1 Tuesday, 21
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.35 a.m.
5 JUDGE MAY: Yes, Mr. Kovacic.
6 MR. KOVACIC: Thank you, Your Honour.
7 WITNESS: MARKO PRELEC [Resumed]
8 Cross-examined by Mr. Kovacic: [Continued]
9 Q. [Interpretation] Good morning, Mr. Prelec.
10 A. Good morning.
11 Q. Well, good morning, and let us resume where we left off
12 yesterday. You explained to us this system that was put in place at the
13 time when you -- while you were expecting documents in Samobor, that is
14 HIS documents and a system of reciprocity. You mentioned the example when
15 you were given two boxes and that you could pick up any one of them
16 because they were identical, and will you please say do you know what I'm
17 talking about, because I have a question about this.
18 The system of reciprocity, that is the Office for Cooperation of
19 the Croatian government with the Tribunal and that the manager of that
20 system, of that inspection, this system of reciprocity was in force only
21 while you were in Samobor and worked there; is that correct?
22 A. That's correct.
23 Q. So this system of reciprocity did not apply to the later stage of
24 your work at the state archive?
25 A. That's correct.
1 THE INTERPRETER: Will the witness please wait for the end of the
3 MR. KOVACIC: [Interpretation]
4 Q. Could you --
5 JUDGE MAY: You are being asked by the interpreters for the
7 MR. KOVACIC: I'm sorry, Your Honour. I was sure I was slow
9 JUDGE MAY: It was the witness who was, in fact, being reminded.
10 Yes, Mr. Kovacic.
11 MR. KOVACIC: No, it's my fault anyway.
12 Q. [Interpretation] Mr. Prelec, are you sure that the system of
13 reciprocity did not apply any longer when you were at the state archives?
14 A. We -- I personally assumed that it was continuing and I only
15 discovered after some time that it was not. I have no reason to believe
16 that the system of reciprocity, to use your term, continued.
17 Q. So we agree. And my next question about the same topic: Could
18 you give us a rough estimate, an order of magnitude regarding the volume
19 of the documents at the Samobor at the first stage compared with the state
20 archive as the second stage, the two separate stages. At which of these
21 two stages did you get more documents in terms of their volume?
22 A. Without question, the materials copied at the Croatian State
23 Archive were much greater in quantity than the other materials.
24 Q. I know that you wouldn't have a figure, but just as a description,
25 was it 1:2, 1:3 roughly, just a rough estimate?
1 A. I would say at least 10:1. It's possible to construct a precise
2 answer, but not on the basis of information I have at my fingertips now.
3 Q. Yes, of course. I agree with you it is impossible to know it very
4 precisely. You say 10:1, which means ten documents, of course order of
5 magnitude, ten documents in the state archives versus one document in
6 Samobor; is that it?
7 A. Yes. We were there much longer, and we became more efficient, I
8 would say.
9 Q. Very well. Very well. Yesterday you explained to us that small
10 state archive stamp in the right upper corner of those documents, and you
11 told us, and you will correct me if I'm wrong, that this stamp can be
12 found on almost all the documents in the state archive, even if not on all
13 of them. But I didn't quite understand from what you told us again what
14 was the ratio. I know that you cannot give us the exact figure, but what
15 are we talking about? Is the stamp a rule and then there are only
16 exceptions to this rule, or could you tell us roughly what proportion of
17 documents did have a stamp and which proportion didn't?
18 A. I would have to say at least 2 or 3 to 1, probably more. But
19 again, a precise answer could be established but not by me right now.
20 Q. But from everything that you told us, we can agree that the
21 majority of documents that you obtained in the archive has a seal, a
23 A. Yes.
24 Q. Thank you. You told us that the state archive began gradually to
25 sort the documents out, and you told us that, in the beginning, there were
1 very modest groups of binders or boxes or folders or lists but that they
2 all grew in time. I should like to put to you that the list drawn up by
3 the state archive at no time reached a stage when individual documents
4 would be identified. They never got beyond the listing of or identifying
5 individual bunches of documents, that is as per binder or folder, and
6 categorise them according to subject or author or something like that, but
7 it never came down to every individual document; is that correct?
8 A. [Previous translation continues] ... exception, that being items
9 which had a very small number of large documents. For example, the
10 logbooks and what was called the Blaskic diary colloquially yesterday,
11 those were listed individually. But that would be the only exception I'm
12 aware of, those kinds of cases.
13 Q. Let me try to be clearer. And even this exception was not the
14 product of the work of the archive but the nature of the document, because
15 this accurate itemisation was due to the nature of the document itself
16 rather than a system developed by the archive?
17 A. Both are correct. It's the nature of the document but they were
18 written down by the archive. So it seems to be a false alternative.
19 Q. Right. Never mind. But we agree that that is the only exception,
20 isn't it?
21 A. The only one of which I'm aware.
22 Q. And to be on the safe side, the last day that you went to the
23 archive, was there at least in one part of it one of the -- one of the
24 binders, say, the Vitez Brigade, covering its existence? Is there an
25 accurate, an exhaustive list of documents collected, put together in one
1 binder, on the last day that you were at the archive?
2 A. No. I -- no.
3 Q. Thank you.
4 A. With a qualification. In some of the materials I referred to
5 yesterday relating to investigations carried out by the SIS on behalf of
6 what was referred to as the Defence, there were lists of document numbers
7 but they were not in any way identified, and they were quite long, and I
8 did not try to establish whether they corresponded with any particular
9 binder. That would have been an enormously time-intensive and difficult
10 task. But this is probably not what you were referring to.
11 Q. No, of course not. Thank you. And as for this classification of
12 documents, one more question. You or your colleagues who worked with you,
13 I'd like to put it to you that you never saw a binder or a folder
14 containing documents of the Vitez Brigade and where there would be, at the
15 beginning of the binder, a list of documents included in that particular
16 binder or folder; is that correct?
17 A. I don't recall any such lists, but please keep in mind that the
18 Viteska Brigade's documents I saw in May and other parts of that
19 collection at other times. So my recollection might not be perfect, but I
20 don't recall any such lists.
21 Q. Thank you. Yesterday you testified about document Z692.2, if you
22 remember. I have to ask the usher to help us, please.
23 It is a document you told us that you found a curious note on the
24 back of the document.
25 Mr. Prelec, from the document -- I mean, the text, not this note
1 on the back but from the original text on the reverse side of the document
2 to the -- on the right-hand side we see all the addressees, all the people
3 this document was addressed to. We do not know if it was sent to them but
4 it was addressed to them. And you identified those, didn't you?
5 A. Yes.
6 Q. You will agree that there are at least 60, if I'm correct,
7 addressees who should receive this document; is that correct?
8 A. [Previous translation continues] ... [No audible response]
9 Q. So there are 12 brigades and then there are independent units,
10 three, and the 4th Battalion of the military police, so it adds up to 16.
11 Would you agree with that?
12 A. Yes.
13 Q. Where did you find this document, could you tell us? In what
14 binder alongside whose documents? Among the documents of one of the
15 addressees or among the documents of the sender? Sender is obviously only
16 one, there is only one. Could you tell us, please?
17 A. As I described yesterday in my direct testimony, this came out of
18 a box of folders and it was in one of those folders and, as I recall, it
19 was surrounded by a number of other documents bearing on the events of 16
20 April. It would be possible, as with all of these documents, to give you
21 a precise answer since we have maintained our records of precisely where
22 each document came from, and I'm sorry that I, not anticipating this
23 question, did not bring these materials with me.
24 My recollection is that a substantial number of those documents
25 were, in some way, connected with Mr. Cerkez, but I cannot give you a more
1 precise answer at this time.
2 Q. But would you agree from your description that it was neither a
3 binder nor a folder titled the Viteska Brigade saying the sender or the
4 addressee and so on and so forth, but on the other hand, you did see such
5 binders; isn't that true?
6 A. It was in a folder which did have a description which was similar
7 or identical to the description of a binder. I think that description
8 indicated the Viteska Brigada, and I do have a record of it but I cannot
9 tell you precisely again at this moment, I've seen so many of these. But
10 I can tell you that there was something corresponding to a binder
11 description on the folder.
12 Q. Very well. Would you agree that there were very many different
13 documents in that particular binder, that there were not only the
14 documents of the Vitez Brigade and were not all -- and those documents
15 were not all issued by the same person?
16 A. [Microphone not activated].
17 Q. Thank you. The note that you mentioned yesterday was, and you saw
18 it with your own eyes on the back of that document; is that correct?
19 THE INTERPRETER: Could the counsel please come closer to the
21 A. That's correct.
22 JUDGE MAY: Could you come closer to the microphone.
23 MR. KOVACIC: [Interpretation]
24 Q. The document itself was not signed; is that correct?
25 A. Correct.
1 Q. But it does have a filing stamp, doesn't it? Some call it the
2 distribution stamp.
3 A. I actually don't know what this stamp is. I have always assumed
4 that it was some sort of transmission or communication stamp. I can see
5 it can refer to sending and to receipt. Sometimes one or the other was
6 circled. In this case, it appears that "Received" is underlined, but --
7 well, I suppose you can see that as well as I.
8 Q. Right. That document is about that. But one should say that this
9 is a document which was found with one of the addressees, that is what the
10 document looks like. And then it shows also the circled word which is
11 "courier," and does it imply that it was delivered by courier, that that
12 was a possibility; we do not know, but that it is quite possible that that
13 was the case.
14 A. Yes. As a possibility, certainly.
15 Q. And since there is no signature and it was delivered by courier,
16 and from the general appearance of the document, you cannot say, in fact,
17 whether this is an authentic document or a false one. I mean the document
18 itself, and I'm not referring to the back side of it. There is no way
19 that you can tell; would you agree with that?
20 A. Once again, I don't see the connection between the beginning of
21 your question about the signature and the courier and the conclusion. I
22 suppose, in a strict sense, it's true that I cannot say whether this is an
23 authentic document, but only in the sense that that comment could be made
24 of almost any document, not limited to the broad range we've been
25 discussing here.
1 Q. Correct. Yes. Quite right.
2 JUDGE MAY: What is the basis of your assertion, Mr. Kovacic, that
3 it was delivered by courier?
4 MR. KOVACIC: Your Honour, I would remind the Court earlier that
5 we have discussed, I guess, in some occasions a so-called Paket or package
6 system of communications the HVO used which is, indeed, kind of radio
7 transmission with -- aided by computers. So obviously, when the document
8 is sent through radio communication, with or without computer doesn't
9 matter, it cannot be signed. But this document is signed by a courier
10 between two offices.
11 JUDGE MAY: Just wait a moment. Let us see if the witness can
12 confirm that.
13 You hear what Mr. Kovacic is asserting. Can you say whether
14 that's true or not, Mr. Prelec?
15 A. I can say that it does appear to have been sent by courier. I
16 would also draw attention to the top line of that box which indicates "HVO
17 CV" which, in my experience, is the communications centre, centar veze,
18 Vitez. The point I am making is a simple one. There is no reason why it
19 could not have been transmitted to one location by electronic means and
20 then hand carried to another location. So the two are not exclusive, but
21 that's not proof that that's exactly the way it happened.
22 MR. KOVACIC: [Interpretation]
23 Q. So you really do not know how this actually happened and there are
24 no ways for you to find out and to conclude how this was done by looking
25 at the documents themselves?
1 A. Well, again, all I could add would be from my direct testimony
2 yesterday other supporting documentation. One could also indicate what
3 appears to be -- or what appears in the position that often times on many
4 documents an address indication appeared. I'm referring to the Viteska
5 Brigada. I don't recall about this document, but many of these were found
6 in the archive in a way that indicated they had been folded over and this
7 was written on the centre of one of the folded panels. But I suppose to
8 answer your question most simply, beyond those partial means, no, I have
9 no way of knowing certainly how it was delivered.
10 Q. Thank you. This same document, since we have already established
11 that it was sent to at least 15 addressees, did you find this particular
12 document in any other folder from which it could be seen that one other
13 addressee also received it?
14 A. I don't recall any other example.
15 Q. Let me draw your attention to the back page of the document. The
16 note that we have seen and that can be found on the back of the page as
17 such is not signed. It is not a handwritten note. It does not contain
18 any signature, any specification of date or place. Can we agree on that?
19 A. Yes, that's correct.
20 Q. The note was actually written in two different handwritings. Is
21 that correct as well?
22 A. Well, if you're referring to the "Viteska Brigada" and the
23 remainder, yes. The four lines below that appear to me to be in the same
25 Q. I agree. So four lines from the back -- from the bottom and the
1 Vitez Brigade, the title, these two portions of the text were not written
2 by the same person. These are two different handwritings. You yourself
3 have observed that, and I guess we can agree on that.
4 JUDGE MAY: Now, wait a minute. This witness is here about the
5 discovery of the documents. Now you're trying to cross-examine him about
6 handwriting. I don't think he's a handwriting expert. It's not a matter
7 for him. It's a matter for us. If you want to address us on that, you
9 MR. KOVACIC: [Interpretation] I accept that, Your Honour.
10 However, the witness has presented this note as being part of a whole. As
11 a layperson, I think he can differentiate between two different
12 handwritings because he has seen the original which was written in two
13 different pencils. Of course I'm not asking for his opinion as an expert
14 in this matter, but I do believe that we can --
15 JUDGE MAY: He can be asked whether, as far as he saw, two
16 different pencils were used. He can be asked that because that's a
17 question of fact which he might be able to have observed or not.
18 Mr. Prelec, let me ask you. Can you assist us as to whether two
19 different pencils were used or not? If you can't, just say so.
20 A. I don't recall whether it was pencil, pen, aside from the notes
21 below I'm certain -- I recall as being pencil. But, no, I can't. I'm
23 MR. KOVACIC: [Interpretation]
24 Q. Mr. Prelec, so you don't know nor is there anything on which you
25 can base your conclusions by looking at the document who, when, and where
1 wrote this particular note; is that correct?
2 A. Yes, that's correct.
3 Q. Mr. Prelec, let me ask you just one more question in relation to
4 this matter. Have you seen any other documents in this huge amount of
5 papers in the archives containing a note here and there written by someone
6 on the back page of a document?
7 A. Yes, quite often.
8 Q. Thank you. Mr. Prelec, while inspecting these documents, you
9 didn't come across anything which would be called an operations diary of
10 the Vitez Brigade or a similar type of document which would contain
11 description of operations like the document that you found and that you
12 told us about - I forgot its number - is that correct?
13 A. That's correct.
14 Q. Likewise, Mr. Prelec, you have never come across, as far as the
15 Vitez Brigade is concerned, a logbook or an index of issued and received
16 documents such as the one that you found for the Operational Zone, at
17 least for one particular period of time; is that correct?
18 A. That's correct as well.
19 Q. Mr. Prelec, so it was not possible for you to have a random look
20 at the documents or make a random check of the documents that you found in
21 a kind of logbook or an index so that you can see whether the two
22 correspond; is that correct?
23 A. Not in a logbook, no. There was another way to do this that might
24 assist you. It was the practice, or appeared to be the practice of many
25 subordinate commanders, including Mr. Cerkez, to reproduce the substance
1 of orders received in orders sent out, simply changing, "I order the
2 brigade," to "I order the battalion," and the like. And I saw a great
3 many of these. This is, I suppose, somewhat different from what you're
4 asking. There was no logbook I could consult, or at least, I found no
5 such thing.
6 Q. So you were not able to check the sequence of numbers on the
8 A. Well, I was not able to check the particular number. They --
9 yeah, that's correct.
10 Q. Mr. Prelec, did you have an opportunity to conduct any technical
11 examination using specific means that exist today to check the date of the
12 document, the type of the document, and so on? Or, rather, let me put it
13 this way: Is it the case that the only method that you used was actually
14 a visual inspection carried out by yourself?
15 A. No, no other means.
16 Q. Thank you. I should like document Z591 to be shown to the
17 witness, please.
18 Mr. Prelec, I'm now going to show you a document that has been
19 admitted into evidence in this case and I should like to ask you whether
20 you have seen this document in one of the folders of the Vitez Brigade.
21 Does it remind you of anything? Have you seen this document, and what is
22 it that you can tell us?
23 A. Certainly not this one since it has a line in Dutch, or what
24 appears to be Dutch, at the top and I would have recognised that. I did
25 see lists of names of detained persons but, once again, I've seen so many
1 of these that I would be reluctant to say that I have or have not seen
2 this precise one.
3 Q. For the record, you said that you saw lists of names; is that
5 A. Yes.
6 Q. Thank you. Speaking of such lists, have you ever seen, in
7 connection with them, any marking on the folder or the binder containing
8 an indication of the group or the institution, an institution or a
9 commission for exchanges? Have you seen any such document or any such
11 A. Yes, I did see such documents. I don't recall an entire binder,
12 but numbers of such documents, yes.
13 Q. Very well, then, thank you.
14 MR. KOVACIC: [Interpretation] The document can be taken back; we
15 are not going to use it anymore.
16 Q. Mr. Prelec, you mentioned that you have had a number of
17 opportunities to speak with Dr. Kolanovic, the head of the archive?
18 A. Yes.
19 Q. From those conversations, or perhaps from some other source, did
20 you come to learn that Croatia has a law on archives that is applicable?
21 A. Yes, from another source, and I was in no way surprised.
22 Q. During those conversations, you told us about the problems that
23 you discussed with the relevant authorities, but did you ever hear about a
24 specific legal problem concerning the publication and access of the
25 documents that had been handed over to the archives? As a historian, I'm
1 sure you're aware that there are certain standards that are applied
2 everywhere in this particular field. Has this issue ever cropped up? Has
3 it been discussed and where?
4 A. It was reported in the media in the Croatian parliament about this
5 question. My impression was that it concerned principally the materials
6 in the custody of the president of the Republic, and there had been a
7 proposal to subject those materials to a classification procedure that
8 would have kept them sealed for, I think, about 25 years. But that
9 proposal did not pass.
10 I am familiar with similar legislation. It's quite common in
11 various countries for various kinds of documents. The materials now in
12 the Croatian State Archive, this is the HVO materials, are, as I said,
13 available by permission of the government to representatives of the
14 defence and of the Office of the Prosecutor and, to my knowledge, no one
16 Q. At any particular point in time, did you or your people at the
17 archive ever receive any formal document issued by the head of the archive
18 whereby these documents are properly classified with their owner being
19 indicated and also indicating their former legal status in accordance with
20 the relevant statutory provisions?
21 A. [Previous translation continues]... in any way similar. With each
22 batch of copies we got a letter signed by an archival representative and a
23 representative of the Office of the Prosecutor simply confirming that the
24 documents were handed over in English and Croatian.
25 Q. Still in relation to this issue, from those conversations that you
1 had and from other contacts that you had with the authorities, were you
2 able to conclude that those documents were, formally speaking, the
3 property of the archive or if they were considered for the property of the
4 institution that was using them, such as HIS or any other similar
5 institution? Were you ever given any information to that effect?
6 A. Dr. Kolanovic did mention to me once that he, in some ways,
7 regretted receiving this collection because of its enormous size and the
8 amount of work that would go into organising it. And he then said because
9 of international agreements about archival materials, he would have to
10 some day have to give it all to Bosnia. So from his point of view, it
11 would all be for naught. But he did not mention when that would be and I
12 was not able to -- I did not even try to confirm its accuracy.
13 Q. So we can agree that, as far as you are concerned, and perhaps
14 Dr. Kolanovic as well, that in view of the relevant legal provisions, the
15 formal category and the formal status of those documents was not clear.
16 A. I think I've said all I know about their legal status.
17 JUDGE MAY: Mr. Kovacic, you said last night that you would be
18 20 minutes. You have now been three-quarters of an hour. We have a great
19 deal to do this week.
20 MR. KOVACIC: Your Honour, I'm really sorry. It took a little bit
21 longer than I predicted, but I'm quite certain I have only two or three
22 short questions left.
23 JUDGE MAY: Very well.
24 MR. KOVACIC: [Interpretation]
25 Q. At one point during the examination-in-chief you mentioned some
1 photographs, some pictures that you saw as being part of some
2 documentation that you found at specific locations. Let me be -- let me
3 clarify. On those photographs, one could see boxes but not documents
4 themselves; is that correct?
