Tribunal Criminal Tribunal for the Former Yugoslavia

Page 26472

1 Thursday, 12 October 2000

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 9.37 a.m.

6 JUDGE MAY: Yes, Mr. Kovacic.

7 MR. KOVACIC: Thank you, Your Honour.

8 WITNESS: GORDANA BADROV [Resumed]

9 Re-examined by Mr. Kovacic: [Continued]

10 Q. [Interpretation] Good morning, Mrs. Badrov. Thank you for having

11 come. I'm not going to take up too much time.

12 Mrs. Badrov, yesterday, the Prosecutor put a question to you about

13 Mr. Hakija Cengic, commander of the Territorial Defence. I think that you

14 literally said he could have been in a difficult situation when you were

15 speaking about Cengic. Why could he have been in a difficult situation?

16 What was all of this about?

17 A. If you are referring to the Prosecutor's question yesterday when

18 he was asking about Mr. Cengic's hiding.

19 Q. Yes.

20 A. Mr. Cengic actually realised that he could get into a bad

21 situation for a simple reason, eight children were killed near his house.

22 They were massacred. Their bodies were strewn all over the meadow near

23 it. So he and his wife and his children hid in my house.

24 Q. Is that the tragic event in the month of June 1993?

25 A. Yes. Yes, in June 1993.

Page 26473

1 Q. Did Mario Cerkez have anything to do with this protection in your

2 house?

3 A. Yes, Mario Cerkez did have something to do with it, namely

4 Mr. Cengic had hid in my house. I already explained that we were

5 neighbours. All of this is within a diameter of about 100 metres. I

6 simply felt insecure, my family and I, together with Mr. Cengic and his

7 family, when we saw the tragedy that had occurred; namely, we were afraid

8 of the parents' reaction, that is to say, the parents of those children,

9 and that is when I sought Mario's help.

10 Mr. Mario Cerkez gave me two soldiers in order to bring Mr. Cengic

11 and his family to the headquarters of the Viteska Brigade. We simply

12 tried to move them elsewhere until the situation calmed down. We thought

13 that we would return them home in a matter of hours. However, since one

14 child after the other was dying in the hospital, the tragedy was only

15 aggravated.

16 Mr. Cerkez and Mr. Cengic agreed that they should call Mr. Ivan

17 Santic, and they asked him for help or, rather, they asked for an adequate

18 place where they could be sheltered. Nobody could protect Mr. Cengic's

19 house, nobody could guard Mr. Cengic's house because we did not have

20 enough soldiers available. Therefore, the most important thing was to

21 have him sheltered somewhere else outside his house. So he spent the

22 night together with his family at Mr. Ivan Santic's house. That's the

23 solution that they found.

24 Q. Very well. I don't think we have to discuss this any further.

25 Perhaps just for the sake of the transcript, I'm not sure that this was

Page 26474

1 quite clear, the man that you talked about, Hakija Cengic, who you helped,

2 that is the commander of the Territorial Defence in 1992; is that correct?

3 A. Yes. Yes, that's correct.

4 Q. Is that the person who was your superior while you worked at the

5 Territorial Defence for about two months in 1992?

6 A. Yes.

7 Q. Yesterday, a document was shown to you excerpt from the

8 mobilisation plan. Unfortunately, I'm not quite sure that I got the

9 number -- I think it is Z636.1 -- but through the kindness of the

10 Prosecutor, I have been informed that they will show us this document once

11 again if need be. We shall place it in front of you. I just want to make

12 sure that we are talking about the same document. Yes.

13 In relation to this document, I have just a short question for

14 you. As we can see, this document was drawn up on the 10th of April,

15 1993, that is to say, that you could have received it only on that day or

16 a day or two later. That was at the earliest. Do you remember when you

17 first had this document in your hands?

18 A. No, believe me I don't.

19 Q. Secondly, you said yesterday that you did see this document and

20 that you knew what it was all about; is that correct?

21 A. Yes, that is correct.

22 Q. I would like to ask you something else. Does this -- actually,

23 you were working on the establishment at that time; is that right?

24 A. Yes.

25 Q. Was this document important for your work on the establishment or

Page 26475

1 was this only one in a series of documents that you required?

2 A. This was only the initial stage on the basis of which a brigade is

3 established.

4 Q. Did you perhaps receive any documents before that date which would

5 be relevant to the set up of the brigade?

6 A. No. No. Had I received that, then this document would not have

7 existed.

8 Q. So was this document then used as a basis for establishing the

9 brigade; is that what you used it for?

10 A. Yes, that's right.

11 Q. Thank you.

12 MR. KOVACIC: [Interpretation] You can put the document away.

13 Q. Yesterday, an Anti-Terrorist Platoon was mentioned in a few

14 questions. I'm going to use the document that you were shown, but one

15 thing was not commented upon, Z1165.1.

16 MR. KOVACIC: [Interpretation] I would like to ask the registrar to

17 have this document shown to the witness, please. And could the

18 attachment, the annex to this document please be shown straight away, that

19 is the tables that Mrs. Badrov made. [In English] I'm kindly asking the

20 usher to put on the ELMO this page, the last.

21 Q. Mrs. Badrov, you confirmed that this is the document that you had

22 drawn up.

23 A. Yes. Yes. I think so, yes.

24 Q. Tell me, please: The first column, or rather the first group, it

25 says "required as per establishment."

Page 26476

1 A. Yes.

2 Q. So all these parts are mentioned?

3 A. Yes, the composition of the brigade.

4 Q. Parts of the brigade?

5 A. Yes.

6 Q. What does "required as per establishment" mean?

7 A. That means that there is a requirement that a brigade of such an

8 establishment, that is to say, as prescribed by mobilisation development,

9 must, within its composition, or should have within its composition, the

10 number of personnel mentioned here as required.

11 Q. My first question in this regard would be the following: Is there

12 any unit that could be called the Anti-Terrorist Platoon or some similar

13 name, something that would denote a similar activity?

14 A. No. No.

15 Q. My next question: In the next group, in the next few columns,

16 there is yet another heading, and that is "current strength as per

17 establishment."

18 A. That is to show that at this given point in time we had this

19 number of personnel.

20 Q. All right. So let's look at a specific example. Let's look at

21 number 6. It requires 36 members of the staff total, whereas 10 says that

22 there are 20 of them.

23 A. That is to show that we had 20 officers, but there are 36 that

24 were required.

25 Q. The document is self-explanatory; however, I would like to seek

Page 26477

1 explanation with regard to a few more things. Then point 5, RBKO. What

2 is an RBKO?

3 A. That is biological protection, let's put it that way, briefly.

4 Q. You haven't got anyone there, right, as far as we can see, not a

5 single man?

6 A. Yes, yes. We did not have anyone there at all.

7 Q. Right. And also the engineers company, you didn't have anyone

8 there?

9 A. No, not in that period.

10 Q. Then number 4, communications company. We see that the model

11 requires 112 and you have only 10; is that correct?

12 A. Yes, that is correct.

13 Q. Number 11, what is this? What kind of a unit is this?

14 A. You mean number 11?

15 Q. Yes.

16 A. That is a mixed anti-tank, anti-armour battery.

17 Q. So you have 25 in relation to the 56 required?

18 A. Yes, yes.

19 Q. Let's just look at number 13 as well. Since this is an

20 abbreviation, tell me what this is.

21 A. This is an anti-aircraft defence artillery rocket battery.

22 Q. The requirement says 87 and you haven't got a single man in this

23 respect.

24 A. Yes, that's right.

25 Q. Tell me something else. While we're still looking at this

Page 26478

1 document, Mr. Marko Lujic was mentioned once again yesterday.

2 A. Yes.

3 Q. And in that document on promotions that was shown to you, it was

4 mentioned that he was in charge of the rocket units in the brigade. Which

5 column would this belong to?

6 A. Well, it would either be under 12 or 13. 12, actually, the

7 artillery rocket division.

8 Q. Oh, so those are the activities that you did not have manned at

9 all?

10 A. Yes, that's right.

11 Q. Thank you. By way of a conclusion, Mrs. Badrov, in view of the

12 overall situation, can we agree that this was the situation when the

13 document was written?

14 A. When this document was written, this was the actual situation;

15 that is to say, under number 10, that is the total.

16 Q. Also could we look at the first page of this document, please.

17 Let us perhaps save time. Some formulations in this report -- I mean, on

18 the basis of the formulations I see here, I would like to put a question

19 to you. Is it only at that time that you first tried to organise full

20 records for all your personnel in terms of establishing files?

21 A. Sir, we tried to record the actual personnel we had many times in

22 1993, and we could never swear on the actual figure of people we had in

23 the field because one day we would have one number and the other day it

24 would be a completely different figure.

25 Q. Thank you. A few more questions related to mobilisation and the

Page 26479

1 procedure of mobilisation. I'm going to put a very specific question to

2 you. When the defence office mobilises a certain person and asks this

3 person to report at a particular unit --

4 A. Yes.

5 Q. -- is that man's record, file, also sent to the same unit together

6 with the man?

7 A. Yes, yes. As a rule, yes.

8 Q. What is the value of this file, these details about the

9 conscript? Of what relevance is this to the unit that is receiving the

10 conscript?

11 A. This file actually contains all the relevant details of that

12 person.

13 Q. In layman's language, and we are laymen, does that mean that the

14 unit can see on the basis of this file what this man can be used for, what

15 kind of knowledge he has, and skills?

16 A. Yes, precisely. That file shows exactly what this person could do

17 within the unit, what kind of skills he has.

18 Q. In practical life, starting with the mobilisation of the 16th of

19 April, 1993, to what extent did you manage to set up such records for all

20 your personnel?

21 A. No, we did not manage to establish the Viteska Brigade in such a

22 way. I left it and it was never established in this way.

23 Q. Thank you. A few more questions related to mobilisation. You

24 said yesterday to us that when a soldier is mobilised, then he is assigned

25 to a particular duty. You personally, Gordana Badrov, were you involved

Page 26480

1 in that procedure in any way, in the operational assignments of each and

2 every conscript?

3 A. Well, listen. It would be as follows: Commanders from the front

4 line would simply send me requests in terms of how many men they needed in

5 order to fully man their lines, and on the basis of their requests I would

6 deploy the personnel involved. However, if a particular part of the line

7 would fall, that would mean that in a very short period of time we would

8 have a large number of men who would either be wounded or killed, and then

9 it was only natural that our priority would be to send men there. So it

10 depended, actually, on the period involved. We would man one part of the

11 front line to a maximum at one point and then another part, et cetera.

12 Q. Thank you. One small thing. I don't know whether this is a

13 mistake in the transcript, but let's just take care of it now. On page 51

14 of yesterday's transcript, in line 11, it said that from the 26th you were

15 in the post office basement. Was this a slip of the tongue or perhaps a

16 mistake in the record itself? You said --

17 A. I'm sorry for interrupting, but as far as I remember, I did not

18 mention any dates. I cannot give any date nowadays as well, today. I

19 just said that I was blocked during the first few days, that I could not

20 leave the house. I reported at -- I called the people at work, and they

21 said that I should stay at home and they would come and pick me up, and

22 they came in three or four or five days, but I can't remember exactly.

23 Q. But you were talking about a few days after the conflict broke

24 out, so what month are you talking about?

25 A. I'm talking about the month of April.

Page 26481

1 Q. Oh, I see. You're talking about the month of April. So this was,

2 if I'm not mistaken, a few days --

3 A. After the conflict broke out.

4 MR. KOVACIC: [Interpretation] Thank you.

5 Document Z1134.2. I would kindly ask that it be put before the

6 witness once again, please.

