1 Friday, 19
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.33 a.m.
5 JUDGE MAY: Mr. Nice, it may be convenient if
6 we refer to the Defence summary of affidavits.
7 MR. NICE: What I've done is prepared a
8 document. I'm afraid it's not formally served, but
9 it's a summary of our position. It follows the Defence
10 list in order, and it sets out all that I have to say
11 on the affidavits succinctly.
12 JUDGE MAY: Very well. We'll receive that.
13 MR. NICE: The first five paragraphs explain
14 our position, following on from the short discussion
15 yesterday about the position the Defence will take, and
16 I'll just read it out.
17 There is material in all affidavits contrary
18 to the Prosecution case. The Defence argument on the
19 construction of Rule 94, now being taken on
20 interlocutory appeal, is that objection to an affidavit
21 makes it impossible for that affidavit to become part
22 of the evidence in the trial.
23 The Trial Chamber takes a different view --
24 THE INTERPRETER: Would you mind slowing
1 MR. NICE: [Inaudible] ... the Prosecution
2 agrees -- I'm so sorry -- pending resolution of the
3 interlocutory appeal, that it is the Chamber which
4 decides whether an affidavit should be read following
5 any objection.
6 Your Honour, I omitted to get copies of this
7 for the interpreters.
8 THE INTERPRETER: Yes, please. Yes, please.
9 MR. NICE: I'm trying to get them produced
11 THE INTERPRETER: If you could then speak
13 MR. NICE: The Trial Chamber has the power to
14 order an affidavit witness to be called for
15 cross-examination of its own motion, i.e., even if
16 there is no objection. In these circumstances, the
17 Prosecution formally objects to all affidavits, simply
18 to ensure its position is preserved and overall
19 fairness obtained if -- in the event the Defence
20 interpretation of Rule 94 is found by the Appeals
21 Chamber to be correct. And the Chamber will recall
22 that the Defence has objected to the adduction of any
23 and every affidavit in the Prosecution's case.
24 To assist the Chamber, the Prosecution sets
25 out particular reasons, in relation to certain
1 witnesses, why the witness should be called for
2 cross-examination. And then dealing with them in
3 order, and I shan't read all matters out, for some of
4 them are matters better not read out but the Chamber
5 can read them, but so far as Tokic --
6 JUDGE BENNOUNA: Before going to the
7 examination of each affidavit, personally I cannot
8 agree with your interpretation of the position of the
9 Defence and what is going on now in the appeal, what is
10 at stake in the interlocutory appeal. [Interpretation]
11 I believe that we cannot move ahead in this way.
12 We all know, here in this Chamber, why there
13 has been an appeal and what the motivations for it
14 were. We all are aware of the circumstances in which
15 your affidavits came in and were accepted, with a
16 specific interpretation provided by the Chamber.
17 Therefore, starting from what you just said,
18 namely, that what is at stake at the appeals level is
19 that an objection to an affidavit is such that it is no
20 longer possible for the affidavit to become an exhibit
21 before the Chamber. Starting from that cannot be
22 done. The problem doesn't lie there.
23 The problem raised by the Defence is the
24 interpretation to be given to 94 ter as provided by the
25 Defence and also heard by the Chamber. It is not true
1 that any objection makes it impossible to maintain the
3 Can you start from such an interpretation
4 that you will systematically make an objection to
5 affidavits in order to reserve your position? I don't
6 think that is an acceptable point of view.
7 Now, as we said, and this was decided upon
8 yesterday, you have to provide your rationale and your
9 motivation affidavit by affidavit. There is no general
10 stance on absences as to affidavits. That has been
11 decided upon yesterday. We shall not come back on
12 this. We shall make a decision affidavit by affidavit,
13 either that, we retain your objection, or we turn it
14 down. So this is where we are at today.
15 MR. NICE: I've read the Defence motion in
16 the Appeal Chamber. They are seeking a ruling to the
17 effect that if there is an objection, an affidavit
18 cannot be allowed in evidence. It's not an
19 interpretation with which I agree, but inevitably in
20 this Tribunal, if that's what the Appeal Chamber
21 decides, that will be, for the time being, the law of
22 the Chamber.