5 A. That's correct.
6 Q. I think you will also agree with me that from those photographs
7 you were not able to see what those boxes actually contained?
8 A. Well, they were all filled, or the great majority were filled with
9 binders. That was visible. But if you're asking about what was in the
10 binders, no.
11 Q. In view of the number of binders, you couldn't even tell whether
12 they were empty or full; is that correct?
13 A. Yes, that's correct.
14 Q. Let me be quite frank: I will put to you that both those boxes
15 were actually planted, that they were not real boxes.
16 A. Is there a question?
17 Q. Can you at least agree with me that that is a possibility?
18 JUDGE MAY: Let us try and understand what it is you're putting.
19 Now, could you put the question again so we can follow it, Mr. Kovacic.
20 MR. KOVACIC: [Interpretation] I apologise, Your Honour.
21 Q. On the basis of the photographs containing boxes, are you able to
22 claim with certainty that those boxes contained, at least in one part, the
23 documents which you subsequently saw in Zagreb? Just a yes/no answer,
25 A. No.
1 Q. Thank you. Let me draw your attention once again to the document
2 we used yesterday, Z2834.2, the letter from the Ministry of Defence sent
3 to Major Radic to the government of the Republic of Croatia. I don't
4 think we need to see the document.
5 Mention was made in that document that by the time the letter was
6 written on the 9th of November, 2000, the Croatian State Archive had
7 managed to collect 3.289 binders, and approximately a 120-metre long file
8 of documents. Another mention was made of 4 kilometres of documents. Is
9 that correct as well?
10 A. Yes, that's correct.
11 Q. Do you know anything about that? Could you give us any piece of
12 information about that? What can you say about this huge difference,
13 3.99 kilometres? Do you have any idea about that? Have you received any
14 information to that effect?
15 A. The 4 kilometre reference was not made to me personally. It was
16 made to another officer of the OTP. That would be the total. It was
17 presented as the total from all sources, and Major Radic, in her letter,
18 is clearly referring to material coming in several shipments from the
19 Ministry of Defence if not one particular part of that Ministry.
20 Q. And I've come to my last two questions. Mr. Prelec, as an
21 investigator or an analyst or an historian working for the Office of the
22 Prosecutor, did you ever hold in your hands, did you ever inspect any
23 other document outside of these two groups of documents in Samobor and in
24 the state archive? Did you have documents from any other source except
25 for the documents that are here at the Tribunal with the OTP?
1 A. I don't think so, unless you consider things that are available to
2 the public. If you're asking did I examine, as in my professional
3 capacity, documents neither from the HVO archive, other archives, in the
4 presidential archive, or our own material presented to me here, I can't
5 think of another -- another case.
6 Q. You have never seen any other archive in Zagreb or perhaps in
8 A. I did obtain documents in Bosnia, but I would not describe it as
9 from an archive. They were from a court.
10 Q. So as regards what we discussed about Zagreb and the major part of
11 your investigation or the focus of your investigation, in view of that, we
12 can say that you only had an opportunity to see the documents which
13 Croatian intelligence services had handed over to the state archive, not
14 documents from any other source; is that correct?
15 A. Well, the materials in the HVO archive, to my understanding, do
16 come only from -- from materials in the custody of Croatia. But I did see
17 materials from other sources in the course of my work here.
18 Q. Would you agree with me that you were aware, and this is what you
19 testified about, that the documents had come from HIS to the state
20 archive, the documents that you inspected, and also from the Ministry of
21 Defence? You don't know of any other third source which would provide the
22 documents to the archive; is that correct?
23 A. I don't know a third source, no.
24 Q. Thank you.
25 MR. KOVACIC: [Interpretation] No further -- I'm sorry. I
1 apologise. Just one more question. I had made a brief note of that.
2 Q. Mr. Prelec, there were quite a few documents, at least, we
3 received them and you mentioned them, which looked like printouts; is that
5 A. Yes.
6 Q. Many of such documents, or rather, the majority of those documents
7 were not signed at all?
8 A. Yes, correct.
9 Q. I think you will agree with me if I say that there is no way for
10 you to tell whether they were simple draft documents printed out or final
11 documents, final versions of documents?
12 A. Well, again, the context in which they were found would be useful
13 in that respect. Things like the document you presented to me earlier is,
14 I think, a good example. Things like a transmission stamp or a courier
15 note or something like this.
16 Q. We have seen quite a few printouts, and those documents, as we
17 have seen, do not have signatures or stamps. So you will agree with me
18 that we cannot say, in respect of those documents, when and where they
19 were issued, whether they were signed or not, and which office they
20 emanated from; is that correct?
21 A. Well, if there's no stamp, no signature, if it's simply a bare
22 document, the only piece of information I could use at that point would be
23 its location. And one would have to give that a certain amount of weight,
24 but I can't say how much weight. By location, I mean if it's found with a
25 lot of other material from a certain person or if it's found with a
1 sender, then that would suggest it might be a draft. If it's found with
2 the recipient, it would seem unlikely that it's a draft.
3 Q. Be that as it may, Dr. Prelec, as a professional, you wouldn't use
4 such a document as a basis for your doctoral thesis, for example, as such?
5 JUDGE MAY: Let's not go on with this. It really is a pointless
6 question. Yes, now anything more, Mr. Kovacic?
7 MR. KOVACIC: I'm done, Your Honours. Thank you for your
9 JUDGE MAY: Yes, any re-examination?
10 MR. SCOTT: Yes, Your Honour. Two areas of inquiry only.
11 Re-examined by Mr. Scott:
12 Q. Mr. Prelec, you were asked by counsel for Kordic yesterday, and
13 I'm going to give you a chance to give a further -- expand your answer.
14 You were asked at page 72,
15 "Q You can't tell in fact, sir, that this is indeed the
16 so-called HVO archive, can you?
17 A I'm certain it is. I don't know on what degree of detail
18 you'd like me to pursue that."
19 Can you expand, please, and provide to the Chamber the basis of
20 your statement that you are certain that it is the so-called HVO archive?
21 A. Well, there are a variety of reasons, and I suppose the most
22 persuasive one, to me, is the sheer impossibility of it -- of imagining
23 that it would be something else. And I refer to the archive as a whole,
24 not to each individual part of it. It would be like -- I mean, to create
25 something like this would require basically having another war. I mean,
1 we're talking about an astonishing quantity of material which is also,
2 furthermore, interconnected.
3 Q. What do you mean by that?
4 A. Well, in that many of the documents that I saw were documents that
5 requested some kind of response or action and often that response or
6 action could be found. So, you know, often one could trace an order
7 through three or four different command levels in three or four different
8 parts of the archive that were removed one from another, separated in
9 space. One could also find documents that bore on the same event in
10 generally consistent terms with the kinds of differences that, to me, are
11 familiar from simply having different observers addressing an intense
12 experience like a war.
13 Many of these were small details. There's a principle that I was
14 taught that one could sometimes put greater emphasis on unintended
15 information that, you know -- for example, in one of these documents, the
16 accidental material, so to speak, can be quite revealing. Okay. And this
17 fits together through the course -- I mean, I was down there for three
18 months about, you know. I've read many thousands of these, and it's
19 difficult on this occasion to, you know, come up with specific examples
20 other than the ones I cited, the sort of chains of orders and responses to
21 orders and different references to the same event or to the same kinds of
23 Again, one finds in widely separated areas the general kinds of
24 problems cropping up. Things like petty crime or people leaving their
25 post. I suppose -- I don't know how much longer you want me to go on.
1 Q. Very well. When you -- again, when you had your interactions
2 directly with the director of HIS, Dr. Zunec, Dr. Zunec referred to this
3 and called this the HVO archive, did he not?
4 A. Yes. There was never any doubt about this through any segment of
5 the Croatian government I was ever acquainted with.
6 Q. Let me move on, Mr. Prelec. The only other inquiry I wanted to
7 ask you to come back to is another question that was put to you by
8 Mr. Sayers was he told you that you were taught -- this is at page 63 and
9 64 of the transcript.
10 "Q You were taught in your profession, I think, as you say,
11 to assess documents critically and not merely to accept
12 what they say on face value, right?
13 A That's correct."
14 And Mr. Sayers says,
15 "Q To quote a composer from our country, George Gershwin,
16 'The things you read in the Bible ain't necessarily
18 What I want to ask you, sir, have you had occasion to look at some
19 of the documents collected with a critical eye, as Mr. Sayers describes,
20 and come to any conclusions about, in fact, are those documents, as he
21 said, internally and externally consistent?
22 MR. SAYERS: Objection to the question, Your Honour. That
23 intrudes into the subjects covered by paragraph 15 of the witness'
24 testimony, and I believe that that subject is a question for Your Honours
25 and not for a witness.
1 MR. SCOTT: No, Your Honour, it has nothing to do with paragraph
3 JUDGE MAY: Just a moment. The witness can answer as to whether
4 there was an internal consistency. That was a matter of observation, not
5 a matter of finding of fact which we have to make in due course.
6 MR. SCOTT:
7 Q. Let me rephrase it in light of that exchange, Mr. Prelec. Did you
8 have occasion to examine particular documents, and based upon your
9 observations of that document and how it may have related -- connected to
10 similar documents which you also personally observed or saw, can you tell
11 the Court and give the Chamber, if you can, any example of documents, if
12 you recall, of seeing documents that were again internally and externally
14 A. Well, really almost any document. The internal consistency is, I
15 suppose, more an absence of inconsistency. And I can say the document,
16 and I'm sorry to dwell on this since we went over it so exhaustively
17 yesterday, the 15th of April document leapt out at me. Or it didn't leap
18 out at me but it interested me, having been asked about it, because it was
19 one of these -- basically the only case I can think of in which there
20 was -- or one of an extraordinarily few cases, I'm cautious about saying
21 "only," in which there appeared to be something questionable about the
23 Q. This is the one about -- just so we're clear, this is the one
24 about the date on the document and when it was actually issued.
25 A. Yes. I can't think of another example. In some investigative
1 files, I believe they were of the security service, but they were -- they
2 concerned, again, cases of ordinary crime. There were numerous references
3 to other documents cited as evidence, much like our own internal documents
4 here would cite other documents as evidence, and those documents did
5 appear. They did broadly support the allegations made.
6 Q. Let me ask you -- let me direct your attention to one particular
7 document in closing. Do you recall having looked at a document describing
8 the concerns of the four of the HVO presidents from Central Bosnia?
9 MR. SAYERS: Objection, Your Honour. This is beyond the scope of
10 direct examination.
11 MR. SCOTT: It's one example. It's one specific --
12 JUDGE MAY: Just a moment.
13 [Trial Chamber confers]
14 JUDGE MAY: Mr. Scott, how is this relevant to cross-examination?
15 MR. SCOTT: Your Honour, it's exactly the point that Mr. Sayers
16 raised at page 63 and 64 of the transcript about the examination of
17 particular documents, that you can't -- in looking at a document, he
18 says -- he said specifically the testing of these documents to ensure that
19 they're internally consistent and externally consistent with information.
20 And I've asked the witness about that, and I'm citing this particular
21 document as an example to --
22 JUDGE MAY: Why this one?
23 MR. SCOTT: -- to illustrate that.
24 JUDGE MAY: Why this one?
25 MR. SCOTT: I think it's a potentially important document, Your
1 Honour, and I do know that it's one that this witness has -- is familiar
2 with, and I cite it as one example to make a generalisation more
3 consistent. I think the witness can assist the Chamber in that regard.
4 JUDGE MAY: Did Mr. Sayers ask about this document?
5 MR. SCOTT: That specific document? I don't -- probably not, Your
7 JUDGE MAY: He didn't suggest that there was something wrong with
8 it and in terms of inconsistency.
9 MR. SCOTT: Nor has he agreed to the document or its admission,
10 Your Honour.
11 [Trial Chamber confers]
12 JUDGE MAY: We shan't allow the question. It did not arise in --
13 it does not arise out of cross-examination, in our view.
14 MR. SCOTT: Let me finish with this then, Your Honour, without
15 reference to the particular document.
16 Q. Again, Mr. Prelec, to follow up on counsel's suggestion, in
17 reviewing a number of documents, can you just say this: Did you
18 undertake, on occasion, to in fact examine documents again for their
19 internal and external consistency? Did you do that, and generally, if you
20 can tell the Chamber what was the -- what observations did you make,
21 having done that?
22 A. On several occasions, yes. I -- in terms of internal consistency,
23 meaning was there anything within the document itself that suggested
24 something fishy, to be colloquial, I can't think of another case other
25 than the 15th of April one. It's not impossible that there was, but I
1 can't recall any such case now in any way.
2 In terms of external consistency, one particular document I looked
3 into which was fairly lengthy and presented an extended narrative of
4 events --
5 MR. SAYERS: Mr. President, this is precisely the point. This is
6 Exhibit 1367.1, I believe, a statement by Mr. Vidak and a document that
7 that witness statement --
8 JUDGE MAY: These are matters which we are going to have to
9 discuss in a moment, and I think we've gone far enough. Now, is there
10 anything else, Mr. Scott?
11 MR. SCOTT: No, Your Honour. Not in the time allowed. We would
12 address 673.7, but because of time, we won't. Thank you.
13 [Trial Chamber confers]
14 Questioned by the Court:
15 JUDGE ROBINSON: Mr. Prelec, could you tell us generally what was
16 the methodology used to test external inconsistencies?
17 A. Yes, Your Honour. It was very simple. I simply considered the --
18 well, the assertions and other factual information that could be drawn
19 from the document, and I attempted to make a search or I made a search of
20 other information, other documents that I was aware of that bore on those
21 assertions and facts. This is a long process. Not very long, but it's
22 something that's done with difficulty. It would be done with difficulty
23 for the number of documents that I've read.
24 Generally, one comes up with small differences, and as an
25 historian, small differences don't bother me because there are many
1 explanations for them. What becomes troubling is if they fall into a
2 pattern which suggests a reason to question the overall validity or
3 authenticity of the document, and I have not found anything like that,
4 even --
5 JUDGE ROBINSON: Thank you.
6 A. Yes.
7 JUDGE MAY: Thank you, Mr. Prelec. That concludes your evidence.
8 You are free to go.
9 [The witness withdrew]
10 JUDGE MAY: Now we turn generally to the exhibits. We have, of
11 course, had the opportunity of looking at the various schedules of
12 exhibits. What we propose is that the first matter on which we would wish
13 to be addressed is the test to be applied in the admission of these
14 exhibits. Once we've considered submissions on this, we will decide on
15 the test. Then having done that, so everybody knows what the test is,
16 we'll start going through the documents.
17 Mr. Scott, I think it's probably for you to begin.
18 MR. SCOTT: Very well, Your Honour.
19 Your Honour, may it please the Court, the position of the
20 Prosecutor's Office on the admissibility of these documents is that these
21 documents should be viewed and treated in substantial measure consistent
22 with the way in which all or virtually all of the other documentary
23 evidence in this case has been treated and received. Further, we would
24 have to submit, Your Honour, that if those rules have changed since the
25 trial started, then we would ask and seek some additional opportunity to
1 meet whatever requirements the Chamber might have.
2 The approach has been to select, through a huge number of
3 documents found in Zagreb, documents that we thought would be most helpful
4 to the Chamber on the issues in this case. As I mentioned yesterday,
5 obviously I can appreciate the fact that it appears to the Chamber and its
6 staff that this is a large volume of material, and again, Your Honour, it
7 depends on one's perspective. It is, in fact, substantially something far
8 less than 1 per cent of the material that's been reviewed.
9 The rules of this Tribunal in terms of evidence are -- I would
10 think it's fair to say at this point in its history, the evidentiary
11 philosophy is one of inclusion rather than exclusion; that this is a
12 Tribunal of professional Judges, that many of the more technical rules of
13 evidence that may apply in some systems and especially the kind of
14 evidentiary issues that come to bear in systems heavily involving lay
15 jurors, that those kind of considerations are not appropriate for this
16 Tribunal and for this Chamber.
17 As has been said many times in the course of this trial, this
18 Chamber is composed of professional Judges familiar with the work of
19 judging and able to look at the totality of the evidence, not one -- and I
20 would suggest and I would ask the Court, not one -- any one item of
21 evidence, be it testimony or document, in isolation but look to the body
22 of evidence and determine what weight to give any particular aspect of
24 I would ask the Chamber to be mindful that, as with so many other
25 aspects of the work of this Tribunal, this is not like a national court.
1 It is not like a national police system. Many of the tools that we take
2 for granted in those systems, if you will, the ability to produce
3 custodians of evidence, the ability to produce, for instance, a business
4 records witness, simply either can't be done here or can only be done in
5 some instances with tremendous difficulty, or the evidence is in the hands
6 of hostile parties, parties who have not only not produced evidence but
7 have, in fact, obstructed this Tribunal for years.
8 It puts the Prosecutor in a -- frankly, and the Tribunal really,
9 ultimately the Tribunal as a whole to carry out its mission, it puts us in
10 a very difficult situation if the technical -- types of technical
11 authentication and foundation requirements are required when the only
12 witness who could possibly do those things would be, in this instance,
13 former senior HVO officers, Bosnian -- high Bosnian Croat officials who
14 are hostile, frankly, to this Tribunal and to this case and to the
15 Prosecution. And the Chamber has seen, even in recent days, the
16 difficulty of getting these witnesses to come to court, even when
17 subpoenaed. They evade service or they refuse to come.
18 This is directly -- now, the Chamber, I realise, in the interest
19 of time, is asking -- may ask itself if this is directly connected to the
20 question that the Court has posed. It is directly related because, in
21 applying the test and in determining the appropriate test for this
22 institution, not some other institution, not a court sitting in London or
23 Dallas or Jamaica or elsewhere, this institution, given the difficulties
24 that this body has to deal with. And time after time in its various
25 documents, in its annual reports, in the decisions coming out of both the
1 Trial and the Appeals Chambers, there is the recognition that this is not
2 like a national system and there are unique aspects and unique problems of
3 gathering and presenting evidence in this environment.
4 In fact, in the Kovacevic appeals decision, in a separate decision
5 by Judge Shahabuddeen at pages 4 and 5, he -- His Honour said that the
6 Tribunal has recognised that the application of principles of law to war
7 crimes Prosecution "has to take account of the peculiarities and
8 difficulties of unearthing and assembling material for war crimes
9 prosecutions conducted in relation to the territories of the former
10 Yugoslavia." Judge Shahabuddeen went on to say, "The resulting need for
11 reasonable judicial flexibility is apparent."
12 I believe it is also Judge Shahabuddeen who has stated on other
13 occasions in decisions before the Tribunal that, frankly, in comparison to
14 the work of this Tribunal, the work of the Nuremberg and Tokyo tribunals,
15 relatively speaking, in his terms, not mine, was easy. There was a vast
16 array of material possessed by the occupying forces, former records of the
17 German government, former records of the Tokyo government, which form the
18 basis virtually of all the documentary evidence presented in those cases.
19 And in fact, it was one of the more interesting things, and we've
20 mentioned this at page 5 of the submission we made yesterday, that in
21 looking at the Nuremberg trials, the clearest example is that, that in the
22 international military Tribunal, it was captured German documents which
23 constituted the principal evidence used in those cases. The documents
24 were substantiated by affidavits explaining how they had been captured and
25 safeguarded. It came to be referred to as the Coogan affidavit. They
1 were admitted by the trial court on the basis of their probative value,
2 applying Article 7 of Ordinance number 7 related to the military
3 tribunals, which is very similar to this Tribunal's own rules. And that
4 rule said: "The tribunals shall not be bound by technical rules of
5 evidence. They shall adopt and apply to the greatest possible extent
6 expeditious and non-technical procedure and shall admit any evidence which
7 they deem to have probative value. No requirement of calling a live
8 witness in order to lay a foundation of a document was imposed on the
9 prosecution in the Nuremberg trials."
10 We state in our papers for some pages some of the comparative law
11 from a number of systems, including England and Wales, including Belgium,
12 including France, including a number of systems, about the admission of
13 documentary evidence.