7 Q. This is a document that was discussed yesterday and you gave quite

8 a few answers in this regard. Please let us see page 2. Could you please

9 read the subheading of that group that starts "Jokers"?

10 A. "... engaged personnel from Vitez in other units."

11 Q. Let me ask you something else that you did not have an opportunity

12 of saying yesterday. What's the point here? Why did you include this

13 group in your survey?

14 A. Believe me, it is hard to answer that after six or seven years,

15 but I can only assume.

16 Q. Tell me, what do you think today?

17 A. I think that this could only have been a result of the following:

18 Very often we, from the command of the Vitez Brigade, were being accused

19 of not having included all military-age men in Vitez, the entire potential

20 that Vitez had. Then when we realised that a certain military-age man had

21 been assigned to another unit, we would record that. I already said that

22 we had made different records because we were not sure of anybody's

23 records anymore, either of the defence office or whoever, that is to say,

24 that everybody kept his own records.

25 It is quite possible -- I mean I did sign this. I did sign this

Page 26482

1 document. However, it does not have an official protocol number. This

2 was working material. It is quite possible that Commander Mario Cerkez

3 had requested this from me.

4 Q. Very well.

5 A. Now, how was I supposed to do this and why was I supposed to make

6 this kind of survey to look at military-age personnel in other units? I

7 mean I really don't know.

8 Q. Very well. Thank you. In relation to this question that you have

9 just mentioned, were there any conscripts in the territory of your

10 municipality who were trying to dodge mobilisation pretending to be

11 members of the work platoons, the Vitezovi, special purpose units, et

12 cetera?

13 A. Yes, there were many such people.

14 Q. During this war, did you carry out any campaigns, I mean, did you

15 try to deal with this?

16 A. Yes. We often required lists of such men for a simple reason. So

17 that when a person would show up and say that, "I am a member of the

18 Vitezovi," then we could show him a list and say, "No, sir, you are not in

19 the Vitezovi, you are going to be assigned to the Viteska Brigade."

20 Q. Very well. Thank you. And perhaps just one more question in

21 relation to this document now that we've got it anyway. Was this document

22 made immediately after there was a transfer from sectoral organisation to

23 a normal organisation according to units, or before that or after that?

24 Can you give us a certain point in time for this?

25 A. I think that this was after the sectors. At first we had sectors,

Page 26483

1 then we had battalions, and then later on we had sectors again.

2 Q. All right. Yesterday, we were looking at document 1199.3. I

3 would like to request that document again, please.

4 That is Mr. Marijan Skopljak's report from the 10th of September,

5 1993. There is a question that remained unclear. You confirmed that in

6 the upper right-hand corner, there is -- there are some initials that

7 could be Mario Cerkez's. What could this sign mean, "A/A"? What does

8 this actually denote in our, let's it put it this way, bureaucratic

9 culture?

10 A. Yes, precisely. In our bureaucratic culture, that is what is

11 being done to the present day. When a document arrives in a certain

12 institution, then the person who heads that particular institution

13 receives all this mail. Afterwards, he signs this or, rather, he signs

14 the document showing that he has seen it. "A/A" means that this document

15 should be sent to files, to archives.

16 Q. Does that mean that the commander did not require any further

17 action with regard to this document?

18 A. Well, this shows that Mr. Mario Cerkez did not forward this to any

19 other sector or anyone else within the brigade in order to have certain

20 problems from this resolved. This was supposed to be sent to the

21 archives.

22 Q. Thank you. Thank you. Could we just leave the document there for

23 a while. Perhaps we'll need it more in a while. My next question is to

24 be the following: The units that were on the front line in the villages,

25 regardless of whether this is in the period when you had sectors or later

Page 26484

1 when you had units, did they always have a small work unit of its own

2 which was within the brigade or within that unit and that was used for

3 support, that is to say, for bringing in food, support, and then helping

4 carry the wounded and things like that? Was that the case?

5 A. It was, yes.

6 Q. No, you do not have to explain any further. Let us please first

7 lay the foundation. And did members of such a unit, what did you call

8 them? Were they those same who were under work obligation in the

9 companies or was it a protection platoon or what? Will you please tell us

10 what was the status of those men?

11 A. We called those men work platoons too.

12 Q. But basically they were what?

13 A. Basically, they were brigade members engaged in all secondary

14 jobs, that is, job -- took food to soldiers and so on and so forth. There

15 were all sorts of jobs.

16 Q. But they enjoyed the status of Vitez Brigade members, did they?

17 A. Yes.

18 Q. Thank you. Can one -- is it then correct that on the ground, the

19 Vitez Brigade had its combatants and noncombatants?

20 A. Yes, just like any other formation.

21 Q. Thank you. When you spoke about those work platoons which were

22 mentioned here, you said at some point that the work platoons comprised

23 people that -- there was a nondiscriminatory approach. Let me ask you

24 first this: The work platoons mentioned in this report too, they are not

25 the platoons that we just talked about, brigade members responsible for

Page 26485

1 non-combat activities; is that correct?

2 A. Yes, it is.

3 MR. KOVACIC: [Interpretation] I'd like two documents to be shown

4 to the witness. They were already introduced before, Z1210.2 of the 21st

5 of September, 1993, and Z1477.11. The letter is of the 27th of November

6 1997. Will you please give the witness document 1210.2, first.

7 Q. Yes. That is the document that we are interested in.

8 Mrs. Badrov, will you please first go through it quickly to see what it

9 was. You were not shown the document yesterday so just cast a glance to

10 see what is written to whom and when.

11 And now will you please focus on the following: There is a list

12 of names on the first page, 20 men are here, and the previous fragment

13 shows that this is the so-called Sofa work platoon. Could you tell us, do

14 you know what is the ethnic origin of these people here?

15 A. They are Romany.

16 Q. They are Romany. In your area are Romany mostly Muslim?

17 A. Believe me, I don't know. I think they are of Muslim religion,

18 yes.

19 Q. You think so. Now, take the second page. We have another platoon

20 of 12 men. What are they, by ethnicity, judging by their name?

21 A. Well, here, you have Dzevad Junuzovic who is a Muslim; Dusan

22 Lukovic is a Serb; and Anto Babic is a Croat. But I think that the

23 majority of them are Croats; Sapina, Babovic, [indiscernible], they are

24 mostly Croats.

25 Q. So they are mostly Croats, but there are some Muslims and there is

Page 26486

1 also a Serb?

2 A. Yes.

3 Q. Thank you. And the next document, 1477.11, this is a report of

4 the defence office, a post-war report. The date on it is the 12th of

5 November, 1997. It was the -- the other date was shown. The -- it was

6 shown the other day by the Prosecution. Will you please look at those

7 names and then I will ask you the question.

8 A. Yes.

9 Q. Mrs. Badrov, at the time when this document was produced, and will

10 you please check, although we do not want to carry out the inventory, but

11 there are 11 Croats and 9 Muslims on the list. Could you tell us if this

12 is how you would perceive this document?

13 A. I think so, yes. I think that's it.

14 Q. And would you say that other work platoons were roughly made along

15 those same lines?

16 A. Well, believe me, there were different compositions.

17 MR. NICE: [Microphone not activated] ... develops as

18 re-examination continues, I notice.

19 JUDGE MAY: Yes. Don't put words into the witness' mouth,

20 Mr. Kovacic. You know you're not supposed to do that.

21 MR. KOVACIC: My apologies. I mainly wanted to summarise and go

22 on on the other point.

23 Q. [Interpretation] And just one more question about those work

24 platoons, Mrs. Badrov. Which institution in Vitez -- which organisation

25 was it that the brigade requested work platoons from when it needed work

Page 26487

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Page 26488

1 platoons?

2 A. The defence office.

3 JUDGE MAY: There is one matter I want to raise with the legal

4 officer.

5 [Trial Chamber and legal officer confer]

6 JUDGE MAY: Yes.

7 MR. KOVACIC: Could the registry please give the witness a

8 document, 653.3. It has to do with yesterday's subjects related to

9 document Z1208.

10 Q. Mrs. Badrov, when you get this document, will you please cast a

11 look. It is a very short one. The copy is very poor, but it is legible,

12 I believe, and I will ask you a couple of questions about that document.

13 Have a look at the document first.

14 A. Yes.

15 Q. To your mind, Mrs. Badrov, which institution authored this

16 document?

17 A. It is the Travnik defence administration, which is the superior of

18 the defence office in Vitez.

19 Q. We can see the dates, so it is practically on the eve of the

20 conflict, the 14th of April, 1993. Have you ever seen this document

21 before?

22 A. I can't remember, believe me.

23 Q. But were you ever acquainted with the fact that the defence office

24 had undertaken -- no, sorry -- the defence department had undertaken

25 anything with the defence office to speed up the mobilisation?

Page 26489

1 A. Yes, yes.

2 Q. And were there any meetings on the subject or conversations? Do

3 you remember?

4 A. Well, there were frequent conversations and meetings in the wake

5 of the breakout of the conflict; that is, pressure was being brought on

6 the defence office all the time to mobilise men.

7 Q. Does this also hold true of the time before the beginning of the

8 conflict?

9 A. No, or at least I was not present at such conversations or

10 meetings.

11 Q. The state of affairs described in the document speaks for itself,

12 but does it also reflect your views and your experience regarding the

13 mobilisation before the conflict? Is this accurate? Does this conform to

14 the picture that you tried to draw for us yesterday?

15 A. Yes, I think it does.

16 Q. Thank you. And as for the deadline given the defence office,

17 which is the 24th of March, 1993, by which the mobilisation had to be

18 carried out, could you tell us if it was complied with?

19 A. No. No, it was not.

20 Q. And still having to do with the defence office, there was a

21 document produced, and you told us that in September, for awhile you took

22 over the responsibilities for the defence office, that is, that its head

23 had been displaced. Tell us, for about two or three weeks while you

24 discharged the affairs for the defence office, did you take over all of

25 the business that came under its jurisdiction or only some of its affairs?

Page 26490

1 A. Well, we wanted -- we did not want to conduct its affairs, but

2 people who went on working for the defence office, it is only that the

3 front man was missing. And they would come to us, because they said that

4 we were now their superiors. And we told them to do something, they would

5 do it. But it was they who did it, not we, because we simply refused to

6 undertake that responsibility.

7 Q. Very well. But in view of your interest, that is, the interest of

8 the brigade and your interest as the head of the personnel and brigade

9 organisation, what affairs of the defence office did you want them to

10 perform diligently?

11 A. Of all the business under the defence office, we were interested

12 in the mobilisation, mobilisation of men, and, if need be, the setting up

13 of work platoons.

14 Q. But in wartime, were you also interested or concerned with a

15 series of other businesses of the defence -- of jobs of the defence

16 office?

17 A. No. We were not interested in the labour obligation or the civil

18 defence, or the material obligations were of no concern to us, because

19 these things were under the defence office. We were interested in

20 mobilisation.

21 Q. Very well. Mrs. Badrov, in view of the relationship between the

22 brigade and the defence office and the interests of each of these

23 institutions, did you, from the first day, have also some mandate, some

24 responsibilities regarding the defence office?

25 A. Yes.

Page 26491

1 Q. And that was approximately what?

2 A. Well, I've already said that. A few days after the breakout of

3 the conflict, when I first came to the brigade headquarters, my task,

4 which was assigned me by the commander, Mario Cerkez, was to go to the

5 post office, which kept the records of the defence office and to try,

6 together with their members, to try to set up the brigade.

7 Q. Since you testified that it was their job, why did then you have

8 to go there and assist them in their job?