23 What I have done is, I hope respectful of the
24 potential for precedent authority to be effective in
25 this Tribunal but nevertheless entirely constructive
1 and helpful to the Chamber, I stand by my position and
2 dealing, as the Chamber wanted, witness by witness,
3 with whether there are particular reasons, in addition
4 to the general objection which I state for the purposes
5 set out in this short document.
6 For Tokic, there are no particular reasons.
7 However, we observe that the man is a commander who
8 might be expected to have direct knowledge of matters
9 in issue, and there may be a pattern emerging of the
10 Defence seeking to rely by affidavit on such senior
11 members of the HVO, witnesses who would find it less
12 easy to assert ignorance of events, as have many of the
13 witnesses so far called have.
14 I turn then to Ivica Drmic.
15 JUDGE BENNOUNA: [Interpretation] Can you wait
16 a little, because we want to make a decision on each
18 [Trial Chamber deliberates].
19 JUDGE MAY: There being no particular ground
20 of objection beyond what is set out in the paper, this
21 affidavit is admitted.
22 MR. NICE: It may be that the next three
23 should be considered together for they all cover the
24 Donja Veceriska bar.
25 JUDGE MAY: Two.
1 MR. NICE: Cover the bar.
2 JUDGE MAY: Just remind us, this is the
3 Midhat Haskic incident.
4 MR. NICE: Correct.
5 JUDGE MAY: The admissibility of his
6 statement being subject to another appeal.
7 MR. NICE: Yes, indeed.
8 JUDGE MAY: As far as that is concerned,
9 there was the evidence of Mr. -- I mean the statement
10 of Mr. Haskic on the point for the Prosecution, and the
11 Defence have called -- I will be reminded of the --
12 MR. NICE: They have called Branko Drmic and
13 Mile Vinac.
14 JUDGE MAY: So they have called two witnesses
15 and these are two other witnesses on the point.
16 MR. NICE: Correct.
17 JUDGE MAY: We ought to take the -- consider
18 these two together.
19 MR. NICE: Ivica Drmic claims to have been in
20 a bar but that was not supported by Branko who did not
21 recall his presence and that's a particular feature in
22 respect of both of them, the incident generally the
23 Chamber might think which warrants all eyewitnesses
24 being called because of its potential significance.
25 JUDGE MAY: Thank you. Yes, Mr. Sayers.
1 MR. SAYERS: I hope it's apparent to the
2 Trial Chamber that we've employed a method in our
3 approach to the presentation of evidence, it's topic by
4 topic, and we see no reason to bring four witnesses to
5 testify about a topic when one or two are sufficient.
6 We believe that the one or two that we have
7 produced are sufficient. Producing two more would
8 simply lengthen proceedings.
9 JUDGE BENNOUNA: Did you present one or two?
10 MR. SAYERS: Two, Branko Drmic and Mile
11 Vinac, but the reason we did so, Your Honour, was
12 because they actually testified to two different kinds
13 of points. Their testimony did not overlap
14 completely. If it had, we would only have produced one
16 As we understand it, the whole purpose of
17 Rule 94 ter is to expedite proceedings by producing
18 purely corroborative affidavits, and that's exactly
19 what we did. These affidavits corroborate the
20 testimony of the live witnesses. They don't adduce any
21 additional evidence beyond what has already been
22 testified about and our position is calling either or
23 both of these gentlemen would merely be duplicative of
24 the evidence that's already been adduced.
25 [Trial Chamber deliberates]
1 JUDGE MAY: We've considered the submissions
2 in relation to this incident in the bar and we think
3 the matter is sufficiently covered by the evidence
4 we've heard. Of course by doing so, we make no
5 indication at all as to any ruling, any finding,
6 rather, of fact, which we may make but as far as the
7 evidence is concerned, we don't think it's a matter
8 which the objection or the requirement for
9 cross-examination can be sustained having regard to the
10 totality of the evidence and its importance.