14 I think I could accurately summarise that by saying it is not a
15 high standard. These are some indicia that the document is what it
16 purports to be. It's a separate question from its ultimate relevance.
17 It's simply the question of authentication. Is there some reason to
18 believe that the document is what it purports to be?
19 The document can -- let me add to the Court to say that a document
20 can be absolutely authentic and its content absolutely false, and,
21 therefore, it could be extremely relevant to the Chamber. There could be
22 a document which there is no doubt about its authenticity. For instance,
23 an Ahmici report written by Anto Sliskovic, a person who some would say
24 was up to his eyeballs in the crimes committed in Ahmici. He may have
25 written a report. It may be absolutely authentic. There may be no
1 question that it's his report, his signature, his work, and yet the
2 content of that report may be absolutely false.
3 In fact, a deliberately false cover-up and concealment of crime.
4 The question of authenticity is a specific issue. I submit to the Chamber
5 that, even in national systems, it is not a high standard. It need not be
6 proved beyond a reasonable doubt. It is simply a flexible and practical
8 JUDGE MAY: Mr. Scott, do you say that we should take no notice of
9 the stage of the trial at which you are seeking to admit this evidence?
10 Because the position is this: That this is evidence, Prosecution
11 evidence, which you're seeking to adduce after the close of the Defence
13 Now, you say that the normal rules should apply. Well, of course,
14 that is generally right if this evidence was to be sought to be admitted
15 during the course of your own case. Then those rules would apply. But
16 unless you say we should take no notice of the timing of this, we have, do
17 we not, to take account of where we are in the trial, the effect on the
18 trial of the admission of this evidence, and the question of fairness both
19 to the Prosecution and to the accused?
20 Now, those are all matters which the Trial Chamber has to take
21 account of. It's 11.00 now and if you'd like to think about your
22 submissions, you can give us them at half past 11.00. But we would like
23 to hear them.
24 MR. SCOTT: Thank you, Your Honour. Yes, absolutely.
25 --- Recess taken at 11.00 a.m.
1 --- On resuming at 11.38 a.m.
2 JUDGE MAY: Yes, Mr. Scott.
3 MR. SCOTT: Thank you, Your Honours. Mr. President, let me answer
4 the Court's question this way, and I'd like to put it in two parts, and
5 let me forecast, let me preview that I hope that the Chamber will find the
6 second part perhaps -- how do I say it -- more to its liking than the
7 first part. But I must state it in two parts, if the Chamber will allow.
8 Our first position, Your Honours, I think from an institutional
9 perspective and from a legal perspective, the answer to the Court's
10 question has to be: The tests are the same. The tests are the same now
11 as they would be at any point in the trial. We do not have one set of
12 rules of evidence for different parts of the trial; the rules of
13 authentication, the rules of foundation, the rules of witness
14 presentation. Those rules stay the same at all parts of the trial and, of
15 course, they don't change.
16 Secondly, the case was, as the Chamber knows, was intentionally
17 recognising these -- the problems with receiving the evidence from
18 Croatia, a problem with which this Chamber is well familiar. The Chamber
19 has issued binding orders, the Chamber has heard in the midst of various
20 hearings the problems with these issues dating back to this Chamber being
21 constituted and coming on the case. These have not been new issues.
22 Recognising that problem, the Prosecution, in March, when it
23 rested, specifically reserved this part of the case. I have the
24 transcripts here, but I know the Chamber has recognised that before and I
25 won't belabour it, except that this is not something new or surprising.
1 It was forecast back in March of this year that, indeed, with any luck, if
2 I can put it that way -- well, not really luck; as a result of tremendous
3 hard work on behalf of a lot of people, the evidence might become
4 available to the Chamber, it would be submitted. And we have attempted to
5 do that.
6 We have, in fact, been utterly diligent. Again, the point I just
7 made: We have devoted incredible resources and efforts at every level of
8 the OTP in getting this information before the Chamber. The Prosecutor
9 herself has travelled to Zagreb. Tremendous efforts have been made to
10 bring this evidence before the Chamber.
11 Another reason the tests should be the same, and again, Your
12 Honour, in the first part of my answer, is that certainly, if there is to
13 be some consideration given, certainly it would be wrong, we submit, to
14 penalise or prejudice the Prosecution. It's not the Prosecution here
15 that's done anything wrong. We have not done anything wrong except to try
16 to bring this evidence before the Chamber.
17 Sometimes even in international jurisdictions where there is, for
18 instance, Prosecutorial misconduct or police misconduct, there is times
19 when that side of the house, if I may say so, perhaps has to be penalised
20 because of some misconduct. Your Honours, there has not been a hint, not
21 a hint, and even, I must say, for sometimes some quite vociferous
22 opposition from my friends across the courtroom, it has been -- this has
23 been a hard-fought fight. But I submit, Your Honours, if I have heard
24 correctly, I have not heard a hint of a suggestion of misconduct or
25 unethical behaviour in attempting to bring this material before the
2 There is, of course, the issue that -- and the flip side of that
3 issue -- excuse me, Your Honours, not only we submit should the
4 Prosecution not be penalised for not having done anything wrong, but we
5 ask the Chamber please to be cognizant of this. Don't reward the
6 obstructors. If there is someone to be penalised here in some form, and
7 that's probably -- we can't resolve this issue today, that has been
8 historically, and even recently, the State of Croatia. But I ask the
9 Chamber, the Prosecution asks the Chamber, don't penalise the Prosecution
10 case because of the years of obstruction of the Tudjman regime. Don't
11 reward them by obstructing and excluding evidence now that this Tribunal
12 should have had years ago.
13 And without being offending or abrasive to the Court, I have to be
14 firm on this point: To exclude evidence now would do exactly that. It
15 would say to the dark forces, it would say to the dark and evil forces
16 that have obstructed this Tribunal for years, "You won. You've kept this
17 evidence out of the Chamber's hands for so long that the time came at the
18 end of the case when it was finally available and it was excluded." That
19 is, I submit, the wrong message for this institution, not only in this
20 case but in another cases, to be sending to the former states of
21 Yugoslavia, or in the next Tribunal some other state, to send the message,
22 "You can successfully obstruct. If you hold the evidence back long
23 enough, you will succeed and it will never come in. Because at the last
24 minute if some Prosecutor, in the future, succeeds after years of effort
25 to obtain that evidence and it comes in late in a case, don't worry, it
1 will be excluded." That would be the wrong message to send.
2 The Court gave us, the Prosecution, a 30 October deadline --
3 JUDGE BENNOUNA: [Interpretation] I should like to ask you
4 something, Mr. Scott. You have spoken, and you have actually just
5 requested or appealed to the Chamber not to penalise the Office of the
6 Prosecutor, that is, the Prosecution in general, by excluding a number of
7 exhibits. I should like to know, in what way would the Office of the
8 Prosecutor be penalised if the Chamber, as it was said to you at the
9 beginning by holding open this case until now, in what way would the
10 Prosecutor be penalised if the Chamber does not admit into evidence those
11 exhibits which are of a repetitive nature and which merely reinstate the
12 elements that have already been admitted or tendered into evidence by your
13 party if they do not bring anything new, anything particularly new to your
14 case concerning either the culpability or innocence of the accused? In
15 what way would the Prosecutor be penalised?
16 MR. SCOTT: Thank you, Judge Bennouna. In that respect, and that
17 gets -- would get to the second part of my answer, if that is what the
18 Chamber has in mind in terms of striking some further balance, for lack of
19 another term. If that's what the Chamber has in mind, then I think we may
20 not be that far apart. If, on the other hand, by the discussion of
21 possible -- of a different test or more rigid standard, it would lead to
22 the larger exclusion of relevant evidence beyond what you've just
23 outlined, Judge Bennouna, then obviously we would have a much greater
24 concern. By I think on the points that you've made, Your Honour, I don't
25 think we're that far apart, and I would come to that further in my second
2 Let me just finish with my full answer to the Chamber's question.
3 Before we turn to the second part, let me also just point out we must --
4 that the Chamber gave us a 30 October deadline. We complied as best we
5 could. Certainly not perfectly, and the Defence has reminded us and
6 undoubtedly will continue to remind us of some imperfections in a -- a
7 particular document wasn't listed or a particular document, unfortunately,
8 didn't come off the Xerox machine the way that it should have. We weren't
9 perfect. Dealing with this much material and this information, I'm sure
10 that everybody in the courtroom can understand that sometimes mistakes are
12 But the Chamber gave us a deadline. There was no forecasting at
13 that time of a different standard. We simply marshalled the evidence as
14 best we could. Again, we were very selective and produced this
15 information according to the Court's timetable.
16 JUDGE MAY: Mr. Scott, I had no idea that you were to produce 260
17 documents. If you had told the Chamber months ago that you were going to
18 produce 260 documents, you would have got a reaction. I assumed it was
19 going to be the order of a dozen or something like that, something really
21 So the fact that there was no more stringent test indicated was
22 because nothing of this magnitude was anticipated. Because it has been,
23 then we've got to look at it again.
24 And the fact that you have cut material down, that is to your
25 credit, of course, and we accept you've had to work very hard, but it is
1 nothing to the point now. The point now is what should be admitted in
2 this trial at this stage?
3 You cannot continue as though this was the middle of the
4 Prosecution case.
5 MR. SCOTT: Well, Your Honour --
6 JUDGE MAY: Effectively, you are trying to bringing in a huge
7 amount of material, and the Chamber has to strike a balance.
8 MR. SCOTT: I -- I'm sorry. I obviously hear the Chamber and I
9 understand that point. I can't -- I won't even try to, or I certainly
10 won't argue with the Court as to what it expected the number of documents
11 to be. All our expectations might have been different but it's probably
12 not productive to argue that other than I certainly hear the President's
13 point on that.
14 Let me turn to the second part of our answer, then. We have, in
15 fact, as the Chamber just -- as the President just indicated, have, in
16 fact, in our view, yielded a great deal. Had this been -- and I must say
17 we are -- from a legal perspective, in terms of procedurally having
18 reserved our case, we are in our case. We have to go back in time. If
19 all of us -- if this Chamber could step into a time capsule and go back to
20 the Prosecution's case-in-chief and had this evidence been made available
21 on a timely basis, then we certainly would have submitted it and it
22 probably would have been more, frankly. As much as the Chamber might not
23 want to hear that, it might well have been more than 260 documents. But
24 the fact of the matter is we have yielded. We have yielded by being more
25 selective. And again, that may strike the Chamber as odd or different
1 than its view, but I can tell you, the Chamber, that we have been more
2 selective than we otherwise might have been ten months ago.
3 What is yielded, Your Honour, in meeting the test and striking the
4 balance that the President has indicated, what has been yielded, if
5 something must be yielded, in light of the situation, again, Your Honours,
6 certainly shouldn't be yielded at the expense of the Prosecution case
7 other than the type of considerations that Judge Bennouna has pointed
8 out. If it is truly repetitious, if it is truly peripheral -- and we will
9 have to discuss those things because obviously we will have the view that
10 something we have submitted is not, in fact, peripheral -- but broadly
11 speaking, taking Judge Bennouna's considerations in mind, we agree there
12 is room to yield, if yielding to the Chamber is the right word on that
13 point. But beyond that, certainly, Your Honours, we would take the
14 position we should not yield, be required to yield in ways that penalise
15 the Prosecution case again where the Prosecution has done nothing wrong.
16 Secondly, further, we would suggest, Your Honours, that while the
17 President yesterday used the word that this was an extraordinary
18 situation, I don't think it's extraordinary in the sense that sometimes
19 the word "extraordinary" is intended to use "extraordinary" in some
20 suspect or questionable way. It is in some sense unusual. It is unusual
21 for -- again for all the reasons we've discussed and the reasons that
22 bring us to this situation today, for factors and forces, unfortunately,
23 beyond all of our control.
24 We have shown next -- my next point is that we have shown
25 reasonable diligence. I think that there's been no evidence that
1 suggests -- and notwithstanding the cross-examination of Mr. Prelec,
2 there's been no substantial showing of anything less than complete
3 diligence since March of this year to bring this evidence before the
4 Chamber. I think there can be no bona fide question about that, I would
5 submit, Your Honours.
6 There's been a tremendous effort, tremendous expense to bring this
7 evidence before the Chamber as quickly as possible, and I might say the
8 Chamber may please appreciate that, again, this selection of material is
9 again even a smaller selection than the amount brought from Zagreb and --
10 smaller than the amount disclosed to the Defence. We have disclosed
11 substantially more than this out of our disclosure obligations; in fact,
12 indeed, beyond our disclosure obligations.
13 There was never a Rule 66(B) request for document discovery in the
14 case. There never has been. But we have undertaken, under these
15 particular circumstances, throughout the course of the summer, to provide
16 this material, to disclose this material as it came in and as translated
17 to the Defence. I'm sure, I hope, the Defence would confirm that, over
18 the months, we have served a number of bundles of documents, bundles much
19 bigger than the 260, and some of it being arguably exculpatory. They've
20 had that, and we've taken that big bundle and now even gone to this much.
21 So again, Your Honours, we have been extremely diligent on all sides to
22 bring this evidence before the Chamber.
23 The question of relevance, I think there was something,
24 Mr. President, in your words yesterday about there being -- about
25 reference to the core relevance -- going to core issues and not the
1 peripheral issues in the case. We would agree with that. Don't question
2 that issue again at this particular stage, and again that goes to the
3 point I made a moment ago.
4 In fact, we have been more selective than we otherwise would have
5 been. There are many more documents that talk about Dario Kordic. There
6 are many more documents that talk about events in Central Bosnia. There
7 are many more documents that talk about the Vitez Brigade. And had we
8 been going back in time a year, a year and a half, much more of that
9 evidence might well have been included. But in recognising this very
10 reality, we have already been more selective again, believe it or not; we
11 have been more selective than we otherwise would have been.
12 We would agree that documents that shed substantial new light, or
13 we would urge the Chamber that the documents that shed substantial new or
14 additional light should be admitted and that they are not, in any sense,
15 peripheral, and I will give -- I'm going to give the Chamber some examples
16 of that. Obviously, I know we'll come to particular documents eventually,
17 but let me again speak in broader terms at the moment.
18 For instance, there is now a collection of documents which reveal
19 -- at least to the Prosecution, presumably known to Mr. Kordic from day
20 one, but revealed to the Prosecution only recently, that there was, in
21 fact, an apparent split or division between various of the authorities in
22 Central Bosnia and that there were a number of the HVO presidents in
23 Central Bosnia, including the presidents of the Vitez municipality, the
24 president of the Busovaca municipality, and the Novi Travnik and the
25 Travnik municipalities which, apparently, were in great opposition to
1 Mr. Kordic.
2 The fact that they resented so much his iron hand of control in
3 Central Bosnia speaks volumes about the power that this defendant
4 exercised. It speaks volumes. They resented the fact that this was the
5 man in charge. They chafed at it. They didn't like it. There is
6 document after document that talks about that, and that's not a peripheral
7 issue at all. It goes directly to the power of that defendant.
8 Another area that is not peripheral, obviously -- this one may be
9 more obvious than some of the others but, in any event, I note it --
10 obviously those documents involving Mr. Kordic giving military orders are
11 clearly exercising military authority. Surely that evidence must be
12 admitted. Surely the Prosecution should not be penalised by that type of
13 evidence being excluded.
14 Documents concerning Serb/Croat cooperation. Of the -- there are
15 some 18 or 20 documents that talk specifically on the issues of the fact
16 that -- in fact in most of -- in most if not all of 1993, certainly the
17 middle of 1993, there was extensive cooperation from the Serb side and the
18 Croat side in Central Bosnia, even to the point of the Serbs, for payment,
19 providing artillery support to the Bosnian Croats.
20 Now, why is that not a peripheral issue? We submit to the Chamber
21 -- the Prosecution submits, Your Honours, that it has been one of the
22 themes of the Defence case that, "We weren't fighting. We weren't so much
23 concerned about the Muslims or we couldn't have been committing war crimes
24 against the Muslims because we were worried about the Serbs and we were
25 sending troops to the confrontation line with the Serbs."
1 In fact, in large measure, in Central Bosnia, not true. The
2 Croats and Serbs were fighting each other in other parts of Bosnia, but
3 not in Central Bosnia, not in 1993, and certainly in the spring and summer
4 of 1993. They were working with each other. They were arranging passage
5 through each other's territory. That's what the documents show. They
6 were paying each other for oil and trading oil and artillery.
7 THE INTERPRETER: Could you slow down, please, Mr. Scott.
8 MR. SCOTT: Forgive me. My apologies to the interpreters.
9 Those documents are not peripheral at all. And finally, as an
10 example, there are documents that, while put into the Zagreb evidence
11 category for the purposes of this week's exercise, proceedings, there are
12 certainly documents in there that have a rebuttal effect that rebut
13 positions taken by the Defence, the two Defences. And certainly those
14 documents, or certainly the Prosecution should not be penalised to have
15 documents that rebut Defence positions to be excluded.
16 That is -- that's a long answer but the two-part answer that I
17 told the Chamber that I would give it. We don't think the Rules of
18 Evidence, in fact, change. We do recognise and acknowledge that there are
19 some realities of play here and that we have tried to be, in fact, quite
20 selective. We have tried, in fact, to talk about core relevance.
21 Subject to further review of documents, according to the lines
22 that Judge Bennouna has suggested, we are prepared to concede that there
23 are some documents around the edges that we can probably cut away, but we
24 may not -- I have to say, it may or may not be, time will tell, but it may
25 not be -- at least, our position would not be that necessarily may not be
1 as small a number as the Chamber might like, but we can, I think --
2 there's a recognition, we acknowledge, Your Honours, in good faith that we
3 think we can work around the documents to reduce it to a smaller number.
4 Now, let me finish by -- that was a long answer to the Court's
5 very specifically, but let me just, for the purposes of the record on this
6 evidence -- not for the record, for the purposes of persuasion, address a
7 few other points that have been raised in the last few days.
8 The type of documents that have been received are primarily of two
9 types, broadly speaking. If the Court will allow me a second, I'm cutting
10 across my notes because, in the last few minutes, I've probably touched on
11 a number of these issues. If the Court will just bear with me for a
13 The Zagreb evidence, Your Honour, the evidence we've brought
14 before the Chamber is relevant, it is admissible. As I began to say,
15 there are basically two types of documents, two broad categories of
16 documents that have been tendered to the Chamber. HVO documents which
17 this Chamber has been seeing now for the past 18 or 19 months, that
18 accounts for probably 90 per cent of the collection. There is then a
19 small number of documents, I don't know, something around 30 of the ones
20 we've submitted, approximately some 30 arguably are not HVO archive but
21 come otherwise from the State of Croatia.
22 Now, the production of this document by a state, all of these
23 documents were produced by a state pursuant to Article 29 of the
24 Tribunal's Statute. That statute creates an obligation in paragraph 1 of
25 that: "States shall cooperate ... in the investigation and prosecution of
1 persons accused ..." et cetera. Number 2: "States shall comply without
2 undue delay with any request for assistance or an order issued by a Trial
3 Chamber including, but not limited to: ... the taking of testimony and the
4 production of evidence."
5 All of this evidence, in one form or another, has officially
6 been produced to this Tribunal by a UN member state. Now, until the
7 defence, not by allegations but by some affirmative act of evidence, by
8 some affirmative showing, indicates why the production of documents by a
9 UN member state shall be taken as less than reliable, that they are not
10 what they purport to be. They are not authentic. They are not the HVO
11 archive that HIS has possessed for a number of years in which the director
12 of HIS, Dr. Ozren Zunec, said, "This is HVO archive." In the absence of
13 contrary evidence -- evidence, not allegations -- the production of that
14 material by UN member state should be taken as authentication.
