Tribunal Criminal Tribunal for the Former Yugoslavia

Page 6360

1 Thursday, 5 October 2000

2 [Open session]

3 --- Upon commencing at 9.36 a.m.

4 [The accused entered court]

5 JUDGE RODRIGUES: [Interpretation] You may be seated.

6 Good morning to you all. Good morning counsel for the

7 Prosecution. Good morning counsel for Defence. Good morning to the

8 accused.

9 Before we begin with our work today, there are certain matters

10 that were left pending yesterday.

11 Before we make a ruling, I should like to ask the Prosecutor to

12 describe in brief terms for us the documents that were the subject of the

13 conversation yesterday, that is, the documents relating to the testimony

14 of Witness Haskic.

15 Yesterday, Mr. Keegan wanted to tender into evidence two

16 documents, if I understood him correctly. Could you, Madam Hollis, give

17 us a brief description of the said documents so they can be marked for

18 identification.

19 MS. HOLLIS: Yes, Your Honour. The first document, the transcript

20 of the witness's testimony in the Tadic case given on 20 June 1996, the

21 English pages of that transcript are marked as page 1931 through 1966.

22 That includes direct and cross-examination.

23 And last night, Your Honour, I went through yesterday's

24 cross-examination and this document, and if Your Honours would like more

25 particularity, I can refer you to specific pages and lines in that

Page 6361

1 document.

2 The second document that was discussed yesterday is a document

3 recording interviews with this witness in another country. It was the

4 document that Defence counsel referred to by the dates of those interviews

5 which were the 5th and the 6th, or the date I have here is 05.07.1994,

6 06.07.1994.

7 And again, Your Honour, for our purposes, there is one particular

8 entry in that document that we would refer to. That would be the only

9 entry in that document that we would refer to for the sake of

10 completeness, and that would be the page that has been stamped by the

11 Office of the Prosecutor with the number 00498814. 00498814. And again,

12 I am referring to the English version of that document, not to the B/C/S

13 version which, of course, I cannot read.

14 JUDGE RODRIGUES: [Interpretation] Thank you, Madam Hollis.

15 Madam Registrar, what is going to be the number of the first

16 document and then the second document as well, please?

17 THE REGISTRAR: Yes, Your Honour. The first one will be marked as

18 3/153. The second one is 3/154. Thank you.

19 JUDGE RODRIGUES: [Interpretation] Mr. Krstan Simic, you wanted to

20 say something?

21 MR. K. SIMIC: [Interpretation] Good morning, Your Honours. In

22 relation to what Madam Hollis has just said, I should like to say that the

23 Defence presented certain portions of the documents that it believed

24 important. The documents were tendered in order to establish the

25 consistency of the testimony of the witness. Therefore, we believe that

Page 6362

1 the Prosecutor --

2 JUDGE RODRIGUES: [Interpretation] I'm sorry, Mr. Simic, but let us

3 not mix the two issues. The Prosecutor wanted to tender the documents

4 into evidence, and the Defence opposed the motion of the Prosecutor. Did

5 you want to tender the documents as well?

6 MR. K. SIMIC: [Interpretation] No. I just want those documents to

7 be tendered in their entirety and not only fragments, portions of the

8 documents.

9 JUDGE RODRIGUES: [Interpretation] I think that we keep mixing

10 things. We are now discussing the documents that were tendered into

11 evidence by the Prosecutor. Yesterday you opposed the motion of the

12 Prosecutor. Now, do you intend to tender those documents into evidence as

13 well? Is that what you're doing now?

14 Would you please let us decide upon one issue, and then we will

15 discuss the other issue. There has to be a certain order in the

16 procedure, Mr. Simic.

17 Therefore, the ruling of the Chamber on the motion of the

18 Prosecutor to tender into evidence these documents is as follows:

19 Yesterday, on the 4th of October, 2000, the Prosecutor tendered into

20 evidence two documents, 3/153 and 3/154, which had been used during the

21 cross-examination and the additional examination of the witness Nihad

22 Haskic.

23 The Defence opposed the motion of the Prosecutor, invoking the

24 decision of the Chamber of the 4th of July 2000. The Chamber had indeed

25 decided that all preliminary statements of witnesses who are appearing

Page 6363

1 before the Chamber may be used in order to impeach the witness and his

2 credibility without the preliminary statement being admitted into

3 evidence.