11 MR. NICE: The next three Arapovic, Kristo
12 and Santic all deal with the checkpoint incident. And
13 again, the proposition is advanced that this is an
14 incident sufficiently important for all eyewitnesses to
15 be called.
16 I don't read out publicly what's item two
17 against Milenko Arapovic, nor item two in relation to
18 Kristo, nor item two in relation to Santic. They are
19 matters that the Chamber may want to have in mind when
20 it considers whether these are witnesses who can
21 properly be taken by way of affidavit in this important
22 piece of the case, or important piece of evidence which
23 is a discreet incident within the case and which, of
24 course, is the only part of the case, I suppose, which
25 is close in general feel and substance to an ordinary
1 straightforward criminal allegation and trial.
2 So those are the points we make about those
3 three witnesses.
4 MR. SAYERS: Thank you, Mr. President.
5 Just a couple of points I'd like to make on
6 that. First of all, it can't have escaped the Trial
7 Chamber's attention that this particular incident is
8 not charged anywhere in the indictment. It certainly
9 hasn't escaped our attention.
10 A point has been made that some sort of an
11 alibi defence should have been asserted by the -- by
12 the Defence, but as I've informed the Prosecution, it's
13 not our policy to assert alibi defences to charges
14 which are not specifically made in the amended
15 indictment. That's the first point that I wanted to
17 The second point that I wanted to make is the
18 two witnesses that we have produced on this incident as
19 the Trial Chamber will remember were Josip Grubicic and
20 Ivo Arar. We produced them for different reasons.
21 Ivo Arar was the actual escort in the car
22 containing Mr. Kostroman that was actually stopped at
23 the checkpoint. Mr. Grubicic was one of a group of
24 people that travelled down to the checkpoint to assist
25 Mr. Kostroman having -- Mr. Bogdan Santic having
1 received a call from Mr. Kostroman's car over a
3 These three witnesses corroborate the
4 testimony of both of the live witnesses that we have
5 testified. For the reasons that I have previously
6 articulated, we do not think that it's necessary to
7 bring five witnesses when two cover the point
8 sufficiently, although they don't cover the same
9 factual points in precise detail, they did overlap on
10 one significant point and that is the fact that
11 Mr. Kordic was not there, and these affidavits all
12 corroborate that.
13 We see no reason why these people should be
14 brought before the Court to give evidence which is
15 essentially completely duplicative of that that has
16 been given by two witnesses.
17 And actually, as my colleague points out,
18 some of the Busovaca witnesses that we will be
19 producing next week and the week after that are going
20 to give evidence broadly consistent with the
21 information contained in these affidavits as well as
22 the testimony in court of Mr. Grubicic and Mr. Arar.
23 Thank you.
24 JUDGE BENNOUNA: Excuse me, Mr. Sayers, is it
25 about the -- this incident.
1 MR. SAYERS: Yes.
2 JUDGE BENNOUNA: The witnesses who are to
4 MR. SAYERS: Yes.
5 JUDGE BENNOUNA: About the Kacuni checkpoint
7 MR. SAYERS: Their testimony is going to
8 cover a lot more territory than this. I mean we have
9 produced the Kacuni witnesses that we had intended to
10 call and had planned to call in our presentation of our
11 case. But other witnesses in our case covering many
12 other topics will also give what knowledge they have of
13 who was involved in the Kacuni checkpoint incident. Of
14 course the only issue, I think, that is relevant to
15 this entire incident is the single question of was
16 Mr. Kordic there, and we think the evidence is pretty
17 clear that he was not.
18 JUDGE MAY: Even if we decide, and we
19 haven't, we've got to consider it, but I want to make
20 it plain at the outset of this discussion about
22 You assert that you think you've brought
23 sufficient evidence. Well that's a matter for you, of
24 course, and your submission on the topic. The fact
25 that if we do rule that cross-examination is not
1 necessary does not mean that we accept that point of
3 MR. SAYERS: I fully understand that, Your
5 JUDGE MAY: And we shall have to make our
6 judgement at the end, and our findings on the evidence
7 which is laid before us.