15 As to the non-HVO documents, the very small number that are our
16 other documents, those are documents have the state -- from the records of
17 the state of Croatia. And there's been much bandied about -- if I can put
18 it that way -- about the HIS and SIS documents. These are the official
19 records, or many of them come from the official records of the Bosnian
20 Croat intelligence agency. They weren't fabricated certainly by the
21 Prosecution. These are documents that were produced to this Tribunal
22 pursuant to binding orders or pursuant to Article 29 requests for
23 assistance by UN member states. Those are documents provided to this
24 Tribunal for the purposes of this case.
25 If the Kordic or Cerkez Defence suggests that there is some
1 additional authentication beyond that that's required, we would be
2 prepared and, again, in ex parte session, in closed session, Your Honours,
3 as we suggested yesterday, and I know time is incredibly important to the
4 Chamber, but I think at some time before this exercise is completed it may
5 be necessary to make this record, we would be prepared to tell the Chamber
6 the tremendous steps that have been taken to bring additional -- even
7 additional and more evidence before the Chamber in terms of authentic --
8 more specific background information and authentication on these
10 Suffice it to say for these purposes, in the time allowed and in a
11 public forum, we have done everything possible to bring that information
12 to the Chamber. Some weeks ago - it's been already reported in the
13 Croatian press so I'm not saying anything that's not already in the public
14 domain - summonses were served for a number of these officials in Croatia,
15 the names of many of whom you have heard in the last two days, to come and
16 talk to us and tell us about these documents, and the State of Croatia did
17 not serve a single summons. Not a single person appeared to be
19 We asked the State of Croatia to provide a written report of the
20 HVO archive, how the Republic of Croatia came to possess the archive and
21 give us the full history. And they did produce finally last week -- they
22 did produce two reports, two of which the Chamber saw yesterday. In fact,
23 Judge Robinson asked me about one of them, and I agree it doesn't have
24 much identifying information on it, but that's how the State of Croatia
25 produced it to us, to explain, as limited as it is, as imperfect as it
1 probably is, the history of these documents, or at least some of these
3 We asked for the State of Croatia to designate a responsible
4 senior official to come before this Chamber and authenticate this
5 material, to come and sit here and tell the Chamber about it. They did
6 not do so.
7 So I want so say that now for these purposes to say, Your Honour,
8 it isn't for lack of trying. We have tried to bring further detailed
9 information about these documents before the Chamber and the results have
10 been as I've outlined them.
11 Let me just again cut -- see where we -- obviously the Chamber
12 must be or should be guided by the Appeals Chamber decision, in fact, in
13 this very case on an interlocutory appeal, about one of the so-called HIS
14 documents. And the Appeals Chamber came back and said that "The impugned
15 decision of the Trial Chamber is consistent with the settled law of the
16 International Tribunal, that there is no legal basis for the applicant's,"
17 and this is the Kordic Defence, "... there is no legal basis for the
18 applicant's argument that the proof of authenticity is a separate
19 threshold requirement for the admissibility of documentary evidence."
20 We certainly -- that is certainly our position. It certainly
21 would be the law, in any event, having been stated by the Appeals
22 Chamber. And in considering the body of the Zagreb evidence, there should
23 not be, if you will, a double standard but the proof of authenticity goes
24 to the overall consideration of the evidence by the Chamber in assessing
25 its authenticity and determining the weight that the Chamber ultimately
1 would give it.
2 We would -- there are other points, Your Honour, in the interests
3 of time -- the Defence in one of their filings yesterday made several
4 arguments, most of which have been addressed in one fashion or another.
5 They said, for instance, that, well, some of these documents couldn't be
6 from the archive because they didn't have the archival stamp. I think the
7 Chamber is aware of that situation at this point.
8 There's some suggestion -- there has been some suggestion in the
9 Kordic brief that somehow when the door to the archive was first opened to
10 the Prosecution in May of this year, that somehow we would have
11 instantaneous, of course, access and knowledge of the whole collection and
12 that, therefore, we've been less than diligent because -- well, if we've
13 had the whole collection in May, why is it only being presented only by
14 the 30 October schedule of this Court?
15 JUDGE BENNOUNA: [Interpretation] Mr. Scott, really - I believe at
16 least I speak only in my own name - I think that the way you're presenting
17 your argument is somewhat abusive. Even before we returned, we received
18 your document in writing with all the argumentation in writing, and that
19 includes reference to other documents, different dates, and so on and so
21 Do you think it natural that, after all this now, you can take the
22 floor too now for perhaps more than half an hour we have to listen to you
23 in spite of all the information you have given to us in writing?
24 I do not think there exists a single court in the world which
25 would allow this. That is, not only do we have a document in writing but
1 then also argumentation which is highly repetitive and more than
2 repetitive of what has already been said in writing. One needs to bear in
3 mind the patience of the Chamber and the time which you were allotted to
4 present your arguments.
5 I'm sorry to have to say this to you, but you should bear this in
7 MR. SCOTT: I understand, Your Honour. You need not be reluctant
8 about saying it. These are important issues. Obviously, this evidence is
9 very important to all sides and to the Chamber.
10 While I can assure the Chamber that I have two or three more
11 comments and will bear, Judge Bennouna, your comments in mind and even
12 limiting it further, let me just say -- if the Chamber will allow me, let
13 me just say that the time devoted to this issue so far is excessive given
14 the magnitude of the issues involved. This is, in fact, coming to the end
15 of this trial and concerning some evidence that this Tribunal has been
16 seeking for a long time. But I understand your points, Judge Bennouna,
17 and I will make a couple of quick points and sit down.
18 It does have to be said that there are -- sometimes it appears to
19 be the attempt to suggest that it's -- it's only the Prosecution that has
20 burdened, if that's the term, the Chamber, these proceedings with
21 documents. That is certainly not the case.
22 JUDGE MAY: Well, we don't need argument about that. We can see
23 what the Defence have produced.
24 MR. SCOTT: Yes, Your Honours.
25 JUDGE MAY: It's in terms of the binders. Yes.
1 MR. SCOTT: That's right, Your Honour. And on a smaller point on
2 that, in fact, the defendants to date have tendered a number of documents
3 from so-called Zagreb evidence, a substantial volume, without
4 questioning -- apparently questioning or raising issues about their
5 authenticity or value. They have -- both Defence teams have put in
6 substantial amounts of Zagreb documents.
7 We think that the Chamber must, again, be -- take into
8 consideration, when it comes to consider the evidence, that it is, as
9 Mr. Prelec said, it is the way that the documents fit together and tell a
10 picture as a whole. And when the Chamber comes to the point of exercising
11 its discretion on individual exhibits, we would ask the Chamber to bear in
12 mind that a document which may appear on its face in isolation to be
13 peripheral may not be peripheral at all. It may indeed, for instance, be
14 one of the very documents that again, as an example, Mr. Prelec says when
15 you take that document and consider it in light of another document, you
16 see that both of them are reinforced, both of them each corroborating the
17 other. In some sense, the weight -- the body of this -- this body of
18 evidence has to be viewed, we submit, largely as a whole.
19 If the Court will just give me a moment, I'll see if there's other
20 comments, and I'll be complete.
21 Your Honours, that concludes my comments. I do appreciate the
22 Court's patience sincerely for being able to lay these issues -- important
23 issues before the Chamber. Thank you.
24 JUDGE ROBINSON: May I say that I agree wholeheartedly with the
25 comments made by Judge Bennouna. And this is not just in relation to you,
1 Mr. Scott, I think for the Defence as well.
2 One of the practices I see as developing in the Tribunal and which
3 I think is positive is a system in which parties present briefs so that
4 when they come into court, they need not address the Court at length.
5 I think in light of the brief that you presented, a presentation
6 of 10 or 15 minutes would have been entirely appropriate.
7 Mr. Sayers may take a hint from that. Thank you.
8 MR. SCOTT: Thank you, Your Honour.
9 MR. SAYERS: Mr. President and Your Honours, our position is as
10 stated on pages 1 to 8 of our brief -- 1 to 7, actually.
11 I believe the question that the Presiding Judge posed was what
12 standards would have to apply, and I think that we've fairly set out the
13 law of this Tribunal, not of other jurisdictions, in those pages. But
14 with the Trial Chamber's permission, I'd like to spend no more than
15 five minutes just addressing three general points.
16 First, the indictment in this case was confirmed five years ago.
17 There's been a frantic last-minute quality to this Prosecution really
18 since the beginning of this trial in April of last year when disclosures
19 were delayed for unexplained reasons, and that pattern of late disclosure
20 has become consistent and constant in this case.
21 The Court will recall that some suggestion was made by the
22 Prosecution that some of this massive quantity of evidence that has
23 continually deluged us for the last few months serves a rebuttal
24 function. The Court ordered rebuttal exhibits to be filed by October the
25 30th and about 28 were filed. So that's, I would suggest, a full response
1 to the argument made by the Prosecution on that point.
2 Secondly, the Court was completely unambiguous in ordering these
3 new materials in, we would submit, extraordinary dispensation given to the
5 JUDGE MAY: That's not a proper comment.
6 MR. SAYERS: Very well. But the point I was making,
7 Mr. President, was the materials were ordered to be delivered by October
8 the 30th. That's the only point that I was making.
9 With respect to these materials, we have not been privy to the
10 interactions between the Prosecution and the Trial Chamber. All of the
11 proceedings against Croatia have been ex parte, so I do not have any
12 observations to make on that other than this: The Prosecution says it
13 shouldn't be penalised by the actions of the Republic of Croatia.
14 Mr. Kordic respectfully suggests that he should not be penalised either.
15 In fact, the Tribunal's jurisprudence in the September 2000 decision of
16 the Appeals Chamber makes it perfectly clear that the protection of the
17 rights of the accused is paramount in criminal proceedings.
18 Two final points, Mr. President. First, the general concern
19 articulated by the Trial Chamber, we would submit, is perfectly
20 appropriate. We've closed our case. Now the Prosecution seeks to have
21 another case against us. That, I think, is unfair and it raises
22 fundamental and important Article 21 concerns. We have put our position
23 in previous paper on that point and I won't repeat it.
24 Second, particular concerns are raised by some of the evidence
25 that has been raised, and we've articulated our position with respect to
1 that in our brief, most particularly the anonymously-authored documents
2 assertedly emanating from various intelligence organs and spying
3 agencies. No authentication has been laid for those. Some argument could
4 be made that no authentication is necessary.
5 JUDGE MAY: While you're on the point, yes. I mean, Mr. Scott
6 points out that this issue, this very issue has been in front of the
7 Appeals Chamber when you appealed the admissibility of one of these
8 documents, and you've heard what the result was. We've been reminded of
10 MR. SAYERS: Quite so.
11 JUDGE MAY: Just pause. That being so, if the issue arose during
12 the course of the evidence in chief, it would be -- or the Prosecution
13 case, rather, it would be difficult for you to argue that the document --
14 a similar document should not be admitted.
15 Now, what is the difference now?
16 MR. SAYERS: The difference was, Mr. President, that our objection
17 was based principally upon a requirement for authentication, a requirement
18 for some knowledgeable witness to come before the Court and say, "Yes,
19 this is indeed what it purports to be." And you're quite right; the
20 Appeals Chamber has said there is no such requirement in the jurisprudence
21 of this Tribunal, but there is a requirement for reliability,
22 Mr. President. We've set that out on page 2 of our brief in the Tadic
23 hearsay decision. It's been reiterated in the Delalic decision that's
24 examined on page 3 of our brief, and most recently it's been very
25 vigorously applied in the July the 21st, 2000 decision reversing the Trial
1 Chamber's admission of the (redacted) exhibit.
2 Reliability, that's the key. And documents, in order to be
3 admissible, have to have some component of reliability, and that's why we
4 have requested the Trial Chamber to exclude Exhibit Z1380.4 and Z1406.1
5 for the reasons stated in our brief. And I won't repeat them other than
6 to say this: The Prosecution was permitted to use those exhibits to
7 cross-examine particular defence witnesses on particular propositions
8 contained in those documents, and the propositions put to the witnesses
9 were absolutely refuted and there is no other evidence in the record to
10 support them.
11 JUDGE MAY: Well, therefore, you can say or it can be said that
12 you've had the opportunity or the opportunity has been given to the
13 Defence to rebut the allegations that are made.
14 MR. SAYERS: One could say that, Mr. President, but the point I'm
15 making is paragraph 18 of the Tadic decision, it's quite unequivocal on
16 the issue and I think articulates a perfectly reasonable and sensible rule
17 which says Sub-rule 89(D) provides further protection against prejudice to
18 the Defence for, if the evidence has been admitted as relevant and having
19 probative value, it may later be excluded if it is substantially
20 outweighed by the need to ensure a fair trial. And here, Mr. President,
21 it is.
22 The anonymous authors of these documents, we have no idea who they
23 are. We have no idea the sources upon which their conclusions and
24 conjectures are based, as we've said. We have no way to confront the
25 author, no way to confront the sources of the information, and I think
1 we've accurately summarised the evidence adduced so far which contradicts
2 every single factual assertion, or most of the factual assertions
3 contained in these anonymous documents, certainly insofar as Exhibit
4 Z1380.4 and 1406.2 are concerned. There is no support for the --
5 JUDGE ROBINSON: Mr. Sayers, do you know how many of the documents
6 fall into that category, the anonymous ones?
7 MR. SAYERS: I have not counted them because of the most recent
8 disclosures, and I really don't know whether there are any in there, but
9 before the materials that we received on Saturday afternoon, Your Honour,
10 I think there are approximately 20 or 30 of the intelligence agency
11 reports that are the subject of our brief.
12 Now, with respect to the general rules that are articulated by the
13 Prosecution, Mr. President, those are, as you've indicated, the general
14 rules. They apply generally. But we're not at the point in this case
15 where those general rules which we all know have particular application.
16 The -- we've closed our case, and the Prosecution's closed its case.
17 Let me just finish on this particular issue. This is not a new
18 issue in this case where the very thinnest of evidence from anonymous
19 sources is considered for admission. We've been here once before. Let me
20 just remind the Trial Chamber that on May 10th, 1999 during the
21 examination, direct examination of Dr. Mujezinovic, some effort was made
22 to have Dr. Mujezinovic say that he'd heard from a person by the name of
23 Trpimir Vujica that supposedly he'd seen an order that required
24 Dr. Mujezinovic to be put to death. Pretty graphic evidence, but the only
25 evidence of what this fellow Vujica was supposedly going to say. And the
1 Presiding Judge specifically posed the question: "Because the case is
2 difficult to prove, are you saying we should have the thinnest sort of
3 evidence in?" That's page 2.214 of the transcript. And the answer was,
4 effectively, yes.
5 Well, the evidence was excluded and let me just suggest to the
6 Trial Chamber that that was a very wise decision because eight months
7 later, eight months after this evidence had attempted to be adduced, we
8 were given a statement taken by Trpimir Vujica on February 22nd, 2000 and
9 he was asked whether Mr. Kordic had supposedly issued any such order for
10 the killing of Dr. Mujezinovic, whether he'd seen it, and his answer was
11 as follows, "No. That is not correct. I did not tell him so, neither
12 have I seen such an order. In fact, I have not contacted Dario Kordic in
13 my life."
14 That's the kind of situation that we have before us with respect
15 to the anonymous documents. We've been there before. The Court has ruled
16 to exclude that sort of evidence because it's unreliable, and we would
17 respectfully submit to the Court that it should do the same again. Thank
19 MR. KOVACIC: [Interpretation] Your Honours, I shall do my best to
20 be very brief indeed. To begin with, I second everything that Mr. Sayers
21 has said and there is no need to go back to that, but perhaps I might
22 point out two or three minor things that were not mentioned so far.
23 First, in the Prosecutor's brief in writing, which is dated 20th
24 November and then in -- under Zagreb documents, item 4, item 4 says that
25 it seems that the Defence, the defendants have also already offered or
1 admitted as many as 200 to 300 Zagreb documents. I could not really check
2 that, but I think that is overstating it and by a long shot. It is also
3 quite true that we did use some of these documents, but only when we were
4 examining witnesses. That is, we used witnesses and, through them, in a
5 very conventional manner, we laid the foundation for those documents.
6 They did not turn up out of the blue. Documents [as interpreted] identify
7 them, or they were about the events they were testifying about. There was
8 the context both in terms of time and place. So evidently, those are
9 certain things which simply do not hold water in this brief.
10 Secondly, in the documents that we received from the Prosecution
11 and which had been narrowed down to the list the Prosecution wishes to
12 introduce, there is at least one example of documents which had already
13 been tendered and used as exhibits in the Blaskic case, such as Z673.4.
14 You will no doubt ask me if there are any such examples, and my answer is
15 that I do not know. I went through our database, the documents which are
16 published, which were disclosed, which are accessible to us, and which we
18 Unfortunately, for reasons well-known, we were not given access to
19 documents, to sealed documents in the Blaskic case, which I believe the
20 OTP could see as an organisation. I could see at one of the documents
21 used in the Blaskic case and, of course, one can assume that there are
22 quite a number of such documents. Evidently, we could have been given one
23 of those documents at a time when it would have been proper in such
24 proceedings. I do not insist on the strictest criteria before the opening
25 of the trial, but had we at least been given such a document before we
1 started our case.
2 Then one of the more serious objections of this Defence team is
3 that, amongst the adduced documents, proposed documents, especially the
4 HVO documents found in Croatia, quite a number of them, I do not know how
5 many, I did not count them, but I should say there are no less than 40
6 documents which were issued by Cerkez himself or officers directly
7 subordinate to him after 31st of September, 1993. In other words, beyond
8 the scope of the indictment.
9 Needless to say, if those were documents in which, for instance,
10 Cerkez was referring to certain things covered by the indictment, I would
11 not be objecting to it. I am only mentioning those documents which have
12 to do only with the current situation, orders such and such action that
13 particular day, and everything is happening after 31st of September.
14 Again, report on a particular event on that particular date or the
15 date before, but again, after the September 31st. Such documents are
16 evidently completely irrelevant and immaterial from the point of view of
17 the temporal scope of the indictment.
18 Even if one looked at it analytically, I do not think that the
19 pretext would hold water when it is said that these documents are being
20 used to demonstrate a particular pattern of behaviour, or at least that is
21 usually not the case when it comes to documents signed by Cerkez or his
22 men which came into existence after 31st of September, 1993. This is
23 merely the example of documents which merely encumber the record and make
24 more difficult the work, not only of the Chamber, but also of the Defence,
25 which has to somehow find its way through this jungle of documents while
1 in point of fact they should have four or five such documents and not more
2 than that.
3 The second objection, which I believe you understood because we
4 asked a number of questions about this, was the fact, and I think this is
5 common knowledge, there is no need to really have to prove it. That is
6 that the document, that the HVO archive which reaches Zagreb by some
7 mysterious routes and ways were, in point of fact, in the possession of at
8 least three intelligence services for not less than six years.
9 It is from the documents that we are getting from this which allow
10 us to doubt, and doubt suffices, that among those intelligence services
11 and then again at a different level between factions within such
12 intelligence services, there are conflicting interests and positions both
13 with regard to the events which were happening on the ground and events --
14 and things that were happening after the war. So one can realistically
15 assume that there are some forged documents amongst them, and perhaps when
16 it comes to rejoinder, perhaps we shall try to go into it, time
18 Now, I really do not want to use more of your time than necessary,
19 but I agree with Mr. Sayers and the question is when did we get a
20 particular document at this stage. And in most of the cases, documents
21 for which the foundation has not been laid, we believe that it would be
22 highly prejudicial for the Defence, because at this point in time, the
23 Defence simply has no time to go into certain things intimated by these
25 In a part, my learned friend, Mr. Scott, said, "Do not reward the
1 Defence because the Prosecution was unable to obtain documents from
2 Croatia in time." And I can show you the other side of the coin. Do not
3 punish my client because Croatia has failed to provide documents, because
4 you cannot blame my client for that.
5 I believe that the gist of the thing is the question of the fair
6 trial because this is not whether the Chamber will commend or perhaps
7 reprimand the Prosecution for doing something or not doing something.
8 What we are talking here is the rights of the accused, because it is his
9 rights which are specified in the statute and the accused is entitled to a
10 fair trial. If such documents are allowed at this stage in this trial,
11 and if they are adduced at this stage, I think that the question would
12 then arise of the fairness of the trial to which every accused is
13 entitled. That is laid down and I need not go into that.