4 The said documents were used by the Defence and also by the

5 Prosecutor. There are no exceptional circumstances in this case, in

6 particular, circumstances relating to false testimony which might justify

7 a modification of the criteria which was established and practised during

8 the hearing of this case.

9 In view of that, the Chamber decides to refuse the motion of the

10 Prosecutor and rejects the admission of the exhibits which were marked for

11 identification as 3/153 and 3/154.

12 You have just heard the ruling of the Chamber.

13 MS. HOLLIS: Your Honour.

14 JUDGE RODRIGUES: [Interpretation] Yes.

15 MS. HOLLIS: Your Honour, I feel compelled at this point to ask

16 Your Honours if the Prosecution would be allowed to establish the record

17 by either reading into the record those portions of the transcript and the

18 statement which we would have referred to or putting in the record the

19 pages and the line numbers that we would have referred to regarding the

20 seven different areas of attempted impeachment which we believe were

21 either inaccurately stated or incompletely stated. We would ask to be

22 allowed to do one of those two things in order to establish the record

23 should this become an issue at a later time.

24 JUDGE WALD: Ms. Hollis, if they're marked for identification, as

25 they have been because they were tendered into admission, won't that be a

Page 6364

1 sufficient record if you have highlighted the portions that you're

2 interested in and they're in the identification file should an Appeals

3 Court or somebody else want to look at them?

4 MS. HOLLIS: If we can put in the marked versions, that would do

5 that, Your Honour.

6 JUDGE RODRIGUES: [Interpretation] Let me consult my colleagues.

7 [Trial Chamber deliberates]

8 JUDGE RODRIGUES: [Interpretation] Madam Hollis, I should like to

9 remind you. As you know, we had a very long discussion regarding the use

10 of preliminary statements. You yourself, Madam Hollis, were opposed to

11 the admission of certain portions of documents into evidence. You told us

12 at the time that one needs to have an entire document to have the

13 appropriate context because the accused were mentioned in the documents in

14 various ways. And you, Madam Hollis, were opposed to the admission of

15 fragments of documents, and you insisted on the admission of the entire

16 document.

17 We are going to abide by our decision, but we are going to accept

18 the following: You should specify, for the purpose of identification,

19 portions that you wish to be admitted into evidence instead of mentioning

20 the whole document. So you're going to tell us for the record, for the

21 purpose of identification, because we already decided not to admit the

22 document into evidence, so you're going to mention the portions that you

23 would have wanted to tender into evidence but the Chamber refused the

24 admission.

25 So you're going to give us only the portion of the documents that

Page 6365

1 you would have wanted to have admitted into evidence.

2 MS. HOLLIS: Thank you, Your Honour. And to make the record

3 clear, I will also tell you the portions of yesterday's transcript to

4 which these portions would refer.

5 As to the first area, I am referring to the transcript of

6 yesterday, which was the 4th of October, cross-examination. The copy of

7 the transcript that I have is at page 64, line 19, all the way through to

8 page 66, line 11. That is the English version of yesterday's transcript.

9 Regarding the Tadic transcript, we would refer to page 1935. This

10 is the Tadic transcript of 20 June 1996, English version. Page 1935,

11 line 9 to line 14, line 17 to line 22; page 1935, line 29 to page 1936,

12 line 2; page 1936, line 6 to line 15; page 1937, line 8 to line 16,

13 line 23 to line 33.

14 Regarding the second area, we are referring to yesterday's

15 transcript in this trial, cross-examination, page 67, lines 10 to 18. For

16 those lines, we would refer you to the Tadic transcript in English,

17 cross-examination, page 1958, 1-9-5-8, lines 23 to 32.

18 For the third area, we would refer you to yesterday's transcript,

19 cross-examination, at page 67, line 19 to page 69, line 2. We would refer

20 you for that issue to the Tadic transcript, page 1938, lines 127 [sic] to

21 line 33, and cross-examination, page 1959, line 7 to line 12.

22 For the fourth area, we would refer you to page 70 of yesterday's

23 transcript, line 6 to line 22; page 73, line 9 and 10; page 73, line 23 to

24 page 74, lines 2 to 4. And in that regard, for the Tadic transcript, we

25 would refer you to page 1946, lines 17 to line 21.