9 A. Well, to expedite matters, to have things started, because time

10 was -- we were beginning to lag behind the time.

11 Q. But the defence office, starting from the head downward, were they

12 up to the task or not, in view of you?

13 A. Well, listen. People in the defence office, one person was

14 professionally trained adequately; others were math professors, some

15 people with secondary education, that is, people who had nothing to do

16 with the defence office, who were not up to the task, were not qualified

17 for the job.

18 Q. I'm sorry. I am being too fast. But if there is anyone who can

19 assess their work, how would you assess the work of the defence office

20 during the first month of the conflict, to try to limit the time?

21 A. To be quite blunt --

22 Q. Yes, please.

23 A. None of us was really up to the wartime situation. It was the

24 first time that we had to face up to a war. And we somehow had to manage,

25 and that includes also the defence office. And by the very fact that they

Page 26492

1 simply did not have adequate training, adequate schooling, those people

2 simply could not manage.

3 Q. Thank you. And the last subject that was addressed yesterday by

4 the Prosecution was -- the search was mentioned that was carried out by

5 the OTP investigators in 1998 in your -- in various places, and that

6 includes your premises, and I should like you to answer me briefly to save

7 time. At the time of this search in September 1998, where were you

8 employed; that is, what institution did you belong to?

9 A. The Travnik Defence Administration.

10 Q. And where were physically at the offices of the Travnik Defence

11 Administration?

12 A. I think the street was called Petar Kresimir IV, on the ground

13 floor of the building which formerly housed the business bank of Sarajevo,

14 Privredna Banka Sarajevo.

15 Q. And how many rooms did you have? Was it the whole ground floor or

16 did you have some other offices in that building?

17 A. There were some 15 rooms. And there were other institutions apart

18 from us. There was the bank there and others.

19 Q. Was there any other administrative agency there?

20 A. No.

21 Q. Very well. And you had one of those 15 rooms or so?

22 A. Yes. I shared it with a colleague, yes.

23 Q. And were you there personally when the investigators came to the

24 room?

25 A. Yes, I was.

Page 26493

1 Q. And were you present when they seized some material in that

2 office?

3 A. Yes.

4 Q. Was a record made of the documentation taken?

5 A. There was a record of the documentation taken, except that you

6 have to understand that a large number of documents were taken, were

7 seized, but I think that there was an attempt, a general attempt, or the

8 record was submitted at a later stage. I can't really remember.

9 Q. No. Let me try to ask you like this. In your presence, when you

10 were there, was any list of documents compiled, or is it that only boxes

11 were described or the place from which they were taken? What kind of a

12 record was it?

13 A. Well, say there were sets of documents put under one heading,

14 tentative. That's the kind of record.

15 Q. And at that time, while the investigators were there, did you sign

16 anything saying that this was taken from -- this was being taken from your

17 office?

18 A. I may have.

19 Q. Can you remember; yes or no? Or is it really that you have no

20 recollection of that?

21 A. All that I remember about this is that we were later presented

22 with a list, but I really can't remember if I signed -- whether we all

23 from the office, whether we all had to sign it or not, I really don't

24 know.

25 Q. Right. Never mind. And when you were given the list later -- and

Page 26494

1 first, when was that? What are we talking about? A couple of days,

2 weeks, months?

3 A. I think it was a few months later.

4 Q. And did this list contain an itemised list of documents with

5 dates, so on and so forth; that is, were they identifiable documents or

6 were they again sets of documents?

7 A. Sets of documents.

8 Q. And as an official in that institution, could you, later on, find

9 your way about and see that a particular document that you needed was one

10 of those in those sets that were indicated?

11 A. No.

12 Q. And my last question in this respect: Later on in your work did

13 you have some difficulties because those documents had disappeared?

14 A. Yes, of course we had difficulties, because we lacked the

15 documentation, something to work with.

16 MR. NICE: [Previous translation continues] ... about the line of

17 this re-examination, where it's going and what it's got to do with the

18 cross-examination.

19 JUDGE MAY: We have had re-examination now for 20 minutes last

20 night and 55 minutes this morning. It must be rarely indeed that

21 re-examination of this length can be justified. The purpose of

22 re-examination is not to revisit all the evidence which has been given.

23 The purpose is to merely deal with one or two salient points. Are you

24 coming to an end of this particular line of examination?

25 MR. KOVACIC: Indeed, Your Honour. I'm just finishing.

Page 26495

1 JUDGE MAY: What is the relevance of it?

2 MR. KOVACIC: [Interpretation] If I may in Croatian. I think I do

3 have the foundation for this line of re-examination, for two reasons:

4 First, that my learned friend asked questions of this witness and yet not

5 everything was explained. And the second one, the second reason, and I

6 believe it is more important, is that the witness spoke explicitly to my

7 question, and I checked the transcript yesterday. When I asked him about

8 some documents from his binders, where had they taken them from, he

9 answered he did not know because the record not as efficiently -- precise

10 stock was taken at the time when documents were taken. And I went through

11 the credibility, authenticity of all the documents that had been taken,

12 precisely because one did not know where they had been taken from. It is

13 very strange, when the police seizes something, that it does not indicate

14 where, how it was taken, because of course it undermines its probative

15 value. But that is not mine. I was simply trying to check what we heard

16 from Witness Spork about the seizure of these documents and that the

17 Prosecution raised the matter of these documents, so that is why I'm

18 talking about this. But I'm concluding with this. I don't have any

19 further questions.

20 JUDGE MAY: If you are concluding, then we needn't rule.

21 MR. KOVACIC: Thank you, Your Honours.

22 JUDGE MAY: Mrs. Badrov, that concludes your evidence. Thank you

23 for coming to the Tribunal to give it. You are free to go.

24 THE WITNESS: [Interpretation] Thank you.

25 [The witness withdrew]

Page 26496

1 JUDGE MAY: Mr. Kovacic, I take it that you're not calling

2 Dr. Tibold; is that right.

3 MR. KOVACIC: Yes, that's correct.

4 THE INTERPRETER: Microphone, Mr. Kovacic.

5 MR. KOVACIC: Yes, that is correct, Your Honour.

6 JUDGE MAY: Very well. We'll turn next to the administrative

7 matters that we have to deal with and legal matters. My list is now

8 this: There are the matters raised by the Kordic Defence in a letter

9 which we've seen of the 10th of October about the provisions of various

10 documents. There are the affidavits. There is the motion to call Colonel

11 Morsink. There is the Kordic Defence exhibits. We'll have a report on

12 the up-to-date position. There is the question of disclosure of any

13 documents to the Cerkez Defence before Mr. Cerkez gives evidence. There

14 was an outstanding expert, Ms. Nikolic-Hoyt. I think we had a report on

15 that but we'll get one. There was a matter of Mr. Cerkez's evidence which

16 any party wants to raise. There are the questions of the Cerkez

17 transcript witnesses and the exhibits. There is a preparation of a video

18 by the Prosecution. And I think there is a question of Mr. Sayers in

19 receipt of documents which should have been received by now from the

20 ECMM.

21 Perhaps we can start with that. Could you confirm, Mr. Sayers,

22 that you received those documents.

23 MR. SAYERS: Last Friday, Mr. President, we received a CD-ROM from

24 the registry, and the computer records contain about, I'd say, one linear

25 foot of documents. I've been through those with some dispatch. Suffice

Page 26497

1 it to say, there may be some additional documents that we may have to

2 insert into our ECMM exhibits by way of a supplement, but I should be able

3 to update the Trial Chamber on that after the weekend when I've had more

4 time to review those documents to make sure that they're not completely

5 duplicative or just peripheral.

6 By this time, I think, we're only interested in putting documents

7 into the record which have some substantive significance rather than just

8 purely peripheral paper flooding into the Court.

9 JUDGE MAY: Thank you. Perhaps while we're on these matters,

10 turning to the Cerkez Defence, Mr. Kovacic, you indicated that you were

11 going to seek to submit some transcripts.

12 MR. KOVACIC: Yes.

13 JUDGE MAY: Can you tell us what the position is?

14 MR. KOVACIC: Very briefly, a couple of --.

15 THE INTERPRETER: Microphone for the counsel, please.

16 MR. KOVACIC: Very briefly, a couple of days ago, I did give a

17 copy of my list, my wishing list, to the Prosecution and to the Kordic

18 Defence. And we are only, we think, to propose only five witnesses from

19 Kupreskic only, not the others, mainly because those witnesses are

20 covering some areas or some details which we don't -- which we are not

21 sure are sufficiently covered by evidence or testimonies in this case.

22 And if I may now introduce this list, I have it prepared here.

23 JUDGE MAY: Yes. Well, it might be convenient to look at it now.

24 Mr. Nice, have you had a chance to look at this?

25 MR. NICE: I'm afraid I haven't had a chance. I've seen it. It

Page 26498

1 was provided a couple of days ago. I'm afraid I haven't had a chance to

2 deal with the transcripts. We'll do so as soon as we can.

3 JUDGE MAY: Perhaps you could do it over the weekend so we can

4 make a decision next week. It would be convenient to deal with as much as

5 possibly can by the break which is next week.

6 MR. NICE: Yes, sir.

7 JUDGE MAY: So we'll indicate that that's a matter to be dealt

8 with next week.

9 Then, Mr. Kovacic, while we're on this aspect, you indicated to us

10 that you would be producing some exhibits. Can we know what the position

11 is about that?

12 MR. KOVACIC: Your Honour, I see -- as I see it, it would be most

13 practical in order to avoid any repetitive evidence or better to say to

14 avoid volumes of papers in the files, we were considering that for a

15 while, and we think it would be most practical if we got permission from

16 the Court to file our documents after we received what we are supposed to

17 receive from the Prosecution. I'm referring to the documents coming from

18 Zagreb. We could do it differently.

19 JUDGE MAY: That seems a reasonable course.

20 [Trial Chamber confers]

21 JUDGE MAY: Mr. Nice, unless you have any observations, the week

22 of the 20th of November would be a sensible time.

23 MR. NICE: I don't think we're going to be particularly troubled.

24 It's going to be close to the end, but providing they are not too

25 voluminous, I'm not going to be too troubled.

Page 26499

1 JUDGE MAY: The week of the 20th, in order to give the Prosecution

2 some time to get through it, it ought to be the -- perhaps the end of the

3 weekend before which would be the 17th of November.

4 MR. KOVACIC: I think we can do it in that time we are basically

5 preparing our documents but since the new documents are constantly coming

6 then we have to --

7 JUDGE MAY: Well, we'll give you to the 17th of November. It may

8 be helpful if you would begin negotiations with the Prosecution to see

9 what is agreed and what isn't as early as possible so if we can have an

10 agreed bundle it would help or if we have a bundle which is largely agreed

11 but some not agreed, then we know what we've got to rule on. That would

12 be of assistance rather than starting the whole process on the 20th of

13 November.

14 And likewise perhaps if you would liaise with the registry too to

15 make sure that there are proper copies and proper translations.

16 MR. KOVACIC: Yes, we will certainly do that. Naturally there

17 will be some problems, but I guess more or less statistically of a

18 technical nature but not the substance. We will do our best.

19 JUDGE MAY: Thank you. Mr. Kovacic, perhaps I could deal with two

20 other Cerkez Defence matters. You talked earlier about a linguistic

21 expert, Ms. Nikolic-Hoyt. Now, I seem to remember the last that we heard

22 was that she was in hospital or going into hospital for an operation.