8 MR. SAYERS: Of course.
9 JUDGE MAY: I don't want you to be under any
10 misunderstanding, thank you.
11 [Trial Chamber confers]
12 JUDGE MAY: Mr. Nice, would you help us to
13 this extent: Of these three, I seem to remember that
14 Arapovic's name was mentioned. Can you help us with
15 the evidence on that?
16 MR. NICE: I can't help you immediately, but
17 I can swiftly find it.
18 Yes. Witness T said that when they were
19 stopped by the soldiers at the lower point, that the --
20 this is in relation to other matters. Arapovic was
21 mentioned as a person who detained Witness T at the
22 fish ponds. That may be one of the reasons you're
23 remembering that unusual name. And he gave a graphic
24 account of how they were then detained and dealt with.
25 That's one of his appearances in the evidence. I'll
1 see where the next ones are. I think that's
2 probably -- that's the reference outside this area that
3 he's been referred to, so he features -- I perhaps
4 should have dealt with that there -- he features
5 independently in the evidence, it would appear, as
6 somebody showing partiality and doing bad things.
7 JUDGE MAY: Can you assist us as to this:
8 Were either of the other two, Kristo or Bogdan Santic,
9 mentioned in relation to the Kacuni incident?
10 MR. NICE: Other than by Defence witnesses?
11 JUDGE MAY: Other than by Defence witnesses.
12 By the Prosecution witness.
13 MR. NICE: I'll just check on that. I think
14 "probably not" is the way it's looking at the moment.
15 [Trial Chamber deliberates]
16 JUDGE MAY: Well, having regard to the issues
17 raised -- this is an important incident -- we have to
18 balance the need for cross-examination of witnesses
19 with the need for expedition, and we have come to the
20 conclusion that Milenko Arapovic should be called for
22 In relation to the other two, their
23 affidavits will be admitted on the basis which I've
24 already explained, that it doesn't mean that there is
25 any finding in relation to this incident, as that's
1 what we'll have to do. But we're prepared to admit
2 those affidavits.
3 But in the case of Mr. Arapovic, because he
4 has been mentioned in the Prosecution evidence, we
5 think it right that the Prosecution should be able to
6 cross-examine him.
7 Yes. Now, going on, Mr. --
8 MR. NICE: Len Santic. No particular reason,
9 but he's -- I set out what's known about his background
10 and about one or two of the contacts which I think will
11 be familiar names in light of the Ahmici incident.
12 JUDGE MAY: We'll admit that affidavit.
13 MR. NICE: Mario Santic, he touches the
14 Breljas evidence, which is obviously of potential
15 importance. He's former Vitezovi and HOS, and you can
16 see what's said in number 3. The Chamber may think
17 that it may be inappropriate to allow reliance without
18 seeing this witness on what he would be saying about
19 that critical incident at a critical point of time.
20 JUDGE MAY: Yes. To remind ourselves, this
21 is Mr. Breljas' evidence that Mr. Kordic was at the
22 Dubravica barracks at a meeting on the 15th of April?
23 MR. NICE: 15th, but it's fair to say --
24 JUDGE MAY: Query --
25 MR. NICE: Query 15th or 16th.
1 JUDGE MAY: 15th or 16th, and therefore no
2 doubt the Prosecution would rely on that evidence as
3 showing a connection between the accused and the
5 MR. NICE: Of course.
6 JUDGE MAY: And this witness contradicts that
8 MR. NICE: Absolutely.
9 JUDGE MAY: Mr. Sayers, anything you want to
10 say about this?
11 MR. SAYERS: Not really, Your Honour. As you
12 can see in the summary of Mr. Santic's evidence that
13 we've filed, he was actually wounded in Mlakici on
14 April the 17th, 1993. The testimony that he provides
15 is almost completely duplicative of what Mr. Buha
16 testified about. But if the Trial Chamber wants him
17 here, obviously he'll come.
18 JUDGE MAY: Well, yes, we do. We think he
19 should be called.
20 MR. NICE: The next witness, Ljuba Vidovic,
21 as you can see from the summary provided in the Defence
22 document, deals with what she saw on television on
23 particular occasions in considerable detail. Such a
24 witness would probably not, in the overall setting of
25 this case, require or justify any particular reason to
1 be called, but we can't help but note that the degree
2 of recollection that she claims is maybe itself
3 improbable and is in contrast to the evidence she gave
4 in Kupreskic to the effect that she had no interest in
5 politics and had a poor memory.
6 I observe that it might be sufficient for
7 this particular problem to be resolved, if her
8 affidavit is to be read, by the relevant transcript in
9 Kupreskic also being taken into account as being
10 another account of her interest in politics and the
11 state of her memory.
12 MR. SAYERS: I'm not in a position to comment
13 on that, Your Honour, because we've just received the
14 document that has been distributed today, and I do not
15 have in mind the Kupreskic testimony that Ms. Vidovic
17 Her testimony seems to be fairly basic, and
18 that is, that she has no recollection whatsoever of any
19 of the kinds of comments attributed to Mr. Kordic on
20 two separate occasions ever having been made, and there
21 is plenty of other evidence to the same effect.
22 [Trial Chamber deliberates]
23 JUDGE MAY: We will admit the affidavit. If
24 there is a submission in relation to the transcript,
25 we'll consider that at the appropriate time.
1 MR. NICE: Mario Mlakic, who worked at TV
2 Vitez, no particular reason.
3 JUDGE MAY: Admit.
4 MR. NICE: Nevin Maric, there is one
5 additional fact that I ought to have drawn to your
6 attention beyond what's on the little schedule, and
7 that is that his name is not on the Defence witness
8 list. So far as he is concerned, he is a former
9 commander of the brigade in Kakanj, and he sets out
10 quite detailed evidence.
11 I note that he sets out, somewhat
12 elliptically, his contacts with and the visits by the
13 defendant Dario Kordic. He says he met him during the
14 war, that Mr. Kordic did not visit Kakanj after
15 September of 1992 and was never in Vares at any time in
16 1993. So the picture of contacts is far from clear.
17 And this is a commander, a person in a senior position,
18 but it's Kakanj.
19 So there are reasons why the Chamber might
20 prefer to see this person to have these matters
21 clarified. And in any event, he was not a listed
23 JUDGE MAY: We will admit this.
24 MR. NICE: Pavo Barac, no particular
1 JUDGE MAY: Admit.
2 MR. NICE: The last witness, one for whom
3 there are several reason why he should be called, Novi
4 Travnik is his area. And Novi Travnik, of course,
5 unlike some of the other locations, features in several
6 of the accounts in the indictment.
7 As president of the HDZ, he's an important
8 political figure who should be able to give first-hand
9 evidence of political influence in Novi Travnik in the
10 war. His denial of contact with Kordic should be
11 explored in cross-examination, and he should know more,
12 it may be, than the witness recently called yesterday.
13 The circumstances of his appointment to his
14 position would need to be explored.
15 He was thought to be with Kordic in Novi
16 Travnik in February, discussing the Bratstvo factory
17 matter. To be explored.
18 In March, he appeared with Kordic on the
19 television, discussing military and arms issues, and of
20 course he should be the person or a person able to deal
21 with and confirm or, alternatively, not able to confirm
22 the 21st of January, 1993 meeting which relates on to
23 the checkpoint incident and, indeed, on which some of
24 the checkpoint defence is built.
25 So in our respectful submission, this would
1 be a witness of potential value, and it would not be
2 appropriate, in our submission, for his evidence to
3 come in by affidavit.
4 MR. SAYERS: Once again, Your Honour, when we
5 decide which witnesses to bring before the Court, we
6 have to make informed decisions relating to the issues
7 that are specifically raised by the Prosecution's
9 In Novi Travnik, we think we've produced two
10 witnesses who address the general allegations about
11 Novi Travnik in a fairly specific way.
12 Mr. Sekic's affidavit confirms Mr. Civcija's
13 testimony again in a general way. His affidavit
14 doesn't cover any specific factual issues. It just
15 generally corroborates the picture of events over a
16 one-and-a-half-year period that Mr. Civcija gave to the
17 Court yesterday and the day before. There's no mention
18 of the checkpoint incident in this affidavit, and that
19 would be beyond the scope of direct examination
21 Once again, I guess if the Court thinks that
22 it's necessary to bring yet another Novi Travnik
23 witness to testify, we can do that. But the only
24 concern that I have is this: We've given a good-faith
25 estimate to be finished our case by the August break,
1 and I'm happy to inform the Court that we are on
2 schedule to do that and we're going to make our
3 committed efforts to continue to do that. Obviously,
4 we have some significant witnesses coming up and we'll
5 have to re-evaluate the position. But I have plotted
6 out our case for the 12-week period, and we're at the
7 end of week 4, one third of the way through our case,
8 and we're exactly where we thought we would be.
9 If witnesses are called and subjected to
10 extensive cross-examination of the type that we've seen
11 so far, that may jeopardise the schedule and require us
12 to compress other evidence. If it does, we'll
13 obviously try to continue to adhere to our deadline,
14 but we don't think that it's necessary to bring a
15 person like this to the court to give more general
16 testimony of the kind that drew comment from the Court
17 when it was being gone over by my colleague
18 Mr. Naumovski.
19 [Trial Chamber deliberates]
20 JUDGE MAY: Well, we've considered this with
21 care. The affidavit is in very general terms following
22 and corroborating evidence which has already been
23 given. The grounds for wanting to cross-examine a
24 witness in this case or really, that more information
25 could be obtained from him, the Prosecution hoped, and
1 given the various factors that we have to take into
2 account, we don't think that's sufficient to order his
3 presence here for cross-examination.
4 MR. NICE: Items six and seven, can I just
5 turn to the third page. At the moment, the Defence
6 witness list being served covers two weeks at most and,
7 typically, we try to give six weeks or the whole run of
8 our witnesses projected to the Defence when we could.
9 We've just seen one affidavit which comes from somebody
10 not on the list at all, which the Chamber has allowed
11 in but in any event, the Defence witness list, that is
12 the list of witnesses forthcoming does not include
13 affidavit witnesses who are to be served and so far,
14 they've all or nearly all been served immediately
15 before the witness being corroborated is called.
16 The seven days allowed in the rules, as a
17 matter of fact, is not sufficient for us. It's
18 insufficient for us to conduct the sort of inquiries
19 into affidavit witnesses and their backgrounds to give
20 you the best assistance we can -- we should be able to
21 give you. There's no complaint in that. I'm just
22 saying that that's simply the difficulty we face.
23 JUDGE MAY: Well, Mr. Nice, if, in a
24 particular case, it's a difficulty, if it's a general
25 witness, I don't anticipate that there would be much
1 difficulty in a week. But if there is, say in the case
2 of the last witness, that there is a broad area which
3 you wish to look at, then it's open to you to make an
4 application for an extension of time.
5 MR. NICE: Yes, the other area is the sort of
6 matter that you've seen referred to in, for example,
7 Mr. Arapovic and item two on us that might be available
8 to us in seven days or that might be information of
9 background that only comes outside that period of
10 time. So I draw it to your attention.
11 What we would be assisted by, and it would
12 seem to us that this should really be the position, is
13 being notified in advance of what affidavit witnesses
14 are going to be tendered so that we can start the
15 process of making our inquiries as the same time that
16 we are in a position to making our inquiries in respect
17 of the witnesses they support.
18 It would seem to us that is consistent with
19 the general policy of being given an advanced list or a
20 list of witnesses advance of them coming to give
21 evidence one way or the other.
22 JUDGE MAY: Mr. Sayers, can you assist as to
23 that? We note that you are on target and commend the
24 way in which you have been conducting the matter. But
25 there is a problem about the future which is this:
1 That at the moment, a large number of names have been
2 given and it's impossible for the Court or anybody else
3 to know which of those, in fact, are coming or likely
4 to give affidavits. And that may, in turn, cause
5 delays by the other side having to ask for time to make
7 Now, can we at some stage have a list, a firm
8 list, or as firm as possible list of those who you hope
9 to call, those whom you hope to call by way of
11 MR. SAYERS: Aspirationally, I would be
12 delighted to do that, Your Honour, and I think that we
13 can, if it would be helpful to the Prosecution, we can
14 give a list of the affidavits witnesses that we intend
15 -- or the affidavits that we intend to try to acquire
16 each two week period. In other words, when we give a
17 two week batting order, as we've been asked to do by
18 the Trial Court, and which we've done, we could also
19 alert the Prosecution as to the affidavits that we are
20 going to try to collect, if we can, and indicate which
21 particular witnesses those affidavits are going to
22 corroborate. If that would be helpful.
23 But I can say right now, we -- it's always
24 difficult to come up with a precise number of the total
25 number of witnesses that we intend to call, but I think
1 it's about 60, and I would note that we have called 20
2 to date, and we're one-third of the way through so that
3 sounds right.
4 And I also would like to alert the court, if
5 I may, we may as well do it right now --
6 JUDGE MAY: Just one thing. For the next two
7 weeks, are you in a position to give the names of the
8 affidavit witnesses? You needn't give them now, but
9 can you pass them to the Prosecution today?
10 MR. SAYERS: We can pass to the Prosecution
11 today the ones that we are reasonably sure that we can
12 get, and maybe indicate the ones that we would hope to
13 get if we could. I'd prefer not to do the latter,
14 because that might expose the affiant to unnecessary
15 attention, but we can certainly alert the Prosecution
16 that we are fairly certain of the ones we can get and I
17 can do that today. Yes, Your Honour.
18 And with respect to Mr. Arapovic and
19 Mr. Santic, we would propose if we can persuade these
20 gentlemen to come in to testify the week after next, so
21 we can stay on our projected schedule. Their testimony
22 should be relatively short, I trust.
23 JUDGE MAY: Yes.
24 MR. SAYERS: There's one other matter that I
25 would like to raise, Your Honour, and it may sound
1 trivial, it probably is trivial, but it's a matter of
2 judicial notice the about the death of Dr. Ante
3 Starcevic. We've previously provided the Prosecution
4 with an extract from a book which states that Dr. Ante
5 Starcevic died in 1895. It seems to be an
6 incontrovertable and simple, historical fact that would
7 be appropriate for the Court -- of which the Court
8 should take judicial notice and I can distribute to the
9 Court, if it's necessary, the extract of the book upon
10 which contains this historical fact.
11 JUDGE MAY: Have you it in translation?
12 MR. SAYERS: Yes.
13 JUDGE MAY: So why don't you hand it in? Who
14 was he, at a matter of interest?
15 MR. SAYERS: He was a prominent Croatian or a
16 prominent Croatian politician who died in 1895 had no
17 relationship whatsoever to do with the Ustasa, as
18 indicated. And I've highlighted the passage upon which
19 we rely.
20 MR. NICE: Two other matters; one very
21 short. We've been provided with the names of two
22 witnesses, confidential witnesses, but no summaries yet
23 and, no doubt, that's oversight. But the summaries
24 should presumably be served in accordance with the
25 Court's general order about summaries.
1 JUDGE MAY: What's the position?
2 MR. SAYERS: I do not recall any order
3 requiring summaries, but if the Prosecution wants a
4 summary of the expected testimony of those witnesses,
5 we will provide it to them this weekend.
6 JUDGE MAY: Yes.
7 MR. NICE: The second point, can I revert to
8 the tape, to make things one step apparently more
9 complicated, but in the second step rather more --
10 rather more encouraging, rather better.
11 The end position may be when we look at
12 things, and I'm not sure about this, but the end
13 position may be that in fact the Registry has had the
14 original tape all along. Now I must explain why that's
15 a possibility and what has to be done. The -- it's
16 something that's only come to light this morning.
17 First of all, it is necessary to go back and
18 remember the detail about what happened. I'm sorry
19 about this, but it's an unusual event and it's got to
20 be recalled from memory.
21 What happened was, as the Chamber will
22 recall, that the witness produced it in the witness
23 box, although it wasn't this courtroom. It went
24 straight from the witness to what would be the
25 equivalent of the room behind me now for playing, and
1 while it was in that room, it was copied.
2 The session ended, the witness left, and the
3 Audio-Visual Department distributed the tape provided
4 and the copies.
5 The invariable practice in the institution in
6 respect of tapes has been that the original is retained
7 in the evidence unit and copies are provided for
8 playing and so on. That practice was undoubtedly
9 reflected in the understanding of the Registrar that
10 what they had was a copy because that's what they
11 always get, and it was reflected in the understanding
12 of the OTP that the document thereafter logged and
13 dealt with in the evidence unit was the original
14 produced by the witness. And it may still be the case
15 that that's exactly what happened. But remember, it
16 all happened so quickly. The witness produced it, and
17 it went straight in to be played, I think, that it
18 never really touched our hands.
19 Yesterday afternoon, pursuant to the order,
20 the tape, whatever it was, was taken by Ms. Greenwood
21 and Ms. Verhaag to the Registry for handing over and
22 for signing off on the chain of custody record. Ms.
23 Verhaag noticed that the retained version in the
24 Registry, that is, what was thought to be the Registry
25 copy, which she also saw last week, looked older than
1 the version we had and that was taken down there. Also
2 it's a different make of tape. That's not surprising.
3 Inquiries have been made in a neutral way of
4 the witness as to what make of tape he believes he had,
5 the copy. And his account matches the make of tape
6 held in the Registry, the one he handed over.
7 It will be helpful to know from the Defence,
8 when they have had had a chance to look at their
9 document, what the make of tape is they have. Because
10 although it may be that the Audio-Visual Unit uses
11 different tapes and different makes of tapes from time
12 to time, it may be that if their make of tape is the
13 same as the one that we have and thought to be the
14 original, that, in fact, the original has always been
15 in the Registry, and that what we all have were
16 copies. And that the understanding or misunderstanding
17 derived from what's the normal practice in this court.
18 So I would be grateful if, at some stage, the
19 Defence could let us know what make of -- I don't
20 imagine they know now, what make of tape theirs is and
21 for the time being, both the document, the tape that
22 the Registry originally had on the day and the version
23 that was provided yesterday will, of course, stay with
24 the Registry.
25 [Trial Chamber confers]
1 JUDGE MAY: Mr. Nice, we will order a written
2 report on all this for both tapes, covering both
4 MR. NICE: Yes, of course.
5 JUDGE MAY: And we'll get to the bottom of
6 it. Perhaps the Defence would help with the make of
7 their tape.
8 MR. SAYERS: We would. We've got a digital
9 audiotape that's been given to us by the Prosecution --
10 by the Registry. I can't remember what the make of
11 that is, and the other tape, if we have one, I've never
12 even seen it so I don't know what the make is, but
13 we'll certainly make inquiries and report to the
15 It might help if the Prosecution could
16 provide the Court as an attachment to its report the
17 chain of custody records for this -- for these tapes
18 because I can say for myself, the position is
19 completely confused. I can't follow which -- what
20 what's the original, what's the copy, whose had them
21 and where they've been or anything like that.
22 MR. NICE: The report is being prepared now,
23 and all that can be dealt with and will be dealt with
24 swiftly, but if the Defence, who were provided the same
25 day by the Audio-Visual Department the tape, the make
1 of the tape, that would be very helpful.
2 JUDGE MAY: Unless there are any other
3 matters, we will adjourn until Monday morning at half
4 past nine.
5 --- Whereupon the hearing adjourned
6 at 10.30 a.m., to be reconvened on
7 Monday, the 22nd day of May, 2000, at
8 9.30 a.m.