Page 6366

1 In regard to the fifth area, we would refer you to yesterday's

2 transcript, page 79, lines 12 to 17. For the Tadic transcript, we would

3 refer you to page 1963, that is cross-examination, lines 5 to 16.

4 For the sixth area, we would refer to yesterday's transcript, page

5 80, lines 14 to page 81, line 1; page 81, line 19 to page 82, line 6. In

6 that regard, we would refer to the statement from the other country dated

7 05.07.1994, 06.07.1994. This was been marked 3/154, and the copy in

8 English does not have page numbers, but as I count from the first page,

9 that would be page 8 where the witness indicates he wants to add a list of

10 other criminals.

11 As to the last area, the seventh area, we would refer you to

12 yesterday's transcript, page 84, line 9 to 10. In the Tadic transcript,

13 we would refer you to page 1941, lines 5 to 9; page 1944, lines 26 --

14 excuse me, lines 26 to page 1945, line 3.

15 Those are the specific references that we would give you, Your

16 Honour.

17 JUDGE RODRIGUES: [Interpretation] Thank you. The French

18 interpretation booth just told me about a slip made by Madam Hollis. I

19 don't know what to do about it because the interpreters are not a party to

20 this case. Thank you for reminding us of this mistake. Madam Hollis

21 should know whether she has misspoken or not.

22 However, so that the things be clear and for the record, I should

23 like to note that the decision of the Chamber was taken with the objective

24 to maintain the equilibrium and the equality of arms between the parties.

25 So in order to understand the decision, one has to bear in mind the

Page 6367

1 discussion which was -- the discussions, actually, which were conducted

2 during Status Conferences, in particular, Status Conference of the 6th and

3 the 14th of June this year.

4 We reached the decision as it is because the Prosecutor, Madam

5 Hollis, had suggested that, through a witness, confirmation be made of the

6 preliminary statement.

7 The Defence was in the situation where it had to conduct a

8 cross-examination on the only base of a written document. Let me also

9 remind you that, at the time, the Defence counsel of the accused Kvocka,

10 Prcac, Kos, and Zigic were opposed to that suggestion, with the exception

11 of accused Radic, because such a decision would violate the right of the

12 accused which are enshrined in Article 21(4) of the Statute of the

13 Tribunal; and also because such a decision would have been contrary to the

14 oral character of the hearings provided for in Rule 90 of the Rules of

15 Procedure and Evidence.

16 So the Chamber used a certain criterion in order to maintain the

17 equality of arms during this proceedings and in order to expediate the

18 proceedings because another solution could have also been used. You will

19 remember that there was a specific question which again arose yesterday,

20 and at the time the issue was brought up by the accused -- by the counsel

21 of the accused Radic, because there was a possibility of witnesses

22 bringing up something that was not brought up during the

23 examination-in-chief.

24 Once again, yesterday we had the opposition which was made by the

25 counsel for the accused Prcac because the document contained a mention of

Page 6368

1 the accused Prcac, but, however, during the examination-in-chief, the

2 accused Prcac was not mentioned by the Prosecutor. Whether it was

3 mentioned or not, it is not important, but I think that the name was again

4 mentioned in a response given to a question by a Judge. But be that as it

5 may, we managed to find a solution so that the equality of arms principle

6 could be maintained.

7 Madam Hollis, you were a party to all these discussions, and the

8 Chamber has rendered its ruling today because it did not want to endanger

9 or violate the criterion which was established in a previous decision.

10 The Prosecutor yesterday had an opportunity to conduct his

11 examination-in-chief and also a redirect examination, and that is why the

12 Chamber decided not to make an exception and to maintain the stability of

13 the established criterion, because as soon as we adopt a certain criterion

14 for the procedure, it has to be maintained unless there are certain

15 exceptional circumstances which would justify a modification of the

16 decision.

17 That is what I wanted to say for the record, and I wanted to make

18 things clear and mention the discussions which preceded the decision that

19 was rendered this morning.