23 Perhaps you could update us on that if there is anything to be added.

24 MR. KOVACIC: Actually, unfortunately, I don't have any late

25 information as of approximately eight or ten days ago. The operation is

Page 26500

1 scheduled but, unfortunately, I don't know when but at that time the lady

2 told me that she is about to go on operation and she cannot schedule her

3 arrival since she is waiting for operation. My only possibility at this

4 point in time is to apply for having this testimony in a rebuttal case or

5 rejoinder case for a practical reasons or possibly before that, but that

6 depends on that operation by videolink. But in all my honesty, I don't

7 think that the value of this exercise would justify the costs. So I am

8 very reluctant to formally request videolink.

9 However, we did talk about that expertise, and my dear colleagues

10 advised me that they will think about it. The third solution may be

11 because there is obviously a practical problem that may be that we simply

12 make a short argument on the issue, whether it is disputed fact still or

13 it is not disputed fact.

14 JUDGE MAY: Yes. Well, it would be sensible to deal with that

15 next week and then we will have had a chance to look at it ourselves.

16 MR. KOVACIC: If I could just tell you in two sentences what is

17 the dispute. It is all starting from paragraph 4 of the indictment where

18 the Prosecution claims that a fact that Bosnian Croats spoke Croatian

19 language gives a base for a conclusion that they were controlled by the

20 Republic of Croatia. And the point is why I am so reluctant on pushing

21 that evidence is that many of Prosecution witnesses, by nationality,

22 Muslims, never opposed to my usual introductory question or note, that is

23 to say, when I asked them to answer slowly with breaks since we are

24 talking the same language and we can understand each other.

25 So it is obviously so far I think that everybody learned that

Page 26501

1 there was only one language. It doesn't matter on the names of the

2 language, how anybody called it.

3 JUDGE MAY: We'll add that to the list to be dealt with next

4 week.

5 Going on with Cerkez-related matters, Mr. Kovacic, there were two,

6 maybe two matters relating to Mr. Cerkez's Defence, I mean evidence. The

7 first was the issue of the advance disclosure of documents, I don't know

8 whether that has resolved itself. And there may be other matters you want

9 to raise relating to Mr. Cerkez's testimony.

10 MR. KOVACIC: [Interpretation] With your permission, just one item

11 and this became particularly complicated because of the inability of the

12 registry to carry out the order of the Trial Chamber regarding a visit on

13 Saturday.

14 The problem is really the contact of the Defence counsel with our

15 client during his evidence, and in fact, we've had very limited time to

16 meet with him recently in the last stages of our case in chief, and we

17 really need several days to discuss all the issues which have been raised

18 in recent days, especially a number of documents that have been introduced

19 here. But things are as they are. We have -- we only have an opportunity

20 to work with him today, and also tomorrow. However, Saturday and Sunday,

21 unfortunately, cannot be used for that.

22 For that reason, even though I had planned this earlier, I have --

23 I wanted to request to file a motion regarding the previous order on the

24 limitations of contact with the -- between the client and counsel during

25 the testimony, the evidence of the accused. We would like to ask you to

Page 26502

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Page 26503

1 allow these contacts so perhaps at night we can review documents even

2 though -- regardless of whether this is done during the -- his giving

3 evidence or during his cross-examination. This would somehow check the

4 extremely short period of time that we have. We believe that the rights

5 of the accused for a fair trial should prevail rather than the right of

6 the Defence to better prepare itself.

7 Now, this is what we have been guiding -- this is what has been

8 guiding us and this has been our conscious choice. We have, therefore,

9 built a Defence based on such economy of time and effort, and I believe

10 that we have been much more efficient than the Prosecution and have not

11 contributed to the lengthy process that this trial has been. We believe

12 that we have only called witnesses which had relevant evidence, and we

13 have refrained from calling witnesses who had less relevant information.

14 JUDGE MAY: There may be an argument for saying that if contact

15 were allowed, it should only be allowed when the accused is giving

16 evidence in chief and should not be extended to cross-examination. Would

17 you have anything to say about that, Mr. Kovacic?

18 MR. KOVACIC: [Interpretation] I believe that this would go far

19 towards resolving the problem: Wherever there is a decision of a ruling

20 of yours of recent days, that the Prosecution should only be using

21 disclosed documents in cross-examination.

22 JUDGE MAY: It hasn't got as far as a ruling. It was an issue

23 which I raised. But in any event, let us concentrate on the application

24 that we have at hand.

25 Mr. Nice, that's the application.

Page 26504

1 MR. NICE: We oppose the application. This matter was ventilated

2 right at the beginning of the trial. Indeed, the application that we made

3 to bar contact with witnesses, by whomever called, once the witness has

4 entered the witness box was premised on the real dangers of the integrity

5 of evidence of contact. And I think we articulated in our application,

6 and certainly would have articulated in argument, the dangers arising for

7 a defendant of the integrity of his evidence if there's any possibility of

8 direct contact with the lawyers once the evidence begins.

9 JUDGE MAY: The point is raised that new documents have been

10 introduced, as they have, the whole time, and a number of important

11 documents have been introduced yesterday.

12 MR. NICE: Yes. I don't know to what extent they're new, because

13 of course these come from a source that's available to both sides, as the

14 Chamber understands. And the principle remains the same, that the witness

15 should be dealing with evidence without the chance of discussing the

16 matters with his lawyers, because there's no need for him to do so. And

17 we would fiercely resist -- or fiercely -- we would resist any difference

18 in approach to be taken to the defendants from the approach taken to other

19 witnesses.

20 Now, as to the possibility raised by the Chamber of saying there's

21 a cutoff point at the end of his examination-in-chief, that would

22 obviously cure much of the potential for harm in contact between a

23 defendant and his lawyers, and of course it might be further restricted,

24 sensibly, to any new documents provided in the course of that period of

25 time, or, alternatively, any particular matters that the Defence counsel

Page 26505

1 specifically notifies the Court he hasn't yet had a chance to deal with

2 because of the overall timetable that he's been facing. And that might be

3 a solution to that problem.

4 As to Mr. Cerkez's overall timetable difficulties, I imagine that

5 Sunday was always known to be a nonavailable day, and unless I've misread

6 one of the documents coming to me, I think that, by choice, Saturday is

7 available to the defendant, but it's being used for some other purpose.

8 But I might be wrong about that. But we would argue, and we do argue,

9 that "equality of means" means, in principle, the same rule really must

10 apply, and indeed the --

11 JUDGE MAY: In principle, it must be right. The fact that it's

12 the accused giving evidence doesn't mean that he's in any different

13 category than any other witness. It's really the unusual circumstances of

14 this case.

15 MR. NICE: Subject to the modification that I suggest, then I have

16 nothing else to add and can see the merit in the way Your Honour was

17 approaching the problem on a pragmatic basis for this witness.

18 JUDGE MAY: So that would be leave to speak to the witness until

19 the end of the evidence in chief; thereafter, no contact, unless by leave,

20 to discuss a particular problem.

21 MR. NICE: Yes, but I would respectfully invite you to confine it

22 even further and say at that stage, in respect to either new material

23 served, if by any chance we do serve any new material over that period of

24 time, a day or so, and in respect to other matters that the Chamber is

25 notified, perhaps in advance, are outstanding and haven't yet been dealt

Page 26506

1 with. What we don't want, and one saw it in the Blaskic case with these

2 40-minute intervals and sessions between --

3 JUDGE MAY: Sorry. I didn't get that.

4 MR. NICE: One saw it in the Blaskic case, with the witness

5 breaking his evidence every 40 minutes and then having discussions with

6 his counsel, throughout the weeks of his giving evidence, and coming back

7 with a new approach to his answers previously given. What one really

8 can't have is the witness discussing with his lawyers the way he's just

9 given evidence and then coming back and giving a gloss on some previous

10 answer that he's given. That's wholly unacceptable and it's exactly

11 against that sort of result that this Rule is aimed.

12 [Trial Chamber deliberates]

13 JUDGE MAY: We'll resolve this matter. I think the first point to

14 be made is that as a matter of principle, when the accused gives evidence,

15 he should not be treated in any way different to that of any other

16 witness. He, at that stage, is a witness and is entitled to various

17 protections of witnesses but also the various restrictions. So in

18 principle, there should be no distinction and the Rule should hold that

19 there should be no contact. But given the unusual circumstances of this

20 case, where evidence is being disclosed right up until the last minute,

21 and as I've observed, some has been disclosed this week, we think it right

22 that he should be able, not of course during the testimony but during the

23 long adjournment, to have contact with his counsel during the evidence in

24 chief. However, once that evidence is over, then a different state of

25 affairs begins and he should not have contact with his lawyers. The

Page 26507

1 reason is this: Not to suggest that it would happen in this case, but the

2 danger is if there is contact with the lawyers, the witness is unable to

3 tailor his answers to fit whatever plan they might have. In order to

4 guard against any risk or any suggestion of such a risk, there will be no

5 contact during cross-examination; after it, if there are new matters

6 raised, then there may be contact with leave, and only with the leave of

7 the Trial Chamber.

8 I think that's the appropriate moment for an adjournment, unless

9 we could usefully -- Mr. Sayers, can we usefully use two minutes to

10 see -- there are various matters that you've asked for in your letter of

11 the 10th of October.

12 MR. SAYERS: Yes, Your Honour. I think there are really four

13 short issues that are raised by my letter. I had hoped that we would be

14 able to resolve this without having to have an argument upon it, but

15 apparently not.

16 JUDGE MAY: Can you perhaps -- well, since it's just coming up to

17 11.00, perhaps you could speak to Mr. Nice during the short adjournment

18 and see what there is outstanding.

19 MR. SAYERS: Yes.

20 JUDGE MAY: And we'll come back to it when we return.

21 MR. KOVACIC: Since you have made the plan, Your Honour, which

22 subjects we will discuss --

23 THE INTERPRETER: Microphone to the counsel.

24 MR. KOVACIC: Since you made the plan what we will discuss, could

25 I add also one minor point? I don't think it will take much time.

Page 26508

1 JUDGE MAY: Yes, of course. Anybody can raise anything else, but

2 we would be keen to finish by the lunch adjournment.

3 MR. KOVACIC: Thank you, Your Honour.

4 --- Recess taken at 11.00 a.m.

5 --- On resuming at 11.35 a.m.

6 JUDGE MAY: Mr. Sayers, we've got your letter of the 10th of

7 October. I'm not sure that we've all got that letter. I have. We've got

8 it now. Do tell us what the state of affairs is.

9 MR. SAYERS: [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 On the second issue, I showed the Prosecution your oral ruling or

16 the Trial Chamber's oral ruling on the 26th of September, page 25.528 of

17 the transcript, and apparently any such diaries, notes, or documents

18 relied upon by the witness during his interview will be provided to us.

19 The third issue is obviously a Rule 68 issue. Rule 68, just to

20 remind the Trial Chamber, although I'm sure it needs no reminding, says

21 that, "The Prosecutor shall, as soon as practicable, disclose to the

22 defence the existence of evidence," which amongst other things, "... may

23 affect the credibility of the Prosecution evidence." And that's why we

24 ask for that -- those statements. It's really Rule 68 materials, and my

25 understanding is that the Prosecution concedes that those documents have

Page 26509

1 to be turned over to us. The Prosecution may want to be heard upon that,

2 but I think I have represented their position correctly to the extent that

3 they involve matters of credibility and things of that variety.

4 MR. NICE: Yes. It may be a problem in the sense it may be quite

5 a substantial issue. I don't yet know. There is an entitlement to Rule

6 68 material. So far as this particular person is concerned, perhaps we

7 just ought to go into private session, I think -- with Your Honour's

8 leave. It's not for me to say that. With Your Honour's leave, may we go

9 into private session?

10 [Private session]

11 [redacted]

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7 [Open session]

8 JUDGE MAY: Mr. Nice, the first suggestion is that the case

9 against Cerkez has changed. Perhaps you'd like to deal with that.

10 MR. NICE: Certainly.

11 JUDGE MAY: And secondly, just explain what your submission is as

12 to what should happen about disclosure of witnesses and witness

13 statements.

14 MR. NICE: Would you permit me to deal with them in reverse

15 order? I hope that won't be inconvenient. The order that you made on the

16 4th of October was entirely clear. At page 109 you made the order that

17 the documents, the so-called Zagreb documents, should be produced by the

18 30th of October, that is to say, materials and witness statements relied

19 upon, and they should be disclosed on that date.

20 There was then further discussion, and at page 1 -- I'm so sorry.

21 Let me go back. Page 100 you dealt with the matter first, and you said,

22 "We're minded to order disclosure of all material and witness statements

23 by the 30th of October -- that will be three weeks before -- and that the

24 Defence have two weeks to make their objections to the material; and if

25 there are any objections, we'll consider whether it's necessary to call

Page 26515

1 that evidence."

2 So that was the way the order was first considered by Your

3 Honour. And then at 109, I suspect after deliberation, Your Honour said,

4 "Well, we'll make the order that the documents to be relied on from

5 Zagreb and evidence from Zagreb is to be produced by the 30th of October,

6 materials and witness statements relied on by the Prosecution, Defence to

7 respond, agreed or disputing by the 15th of November, the evidence to be

8 heard on the 20th." You then said, "I now go on to what was originally

9 the matter for discussion, which was the rebuttal evidence, and I propose,

10 in fact, to deal with this in this way: to set down a timetable to

11 consider it." And then you went on to set the entirely separate timetable

12 for rebuttal evidence, which we know is the 13th for our list, this very

13 Friday, tomorrow, with argument next week.

14 JUDGE MAY: Yes. I would be obviously inclined to follow those

15 orders.

16 MR. NICE: Yes.

17 JUDGE MAY: But the question is: What extent of material are we

18 going to face from Zagreb?

19 MR. NICE: Well, let me then turn to that. The Chamber knows from

20 public and other material of the difficulties we are facing and of the

21 steps we are taking at the moment and seeking to take to provide some

22 witnesses before the Chamber. What witnesses, if any, are either

23 necessary or available is not something I can answer at the moment. And

24 let me make it absolutely plain. I have no hesitation at all or concern

25 about the position I find myself in, given that this material has been

Page 26516

1 kept from the Chamber by a persistent course of conduct for several

2 years. It's entirely outside our control. And as the Chamber knows, we

3 have taken every step available to us at all stages to secure this

4 material for the Chamber. So I accept no criticism at all for that. None

5 is appropriate. But recognising the cut-off point that has to apply,

6 given that the case has to finish, and understandably, by Christmas, we

7 have tailored our last steps and moves by ourselves, and insofar as

8 necessary, involving the Court, to produce names of any witnesses we may

9 seek to call by the 30th.

10 Let me make it plain. If I'm in a position to provide material

11 ahead of that date, why then I shall do so. I haven't hesitated to

12 provide material, whether rebuttal or otherwise, as I've been going along,

13 in order to help everyone, and I'll carry on with that policy. But the

14 30th, given the various steps that have to be taken in relation to the

15 Zagreb documents, is the date that we would ask Your Honour to stick to,

16 the date you've already ordered and that we've been working towards.

17 As to the documents themselves, the Court knows that -- there's

18 one particular document that I wish to deal with today a little later.

19 But as to other documents, documents are still arriving. They are plainly

20 relevant. We are very pressed for translation resources in the

21 institution generally. We are providing them -- pretty well handing them

22 over as soon as we get them, clearly in excess of our actual formal

23 duties, but it seems to us, in the setting of this case, absolutely

24 appropriate to do so, and that's what we're doing. I have no reason to

25 believe that the volume of material available by the 30th will be

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Page 26518

1 particularly substantial. I don't really want to be kept to a number of

2 inches, but I don't have any reason to believe it will be particularly

3 substantial, although some of the documents may be particularly

4 significant. I do not hesitate to say that. So the Chamber -- that is, I

5 don't think I need say anything more on that topic. That's our position.

6 I'll come back to the Cerkez issue, unless there's anything that Your

7 Honour or either --

8 JUDGE MAY: No. You've been criticised about the Cerkez point.

9 Perhaps you'd like the opportunity to respond.

10 MR. NICE: I don't know whether I'm being criticised, but the

11 recurring suggestion that there's a change in the basis of the case

12 against either of these defendants is both unappealing and also entirely

13 wrong, as the Chamber will see from consideration of opening briefs,

14 half-time submissions, and so on.

15 The two documents that on Cerkez's behalf Mr. Sayers chooses to

16 refer to to bolster an argument or an attack of some kind are by no means

17 inconsistent. And again, I have absolutely no apology in producing the

18 raw material that's been kept from this Chamber by those in Zagreb acting

19 in various interests for so long. The one document which is, on one

20 interpretation, exculpatory might fit with other material, might very

21 comfortably fit with other material, going to suggest, as I have indeed

22 been suggesting to witnesses, on the basis of information in the case

23 generally available to me, that Cerkez was involved with his men in part

24 of an overall plan but was not the particular brigade going in first thing

25 in the morning to kill all the people in Ahmici.

Page 26519

1 And if one reads that particular document which, let it be

2 remembered, I introduced out of fairness to Cerkez, at the first available

3 opportunity, without any negotiation with Mr. Kovacic, I did it so that we

4 could get the best interpretation of that document from witnesses

5 available. That version of events is probably entirely compatible with

6 the document that we see yesterday bearing his signature which relates to

7 a later time of the morning and fits with other information that I think

8 is generally available to the Chamber and has been put by me, namely that

9 once the dirty work is done, it may be that the Viteska Brigade was

10 brought into secure positions, no incompatibility at all.

11 The mere fact that detail becomes available to me from documents

12 formally suppressed and enables me to flesh out my case is no cause for

13 criticism at all. On the contrary, I'm simply doing my duty to provide

14 the Chamber with the best material upon which it will ultimately be able

15 to assess the guilt or otherwise of these men.

16 [Trial Chamber confers]

17 JUDGE MAY: Yes, we shall stick to the original order in relation

18 both to the rebuttal evidence and the Zagreb evidence.

19 Now, that brings us, I think, to two more substantial matters of

20 admission. First of all, the affidavits, eight, I think. I may be wrong

21 about that, ten.

22 MR. NICE: Can I attempt -- can I abbreviate matters in relation

23 to certainly some of them in this way: We had the affidavits provided in

24 the course of yesterday's witness, in the course of her evidence, some of

25 them half way through the first day, and some of them on the second day

Page 26520

1 going to show that a list was inaccurate as so far as particular affiants

2 were concerned. I then was interrupted in the course of cross-examining

3 with one question each per affiant, namely did the witness know of those

4 affiants. In all cases bar one, she had no personal knowledge of them at

5 all. The one she knew was a nurse who appears possibly not to have been

6 involved in wartime activities at all but even on that topic, the witness

7 knew nothing.

8 Plainly, I am in a position to take a technical point and object

9 to all these affidavits for I have had no opportunity to consider them. I

10 have simply been in no position to go to the affiants concerned to check

11 whether what they have to say is remotely true or false. Consistently

12 with my approach not just since the Appeals Chamber ruling and before

13 that, but throughout this case and throughout the voluminous affidavits

14 served by Kordic, I have taken what I think is a realistic and practical

15 approach.

16 I asked yesterday's witness in respect of those affiants the

17 question I did just simply to check whether there was any material

18 available in respect of any of them for the Trial Chamber. The list

19 concerned, which seems to have been concerning Mr. Kovacic, is not a list

20 upon which we, in any event, particularly rely. It happens to have been

21 produced, and it happens to have been produced by their authorities. But

22 it's not that document upon which we rely to prove documentarily that

23 particular individuals were members of the Viteska Brigade and were

24 involved in material fighting. So the whole evidential significance of

25 this list is something elevated by the Defence and not particularly relied

Page 26521

1 on or indeed relied upon at all by us.

2 I will not take any technical objections, and it's simply for the

3 Chamber to decide in respect of either seven or eight of those witnesses

4 whether in the absence of any other factual evidence, any other firsthand

5 evidence going to show that what those witnesses say is true, it's content

6 to have the affidavits in. We are substantially neutral on the point.

7 JUDGE MAY: There are nine affidavits.

8 MR. NICE: I may have missed one along the way.

9 JUDGE MAY: Numbers 9 to 17 all relate to the register, Exhibit

10 Z2332 all say that the entries about them are incorrect in ascribing to

11 the membership of the Viteska Brigade or the HVO army. As far as I can

12 see, they are the sort of matters which should be dealt with by way of

13 affidavit rather than taking up time of the Court.

14 [Trial Chamber confers]

15 JUDGE MAY: Yes. Well, those affidavits numbers 9 to 17 will be

16 admitted. Number 18, I notice, seems to be of a different -- on a

17 different topic.

18 MR. NICE: Your Honour may have to give me a moment to track that

19 one down.

20 JUDGE MAY: I must do the same.

21 MR. NICE: If Your Honour can give me the name of it.

22 JUDGE MAY: It's Mr. Hurem. Nisad Hurem.

23 MR. NICE: Yes. We haven't that one to hand. Mr. Lopez-Terres'

24 ever reliable and enormous memory tells me it's about a car accident.

25 JUDGE MAY: Have we got a copy?

Page 26522

1 MR. NICE: Thank you very much. Oh, yes, I recall it now.

2 Mr. Lopez-Terres is, of course, correct. I have a vague suspicion that

3 this one again was served after the witness started testifying. I might

4 be wrong about that, so it's in technical breach, but my recollection of

5 it is that it is hardly the sort of stuff to trouble the Chamber with by

6 live evidence.

7 JUDGE MAY: The effect of it was there was a car crash near the

8 Cerkez home sometime in March, and the maker of the affidavit was given

9 first aid by Mr. and Mrs. Cerkez although they were -- the injured were

10 connected to the BH army. Yes.

11 [Trial Chamber confers]

12 JUDGE MAY: Yes, we'll admit that. Which brings us to the last

13 issue which concerns the exhibit produced by Colonel Morsink.

14 Mr. Nice, it's your application. Perhaps we ought to deal with it

15 in this way: It's the list of detainees, of course, in the cinema.

16 MR. NICE: Yes.

17 JUDGE MAY: And you'll have to remind me of the background.

18 Colonel Morsink gave evidence and, as I recollect it, there was simply an

19 omission to call that or it may be, if my memory is better served, the

20 document in some way wasn't available when he was giving evidence.

21 MR. NICE: I'd like to think it was the second point and not the

22 first but I was taking Morsink. I got him to tell us, as he did, that --

23 on page 8.042 that he was provided with a list of prisoners the Viteska

24 Brigade had held in Dubravica and I didn't produce the list at that

25 stage. Why I didn't, whether it was just oversight or it was the weight

Page 26523

1 of other documents, I can't remember. There was then -- and I'm afraid

2 Mr. Kovacic's analysis of the history is in error.

3 There was then, through another witness on the 18th of January,

4 production of the document but for very limited purposes, really for

5 identification of names, and at the end of that exercise, it was discussed

6 and agreed that the document itself would have to be produced in some

7 way. I think Your Honour proposing recall of the witness. Your Honour's

8 colleague, His Honour Judge Bennouna saying, well, really this is the

9 suitable stuff for an affidavit to save time, expense, and so on.

10 JUDGE MAY: Sorry, let me interrupt you so I've got the history

11 right. What was the date that you called Colonel Morsink?

12 MR. NICE: 11th of October.

13 JUDGE MAY: So essentially the position we were in was that the --

14 for one reason or another, it wasn't produced in his evidence as I said.

15 MR. NICE: Yes.

16 JUDGE MAY: There was an attempt or suggestion it might be

17 produced by another witness. That was not proceeded with one way or

18 another, for one reason or another, and then it was suggested that it

19 should be produced in some other way.

20 MR. NICE: That's right.

21 JUDGE MAY: And then to summarise matters, it was then the subject

22 of an appeal, the statement having been produced, and the appeal was

23 successful and the Appeals Chamber said that we should consider to admit

24 it under 89(C).

25 MR. NICE: In any event, absolutely right. And by that stage we

Page 26524

1 discovered that Colonel Morsink is actually in The Hague and in another

2 pleading he said isn't it easier to call him and dispose of the issue,

3 particularly since Mr. Kovacic's objection was never to the production of

4 the document, but his objection was to the production about the right to

5 cross-examine. He wanted the right to cross-examine. That was the

6 grounds of his appeal on that particular topic and, therefore, we thought

7 rather than take the invitation of the Appeals Chamber and try and produce

8 the document by consideration of its indicia of reliability, the easier

9 way, of course, was to call Colonel Morsink.

10 I should remind the Chamber of this, on that occasion where

11 Mr. Kovacic was challenging the admissibility of the document through

12 another witness, that is on the 18th of January, he made it clear at that

13 stage as follows: "It should be entered in the record," said Mr. Kovacic,

14 "that the Defence is denying that this is a document issued by the Vitez

15 Brigade. It is contesting that." So that I think that one way or

16 another, that would give rise to the -- almost certain right of the

17 Defence to raise this issue on evidence at a later stage.

18 And without going at great length through the evidence I explored

19 with yesterday's witness, the Chamber will not, I think, have overlooked

20 that the document that Morsink is able to produce may have another and

21 rather greater significance given that the Defence have themselves

22 produced a document through a witness who signed it, have produced a

23 document dealing with the release of prisoners by the HVO in May of 1993.

24 The Chamber will recall yesterday a line of inquiry, but partly

25 based on characters of a typewriter or a word processor, and more

Page 26525

1 substantially based on the headings of these two different but

2 nevertheless very similar documents from one of which the words "Viteska

3 Brigade", it appears, have been deleted at some stage in the creation of

4 the documents coming to court. And whereas Morsink is able to produce an

5 original document, the Defence so far have only produced a copy.

6 But this document may become more significant for it appears to be

7 the Defence concern to assert that this release of prisoners which the

8 witness spoke of in clear terms yesterday was not under the aegis of the

9 Viteska Brigade but was, in some way, under some other authority that

10 doesn't need to use the title Viteska Brigade or deletes it or has it

11 deleted from its heading. So the document itself is said not to be a

12 Viteska Brigade document by a forgery. It's said not to have been

13 produced by Mr. Morsink, I'm not sure, and has value itself, additional

14 value in the issue that I may raise if there is time next week with

15 Mr. Cerkez, namely is the document that's been produced a genuine

16 document. That's the document produced by the Defence, a genuine

17 document.

18 So in my respectful submission, the evidence is plainly evidence

19 that the Chamber should have. But going back to the very beginning and

20 just to conclude what I have to say, contrary to the characterisation of

21 the history by the Defence, there was simply one decision made that the

22 document should be the subject of further evidence, and it wasn't -- it

23 wasn't really appealed or challenged at that stage. That was the

24 decision. And everything that's happened since then has been a result of

25 the efforts to save time and money by the affidavit which then floundered

Page 26526

1 on the rocks in the Appeals Chamber and has been found by efforts of

2 cooperation by us to afford Mr. Kovacic the opportunity to cross-examine.

3 JUDGE MAY: Mr. Kovacic, you -- this is a -- if this procedure

4 were followed, you would have the advantage of being able to cross-examine

5 the witness or you may simply invite us to consider, as the Trial Chamber,

6 as the Appeals Chamber held, consider admitting the document under Rule

7 89(C). Now, are you saying that you don't particularly want to

8 cross-examine this witness?

9 MR. KOVACIC: [Interpretation] That is correct, Your Honour. That

10 is correct, Your Honour. I do not insist on cross-examining, that is,

11 additional cross-examining of the witness, and I believe that I have dealt

12 with that in the written submissions which you had required of me. I

13 believe that this attempt to re-introduce the document, I think it's 591,

14 through Witness Morsink is just getting around the rules.

15 This document was never disclosed, and this document was then

16 attempted to be introduced through Witness Morsink. We objected, and the

17 Chamber ruled on this and rejected this document.

18 JUDGE MAY: This is why I want to be certain about what happened,

19 you see. We didn't rule at that stage. What happened was that the

20 Prosecutor failed to put it in and, in the absence of the witness -- and

21 you apparently were saying that you wanted to cross-examine the witness.

22 We refused to admit it. Now, what the Prosecution is saying is we've got

23 the witness so you will have the opportunity to cross-examine and that is

24 a fairer way of having the document put in.

25 MR. KOVACIC: [Interpretation] With your permission, Your Honour,

Page 26527

1 the first time the Prosecutor offered the document in evidence while the

2 witness was here, and you then decided that it was inadmissible and

3 everything else followed later.

4 JUDGE MAY: Now, Mr. Nice, can I get this right? I mean that's

5 not my recollection, but is it true that --

6 MR. NICE: That's not my recollection. I've had the research

7 done. I haven't done all the research myself, but the research reveals

8 otherwise and reveals, as I explained it, and as can be found on page

9 8.042, that we dealt with it orally by reference to the list of prisoners

10 and I didn't try to put the document in. If I'm wrong about that, of

11 course I'll stand corrected. But Mr. Lopez-Terres confirms to me in his

12 recollection, and I've got another summary of the history obtained for me

13 by one of the team and again, the first attempt to admit the document was

14 with the second witness in January of last year -- of this year. Yes.

15 And that's the only time when it was said to be inadmissible.

16 JUDGE MAY: I think we're going to have to look at the transcript

17 ourselves to see what's happened here, because clearly there's a

18 difference. If there was a ruling that this document was inadmissible,

19 then that would have an effect on any ruling that we have to make now.

20 But if it was purely a procedural matter, it wasn't ruled inadmissible but

21 it was inadmissible in the way that the document was trying to be put in,

22 then clearly that's a rather different matter because of the history and

23 the appeal. It's my recollection that the latter is the position, but if

24 we're wrong, then we need to look at it.

25 MR. NICE: Well, then, Your Honour, can I help simply with the

Page 26528

1 dates upon which it was touched upon? The 11th of October, the 18th of

2 January of this year -- sorry.

3 MR. KOVACIC: Your Honour, if I may assist --

4 JUDGE BENNOUNA: [Interpretation] Mr. Kovacic, can you clarify this

5 situation for us? There are two sides which give us their arguments, and

6 all this is being interpreted and a lot of words are being used, but we

7 need to come to the essence. We need to state clearly what the position

8 is. You are not insisting on the cross-examination of Colonel Morsink.

9 That is very good. But the question now is: Are you opposing this

10 document pursuant to Rule 89(C) of the Appeals Chamber or not?

11 MR. KOVACIC: [Interpretation] Yes, on that basis too. But if I

12 may say, Your Honours, I have checked the record. I'm not going to

13 double-check it now, but I believe you will have to go back to it

14 yourselves. But the point that I'm trying to make is that the Prosecution

15 has been ruled against twice, and to me that is an adjudicated fact. Now

16 they seem to be trying to bring it in -- to put it in in a third way,

17 which is through the non-discovery. In other words, they are looking for

18 a new mechanism to put it in.

19 JUDGE MAY: That is what the Appeals Chamber told us to do. Now,

20 are the Appeals Chamber wrong about that?

21 MR. KOVACIC: [Interpretation] No, but the Appeals Chamber did not

22 address this issue. They only addressed the issue of whether we were

23 entitled to cross-examination or not. And this, by the way, was not a

24 ruling on the grounds of our appeal, but we have been opposing this

25 document from the first day when it was produced, and the rulings were all

Page 26529

1 against this. If this document talks about Dubravica -- and we do not

2 know this. We have a number of documents. We had a very large number of

3 documents that the Vitez Brigade had nothing to do with Dubravica.

4 JUDGE BENNOUNA: [Interpretation] Mr. Kovacic, I remember that I

5 myself intervened on this. I think that it was my suggestion to recall

6 Mr. Morsink and that the Appeals Chamber ruled otherwise. So that we

7 can -- I thought that for the economy of the trial, we could get an

8 affidavit and that Mr. Morsink could be a vehicle for this document to be

9 introduced. In order to prevent from recalling the witness and in order

10 to finish the issue of this document, for the economy's sake, I thought

11 that we could deal with it through an affidavit, because I didn't think

12 that it was not a crucial document. The Appeals Chamber said that we

13 could not use the affidavit. The next proposal was to recall the

14 witness. This was proposed. You can agree with that or not. But I do

15 not understand your position and what your suggestion is. The Prosecution

16 is proposing to recall the witness or perhaps use Rule 89(C) for

17 introduction of this document. So I am not clear what you are asking

18 now. And as regards your position that this is an adjudicated affair, a

19 res judicata, we can check that in the transcript.

20 MR. KOVACIC: [Interpretation] My position is that this witness is

21 not needed at all. Why should we recall him? If this witness is

22 recalled, then we could find another 15, 20 witnesses who could add other

23 things. This is like opening the Pandora's box. But I said what our

24 position is and the ground for our position.

25 JUDGE BENNOUNA: [Interpretation] Mr. Kovacic, you cannot say that

Page 26530

1 if we are recalling this witness, that we can also recall other witnesses,

2 because this issue was raised at the time when this witness gave

3 evidence. At that time it was mentioned that we may recall this witness,

4 but I thought that we could solve the problem through affidavit. This was

5 all during his first appearance here, so you cannot say that if we can do

6 this with him, then we can do it with others as well.

7 JUDGE MAY: One moment. Can we have a copy of the document? Have

8 you got a copy available, please? Now, do you want to say anything about

9 Rule 89(C)? We've got the document in front of us.

10 MR. KOVACIC: [Interpretation] No. I would like to stay within the

11 limits what I have stated now and what I have submitted. But I would like

12 to respond to just one point raised by my learned colleague, because that

13 may have some -- there may be some linkage there.

14 JUDGE MAY: Yes, Mr. Kovacic.

15 MR. KOVACIC: [Interpretation] Just one point. My learned friend

16 gave us a lecture of sorts, and yesterday the witness was examined at

17 length. In my jurisdiction this would not have been possible, but I guess

18 we have different rules here. We have an issue of expertise. He raised

19 this expertise with --

20 JUDGE MAY: I was very aware of what he was doing, that is, asking

21 questions which may be appropriate for a typewriting expert. But they

22 were -- and no objection was taken. I'm not criticising you for that.

23 But they were matters which were clear enough from the document itself

24 which a layman could follow. Had they not been, I would have stopped them

25 and said that's a matter for an expert, but they were fairly obvious

Page 26531

1 points. Now, I'm certainly not inviting expert evidence on the document,

2 because we have more than enough evidence in this particular case. But

3 that's a separate issue from the issue of admissibility under 89(C).

4 Anything more you'd like to add? By the way, don't let me stop

5 you. If you think it's relevant to 89(C), then of course go on.

6 MR. KOVACIC: [Interpretation] No, Mr. President. You just read my

7 mind. That is exactly what I was going to raise. But I was just taken by

8 surprise today regarding this position the Prosecution seems to be using

9 as an argument. There are about 150 documents that emanated from the

10 brigade command that have been featured in this trial. But if they want

11 to subject these documents to expertise, then they have to bring in some

12 expert who will decide whether this really came from the brigade command

13 or not. That was my suggestion. This is why I believe that it would not

14 be right to introduce this document after all these arguments we've had

15 before, based on Rule 89(C).

16 JUDGE MAY: Mr. Nice, you've had one go. You were not, I take it,

17 intending to introduce any expert evidence by the back door?

18 MR. NICE: No. I was seeing if the woman could help us identify

19 which of the machines that must have been familiar to her had been used.

20 But I wasn't seeking another go. I think I was interrupted, or I

21 interrupted myself, in the recitation of --

22 THE INTERPRETER: Could you slow down, please.

23 MR. NICE: I'm so sorry. -- of the transcript passages that you

24 may want to look at if you decide to go to transcripts, because in

25 addition to the 18th of January, the topic was finally touched upon on the

Page 26532

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Page 26533

1 19th of January. And it is important. In light of what Mr. Kovacic has

2 been saying, to record that you'll find there that, following a question

3 by His Honour Judge Bennouna, Mr. Kovacic ended his then position by

4 saying that the practical solution is obviously the one you suggest,

5 Morsink to make an affidavit, but please give me the right to recall him

6 then later. And so that's why we say, assuming that his position was the

7 same and in light of the complex history involving the Appeals Chamber,

8 let him be recalled.

9 [Trial Chamber deliberates]

10 JUDGE MAY: The history of this exhibit, 591, Z591, has been a

11 tangled one. We accept the account which we have been given by the

12 Prosecutor that when the witness, Colonel Morsink, who could have produced

13 the document, was giving evidence, in the press of events the document was

14 overlooked. It was therefore not put in then. It was produced to another

15 witness some months later. There was then objection and it was said that

16 there should be cross-examination by the Defence of Colonel Morsink.

17 The upshot was, at the suggestion of the Trial Chamber, the

18 document was produced by Colonel Morsink by way of a statement or

19 affidavit. Subsequently, and indeed only very recently, long after the

20 close of the Prosecution case, the Appeals Chamber have ruled that that

21 affidavit or witness statement was not admissible. The grounds related,

22 of course, very largely to the absence of cross-examination. But we were

23 bidden in that judgement to consider admission of the document under Rule

24 89(C), which provides that the Chamber may admit any relevant evidence

25 which it deems to have probative value.

Page 26534

1 Clearly, this list here is a relevant document and clearly it is

2 of, some might argue, very considerable probative value, but that's a

3 matter of weight. But it is of probative value. We consider too whether

4 it does have the indicia of reliability to which the Appeals Chamber

5 recently referred in another decision, and find that it does. That can be

6 seen from the face of the document. What weight it has, as I've said, is

7 for us to consider.

8 Now, Mr. Kovacic says today that he does not want to cross-examine

9 Colonel Morsink, and we take note of that in coming to our decision.

10 However, if, on reflection, in the next five days, he comes to the

11 conclusion that he does wish to cross-examine the witness after all about

12 this document, then we'll consider an application to have him recalled, in

13 the interests of fairness. But subject to that, this document is

14 admitted.

15 The only other matter I have, and --

16 THE INTERPRETER: Microphone for His Honour, please.

17 JUDGE MAY: I'm sorry. The only other matter which I have, and

18 I'm looking at the clock, is the video, which we've heard a certain amount

19 about. We ought to be coming to a time when we can arrange for that to be

20 played.

21 MR. NICE: Your Honour, yes. I think the fact that none of the

22 courts are sitting tomorrow will free up the technical staff, and I think

23 it's tomorrow that the document is likely to be being prepared.

24 JUDGE MAY: Can you let us know on Monday morning what the

25 position is?

Page 26535

1 MR. NICE: Certainly.

2 JUDGE MAY: Yes. Now, the parties may have matters.

3 MR. NICE: I have one matter -- I have two matters to raise, one a

4 tiny matter really, relates to next week, when Cerkez is going to be

5 giving evidence. This court is dreadfully inconvenient to work in, and I

6 know, looking at everybody's benches, that the problems we suffer are

7 suffered by others. It's very difficult to marshal papers and to be sure

8 you're not missing things and losing stuff. So that's a general problem

9 and that explains what I'm going to ask. I'm going to ask the Chamber to

10 consider the possibility, if it can, of moving to a larger courtroom next

11 week.

12 Secondly, I can at most have two members of my team with me, and

13 that's very uncomfortable and very difficult, and it might be that I would

14 want one or two more than that next week.

15 Third, this is -- giving of evidence by a defendant is always a

16 matter of some greater interest, or usually a matter of some greater, and

17 legitimately greater interest than the giving of evidence by some of the

18 other witnesses, and the public facilities here are extremely limited.

19 And there may be people who have a legitimate interest in attending to

20 this trial who don't have access to any of the closed circuit systems that

21 are otherwise available and who would prefer a larger courtroom. So for

22 all those reasons, I invite the Chamber, if it feels it properly can, to

23 consider the possibility, perhaps with the other Chambers, of taking next

24 week's evidence in circumstances where we can all breathe a little more

25 freely and find our documents a little more easily.

Page 26536

1 JUDGE MAY: I'll just ask the registry, the legal officer, whether

2 there's a possible course.

3 [Trial Chamber confers with registrar]

4 [Trial Chamber confers]

5 JUDGE MAY: Yes. Clearly there are reasons set out by the

6 Prosecution, that it is a cramped courtroom and they should have the

7 facilities of a larger courtroom. What we'll do is we will invite the

8 registry to transfer this case to Courtroom 1. Whether that's possible or

9 not for next week will depend, obviously, on matters which are out of our

10 hands.

11 MR. NICE: There are two other matters that certainly I ought to

12 mention. One of them I just mention because one of the team referred me

13 to it at the break and I hadn't thought of it earlier. It's a good

14 point. There are the two Court's witnesses, both beginning with the

15 letter P, coming in November, and although we haven't yet decided on the

16 order of cross-examination, the reality is they're going to be

17 cross-examined by each party.

18 JUDGE MAY: If it assists, I think, in my view, and we haven't

19 discussed this, but in my view the Prosecution probably goes first. And

20 what I would have in mind is that the transcripts would stand as the

21 evidence, as it were, to the Court, and that cross-examination would

22 follow.

23 MR. NICE: I'm not going to take time with that now. My

24 suggestion to the Court would be and is to the contrary effect. Each of

25 these witnesses were witnesses who the Defence were going to call, and it

Page 26537

1 was only because of their nonavailability for whatever reason that they

2 weren't here. That, therefore, suggests and reveals that they will know

3 exactly what the witness is likely to say in answer to them and that the

4 appropriate -- and that they will have the very considerable advantage of

5 not having to ask their questions in a nonleading form, but being in a

6 position to cross-examine the witness with their own known text. And in

7 those circumstances, it would be far more appropriate to try and reflect

8 what would have happened had those witnesses been called by the Defence

9 but indeed doing it in a favorable way to the Defence by letting them go

10 first and the Prosecution then being in a position to cross-examine on

11 topics that the Defence would have raised with the witnesses.

12 JUDGE MAY: We can consider that in due course.

13 MR. NICE: But the issue that arises is documents that may become

14 material in their evidence, when we discover what it is they say, might

15 fall outside the other categories of documents that are going to be

16 provided either on the 30th of October or at any other stage next week

17 simply because issues may arise that we haven't yet prepared for. We are,

18 of course, preparing for those witnesses but in the press of things, I

19 can't say that we are in any stage of final preparation or anything like.

20 So I perhaps sound a warning bell about that and the last point for me to

21 raise relates to a particular document that, as the Chamber knows, I am

22 anxious to serve today and in respect of which I would be grateful for

23 protective measures of a certain kind if the Chamber thinks those are

24 available. As the Chamber will know I am going to serve the document in

25 any event, but until I have a decision on the application for protective

Page 26538

1 measures, it would be inappropriate for me to do so.

2 JUDGE MAY: We've just been handed the document.

3 MR. NICE: I'm sorry it hasn't come to you before. I provided

4 copies before filing at 9.00 this morning but I think -- at least I tried

5 to.

6 JUDGE MAY: The opportunity to read it has been rather --

7 MR. NICE: Your Honour, I quite understand.

8 JUDGE MAY: It may be that we should consider this and we'll deal

9 with it as quickly as we can.

10 MR. NICE: Thank you very much.

11 JUDGE MAY: Bearing in mind you want it dealt with today.

12 MR. NICE: Certainly, and I can keep in contact with Defence

13 counsel and make sure that they are available to receive the document as

14 soon as a decision is made.

15 JUDGE MAY: Yes, thank you.

16 MR. SAYERS: If I might just respond to some of the points raised

17 by the Prosecution and raise a few limited matters of my own.

18 With respect to the Court witnesses, they are precisely that, the

19 Court witnesses, and we would suggest that the order of cross-examination

20 that the Court has previously outlined be adhered to. It may be that the

21 Defence, given the transcript testimony of both of these witnesses, Your

22 Honours, will have little, if any, cross-examination of these witnesses,

23 but that really depends, in large part, upon what the Prosecution raises

24 with these witnesses. So that's the first point. We see no indication to

25 interfere with the order of examination that the Court has previously

Page 26539

1 indicated that it prefers.

2 Secondly, with respect to the matter of documents, Your Honour, it

3 just -- we are put in the position where we really have to raise the

4 rhetorical question: When is this going to end? When are we actually

5 going to see all of the documents that the Prosecution is going to be

6 introducing against our clients? And I have no answer to that question,

7 unfortunately.

8 JUDGE MAY: Well, Mr. Sayers, that, of course, is a question which

9 the Trial Chamber has very much in mind, that at some stage, there has to

10 be an end to litigation and, in particular, there has to be an end to the

11 production of documents. Normally, documents would end with the end of

12 the Prosecution case. We are, however, dealing with a very unusual

13 situation.

14 Whether there has been an absence of cooperation in the past,

15 there is now a cooperation and documents are being produced. And in those

16 circumstances, we have to bear two matters in mind. One is that nothing

17 should hinder the Trial Chamber for getting at the truth. And if there is

18 relevant evidence, clearly it should not be kept from the Trial Chamber.

19 Also that although there should be a finality to litigation in this

20 Tribunal, litigation continues through to the, as we've discovered,

21 through to the appeals stage. So once again, one has to bear that in

22 mind. The more that can be dealt with by the Trial Chamber, the better.

23 But as against that, I agree with entirely what you say that

24 clearly you have to know the case which you have to face, and normally you

25 should have done those in March. We've got those two matters in mind.

Page 26540

1 MR. SAYERS: I don't mean to complain, Your Honour, but there is a

2 finite limit to what counsel can absorb and I'm sure as to what the Court

3 can and, frankly, I think we are at that limit. And given the length of

4 this case, the number of witnesses that have been called, and the number

5 of documents that have been introduced, we would respectfully suggest that

6 there is absolutely no impediment to the Trial Chamber in getting at the

7 truth of the matter which, of course, has to be its principle objective.

8 If I might just raise two matters, Your Honour, and I don't really

9 need to spend very much time on these. We have submitted two applications

10 to the Trial Chamber. One deals with Witness AT, the other one deals with

11 the request for the issuance of a binding order to the Kingdom of Sweden

12 for reasons stated in that application. I'm sure the Court can sympathise

13 with our position. We feel like Sisyphus from time to time. We have to

14 keep on going up these mountains only to find ourselves at the bottom of

15 the mountain again just a few instants later, and the history of our

16 attempts to acquire documents from the Kingdom of Sweden I think stands as

17 a pretty good example of that. It may be that we are a day late and a

18 dollar short to use the vernacular, but we brought this to the Trial

19 Chamber's attention as soon as we possibly could. I only received the

20 notice of the Kingdom of Sweden's response at our request on the 6th of

21 October so the application was submitted promptly after that.

22 And the final matter, Your Honour, if I might raise this, deals

23 with some disclosure issues. There aren't too many witnesses that are

24 covered by this particular problem, but one of them is Witness AA, and the

25 other one is Witness AT. Currently, our trial team is limited to two

Page 26541

1 people who can know the identities of these witnesses and the substance of

2 their testimony. It would be helpful if that could be expanded to four to

3 include Mr. Browning and Mr. Smith who are labouring on the briefing of

4 this matter even as we speak. Obviously, it's very difficult for them to

5 address issues that are covered by the fairly extensive testimony of

6 Witness AA without knowing what he said.

7 I'm -- I -- to be candid, I must say that when we've submitted our

8 brief on the motion for judgement of acquittal, I wrote the sections

9 concerning Witness AA that were submitted in a confidential annex, but it

10 would be helpful to expand the range of people who have access to this

11 testimony for the reasons I've just stated.

12 JUDGE MAY: Mr. Nice, any objection to that?

13 MR. NICE: I'm not going to stand in the way of that if those

14 people are working on this case, subject to the usual protection, why

15 not.

16 JUDGE MAY: Very well. We'll make that order extending the

17 category.

18 MR. SAYERS: Thank you very much, Your Honour.

19 MR. KOVACIC: [Interpretation] I apologise for being the last one,

20 but that seems to be my fate. Very briefly, I am not going to draw on

21 what Mr. Sayers said by resorting to an example of Mr. Cerkez's documents,

22 but I think I am entitled to ask the Prosecution to ask what their view is

23 regarding Cerkez and Ahmici, as Cerkez might begin to testify on Monday.

24 But I believe my learned friend has said it already -- and if that is his

25 statement, then I shall take it that that means yes, and not waste any

Page 26542

1 more time on that.

2 Secondly, it seems that there are a great deal of effort and a

3 great deal of trouble, our witness, the witness whom we had scheduled for

4 this week and could not arrive. It seems that, after all, he will arrive

5 in The Hague on Sunday. I learned that during the break, and then we

6 would call him as the first witness on Monday. He will not take long.

7 And then we would move on to Cerkez's testimony, unless the Chamber rules

8 otherwise.

9 Thirdly, you have already announced, Your Honours, that you would

10 let -- that you would rule today or rather during this day regarding the

11 disclosure by the Prosecution of documents for the cross-examination of

12 Cerkez. You already gave us your view yesterday, but there was some

13 discussion about it yesterday, and you announced this morning that there

14 could be a final decision on this today.

15 I believe if we are to fully prepare this testimony, we should --

16 we would be very appreciative if we could hear your decision because it

17 will affect our approach, and the same holds true of the Ahmici case. Of

18 course we shall not go into that unless it is claimed by the Prosecution

19 that it was the brigade which committed the crime in Ahmici.

20 JUDGE BENNOUNA: [Interpretation] But Mr. Kovacic, the Prosecutor

21 has already answered you and told you how they will conduct their case and

22 as for the Ahmici. You have already received the answer. You received

23 the answer. It was said that the position of the Prosecution has not

24 changed, and that he would disclose all the exculpatory evidence to you,

25 whatever was available to the Prosecution, but that there were no changes

Page 26543

1 regarding the position of the Prosecution, at least that is how I

2 understood what the Prosecutor said. I do not think we have to go back to

3 that and invite them to speak again. If you do not agree with this, that

4 is another matter. But to ask the Prosecutor to repeat all that he said

5 and go into it once again, I do not think that that would really be

6 necessary.

7 MR. KOVACIC: [Interpretation] Your Honours, with all due respect,

8 I am not asking the Prosecutor to elaborate their view, and it's not a

9 question whether I am satisfied with that or not. But I do not know

10 whether the Prosecutor responded to the thesis which was propounded by my

11 colleague, Mr. Sayers, as an example. And again, I do not want to develop

12 it further, because I believe we are all abreast of all the problems, of

13 all the questions, in view of all the possible documents used by the

14 Prosecution to show that Mr. Cerkez had to do something with the events in

15 Ahmici. But my colleague, Mr. Sayers, used that only as an example, and I

16 should like to hear from the Prosecution in so many words whether they

17 still hold that Cerkez was present in Ahmici at the time when the crime

18 was committed, or did Cerkez have something to do with Ahmici after the

19 crime had been committed. Because that -- well, I do not have to explain

20 why, but evidently it will affect the length and the exhaustiveness of

21 Mr. Cerkez's testimony, and I have to hear it formally from the

22 Prosecution.

23 [Trial Chamber confers]

24 JUDGE BENNOUNA: [Interpretation] Mr. Nice, I believe we understood

25 you properly that you had already answered this question, at least that is

Page 26544

1 how the Chamber took it. But would you like to add something to this very

2 briefly which could help the circumstances under which Mr. Cerkez will be

3 giving his testimony next week.

4 MR. NICE: I am grateful for that opportunity, yes. I tried to

5 answer the question in relation to the two documents that Mr. Sayers

6 referred to and their impact or otherwise on the case because it was

7 raised as a matter of complaint. I made the point that our case is the

8 same now as it's always been, and of course that involves Cerkez being

9 involved in the plans that were laid for Ahmici, and bearing

10 responsibility of 7(1) and 7(3) in respect of it.

11 As to his precise whereabouts on the night and as to his precise

12 involvement, I've indicated what the documentation available and the

13 evidence available so far suggests, and that's the case I've been

14 putting. It will, of course, be for Cerkez who it was not -- declined the

15 opportunity to be interviewed following arrest and before trial and who

16 gives evidence at the end, it will be for him, of course, to explain

17 documents of which he has knowledge.

18 So for example, the document last week which, as I explained, is

19 entirely compatible with the other HIS document and indeed may well fit

20 with the general theory of involvement in the plan and having a particular

21 function remote from the actual killings in Ahmici, it will be for

22 Mr. Cerkez to explain his position, and I shan't be confined in the

23 questions I ask of him, and our indictment has been as it has always been

24 and it hasn't changed.

25 JUDGE MAY: Dealing with the documents and disclosure, is this the

Page 26545

1 position that all the documents on which you may rely without specifying

2 which, of course, have been disclosed unless there are some particular

3 reasons for nondisclosure.

4 MR. NICE: The position is -- I have to take it out of reality.

5 The position may be exactly as Your Honour expresses it, but it's better

6 that I explain the reality. First of all, we've disclosed all the

7 documents we are obliged to disclose so far as we know.

8 Second, we've gone much further than that, and we are disclosing

9 documents coming to us, the new, as we get them turning them over because

10 of the particular circumstances of the case. We are only now in the

11 process of preparing for the cross-examination of Mr. Cerkez and that

12 preparation will go on as he gives evidence.

13 The preparation between now and next Monday may well identify more

14 documents that I want to ask him about and if they haven't been disclosed,

15 I will disclose them. Again, we take the view that this is far beyond the

16 general requirements of the institution and reflects no concession by the

17 Office of the Prosecutor that that's an appropriate course to take.

18 Indeed, it seems to us it's unfairly favorable to the Defence, but we'll

19 do in this case because of the particular problems over documents.

20 That doesn't mean to say that there won't be issues arising as he

21 gives evidence which will give rise to our thinking of other documents,

22 and it may be they haven't been disclosed. But that's the ordinary part

23 of dealing with the witness. One has to have in mind that the ordinary

24 way of dealing with witnesses in the way all Prosecution witnesses have

25 been dealt with is their evidence to be tested by whatever means are

Page 26546

1 thought to be properly available to the cross-examining party, and he

2 can't necessarily forecast everything that he has in mind. He can't

3 forecast ahead of the evidence everything that might become relevant once

4 evidence is given. But our position is not to plan an ambush or anything

5 like that in this case, and to hand over documents in the way I've

6 described.

7 JUDGE MAY: Very well. Yes, Mr. Kovacic, it's now after one.

8 MR. KOVACIC: [Interpretation] Just one sentence, Your Honour.

9 It -- how it sounds to me -- where is the ambush theory. I will suggest

10 that the Prosecutor will be allow to cross-examine Mr. Cerkez only

11 relative to documents which had been turned over to the Defence so far.

12 If this is unacceptable to the Prosecution after 4.000 documents that have

13 been disclosed by the Defence, then I really don't know what else they

14 need. That is one thing.

15 Secondly, if some traps are being prepared here which the Defence

16 has never seen before, and the Defence is entitled to know all the

17 inculpatory evidence and so on and so forth about everything, regardless

18 of the problem that has to do with the late disclosure of Zagreb

19 documents, because in Zagreb, I was not given any single document, and the

20 documents that I have I was given by the Prosecution. And I'm grateful to

21 them because they opened the door for us. We did not manage to open the

22 door, and I will now reconsider whether Mr. Cerkez will take the stand

23 because he has the right to know the evidence which inculpates him and

24 that is my stand. That is my position and I should like to suggest to --

25 to ask the Chamber to issue such an order to the Prosecution because

Page 26547

1 otherwise only the sky will be the limit.

2 [Trial Chamber confers]

3 JUDGE MAY: The principle is the one which the Trial Chamber has

4 enunciated on a number of occasions which is that before an accused gives

5 evidence, he should know precisely what it is that the Prosecution allege

6 against him and that includes the material. There should be no question

7 of an ambush or anything of that sort. However, we are mindful that there

8 may be occasions when documents whose relevance is not plain or documents

9 which come into the hands of the Prosecutor at a late stage may be

10 important to put to an accused.

11 Therefore, the ruling is this, that there will be no

12 cross-examination on documents which have not been disclosed without

13 leave, and in considering whether leave is to be given, we will also

14 consider at the same time whether there should be time for the Defence to

15 prepare to deal with the matter, and also we shall have in mind whether

16 the accused can talk to his -- communicate with his counsel about the

17 documents. But the principle must be that cross-examination should be on

18 disclosed documents only, and it will only be in exceptional circumstances

19 that we will consider giving leave to cross-examine on other documents but

20 we do not think it right, at this stage, to prevent applications along

21 those lines.

22 Let me deal with the application we've had which we are now able

23 to deal with. This is the Prosecutor's request for protective measures

24 regarding a document filed today. We've now had a chance of looking at it

25 and we shall grant the order as asked.

Page 26548

1 MR. NICE: I'm grateful. I'll serve the document today. The

2 application had necessarily to be ex parte in order for the protective

3 measures to be granted ahead of service of the document. I can either

4 serve the document as it stands, with the order to come, or I can serve

5 the application as well. Perhaps the better course is if I simply serve

6 the application and the legal officer notifies the Defence now of what the

7 restrictions are and the order can follow, if that can happen, to make

8 life easy, rather than complicate it, if that does.

9 [Trial Chamber confers with legal officer]

10 JUDGE MAY: Very well. We'll adjourn now until Monday morning,

11 half past 9.00.

12 --- Whereupon the hearing adjourned at 1.10 p.m., to

13 be reconvened on Monday, the 16th day of October,

14 2000, at 9.30 a.m.

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