14 Just one more thing. At one point, it was said that Croatia has
15 submitted documents. I may be somewhat paranoid, and I do apologise for
16 that but by saying that, an implication is made that a state as an entity
17 has given documents and therefore that state can guarantee the
18 authenticity of such documents. That assertion is not true because
19 Croatia did not give documents. What actually happened was that Croatia
20 told the Prosecutor, "Gentlemen, here you are. Here are the documents
21 which are in the possession of the state at this time concerning your case
22 and your indictment." And we have heard the testimony about that today
23 and we have seen a number of written documents.
24 So it was the OTP that entered the premises of the Croatian
25 Archive and selected the documents that they needed on the basis of a
1 certain criteria and accessibility in general. It was not the State of
2 Croatia that actually looked into those documents and carried out an
3 authentication of the documents which would have been done in accordance
4 with appropriate criteria. The State of Croatia simply told the
5 Prosecutor to do it himself. So we do not have any special guarantee of
6 any state institution, let alone the relevant authorities of the state
7 that those documents are indeed authentic documents. With this, I would
8 like to conclude my submissions. Thank you.
9 MR. NAUMOVSKI: [Interpretation] If this Honourable Chamber should
10 permit me, I only have two sentences to say.
11 JUDGE MAY: No. You've had -- Mr. Sayers has had a go, and that
12 should be sufficient.
13 [Trial Chamber confers]
14 JUDGE MAY: My colleagues feel it could be a courtesy. Two
16 MR. NAUMOVSKI: [Interpretation] Thank you very much, Your
17 Honours. I agree with what my colleagues have stated but I should like to
18 express my opinion that what Mr. Kovacic has said is, indeed, very
19 important. When he told you that the Court should not admit documents at
20 this particular stage of the proceedings for which foundations have not
21 been laid, and I found the basis for this claim in a document which was
22 submitted to us by the OTP, and it is the document marked Z898.4. It is
23 purportedly a report of the Ministry of the Interior of the Republic of
24 Croatia. The document has other deficiencies but what is important here
25 is a sentence in section F which is entitled Manipulation with the HVO
2 This portion of the text expressly states as follows --
3 THE INTERPRETER: The interpreters do not have the relevant text.
4 We will try to follow.
5 MR. NAUMOVSKI: [Interpretation] "... because of the conflict which
6 broke out in Bosnia-Herzegovina and also conflicts inside of the military
7 leadership of the Croatian Community, the documentation of the HVO,
8 including those portions concerning the events in Ahmici, was very often
9 subject of various manipulations."
10 That is all, Your Honours, that I wanted to draw your attention to
11 and thank you once again for giving me an opportunity to say that.
12 [Trial Chamber confers]
13 JUDGE MAY: The Trial Chamber has had the opportunity of
14 considering this matter and, of course, during the break, during argument
15 we have considered it. Having heard the submissions, the test we propose
16 to apply is this: First of all, we bear in mind that the Prosecution did
17 not formally close its case as far as the Zagreb documents were concerned,
18 and so technically, we are within its case. However, that is a
19 technicality, and the reality of the position cannot be ignored, which is
20 that the admission of this evidence is being sought after the close of the
21 Defence case, and that is a consideration which we must have in mind.
22 Accordingly, the test which we will apply is as follows: First,
23 the material must be new in the sense of not having been available to the
24 Prosecution, with due diligence, before the end of its case. Pausing
25 there, I do not understand it to be suggested that any of this material
1 was, in fact, available at that time and, accordingly, it is accepted that
2 it is new. If that is not the case in relation to any material, then the
3 Defence should point it out.
4 Going on with the test, second, the material must not be
5 cumulative, that is, a repetition of evidence already given, and it must
6 be of significant relevance to the core issues in the case, such as those
7 relating to the conduct of the accused.
8 Third, the admission of the evidence must be in the interests of
9 justice, that is, in the interests of assisting the Court in determining
10 the guilt or innocence of the accused and not be contrary to Rule 89(D).
11 That is the test that we will apply. The admissibility of each
12 exhibit will, of course, be considered separately.
13 I would add this: It's been submitted that to exclude the
14 evidence would be to penalise the Prosecution and to reward those who may
15 have obstructed the disclosure of this material. It's also submitted that
16 to admit the evidence would be or may be to penalise the Defence. Whether
17 a party is penalised or not or obstructers are rewarded is not a relevant
18 consideration for the Court. We have to apply the law, we have to try to
19 establish the truth, we have to ensure the fairness of the trial to both
20 parties, and we also have to ensure that this trial is conducted
21 expeditiously, which means, at the present time, that it is concluded
22 expeditiously and in a timely fashion. Those are the considerations which
23 govern the exercise of our discretion.
24 That being so, the time is ten to one. It may be a useful
25 activity to consider what exhibits we have to consider. At least, let's
1 make sure we have everything in front of us.
2 As I understand the position, there are three schedules, entitled
3 "Kordic," Cerkez," and "Miscellaneous."
4 MR. NICE: Correct.
5 JUDGE MAY: There is the duty officer's logbook or war diary.
6 MR. NICE: Correct.
7 JUDGE MAY: There is also some documents which have been put in
8 front of us, and I do not know quite what the position is about them.
9 They are headed Z351.2 and appear to be in a bundle.
10 Now, I haven't looked at them. Whether they're, in fact, the
11 documents in relation to the evidence which has just been given and the
12 recovery of the exhibits, I don't know. It may be that they're not
13 relevant now.
14 MR. NICE: I don't think they're relevant.
15 JUDGE MAY: Very well. That leaves the schedules, the logbook or
16 war diary, and of course the transcripts.
17 MR. NICE: Your Honour, yes. And as probably percolated through
18 to the Chamber, the war diary probably originally had copied at the back
19 of it some documentation that was entirely irrelevant and reflected the
20 fact that the translation, for which we were grateful, had come from
21 another case. The war diary ends at, I think, the annotation by Blaskic
22 as to some missing pages and what follows has nothing to do with this
23 case. We've written fully about it to the Defence. It ends at page 207.
24 What follows can be ignored and, indeed, must be ignored. The happily
25 limited number of English language annotations on the war diary which
1 again reflect where it came from from another case, in translation.
2 JUDGE MAY: We will consider how we will proceed from here. We've
3 got the documentation in front of us. It may be that it would be simplest
4 to go through the schedules and to hear argument in relation to them, in
5 particular to hear what documents the Prosecution wishes to consider
7 MR. NICE: Certainly.
8 JUDGE MAY: Then to go on to the war diary and finish off with the
9 transcripts. Now, I don't know whether that's a possible course.
10 MR. NICE: Your Honour, I'm sure that is a possible course. As to
11 the transcripts, of course there are two witnesses here. There has been
12 some talk of taking them today, come what may. They having only arrived
13 yesterday, I think, they've shown themselves to be very cooperative and
14 haven't pressed a desire to return at the earliest possible moment.
15 Nevertheless, they are, in the vernacular, cooling their heels with not
16 much to do at the moment.
17 JUDGE MAY: The difficulty about them is we haven't yet, of
18 course, considered the transcripts. We haven't heard your argument in
19 relation to them. But speaking for myself, I shall need to be convinced
20 of their relevance at this stage in the trial, bearing in mind all the
21 matters we've already gone into.
22 So whether the witnesses are called is going to be a matter we're
23 going to have to determine.
24 MR. NICE: Can I then respectfully suggest there's a way forward
25 that I hope will be helpful, and maybe we can take the break now, although
1 it's a little early. We have gone through the schedules to which you
2 refer, as it were, grading the documents. If we identify for you after
3 the break the documents that definitely fall within, as it were, the lower
4 grade, that may fall within either a peripheral or to some degree
5 repetitive, then I dare say that would be helpful because we won't be
6 effectively relying on those, but we'd need a little bit of time just to
7 agree to that final scheduling, and we'll be left with the balance of
8 documents, if that would be a helpful course for us to take.
9 JUDGE MAY: Yes. Well, that seems a sensible course.
10 MR. NICE: Mr. Scott tells me that 351.2 is apparently the
11 operational log. Now, I think that's the document that was relied upon by
12 Mr. Prelec in relation to the one document of the 15th of April at 10.00,
13 which was always put in when it was originally put in as a document that
14 was false as to its overall effect. The witness indeed to whom it was
15 first put said, "Well, that's simply wrong."
16 It now appears that it's accepted that the dating is a forgery and
17 an overwriting, and we've heard from Mr. Prelec what the apparent date of
18 that document was or is.
19 So that extent, the operational log's function is spent. However,
20 it remains a potentially useful tool because, of course, it's capable of
21 verifying other documents if they have both their date and their reference
22 number on them because they should find their place in that log. But it's
23 to that extent useful. It won't need to be pored over much more than
25 I probably interrupted Your Honour when Your Honour was going to
1 reply to my proposal or tell me whether you thought it was a good idea or
3 JUDGE MAY: While we're on 351.2, I've got a bundle here which
4 doesn't seem to bear any relation to it. I will hand it in. Perhaps over
5 the adjournment somebody could check as to what 351.2 is, what it's
6 supposed to be, and if necessary, we'll consider it further.
7 Perhaps to help, is there any objection to admitting 351.2 or do
8 you want to think about it?
9 MR. SAYERS: Could I perhaps think about it over the lunch break,
10 Mr. President? I don't really recall the document.
11 But let me just say one thing with respect to how to proceed.
12 Just to bring the Trial Chamber up to this point in time, we've received
13 numerous schedules from the Prosecution. The last ones were on Saturday,
14 along with about five feet of documents, as we showed you yesterday. We
15 have not had the opportunity to review those newly-produced documents and
16 put our objections into the latest schedule.
17 What we tried to do for the Trial Chamber in our previous
18 objections to the Zagreb materials was to put them in one schedule, not
19 multiple ones, set it out chronologically, number each document so that
20 the Court could know exactly and everyone could know exactly what the
21 document was, when it's dated, and exactly what the objection was.
22 So I guess that's a long-winded way of saying we would appreciate
23 if the Trial Chamber would bear with us as we go through these documents
24 because we have to cross-reference our schedule with the other schedules
25 that have been produced, including the one on Saturday and we may have to
1 articulate objections to the newly-produced documents basically on our
3 JUDGE MAY: We must also make sure we're all singing from the same
4 sheet by having the same schedules in front us.
5 MR. SAYERS: Yes.
6 JUDGE MAY: We received ours on Friday. I hope those are the same
7 as the Defence received on Saturday.
8 Very well. We'll adjourn now until half past.
9 --- Luncheon recess taken at 12.57 p.m.
1 --- On resuming at 2.35 p.m.
2 JUDGE MAY: Yes, Mr. Nice.
3 MR. NICE: Your Honour, the mysterious bunch of documents has been
4 identified as material that wasn't included in the Chamber's papers on
5 Friday although served on Friday, I think. An index has now been provided
6 and your staff will be able to deal with it. Over the lunch adjournment,
7 Mr. Scott and I have reviewed our list in relation to the Kordic documents
8 in light of your ruling, and if this would be convenient to the Chamber,
9 Mr. Scott will be able to deal with those exhibits straight away and, if
10 you'd excuse me, then I'd be able to turn to the Cerkez and miscellaneous
11 documents out of court and to return to deal with those, or perhaps
12 Mr. Lopez-Terres will deal with those, but to have those dealt with and to
13 deal with the log at some stage -- I beg your pardon, the war diary and
14 the transcripts a little later. Would that be acceptable to the Court?
15 JUDGE MAY: Yes.
16 MR. NICE: Well, then, if you excuse me then, I will withdraw.
17 Thank you very much.
18 MR. SAYERS: If I may, Mr. President, I've looked at Exhibit 351.2
19 over the lunch break. Unfortunately, it wasn't of much assistance to me
20 because it's in Croatian and it appears just to be a series of
21 miscellaneous notes made by someone and series of numbers. Under those
22 circumstances, we're not able to agree to that or to waive any objection
23 to the admissibility of that document without someone showing what it is
24 and why it was put together.
25 JUDGE MAY: We can return to that in due course.
1 Mr. Scott, we'll begin, then, with the Kordic documents schedule,
2 and the one which I have is the 17th of November.
3 MR. SCOTT: Well, I must say, Your Honour, mine's dated the 20th
4 but I don't think there was significant -- it could just be a matter of
5 being printed. Let me just make sure. I think the only difference, Your
6 Honour, between the one I'm looking at and the one the Chamber has, you
7 may recall that there was the issue last week about some that had
8 supposedly not been provided. So we had gone back and blacked out, if you
9 will, shaded the documents in contention, not necessarily conceding that
10 they hadn't been disclosed, but simply marking the ones where there was an
11 issue. I think that's the only issue between the schedule that I have and
12 the Chamber has.
13 JUDGE MAY: Yes. Now, as I take it, you would contend,
14 essentially, for the admissibility of all of these documents.
15 MR. SCOTT: Well, as a legal matter, yes, Your Honour, given our
16 position this morning. As a practical matter, or in order to work with
17 the Chamber on this, we have shortened. We have shortened our list to a
18 substantially smaller number of documents.
19 JUDGE MAY: But you would ask us to rule on all.
20 MR. SCOTT: I think that would be the appropriate way to do it, I
21 suppose, Your Honour. If we can do it in the reverse order, in a sense, I
22 suppose. Obviously, I'm in the Chamber's hands. But if the Chamber
23 wanted to take the ones -- receive our list, if you will, our suggested
24 shorter list and then the others would be excluded by not being admitted.
25 It's however the Chamber would like to proceed.
1 JUDGE MAY: Well, one matter is that quite a lot of these are
2 already admitted, at least according to the Defence. If there are any
3 which you want to have included which you say the Defence have wrongly
4 described as being already admitted, then you should indicate that.
5 MR. SCOTT: Very well, Your Honour.
6 JUDGE MAY: The most convenient course would be for you to
7 indicate to us the documents that you particularly want to rely on.
8 MR. SCOTT: Yes, Your Honour. Your Honour, in terms of the Kordic
9 list, we would particularly desire 1048.1 and --
10 JUDGE MAY: Page what?
11 MR. SCOTT: Page 1, 1048.1.
12 JUDGE MAY: Why?
13 MR. SCOTT: That is -- sorry, Your Honour. I'm trying to make
14 work space here.
15 Your Honour, there is an early document showing Mr. Kordic being
16 involved in giving orders. I'm not sure there are many. There are not
17 many, if any, such documents at this relatively early time in June 1992.
18 It also goes -- it suggests that even despite the fact that there are
19 apparently somebody, "despite your order to the contrary," that Mr. Kordic
20 persisted in giving orders. There's also the indication that such orders
21 were, in fact, leading to a conflict with the Territorial Defence.
22 JUDGE ROBINSON: In the sense of your submission, there must be
23 the timing, because you have submitted many other documents showing orders
24 from Mr. Kordic.
25 MR. SCOTT: Yes, I think that's true, Your Honour. One is
1 certainly the date. One factor is certainly the date. I think beyond the
2 fact that this indicates military authority, it also again, as I
3 suggested, it also goes to the point of apparently it was being viewed as
4 particularly provocative of conflict with the Territorial Defence.
5 MR. SAYERS: We have articulated our objections to this document,
6 Your Honour. I don't have anything to add to those other than to say
7 that, applying your test today, I have no reason to believe this is not
8 new. It certainly appears to be, as a result of the archival stamp on the
9 top right-hand corner.
10 However, it seems completely cumulative and repetitive of all
11 kinds of evidence of this sort already admitted. Furthermore, the
12 attachment to it is absolutely illegible. The actual document purportedly
13 signed by Mr. Kordic is completely illegible.
14 MR. SCOTT: Forgive me, Your Honour. I think we're talking about
15 two different documents. 1048.1 there is no attachment. I'm sorry,
16 the -- my mistake, Mr. Sayers. There is an attachment. I was referring
17 back to another document.
18 The only point of that, Your Honour, is that the order itself, the
19 original order, the order by Mr. Zeko, is clear. It bears his signature,
20 it bears the seal. The significance is simply the attachment in and of
21 itself is an extra, if you will. The order itself by Mr. Zeko says what
22 it says. The only other value of having the attachment and the part you
23 can read is that it does bear a seal and clearly Kordic's signature.
24 JUDGE MAY: Very well. We've got the submissions on that. If
25 you'd like to go to the next.
1 MR. SCOTT: The next item, Your Honours, is 288.1. The
2 significance is again it's relatively early in time, and by that I mean
3 especially before the 1993 time period of involvement with Mr. Kordic and
4 Mr. Blaskic in purchasing munitions, 203-millimetre artillery shells, and
5 the authorisation, the fact that the purchase of ammunition had to be
6 authorised by Mr. Kordic and Colonel Blaskic.
7 JUDGE ROBINSON: Is that ground you've already covered,
8 Mr. Scott?
9 MR. SCOTT: I don't know of any particular order such as this one,
10 Your Honour, where there is the approval to purchase ammunition. Again,
11 it's always difficult, if I can say so, to say what is cumulative or
12 repetitious depending on are other documents, military-type documents,
13 with Mr. Kordic's signature on there. Undoubtedly, yes, there are. But
14 how different do they have to be? How distinctive do they have to be?
15 I have not heard my friends across the way concede the issue of
16 Mr. Kordic's authority, so apparently it's still in dispute, and I think
17 this is a different enough document for these purposes. It's very
18 specifically indicating that both the authorisation of Kordic and Blaskic
19 were required.
20 JUDGE ROBINSON: The question is not whether it is in dispute. It
21 is in dispute. But it seems to me that you have already provided a large
22 body of evidence on that subject.
23 MR. SCOTT: I don't know what else I can say, Your Honour. I
24 think it's valuable. We wouldn't have submitted it otherwise, and this is
25 one of the ones that we've added. On our first page of our list, if I can
1 just put this in context, on the first page of the schedule, we have gone
2 from -- we've gone from 11 documents down to two. That seems to me to be
3 indicative that we're being pretty selective.
4 We think this has additional value in the ways that I've
5 indicated, and I don't know what else more I can say.
6 MR. SAYERS: Mr. President, completely cumulative, repetitious.
7 We would respectfully submit that the weight of authority should be judged
8 by the quality of the document and not poundage of the documents that the
9 Prosecution wishes to introduce into the record.
10 MR. SCOTT: The next on the list - I'm just going to page 2, Your
11 Honours - 396.2. 396.2, anticipating the Chamber's questions, there
12 certainly has been information -- there certainly has been evidence
13 concerning events in late January of 1993. This document, in particular,
14 confirms that the Bosnian Croats were involved in a number of these
15 incidents in - excuse me - in Busovaca in late January 1993, were -- not
16 only included the military police but also were specifically "Sliskovic's
17 men," also confirms the involvement in the matters of Mr. Kordic's
18 brother, who I think is -- which tends to corroborate other information,
19 other evidence on that point. We think it has -- it is new and it has
20 that value.
21 MR. SAYERS: Mr. President, this document is entitled
22 "Information," and it's not signed by anybody. We don't know what entity
23 generated it. It doesn't have an official stamp. And I do harken back,
24 Your Honour, to a couple of points in this case where a lack of foundation
25 objection was made in April. The Prosecution made the observation at page
1 17.166 that the document appears to be stamped and the presiding judge
2 noted that the document objected to has a stamp and a signature. This one
3 has neither.
4 Also, the Prosecution has objected to lack of foundation on a
5 couple of occasions; on July 26th 2000 at page 23.267 to 23.268 and also
6 at page 23.435. In fact, I think it was best put by the senior
7 prosecuting attorney when he says, on July 28th, "There must be a limit as
8 to how much we can get the impressions of one out of the mouth of
9 another." And we would respectfully submit that what is true of a live
10 witness is absolutely true of a document witness, especially one whose
11 identity is utterly anonymous.
12 MR. SCOTT: The next exhibit we would submit, Your Honour, is
13 411.1, which is the next immediately following. It is a -- sorry, it is
14 an order signed by Colonel Kordic. Again, we believe that simply it's
15 further confirmation not only that it's -- another issue is not that it's
16 an order but the unit and areas to which it extends. This is the Bobovac
17 Brigade in Vares, the Vares area, territory is in the case and in the
18 charges, and this is indicating particularly not only a military order but
19 an order involving the Vares Brigade and also shows his -- Mr. Kordic's
20 involvement in the detention of a leading Muslim leader, the president of
21 the SDA. We think it's significant.