20 Madam Hollis, I think we should now proceed with something else.

21 I think that we have a witness waiting.

22 MS. HOLLIS: Yes, Your Honour, and perhaps Your Honours could

23 indicate to us when they will inquire of the Defence about the

24 consolidated indictment. Will that be at the end of today or tomorrow?

25 Just so we have an idea about when that will happen. There was a

Page 6369

1 discussion at the end of the day yesterday about the motion for

2 consolidating the indictment and correcting certain dates.

3 JUDGE RODRIGUES: [Interpretation] Thank you, Madam Hollis, for

4 raising this matter. As you perhaps know, we already have the response of

5 the Defence counsel for Kos, Radic, Prcac, who agree, who have no

6 objection to the motion. We also have the response of the Kvocka Defence

7 counsel, who is opposed, who has objections and who has responded in

8 writing. And we have a promise on the part of the Zigic Defence that they

9 will respond by today. As far as I understand, that will be by the end of

10 the day.

11 So I thought we could discuss this matter tomorrow, perhaps before

12 we adjourn, because Mr. Krstan Simic has asked to have three minutes to

13 make an oral submission, and I think we need to grant him those three

14 minutes.

15 So I think the best opportunity would be tomorrow before we

16 adjourn for a certain period of recess.

17 Mr. Stojanovic, yes.

18 MR. STOJANOVIC: [Interpretation] Very briefly, just for

19 notification. As far as I am concerned, I'm ready to explain my objection

20 orally straight away should you make such a decision. And tomorrow, I

21 could also do that in writing. Whichever you prefer, Your Honour. Thank

22 you.

23 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Stojanovic. I think in

24 terms of the methodology of work, we have to know now whether you have

25 objections and what those objections are in general terms. Afterwards, we

Page 6370

1 can have a discussion tomorrow. But do not forget that we have to be

2 expeditious. In view of the request of Mr. Krstan Simic to have three

3 minutes, maybe you will have three minutes too. But perhaps it would be

4 best to hear what is the position of the Zigic Defence today so that we

5 can go on working.

6 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour. I think

7 I will need a little more than three minutes but not more than six.

8 The nature of my objection is such that it has to do exclusively

9 with the confidential part of the indictment. We feel it has been

10 expanded.

11 JUDGE RODRIGUES: [Interpretation] You have six minutes. You have

12 six minutes.

13 MR. STOJANOVIC: [Interpretation] Your Honour, I don't know whether

14 you will count all the time. In any event, I think we need some

15 protective measures because I'm going to talk about the confidential part

16 of the indictment which we object to. I need a closed session for that

17 purpose probably.

18 JUDGE RODRIGUES: [Interpretation] Yes. Let's go into private

19 session, please. I think that is sufficient for the discussion.

20 [Private session]

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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6 [Open session]

7 JUDGE RODRIGUES: [Interpretation] Ms. Hollis, you have learnt the

8 position of the Defence, so perhaps we need to work quickly. I don't know

9 whether you wish to respond in writing or if we shall just have an oral

10 debate about it.

11 The Chamber is going to make its ruling in writing because, after

12 all, we don't have the necessary time to decide. So we have already said

13 that the Chamber will render its decision in writing and you will receive

14 it.

15 Does the Prosecutor intend to respond in writing or will it be

16 sufficient to have an oral debate about it?

17 MS. HOLLIS: Your Honours, we have no preference on that.

18 Whatever Your Honours would prefer, we will do. So if you want it orally,

19 we will do it orally. If you want it in writing, we will do it in

20 writing.

21 JUDGE RODRIGUES: [Interpretation] Perhaps we'll find a little time

22 tomorrow. We have to find some time tomorrow, otherwise, the Chamber will

23 rule in writing. We have the positions of the parties, we have the

24 transcript, and we'll bear all that in mind.

25 Ms. Hollis, are we ready to call a witness now?

Page 6373

1 MS. HOLLIS: Yes, Your Honour.

2 JUDGE RODRIGUES: [Interpretation] Mr. Usher, could you please

3 bring in the witness.

4 MS. HOLLIS: And, Your Honour, Mr. Saxon will be leading the

5 direct examination.

6 JUDGE RODRIGUES: [Interpretation] Mr. Nikolic.

7 Just a moment please.

8 Mr. Nikolic.

9 MR. NIKOLIC: [Interpretation] