 you yes, no, and why.
23 The videos are in total disarray. We don't
24 know what we have, what they've given, what they want.
25 We -- there's been a series of communications between.
1 I'm less sanguine on that.
2 I rise, however, to make one final
3 observation, if I may. We will endeavour to work 16
4 hours a day next week to get everything behind us, the
5 village dossiers; the documents; what we can of the
6 videos; the transcripts, 12,000 pages, but that's the
7 end. Any other submissions thereafter, it is our view
8 they're for pure tactical gain and advantage. We are
9 now going to focus on our case, I hope, so that we can
10 put on a neat, tidy, compact case.
11 MR. KOVACIC: Two small additions, Your
12 Honour, if I may. First, videotapes, confusion --
13 there is really confusion. And second, we are
14 expecting to have argument on that. There is an open
15 proposal of the Prosecution to tender all the video
16 material simply in the case without any argument on
17 that and criticism.
18 For example, I do have -- I have them in my
19 bag today. I do have two examples of the videos on
20 which I will try to show why we cannot allow that.
21 JUDGE MAY: Very well. We'll allow time for
22 that, but again, if you could indicate what's admitted
23 and what isn't to the Prosecution so that they know.
24 MR. KOVACIC: That goes without saying. And
25 if I just may, just for a second, which our colleague
1 Prosecutor raised on the beginning of today's argument
2 concerning the affidavits or whatever they will be in
3 their form which are planned to be taken in Bosnia.
4 I fear that that is a certain problem. We
5 did investigate the current law there, and from that
6 what was said this morning -- I'm not sure I understood
7 everything correctly -- there is either a new law
8 enacted or there is some mechanism invented which is
9 trying to avoid the law. So I would suggest that the
10 Trial Chamber orders the Prosecutor to inform us which
11 is the legal base in Bosnia to go on that agreement
12 with the Federation, that they will appoint a Judge,
13 and by the way, yesterday it was said Muslim Judge, so
14 there is obviously some discussion.
15 So what is the legal base for that agreement
16 so we can investigate that and check and, second, to
17 give us a copy of the request which will be sent by the
18 Prosecution to the Federation of Bosnia-Herzegovina so
19 that we may follow up the legal aspect of that, because
20 we see -- and we did check that -- that the only legal
21 possibility in Bosnian is so-called international
22 assistance in criminal matters, which means the
23 Judge/investigator is summoning the witness, the
24 witness is giving a statement in front of the Judge.
25 It is not just authentication of identity or his
1 signature. He is giving a statement, and the Defence
2 is entitled to be present.
3 JUDGE MAY: Let's see what they produce.
4 When they produce it, we will rule upon it.
5 Now, unless there are any other matters.
6 Very well. Half past 9 Monday next week.
7 --- Whereupon the hearing adjourned at
8 12.03 p.m., to be reconvened on
9 Monday, the 14th day of February, 2000,
10 at 9.30 a.m.