22 MR. SAYERS: Contrary to the submission of the Prosecution,
23 Mr. President, this document is not signed by Mr. Kordic. It's not signed
24 by anybody. This is just a document that looks like it's been printed off
25 of a computer. It has no official stamp anywhere on it other than an
1 archival stamp. And according to Mr. Prelec this morning, at page 20, "If
2 there's no stamp, no signature, if it's simply a bare document, the only
3 piece of information I would use at that point would be its location."
4 And, of course, there's no evidence as to where this document came from
5 from the sole document authentication witness and Zagreb materials witness
6 produced by the Prosecution.
7 For all of those material reasons, this simply would not be
8 entitled any weight whatsoever and we object to it: A, because the
9 document itself is cumulative for the purpose proffered and, second, under
10 Rule 89(D), the interests of ensuring a fair trial outweigh whatever
11 trivial probative value this document might be felt to have. And we would
12 submit it has none, given the complete lack of explanation for it or where
13 it came from.
14 MR. SCOTT: Well, just to be correct, Your Honour --
15 JUDGE MAY: Just one moment.
16 MR. SCOTT: I'm sorry.
17 [Trial Chamber confers]
18 JUDGE MAY: Yes, Mr. Scott.
19 MR. SCOTT: Well, I did want to concede that --
20 THE INTERPRETER: Microphone for the counsel.
21 MR. SCOTT: I should have said it bears his name. I should not
22 have said signed by him. By this time, the Chamber has seen a number of
23 documents that have not been signed. There are a number of reasons for
24 that; because it's a draft, because it's a file copy, because it's a Paket
25 communication. Documents that weren't signed we just submit in general.
1 I'm not going to raise this every single time it comes up, but the absence
2 of a signature is not, we don't think, in general, a compelling reason
3 against the admission of the document. So make that point generally.
4 The next document, Your Honour, is 421.2, which is the next
5 document. Your Honour, this again is showing a document bearing
6 Mr. Kordic's signature. It has the Busovaca Brigade's seal, which is
7 significant in itself because he is signing on letterhead of the Nikola
8 Subic-Zrinjski Brigade. It's clearly a military order. He uses the
9 brigade seal. And ordering the soldiers of the Stjepan Tomasevic Brigade
10 to Busovaca. So we think it's highly significant --
11 JUDGE MAY: I think it's suggested that this document has already
12 been produced.
13 MR. SAYERS: Court witness number one, Your Honour. It is already
14 in evidence.
15 MR. SCOTT: If it has been, Your Honour, and there's no dispute of
16 it, then we can make short work of it.
17 JUDGE MAY: I recognise the number, 421.4.
18 MR. SAYERS: The document that I have, Mr. President, and I think
19 it came into evidence as 421.2.
20 JUDGE MAY: Well, we will have to check that it has been
22 MR. SCOTT: I appreciate that, Your Honour. It isn't because we
23 are trying to take the Court's time, but sometimes the records on
24 admission, or at least our records, are not 100 per cent clear and
25 sometimes there's some question about it. So that's the reason. If it's
1 admitted, then obviously we can move past it.
2 JUDGE MAY: Has it been admitted? The registrar supports what I
3 said; 421.4.
4 MR. SAYERS: Absolutely, Your Honour. We checked on our database
5 and I think your recollection is better than ours.
6 JUDGE MAY: Whatever the number, it's been admitted.
7 MR. SCOTT: 421.3 -- well, let me just stay on the prior page just
8 to give the Chamber some sense of the progress we're making. On that
9 page, second page, we had only selected three documents from the page.
10 421.3 is a document by Franjo Nakic to Colonel Blaskic and Colonel
11 Kordic. Again, the location involved is particularly significant, Vares.
12 It's the Bobovac Brigade from Vares. It's again asking for instructions.
13 We believe it's military authority and it is both Blaskic and Kordic who
14 are being asked for instructions and, again, the location, Vares.
15 MR. SAYERS: A completely cumulative and repetitive document, Your
16 Honour. Also, it hardly goes to the issues of core significance in this
17 case which is the guilt or innocence of the accused on the crimes
19 MR. SCOTT: Well, Your Honour, clearly the issues in the case
20 involve Mr. Kordic's involvement in the Vares municipality as well
21 including Stupni Do. So it does go directly to that issue of his
22 authority and particularly in that region.
23 The next document is 438.3. I'm sorry, I may have skipped one,
25 JUDGE MAY: That has apparently been exhibited. Indeed. Yes, I
1 remember that. 437.1.
2 MR. SCOTT: Then we can go to 438.3.
3 MR. SAYERS: Before we go there, Mr. President, I hope the Court
4 will notice Exhibit Z437.1 is another of the genre of documents which is
5 just on a blank page. It's not on any letterhead. It's not signed. It's
6 not stamped. And we have no idea -- and there is no way to tell whether
7 this is just a draft document or a real document.
8 MR. SCOTT: Is it in, Your Honour? I thought it was already in.
9 [Trial Chamber confers]
10 JUDGE MAY: Yes. 438.3.
11 MR. SCOTT: Well --
12 JUDGE MAY: Is that not right?
13 THE INTERPRETER: Microphone for the counsel, please.
14 MR. SCOTT: Unless I misunderstood, I thought Mr. Sayers got on
15 his feet and raised a question about 437.1.
16 JUDGE MAY: That's been admitted. He wanted to make some extra
17 point about it, but it's been admitted.
18 MR. SCOTT: 438.3. This is again a Kordic order concerning
19 specifically Karacici [phoen] village in February of 1993, purports to be
20 giving orders concerning the entire Operative Zone. Item number 2, for
21 instance, says, "The Operative Zone is to inform UNPROFOR," et cetera.
22 Copied to, among others, Colonel Blaskic. So we submit, Your Honour, that
23 it's Colonel Kordic giving military orders and turning a particular
24 village to the entire Operative Zone and showing his authority, copied to
25 Colonel Blaskic.
1 MR. SAYERS: First of all, Your Honour, completely cumulative and
2 repetitive; secondly, not signed, not stamped, not on letterhead, and,
3 therefore, not useful in determining the guilt or innocence of Mr. Kordic,
4 and we would submit that admitting this document would not be consistent
5 with the interests of ensuring a fair trial under Rule 89(D).
6 In addition, the document, even if it were signed, would have been
7 signed by the President of the HZ HB, Your Honour, and clearly Mr. Kordic
8 was never that. So whoever it was that prepared this document, obviously
9 didn't even know what Mr. Kordic's title was.
10 MR. SCOTT: Well, in terms of authentication, Your Honour, it
11 bears the Paket communication stamp that's clearly indigenous, if you
12 will, to the document. It also bears a Zagreb archive stamp. So we
13 believe there is no bona fide objection as to its authenticity.
14 The next document is 439.2. There is a series here, Your Honour,
15 together, without breaks, but we'll come back to some breaks. 439.2 is a
16 Blaskic order, and very specifically, Your Honour, the significance of
17 this document is the sentence preceding the word "order" on the first
18 page, where it indicates that Blaskic is giving an order on the basis of
19 an order by Kordic because of the attacks by Muslim forces and, "On the
20 basis of an oral order by Colonel Dario Kordic, I hereby issue the
22 So it's important for that reason. It's also an important reason
23 because it shows Colonel Kordic's direct involvement in directing
24 artillery and missile fire. Exactly subject matter of the recording. The
25 recording indicates, around this same time period, the famous, "Let me
1 hear the missile roar," and here we have an order from Kordic to Blaskic
2 on, in fact, a multiple-rocket launcher. So we believe it's highly
3 significant and bears the stamp, the Herceg-Bosna stamp, and a Zagreb
4 archives stamp.
5 MR. SAYERS: Yes, Your Honour, but one thing it doesn't bear is
6 Colonel Blaskic's signature. In the Croatian original, you'll notice that
7 it's signed Za Pukovnik/Blaskic, for Colonel Blaskic. So obviously
8 someone prepared this and apparently, therefore, it must be, at the very
9 least, double hearsay; whoever prepared it receiving an asserted account
10 from Colonel Blaskic of something that was supposedly told to him, I
11 presume - we don't know from the document - by Mr. Kordic. Under those
12 circumstances, we would suggest that the document itself is -- or use of
13 this document is not consistent with the interests of ensuring a fair
14 trial for Mr. Kordic under Rule 89(D), especially at this late stage of
15 the game.
16 MR. SCOTT: Your Honour, I think the Court can apply its -- take
17 judicial notice and common-sense approach that, in a number instances and
18 various professions, including the military, lawyering, and perhaps
19 sometimes even judging, people -- documents are prepared for some person's
20 signature and signed by someone on their behalf, and I don't think that
21 goes anywhere near to raising a substantial question about the
22 authenticity of the document such that would keep this document from being
24 The next document is 447.1. Your Honour, this is a report or
25 statement by the chief of artillery of the Central Bosnia zone. It is,
1 frankly, extremely important because this document gives an account of
2 repeated instances in which Colonel Kordic was involved in giving
3 artillery orders. It again covering the period from -- in late January
4 1993, continuing up until the -- on the direction -- excuse me, Your
5 Honour. I'm looking at the third page, at the bottom of the third page on
6 the translation. On the 4th of February, 1215 hours, Colonel Kordic asked
7 that Dusina and Merdani be processed with the multiple-rocket launcher.
8 Now, the Chamber will see this is an instance where we've talked
9 about in the last two days about how documents interconnect and
10 corroborate each other. If the Chamber looks back at 439.2, the
11 reference -- the order signed for him, that is, Blaskic, is exactly the
12 same order, an order on the 4th of February and using the rocket launcher
13 on the same place, Dusina.
14 So not only do we argue for the admission of Exhibit 447.1, Your
15 Honour, but again, this is exactly the type of instance where the
16 documents are -- mutually reinforce each other. And this is also highly
17 corroborative of the audiotape. The audiotape again talks about Kordic
18 giving artillery orders, and we see him in this document, indeed during
19 that same time period, giving artillery orders.
20 MR. SAYERS: This document, Your Honour, is (A) cumulative, and
21 (B) contains many multiple levels of the hearsay. In addition, the very
22 instance that Mr. Scott referred to on the bottom of page 3, it says,
23 "Colonel Kordic asked that Dusina and the village of Merdani be processed
24 but he didn't ask Mr. Batinic," according to Exhibit 439.2. The argument
25 that the Prosecution makes according to Exhibit Z439.2 is that obviously
1 this demonstrates a direct conversation between Mr. Kordic and
2 Colonel Blaskic. So the two documents are not internally consistent.
3 MR. SCOTT: I think that's interpretation, Your Honour.
4 JUDGE BENNOUNA: [Interpretation] Mr. Scott, for the purpose of
5 rationally organising the matters, I think that, at the beginning, you
6 should have perhaps told us how many of these documents, beginning with
7 the documents concerning Mr. Kordic, how many documents you're going to
8 tender into evidence.
9 How many of those documents can be found on this list? On how
10 many documents are you going to insist? Can you give us an estimate?
11 MR. SCOTT: If the Court will give me the time, I do not have that
12 number. I did not count them. We've done this during the lunch hour so,
13 if you will give me a moment, I will count.
14 JUDGE BENNOUNA: [Interpretation] It's not that I'm curious. I
15 just think that we should have a number for both Mr. Kordic and Mr. Cerkez
16 and we should know if there is, perhaps, a number of overlapping documents
17 which would concern both accused. In this manner, you are going to avoid
18 repetition and having to repeat one and the same thing in respect of a
19 particular document. You should tell us the reasons for one or the other
20 particular category of documents and I think in this manner we will speed
21 up the matter because we are using this precious trial time.
22 MR. SCOTT: Well, obviously, Your Honour, that's a reasonable
23 question. We'll count the documents now. The duplication with the Cerkez
24 list, we'll try to avoid duplication. Obviously, we are not going to
25 submit the same document twice, but as Mr. Nice and Mr. Lopez-Terres are
1 in the process of doing that at this moment, I'm sorry, I can't -- I'm not
2 in a position to give the Chamber any information on that.
3 This process all relates to the Court's ruling immediately before
4 the lunch break. So we've been working non-stop since 1.00 to try to
5 shorten our list, and I'm sorry, this is as far as we've gotten.
6 JUDGE BENNOUNA: [Interpretation] Are you doing the counting now?
7 MR. SCOTT: Off of this list, yes, Your Honour. We just did it.
8 Off of this list, Your Honour, which started out with about approximately
9 something over 140, 142 documents, we have selected 49, which, in our
10 submission, is a dramatic reduction.
11 JUDGE BENNOUNA: [Interpretation] And as regards the other list?
12 MR. SCOTT: Your Honour, as I indicated a moment ago, I'm not in a
13 position to be able to give that information at this point. We're doing
14 this as we go.
15 [Trial Chamber confers]
16 JUDGE MAY: Can we speed up and try to finish this process within
17 the hour please, Mr. Scott. It's not a matter of criticism, but we must
18 try to get through it.
19 MR. SCOTT: Your Honour, I can just read the numbers.
20 JUDGE MAY: Speaking for myself, I'd like to hear your
21 justification. These are important documents.
22 MR. SCOTT: Very well, Your Honour.
23 JUDGE MAY: But we can speed up in both cases. Also, Mr. Sayers,
24 bear in mind we've seen your objections. So there's no need to repeat
25 them at length. Let's go on to the next.
1 MR. SCOTT: Yes, Your Honour. 455.1. Your Honour, this is a
2 document which, again, talks about the first page of the facts are the
3 following. "For a long time now, HVO soldiers, or rather, 'special units'
4 which are responsible directly to Dario Kordic have been destroying Muslim
5 houses," et cetera. It obviously is talking about the events in late --
6 well, in January and February 1993. The document also goes on to say, at
7 the top of the next page, the first paragraph on page 2 --
8 JUDGE MAY: Well, I think we've got the argument on this one.
9 MR. SCOTT: It isn't just so much -- let me just respond. And
10 again, Your Honour, it's hard to take these shortly because it's not just
11 an order, a document about military authority, but it also talks about
12 other issues such as the ones on page 2 leading into this question about
13 the other civilian authorities, the civilian HVO authorities are not
14 functioning at all. That's the only other point I wanted to make about
16 MR. SAYERS: Mr. President, I wish you'd look at this document.
17 It's completely anonymous; it's not on any letterhead. Anyone could have
18 written it. We would -- I would respectfully submit that it's ridiculous
19 to propose this for -- as a candidate for admission in a criminal trial,
20 especially on this issue, Your Honour, the connection or the asserted
21 connection between Mr. Kordic and special purpose units, and we just refer
22 the Court to the discussion contained on pages 16 through 18 of our brief
23 for further citations on that.
24 JUDGE MAY: Thank you.
25 MR. SCOTT: Next document is 483.2. This is a report from the
1 securities sector. It talks about, again, issues concerning the roles and
2 positions -- excuse me, roles being played by Dario Kordic, Ignac
3 Kostroman at the top of the second page. We think, again, it goes to the
4 relationships between these people. Towards the bottom of the third --
5 toward the bottom part of the third page, it talks about special police
6 headed by Anto Sliskovic which was actually kind of a private police of
7 Kordic's and Kostroman's. It goes on throughout talking about Sliskovic,
8 Kostroman and Kordic.
9 Anticipating Mr. Sayers' objection, it appears to be true that it
10 is not signed. However, it's on HVO letterhead. It follows all formats
11 that the Chamber is familiar with in terms of the information. It is an
12 order that bears -- has an order number, the date. It is not simply a
13 blank letter on stationery but has all the indicia of an HVO order, albeit
14 without a signature which, again, a number of HVO orders or documents
15 don't have signatures.
16 MR. SAYERS: There's nothing whatsoever in the nature of an order
17 about this anonymous document which expressly says, "Sources reliable,"
18 although we don't know who they are, "Data partly verified." We won't
19 repeat the objections that are contained in our papers, Mr. President, but
20 this is cumulative and absolutely violates Mr. Kordic's right to a fair
21 trial under 89(D) and part 3 of the test that you articulated this
23 JUDGE MAY: Next, please.
24 MR. SCOTT: 527.4. Our records show that 501.1 is in now, on
25 further checking, if anyone wants to confirm that or not. 527.4 we
1 submit, again, for the information provided about the -- in the Busovaca
2 Brigade, the references to Mr. Sliskovic telling Mr. Uzunovic, "You have
3 no business interfering in these matters." Sliskovic indicates that, if
4 he wants, he can replace Blaskic and Uzunovic. Mr. Vukovic is related to
5 having complained that 70 per cent of the military police were criminals
6 and looters, and two days after that -- after a meeting, that was at a
7 meeting involving Mr. Kordic and Mr. Kostroman, and two days after these
8 comments about the military police, he was replaced.
9 It also says that the --
10 JUDGE MAY: There's no need to repeat what we have in front of
12 MR. SCOTT: I'm not sure exactly how much to say on these, Your
13 Honour, but that's our position.
14 JUDGE MAY: A word or two will do.
15 MR. SAYERS: With respect to this document, Your Honour, the first
16 document is anonymous and unsigned and unstamped. And it has an
17 attachment which is anonymous, unsigned, and unstamped as well. So under
18 the test articulated this morning, the same objections apply to this
19 document as stated to the previous one.
20 JUDGE MAY: Very well.
21 MR. SCOTT: Very briefly, the second document, it's a -- it's the
22 same document, the second one bears, you'll notice it bears the Zagreb
23 archives stamp.
24 JUDGE MAY: Yes. The next, please.
25 MR. SCOTT: Next one is 544.3. It's a report signed over the name
1 of Dario Kordic, talking about the Vitezovi in March of 1993. There is --
2 sorry, Your Honour, there is one comment -- I made a note and I don't see
3 it at the moment but this is clearly Mr. Kordic himself giving a report
4 about the activities of the Vitezovi, one of the Special Purpose Units and
5 also bears -- shows a Paket communication information, which is
6 authentication. It also bears the Zagreb archives stamp.
7 MR. SAYERS: Unsigned, unstamped, and the first page is, according
8 to the person who prepared it, whoever he was, page 2. Also, there's no
9 authentication number up on the top left-hand corner of the Croatian
10 original. Once again, Your Honour, absolutely anyone could have written
11 this and there's no evidence where it came from, where, in the location of
12 the archives it was supposedly produced. So even under the standard, the
13 very liberal and expansive standard articulated by Mr. Prelec today, there
14 is simply no way to figure out whether this document is real or not. And
15 at this late stage in the game and under Rule 89(D), we object to it for
16 the reasons as stated for the previous two documents.
17 MR. SCOTT: Our response, Your Honour, is that's the first time
18 I've heard that not only do we have to say that it came from the archive
19 but we have to tell from which folder from the archive it came.
20 The next document is 780.2. It's a document from Blaskic to
21 Kordic, asking, essentially, for Kordic's approval or his input on an
22 issue about releasing some detainees also specifically connected to the
23 case and that it involves the Viteska Brigade. So it touches on
24 Mr. Kordic. It touches on the Viteska Brigade and detained persons and
25 Blaskic asking for Kordic's view. It bears a Zagreb stamp and signature
1 and an HVO stamp.
2 JUDGE MAY: Yes, Mr. Sayers.
3 MR. SAYERS: The translation's not correct, Your Honour. It
4 actually says in the Croatian information on the top of the document.
5 With respect to this document it looks like there's a proper signature and
6 a proper stamp and a proper archival stamp. So it may be this document is
7 one of the limited category of documents that looks like it might have
8 existed at one point. And it's up to the Trial Chamber, therefore, we
9 would suggest, to determine what weight to give this document, but it
10 seems to be cumulative. It also seems to be addressed to the Kaonik
11 issue, and we introduced no Kaonik evidence in our case-in-chief.
12 JUDGE MAY: Yes. Can we hear whether 501.1 has been admitted or
13 not. It has been admitted. Yes.
14 MR. SCOTT: The next is 896.2.
15 JUDGE MAY: You can deal with it very briefly.
16 MR. SCOTT: Yes, Your Honour. It is a report dated the 9th of
17 May. It talks extensively about the events in Central Bosnia, including
18 some of the conflicts among some of the political authorities which the
19 Chamber has begun to hear more about recently. It's -- it actually
20 contains a great deal of information about what was happening in Central
21 Bosnia at this time. Frankly, it's a very balanced document, arguably
22 says as many -- what might be viewed as positive things from Mr. Kordic as
23 negative things, but in any event, that's our submission.
24 JUDGE MAY: Yes, Mr. Sayers.
25 MR. SAYERS: This document at least has someone who has signed
1 it. The Croatian word at the back of it is "kum," which means "your
2 buddy" in Croatian. That's the person who wrote this document. Multiple
3 levels of hearsay and cumulative and Rule 89 objections, Your Honour.
4 MR. SCOTT: Next is 975.2. This is -- this is one of the Ahmici,
5 so-called Ahmici reports by Anto Sliskovic on the 25th of May, and we
6 think that report is clearly relevant to this case and the Chamber should
7 have that in evidence.
8 JUDGE MAY: I think it's already in evidence; 975.
9 MR. SAYERS: 975.1, Your Honour. 1 --
10 JUDGE MAY: 975.1. Yes.
11 MR. SCOTT: The next is 1043.1. This is a general announcement to
12 the Croatian people signed by Kordic, Blaskic, Kostroman. I think it
13 contains language that we think is fairly inflammatory, especially in the
14 context at the time. On the second page talking about the Muslim
15 Mujahedin Jihad fanatic hordes that are destroying Bosnia and Herzegovina
16 as a state.
17 JUDGE MAY: Yes. Objection, unsigned, unstamped.
18 MR. SAYERS: And cumulative, Your Honour.
19 JUDGE MAY: Thank you.
20 MR. SCOTT: The next is -- so, Your Honour, I might just say again
21 there was only two -- we've only selected two from that page, taking into
22 account one already admitted.
23 The next is 1133.1. This is a letter to Mate Boban from Kordic
24 and Kostroman. Again, a fairly wide-ranging report about events in
25 Central Bosnia at that time. Two particular points, Your Honour. This
1 relates -- this is one of those documents that corroborates, in our view,
2 the report about the -- concerning the four presidents that we've talked
3 about before, the one in February of 1994. I don't have it in front of me
4 at the moment but I believe it's 1367.1 because it talks about some more
5 events in terms of the conflicts with other leaders in the area. On
6 page 3 it also talks about -- Mr. Kordic uses the term "balija pacifism,"
7 and if Mr. Sayers tells me the use of "balija pacifism" is cumulative, I
8 would like to know all the other instances where it is used.
9 JUDGE MAY: Yes, Mr. Sayers.
10 MR. SAYERS: Once again, Your Honour, that kind of document
11 attributing that kind of comment to Mr. Kordic at this late stage of the
12 game certainly should be signed, and this one isn't. Anyone could have
13 prepared this. Furthermore, it wasn't on the October 30th index provided
14 to us.
15 JUDGE MAY: Yes. Next.
16 MR. SCOTT: 1140.7. This is a letter from Valenta to
17 Colonel Blaskic and Colonel Kordic concerning the relation between the
18 civilian and military authorities, and, Your Honour, it's the
19 Prosecution's submission that in addressing this to mister --
20 Colonel Blaskic and Colonel Kordic, they are the military authorities that
21 Mr. Valenta is referring to.
22 JUDGE MAY: Yes. Objection.
23 MR. SAYERS: Completely cumulative in addition to the objection
24 stated in our papers, Your Honour.
25 JUDGE MAY: Thank you.
1 MR. SCOTT: 14 -- excuse me. 1140.6. Some -- very similar letter
2 and the same rationale, Your Honour. It's a different subject matter but
3 it's the relations between military authorities and international
4 organisations. Prosecution submits it's a complaint from Mr. Valenta to
5 the military authorities, that being Blaskic and Kordic.
6 JUDGE MAY: Yes. Objection.
7 MR. SAYERS: Same objection.
8 JUDGE MAY: Yes. Yes.
9 MR. SCOTT: 1144.4. Sorry, Your Honour, sometimes these pages
10 stick together. There is a letter or communication from Mr. Kordic about
11 the Office of the Presidency of the Croatian Community of Herceg-Bosna.
12 The Chamber will recall -- there was a number of instances, a number of
13 different titles and positions, ranks that Mr. Kordic has used. We've not
14 seen very many documents specifically this term "Office of the
15 Presidency." There are other documents talking about the forward office
16 of the president or something, but this is yet another version of the
17 Office of the Presidency which we submit shows the centralisation of
18 authority in his office in Busovaca.
19 JUDGE MAY: Yes. Objection.
20 MR. SAYERS: We've objected to this document but it does show the
21 difference between IZM, which is a military title and the izmjesstenos
22 ureda djela predsjednisstva, which has been the subject of previous
23 colloquy between Mr. Kordic's counsel and the Bench.
24 JUDGE MAY: Are you objecting?
25 MR. SAYERS: We stand with the objections that we put in our
1 papers, Mr. President.
2 MR. SCOTT: The next is 1147.5. This is a communication written
3 on the -- from the relocated Office of the Presidency from Busovaca on the
4 20th of July, 1993. Anticipating Mr. Sayers, it does not seem to have a
5 name at the end or signature. However, we would submit, Your Honours,
6 that so far as we know, there was only one relocated Office of the
7 Presidency in Busovaca. It's a letter to Mr. Boban. It has a Zagreb
8 archive stamp. It is particularly relevant in reference to page 5, which
9 again reflects and corroborates other documents, including the four
10 presidents' complaint, if I can refer to it in shorthand, that -- saying
11 -- talking about the conflict with Ivica Santic and Pero Skopljak, et
12 cetera. Each those of these documents corroborate again each other.
13 MR. SAYERS: Your Honour, it's unsigned, document's incomplete, no
14 stamp; anyone could have written it. And Mr. Scott may say that there was
15 only one relocated Office of the Presidency but that's a matter of
16 argument and not matter of proof.
17 JUDGE MAY: Yes.
18 MR. SCOTT: The Court will just give me one moment, please.
19 Okay. Thank you, Your Honour.
20 The next document is 1152.3. Sorry.
21 JUDGE MAY: Well, I think in many of these we can actually read
22 the point that you make. There's no need to repeat it. If that's -- you
23 can just simply refer to it.
24 MR. SCOTT: Just -- on that one, Your Honour, I apologise. I'm
25 just having a hard time finding the page.
1 Well, there is a -- the comment, Your Honour, is it may or may not
2 be apparent on the face of it. I can't presume what the Court's view
3 would be. But our point and apart from -- this is -- the Prosecution
4 would submit that a core cadre of people who were around Kordic at that
5 time, most of the -- the Court will recognise many of these names and in
6 argument we would tell you about many more. By looking -- if the Court
7 cast its eyes down this list, we would suggest to the Court that this is
8 indeed a list of the very -- of Kordic's closest lieutenants.
9 JUDGE MAY: Yes, thank you.
10 MR. SAYERS: There was no objection stated in our papers to this
11 and we have none.
12 JUDGE MAY: Thank you.
13 MR. SCOTT: 1181.2. Addressed -- well, addressed, among others,
14 to Colonel Kordic in Busovaca. In particular, it talks about the
15 declaration of the republic as opposed to the Community Herceg-Bosna
16 contrary to various Defence statements about how it was still viewed to be
17 part of Bosnia and Herzegovina and it was still a part of the same state
18 and very friendly. Point 2B calls for the end of activity of all Croats
19 and official bodies of the former republic BiH and talks about other
20 points of reference to the developments of the Croatian Republic of
22 JUDGE MAY: Yes, Mr. Sayers.
23 MR. SAYERS: Your Honour, at one previous point in this case you
24 mentioned that you hoped that this was not going to end up as a trial
25 about politics. Well, it appears to have done. This person -- this
1 document is not signed by the person, whoever it is. It's not stamped and
2 it recites multiple levels of hearsay. We would submit that it's of the
3 utmost peripheral significance to this case and is completely cumulative
4 of the mountain range of other evidence on the same points.
5 JUDGE MAY: Yes. Yes.
6 MR. SCOTT: Your Honour, I'll just briefly respond. Of course
7 it's a political case. It's about political persecution, among other
9 1195.3 is a communication from Ante Valenta to Colonel Kordic,
10 again seeking to -- or excuse me, dealing with -- transporting ammunition
11 from Pula to Vitez, also relates to international armed conflict,
12 references to two helicopters in Zagreb --
13 JUDGE MAY: We can see that.
14 MR. SCOTT: Thank you.
15 JUDGE MAY: Yes. Cumulative.
16 MR. SAYERS: Cumulative in addition to the other objections, Your
18 MR. SCOTT: 1197.4. Letter that -- commending -- from Colonel
19 Kordic, commending the action in Grbavica. The Prosecution will submit,
20 Your Honour, in argument that the actions of Grbavica were not
21 particularly honourable. There were war crimes committed both during and
22 after and our position is that this is incriminating and showing
23 Mr. Kordic commending the action. It bears an archive stamp. It also
24 bears a Paket communication stamp.
25 MR. SAYERS: Mr. President, this is just -- even if it were
1 signed, which it's not, even if it were stamped, which it's not, this
2 document purports simply to be a public commendation for the actions of
3 soldiers, that's all, and it's of the utmost peripheral significance and
4 completely cumulative.
5 JUDGE MAY: Yes.
6 MR. SCOTT: Your Honour, we submit it's not peripheral at all. It
7 goes to the core of the case, this relation, this person commending war
9 1201.3 is the next document. It is a letter for -- a
10 communication from the Vares president Pozinovic [phoen], to Colonel
11 Kordic, among others, and again particularly without belabouring the
12 entire document and the time, the relationship in connection between
13 Mr. Kordic's -- both the Colonel and vice-president in Central Bosnia and
14 Vares and the Stupni Do region.
15 MR. SAYERS: In addition to the objections we've stated, Your
16 Honour, completely cumulative. This document appears to be taken from a
17 computer. It's not signed. It's not stamped. We don't know if it was
18 sent. We don't know who wrote it. And furthermore, any attempt to
19 connect Mr. Kordic with the crimes in Stupni Do, obviously we would have
20 no objections to orders, things of that variety at this late stage in the
21 game, but peripheral documents like this just serve to burden the Chamber
22 without throwing any light upon the central issues.
23 MR. SCOTT: Next document is 1209.1. It is Colonel Kordic giving
24 a detailed military report to Boban. It talks about all special purpose
25 and police units are engaged in combat, et cetera. It is also on the last
1 page, above the signatures, he refers to balijas. It bears a Zagreb
2 archive stamp.
3 MR. SAYERS: In addition to being unsigned and unstamped,
4 Mr. President, the actual signature page, if you take a look at it, is in
5 a different typeface from the first page. So that definitely raises
6 authenticity concerns. But once again, at this late stage of the game, it
7 doesn't throw any light whatsoever on the central issues in this case and
8 is completely cumulative.
9 MR. SCOTT: Let me just add one comment to this, Your Honour, this
10 document, I submit, there is [inaudible] like this would appear to be a
11 computer printout, something that, perhaps at one point, was not in a hard
12 copy form but printed off a computer and would be the reason why,
13 completely authentic, it wouldn't -- this particular document, downloaded
14 or printed document would not have a signature.
15 The next document is 1209.3. 1209.3 is an order by Anto Puljic,
16 who the Chamber is familiar with at this point, again indicating
17 confirming order or approval by Colonel Kordic bearing a Paket
18 communication marking, an HVO stamp, and an archive stamp.
19 MR. SAYERS: Mr. President, this document has a stamp. It's
20 signed. It has a transmission stamp. There's no reason to believe that
21 this document is not authentic. The translation is accurate. A different
22 document, 1208, was submitted, the same document but with a different
23 translation. The translation for 1209.3 is more accurate and, for the
24 reasons stated in our papers, we have no objection to this document.
25 JUDGE MAY: Very well.
1 MR. SCOTT: Next document is 1225.2. This is a letter of support
2 from Kordic and Kostroman having a Zagreb archive stamp and, among other
3 things, stating that they hope that these activities, as a result of these
4 activities that the territory of Central Bosnia will be integrated into an
5 indivisible Croatian national body.
6 MR. SAYERS: There is another one of a series of unsigned and
7 unstamped documents that Mr. Scott said maybe came from a computer
8 programme. Maybe, Your Honour, but maybe not. We just don't know.
9 JUDGE MAY: Yes. Go on.
10 MR. SCOTT: 898.2. Excuse me one moment, Your Honour.
11 JUDGE MAY: We can read that -- what it's about and I think it's
12 self-explanatory. Is there anything you want to say about it,
13 Mr. Sayers?
14 MR. SAYERS: This document doesn't really concern Mr. Kordic, Your
15 Honour. It's peripheral. It's cumulative. It's assertedly prepared for
16 Mr. Skopljak's signature, although he didn't sign it. It's not dated so
17 it's difficult to see what light this throws on anything or how it can be
18 of assistance to the Court.
19 MR. SCOTT: Well, the response to that, I know the Chamber can
20 read it, but this again corroborates the other documents, a series of
21 documents about the disagreements between the other Central Bosnia HVO
22 leadership on the first page and our view the party had ceded its powers
23 to the HVO governments. The party of the HDZ, in fact, has not been
24 active. This corroborates a number of other documents about these issues
25 which the Prosecution submits is relevant to Mr. Kordic's role. On page
1 3, very briefly, it also talks about the greater shock of all for your
2 municipality, the scandal in Ahmici, a village neither in terms of
3 military strategy or national economy essentially to go on would warrant
4 what happened there.
5 JUDGE MAY: Yes. Next one, please.
6 MR. SCOTT: The next is 1230.3, a document, an order by Blaskic
7 indicating that the only two people who could approve helicopter flights
8 in Central Bosnia were Colonel Kordic and himself.
9 JUDGE MAY: Yes.
10 MR. SAYERS: First time this was -- this translation was provided
11 to us was on Saturday, Your Honour, and the Court will notice that there's
12 no Zagreb stamp on this. There's no indication that this has just come by
13 the Prosecution's possession recently. And also, there appears to be a
14 redaction on the -- or some sort of interlineation on the front of the
15 Croatian version of this document which is unexplained.
16 JUDGE MAY: Yes.
17 MR. SCOTT: Well, Your Honour --
18 MR. SAYERS: In addition, if I may just say, completely
19 cumulative. Not really relevant to anything. Doesn't relate to the
20 central core issues in this case, and we would respectfully submit Rule
21 89(D) considerations come into play with respect to this document too.
22 MR. SCOTT: Your Honour, I know we are moving quickly, but I would
23 have to object to any insinuation by counsel about my conduct unless he
24 has a basis to say so about when this was added, that it's not a Zagreb.
25 Unless he has some basis to make that allegation.
1 This is the form of the document in which it was received. It has
2 a Paket communication on the back page. The Court will also notice that
3 it, similar to some of the documents coming from Zagreb, had a handwritten
4 notation on the back "Viteska."
5 The next document is 1266.5. The significance of this document,
6 Your Honour, the one attached to it and, for some reason, it's become
7 separated. I'd like to direct the Court's attention to 1248 at the same
8 time, which I think has been marked before, and the reason for this is as
9 I'll explain.
10 1248 is the request coming from Mario Cerkez, commander of the
11 Vitez Brigade, for certain relief to be granted by, in Mario Cerkez's own
12 words, direct address to Colonel Kordic. That's Exhibit 1248.1. Exhibit
13 1266.5 is Colonel Kordic responding. One of the few documents, very few
14 documents where both defendants are communicating directly with each other
15 and, in fact, Mr. Cerkez referring to Mr. Kordic as "Colonel."
16 MR. SAYERS: Exhibit 1248.1 is not in evidence. I'm trying to see
17 if that has been provided to us but we've made our objections to this
18 document, Your Honour. No archival stamp. The Court will notice no
19 explanation for why not. And our objections are as stated. Cumulative,
20 also Rule 89(D) considerations come into play with respect to this.
21 MR. SCOTT: Let me just say briefly on 1248.1, this is the flip
22 side of the issue about what's admitted or not admitted, and our records
23 are not clear on that. If it hasn't been tendered before, it's directly
24 related to 1266.5 and we do -- in fact, we do tender 1248.1 to go with
25 that exhibit.
1 The 1288.4 is next. 1288.4 is a communication from Blaskic. It
2 confirms several things. One is that the --
3 JUDGE MAY: We can read it. We don't need to go through it.
4 MR. SCOTT: Thank you, Your Honour. I'm just never sure how much
5 to say.
6 JUDGE MAY: Yes.
7 MR. SAYERS: Our objections are stated, Your Honour. Cumulative
8 as well and very peripheral to any significance in this case.
9 MR. SCOTT: Well, Your Honour, there again, I'm -- it's not
10 peripheral. It's not cumulative because it's not just the fact that it's
11 a communication about Vares or makes reference to the fact that the three
12 of them, "... whatever conflicts may have existed in the past, Kordic and
13 Ignac are in constant contact, the conflicts are behind us, that the three
14 of us are standing firm together." It's a very interesting and relevant
15 document, the relationship between Kordic, Kostroman, and Blaskic. And
16 it's not cumulative in that respect at all.
17 The next document is 1297.1. It is a --
18 THE INTERPRETER: Could you slow down, Mr. Scott, please.
19 MR. SCOTT: My apologies. We're moving too quickly.
20 1297.1. This is a communication to Mr. Boban, the particular
21 significance of the document is that the writer attributes the development
22 on the top of the second page, Kordic managed to develop this integral
23 Croatian entity in Central Bosnia that he was -- it was Kordic that was
24 responsible for that.
25 MR. SAYERS: We've stated our objections. Cumulative. Completely
1 unnecessary. Irrelevant.
2 JUDGE MAY: Yes.
3 MR. SCOTT: 1304.2. Basically, Your Honour, this is again one of
4 these public pronouncements -- well, it's going to command of the
5 operative group. It appears to be a public commendation. We've
6 characterised it that way. It is highly inflammatory. The Court can look
7 at the document and the language used by Colonel Kordic and it is
8 extremely inflammatory in an anti-Muslim way.
9 MR. SAYERS: And documents that are alleged once again,
10 Mr. President, at this very late stage of the game to be extremely
11 inflammatory should be signed by Mr. Kordic, indeed, if they are extremely
12 inflammatory, and this one suspect. Anyone could have printed this off of
13 a computer and put his name on there and therefore we object to it. It's
14 cumulative. It also raises serious Rule 89(D) concerns at this point.
15 MR. SCOTT: The next is 1306.2. I think it's short, but just it's
16 a request to "Dear commander," asking for relief of a soldier which, in
17 our view, Your Honour, only a military person could relieve a soldier or
18 give him leave. It bears the Zagreb stamp.
19 MR. SAYERS: Plain page ostensibly from the city of Pula. No
20 signature. No stamp. Nothing whatsoever to indicate that it's in any way
21 authentic. Cumulative and irrelevant.
22 MR. SCOTT: 1315.8.
23 JUDGE MAY: Now, this is a report from, apparently, the SIS in
25 MR. SCOTT: That's right, Your Honour.
1 JUDGE MAY: This is one of the SIS reports which we will have to
3 MR. SCOTT: Yes, but with this comment, Your Honour, because if it
4 makes a difference to the Court, it may or may not. This is one that was
5 in the archive, was not separately produced by the Croatian government as,
6 if you will, sometimes we've called them the HIS or SIS documents. This
7 is an HVO archive document that is, in that respect, no different than the
8 hundreds of other HVO documents that the Chamber has received, bears a
9 Zagreb archive stamp.
10 It is significant, among other things, for the statements on the
11 third page which again talks about the conflict between Kordic and
12 Kostroman and their group, on one side, and the very presidents that are
13 named in the other document that the Court presumably is now familiar with
14 and the fact that Kordic and Kostroman had usurped absolute power in
15 Central Bosnia.
16 JUDGE MAY: Yes.
17 MR. SAYERS: Several problems with this, not the least of which is
18 this was not provided by October... [Microphone not activated].
19 THE INTERPRETER: Will you please slow down, Mr. Sayers.
20 Mr. Sayers, please slow down.
21 MR. SAYERS: [Microphone not activated]... is free standing
22 allegation, very serious one, against Mr. Kordic. And Mr. Kordic has
23 absolutely no way of confronting any live witness who has any relevant
24 knowledge about these issues. We have made the point in our papers.
25 We've extensively examined the record to show you how it is completely
1 inconsistent with the verbal testimony in this case and is therefore
2 completely inadmissible under the holding of this Tribunal's jurisprudence
3 as stated in Delalic.
4 MR. SCOTT: Your Honour, evidence can come in a number of ways,
5 doesn't have to be by witness. It can be by documentation. There are now
6 a substantial number of documents about this conflict, if you will. The
7 other exhibit that I keep referring to, just so that the record is clear,
8 is 1367.1.
9 JUDGE MAY: We need to be moving along.
10 MR. SCOTT: I understand that, Your Honour.
11 JUDGE MAY: Yes.
12 MR. SCOTT: It is 1317.2 next.
13 JUDGE MAY: I seem to remember a document along these lines.
14 MR. SCOTT: I think that's probably right, Your Honour, and I was
15 going to --
16 JUDGE MAY: Mr. Sayers.
17 MR. SAYERS: My recollection is there is a document that's very
18 similar to this that is already in evidence, Your Honour.
19 JUDGE MAY: Yes, that's my recollection. We can track it down,
20 perhaps, during the adjournment rather than trying to find it now.
21 MR. SCOTT: I think that's right, Your Honour. Again, there is
22 some question about that. Your Honour, there is a mistake, I think,
23 behind -- immediately following -- I'll come back to that, Your Honour. I
24 think there's one document mismarked, but if I see it, I'll come back to
1 MR. SAYERS: With respect to the arguments regarding external
2 consistency, Your Honour, this is a document which is already in evidence,
3 purports to be an analysis of information about events in the village of
4 Ahmici and doesn't contain any reference whatsoever to the kinds of
5 salacious facts that are recited in the SIS centar documents to which we
6 vigorously object.
7 JUDGE MAY: Yes, let's have the next, please.
8 MR. SCOTT: 1319.1 is a report or a cover letter passing on
9 reports to -- from Ivica Lucic, the chief of SIS in Mostar, to the
10 Croatian Information Service, HIS, Miroslav Tudjman, and it's about this
11 time, Your Honour, that the Chamber will begin to see an increasing flow
12 of communications on these issues from the HIS or SIS in Herceg-Bosna to
13 Miroslav Tudjman and, in many instances, the Chamber will see that the
14 report is being passed on by Miroslav Tudjman to his father, President
16 JUDGE MAY: Mr. Sayers, you make the same objection, I think, to
17 virtually all these reports; that they are anonymous, you say, and no
18 indication of where they come from, and no indication of any personal
20 MR. SAYERS: Correct. And no indication of the sources upon which
21 these opinions and conjectures contained in these documents are based and
22 no way to tell.
23 MR. SCOTT: Well, Your Honour, I will be the first to agree
24 with -- there are some documents which literally there is no beginning and
25 end on plain paper and those are unusual, granted. This one is not that
1 type of document. It is clearly on Herceg-Bosna HVO letterhead. It has
2 all the markings and the seals of the HVO authorities. Ivica Lucic is a
3 known -- the Chamber has, I hope, heard enough to know who Mr. Lucic is.
4 There are a number of indications of authenticity about this document and
5 I won't say further on that for now.
6 JUDGE MAY: Yes. Go on to the next one.
7 MR. SCOTT: The next one is 1324.6.
8 JUDGE MAY: That's apparently already admitted, 343, 117.
9 MR. SCOTT: I'm sorry, Your Honour.
10 JUDGE MAY: 1324.6, calling to the Defence it's already been
11 admitted as 343, 117.
12 MR. SCOTT: Excuse me, did we skip over 1324.5?
13 JUDGE MAY: We did, yes. You want to go over that? 1324.5.
14 MR. SCOTT: Yes, Your Honours. This is a report coming from,
15 again, SIS Mostar to Miroslav Tudjman. And again we submit to the Chamber
16 that -- excuse me, Your Honour, if you could give me one second. This is
17 one of these -- one of the communications to HIS in Croatia to Miroslav
18 Tudjman. The Croat original is, in fact, on the letterhead of the HVO.
19 It has all the indicia, all the markings of an HVO report; a serial
20 number, a date, a stamp by Mr. Lucic. It is, in its content and nature,
21 absolutely no different than the hundreds of other HVO documents that the
22 Chamber has accepted.
23 MR. SAYERS: Like many of these documents, Mr. President, the
24 cover page is signed and stamped but the other documents are not. And we
25 have absolutely no idea who prepared them, when they were prepared, the
1 sources upon which they were based. I've made the objections. We rely on
2 the same objections that we've made to similar documents.
3 JUDGE MAY: Very well.
4 MR. SCOTT: The next document is -- we did 1324.6. 1326.1.
5 JUDGE MAY: There is an indication that that has been admitted.
6 D343, 118. Apparently it has been.
7 MR. SCOTT: All right. Very well. The next is 1342. -- excuse
8 me, Your Honour, I'm sorry. Sorry, Your Honour, my notes just -- sorry,
9 Your Honour, 1342.4.
10 JUDGE ROBINSON: [Microphone not activated]... I'm not encouraging
12 MR. SCOTT: Only that one, Your Honour, I think it's on page 17,
13 it's only 1342.4. Yes, Judge Robinson, you are correct that's the only
14 one on that page, and I'm sorry I still haven't found the...
15 JUDGE MAY: We can see what the relevance is in your notes.
16 MR. SCOTT: Very well.
17 JUDGE MAY: Yes.
18 MR. SAYERS: This was already introduced, I believe, with court
19 witness number one and the Court will no doubt recall that that witness
20 described this document as pure fiction.
21 JUDGE MAY: This is 1342.4 already admitted.
22 MR. SCOTT: All right. On that -- the next page, Your Honour,
23 page 18, what I would like to confirm, if possible, is that 1356.4 was
25 THE INTERPRETER: Could you come closer to the microphone,
1 Mr. Scott, please.
2 MR. SCOTT: Yes, my apology.
3 JUDGE MAY: 1356.4.
4 MR. SCOTT: Yes.
5 JUDGE MAY: Combat report from Jozo Grgic. I don't remember it.
6 I must say.
7 MR. SAYERS: Admitted, Your Honour, and not provided. Listed on
8 the -- not listed anywhere on the October 30th list.
9 MR. SCOTT: Your Honour, it was tendered in -- it was tendered
10 during the -- in the course of one of the witnesses. It was previously
11 disclosed. Mr. Sayers may be right that it was not listed for whatever
12 reason, and if it was, it was an honest mistake. It was tendered with
13 another witness. It is disclosed some time ago and, if it hasn't been
14 admitted, Your Honour, it is a Zagreb document and we would offer it -- we
15 would offer it at this time.
16 MR. SAYERS: If it had been provided, Your Honour, cumulative and
17 Rule 89(D) considerations, multiple levels of hearsay, peripheral
18 significance to any of the core issues in this case.
19 MR. SCOTT: Well, Your Honour, let me remind the Chamber on this
20 one. I'm sorry, but I will have to say this talks about directly Colonel
21 Kordic giving the orders of firing these fire-extinguisher devices into
22 Kruscica specifically on his orders, sometimes referred to as "babies,"
23 and again, we have to say to Mr. Sayers if that is cumulative of other
24 evidence of Kordic ordering fire extinguishers to be fired into Kruscica,
25 then I'd like to know what the other cumulative evidence is.
1 JUDGE MAY: Could you both slow down, please. I know it's
2 difficult, but it seems to me we're on the home straight. We're on 44.
3 So 5 more in about 5 minutes.
4 MR. SCOTT: Thank you, Your Honour. I believe it's 1367.1. This
5 is the document the Chamber has heard a lot about, a report concerning
6 the --
7 JUDGE MAY: Yes.
8 MR. SCOTT: -- the complaints of the four presidents.
9 MR. SAYERS: Before we discuss this particular exhibit, might I
10 just inquire of the Prosecution whether there are any Rule 68 materials
11 that they we would care to disclose to us?
12 JUDGE MAY: I'm not sure what the relevance of that is,
13 Mr. Sayers. We're hearing argument at the moment on this matter. This is
14 clearly an important document. You see the argument, Mr. Scott. The
15 argument is this, that here is a very serious allegation made in this
16 letter or this report about the 15th of April. There is, I think, no
17 other evidence of it at all.
18 MR. SCOTT: The one -- that particular -- on that particular part
19 of the report, the document -- I think I agree with you, Your Honour, and
20 I said -- it's not that I have any doubt about agreeing with you, it's
21 just whether I recall the evidence at the moment. That very well may be
22 the case.
23 The rest of the document, however, Your Honour, is extensively
24 corroborated by a host of other documents. It is probably -- arguably the
25 best example that we've studied of a document which is extensively
1 corroborated by other documents. That is covered in the brief that we
2 filed today in which we take the Chamber, if I can say, through this
3 document in reference to other evidence in the record that absolutely
4 corroborates this document in all the other respects and shows it to be a
5 trustworthy document.
6 MR. SAYERS: The brief that was filed today -- I'm sorry.
7 MR. SCOTT: I'm sorry.
8 MR. SAYERS: Mr. President -- I apologise for shuffling around in
9 the papers here.
10 The brief that was filed today makes a reference to a statement
11 made by Mr. Marko Vidak and representations regarding what Mr. Marko Vidak
12 would have said.
13 I was interested actually in listening to the Prosecution's
14 representations about what this witness was going to say and the
15 representations that this witness was willing to testify, because
16 apparently Mr. Vidak sent a letter to the investigator that took that
17 witness statement, and that was dated November the 14th, a week ago, and I
18 have copies, if the Court wishes to see that. This witness absolutely
19 excoriates the investigator for omitting information and when we provided
20 him with a copy of the Croatian version of the witness statement that was
21 taken from him, he criticises it in many respects. I think that it would
22 be very interesting for the Court to review this document, if you wish.
23 We have it available. Why it wasn't disclosed to us, I do not know.
24 But in addressing the merits of this document, Your Honour, this
25 is addressed on pages 11 through 14 of our brief. Many questions have
1 been asked of the witnesses in -- from Vitez, politicians in Vitez who
2 would have known about a meeting such as the meeting that is asserted in
3 this document to have occurred, and to a man, they've denied that such a
4 meeting ever occurred. Quite simply, there is absolutely no testimonial
5 support for the scurrilous and anonymous assertions contained in this
6 document, Your Honour. It's unsigned, it's unstamped. We have no idea
7 where it came from. It's not on letterhead, and it constitutes the only
8 evidence of the argument that the Prosecution makes that Mr. Kordic was at
9 a particular place at a particular time, and that's exactly why the (redacted)
10 (redacted) was excluded from evidence by order of the Appeals Chamber on
11 July the 21st of this year.
12 Now, we've made the point that at least with respect to the (redacted)
13 (redacted) that was found not to be reliable, sufficiently reliable to be
14 admitted into evidence for the reasons articulated in Tadic, at least we
15 knew who the declarant was so that we had some way --
16 THE INTERPRETER: Mr. Sayers, will you slow down.
17 MR. SAYERS: Here we have no idea who the declarant is. Indeed
18 there is a problem with the translation of this document that has been put
19 together by the Prosecution because in, I think, the second to last page
20 it's absolutely clear that the declarant, a single person that writes
21 this, and he says, "I have summarised the following," and he sets out a
22 number of pages. That's missing from the translation. We just noticed
23 that parenthetically.
24 But this document, more than any other, Your Honour, focuses the
25 Court's attention on the invidiousness of even considering for evidence
1 unattributed, anonymously-authored documents of this type based upon
2 undisclosed sources, and there's simply no way to verify it,
3 unfortunately, and no way for Mr. Kordic to confront the author of this
4 document or confront the declarants.
5 It seems to me, frankly, perhaps the only way that we could do
6 that is to have Mr. Vidak summoned as yet another court witness if that's
7 the Trial Chamber's inclination, because if that is the Trial Chamber's
8 inclination, then there will be no opposition for Mr. Kordic. But I'll be
9 very interested to see if there would be any opposition from the
11 But anyway, be that as it may, this document, standing it at does,
12 disclosed at the very last minute of this trial, having been unanimously
13 contradicted by absolutely every witness to whom the information in it has
14 been put and without any other documentary support or any other
15 evidentiary support is the very essence of sort of, if I may use a --
16 THE INTERPRETER: Please, Mr. Sayers, do slow down.
17 MR. SAYERS: -- proceeding. And anyway, I've made my arguments.
18 We've set our arguments out in the papers, Your Honour, and I don't think
19 that there's any point in belabouring it.
20 JUDGE ROBINSON: Mr. Sayers, one part of your argument would seem
21 to go just to weight, the fact that there is no other evidence, there is
22 no oral testimony. But then there's another part in which, as a matter of
23 principle, you're saying it should not be admitted.
24 MR. SAYERS: With all due respect, Your Honour, that's not our
25 position. The position is that it doesn't go to weight. It's been
1 explained in the Tadic Trial Chamber it goes to admissibility. In fact,
2 in our unsuccessful appeal to the Appeals Chamber precisely that point was
3 made when we objected on authenticity grounds. But it's a reliability
4 requirement. That's what it's got -- that's the requirement, especially
5 in a criminal case, Your Honour, where prejudicial evidence like this is
6 coming in at the last minute. At the very minimum, the Trial Chamber has
7 a legal as well as a moral obligation to ensure that the evidence is
8 reliable. How in the world could anyone say that this evidence is
9 reliable? It doesn't even meet the most minimal threshold of reliability
10 such as to be considered to be admissible into evidence. And, Your
11 Honour, for precisely those reasons, the (redacted) -- once again,
12 we knew at least who gave that statement, and it was taken by an OTP
13 investigator. That was excluded as being unreliable.
14 So that's our argument. It's really not a question of weight.
15 It's a question of admissibility. For it to be admissible, it has to be
16 reliable. For it to be reliable, it has to be truthful and trustworthy.
17 We know it's not truthful. The witnesses to whom it's been put have been
18 unanimous in saying that the facts here are not truthful. But also we
19 make argument in our papers and perhaps it bears airing, Your Honour,
20 think of the source here. If these people --
21 JUDGE ROBINSON: If there was other evidence, oral evidence
22 supporting, you would still say it's unreliable.
23 MR. SAYERS: I would say that this evidence is absolutely
24 unreliable, yes, Your Honour. And there is no evidence, other evidence
25 that is in the record right now that does support this.
1 But also, as I say, consider the source. You've heard the source
2 of this information from Colonel Palavra. I don't think there's any
3 contradiction on -- of his account of the kinds of people that were
4 preparing these things. Thieves; associates of the Vitezovi, an
5 organisation that the Prosecution contends is extensively involved in
6 wrongdoing in this case; people who had an axe to grind apparently; people
7 who had no military competence and who had been excluded from meetings;
8 people who had been gaoled; and people who fled after the gangland killing
9 of Zoran Tuka following the unsuccessful assassination attempt.
10 JUDGE MAY: We have the point.
11 MR. SAYERS: Yes. Thank you.
12 JUDGE MAY: But you would -- it may not be invited, but you would
13 not oppose our reopening the question of Mr. Vidak?
14 MR. SAYERS: We wouldn't invite it. We don't think it's
15 necessary. We think the evidentiary inquiry regarding this document
16 really answers itself, Your Honour. But if the Court thinks that it's
17 necessary for this gentleman to return, that's correct, we would not --
18 right. We would not oppose it. And if I may, we'll just hand out
19 Mr. Vidak's letter for distribution to everybody.
20 MR. SCOTT: Well, we'd object to the statement. We haven't
21 offered his statement, Your Honour.
22 JUDGE MAY: We'll consider the matter as to whether it's an idea
23 to have him called or not. But, Mr. Scott, very briefly, because we
24 really are running out of time.
25 MR. SCOTT: I do appreciate that, Your Honour, but Mr. Sayers has
1 gone on at some length about this and even raised Rule 68 violation
2 issues. We have not seen such a letter. If Mr. Sayers, apart from
3 handing to the Chamber, would like to tender a copy to the Prosecution,
4 we're most happy to look at it. It's news to me and to Mr. Nice.
5 We can only say that, in the initial contact that our office had
6 with this witness, and I don't know if his name - I guess it's probably
7 too late now - was completely cooperative. So what's happened --
8 JUDGE MAY: That's not a matter we can --
9 MR. SCOTT: The document -- more importantly, Your Honour, let me
10 turn to the document itself. And this is an important document. We've
11 covered this in the paper we filed today. I asked the Chamber to review
12 that with some deliberation in reference to the other documents marked.
13 It is extremely -- it is an extremely trustworthy document when
14 viewed in the light of the huge number of other information. We have
15 listed in that paper a number of other documents that refer to the same
16 things, including letters by Mr. Kordic himself in which Mr. Kordic refers
17 to this conflict. There is other types of evidence than testimony. The
18 reason it was not put to more live witnesses during the trial is because
19 the document came to our attention very late and that is the only reason
20 why it is not featured earlier with other witnesses in the trial.
21 Moving on -- I'm sorry. We -- we do anticipate, Your Honour, that
22 there could be a witness that the Court will be familiar with being
23 received next week which may also shed light on this matter concerning a
25 Next document is 1371.1.
1 JUDGE MAY: I think from now on we'll just have to have the
2 numbers. We've got written submission on these.
3 MR. SCOTT: Yes, Your Honour I'm happy to do so.
4 JUDGE MAY: 1371.1. Yes.
5 MR. SCOTT: 1371.3.
6 JUDGE MAY: Yes.
7 MR. SCOTT: Just let me double-check, Your Honour. I'm
8 hesitating, Your Honour. I'm going to say that 1380.4, but I'm not sure
9 if it's the same, if it's duplicative or not at the moment. So 1380.4 so
10 as not to waive any -- that issue.
11 MR. SAYERS: Z1380.4 I believe is already in evidence,
12 Mr. President.
13 MR. SCOTT: That's why I raised it. Thank you.
14 JUDGE MAY: Yes.
15 MR. SCOTT: I think that's it, Your Honour, but if the Court would
16 give me one second ...
17 Mr. Nice reminds me that on 1356.4, which is not in the binder but
18 was tendered previously, we talked about, we will provide another copy to
19 the Chamber.
20 Your Honour, I believe that is -- the only -- Your Honour, if
21 you'll let me check one document. It seems to be out of order, but ...
22 Well, I'll finish, Your Honour. If the Court will allow me, just
23 before the whole process is completed, to check one item, come back to it.
24 JUDGE MAY: You can mention it tomorrow morning and we'll hear the
25 Cerkez documents tomorrow morning.
1 MR. NICE: Your Honour, as to tomorrow, the witnesses held over
2 from today, I think one of them may have children and she's anxious, I
3 think, to get back. I'm not sure about that.
4 JUDGE MAY: Perhaps you could tell us the position in the morning
5 and maybe we can make a decision about it.
6 MR. NICE: If we could have the argument about -- if it was
7 convenient to the Chamber to interpose the argument about the transcripts
8 and, if appropriate, to then interpose the evidence, which will not take
9 long, but I'm entirely in the Court's hands. It's under 30 documents for
10 Cerkez, a few for miscellaneous, which I haven't gone through, and the
11 diary that's outstanding.
12 [Trial Chamber confers]
13 JUDGE MAY: Yes. So that the witnesses are not imposed on
14 unnecessarily or more than necessary, we'll deal first thing with the
15 argument about the transcripts and about the witnesses, the two things
16 really hanging together.
17 MR. NICE: Thank you very much.
18 --- Whereupon the hearing adjourned at 4.25 p.m.,
19 to be reconvened on Wednesday, the 22nd day of
20 November, 2000 at 9.30 a.m.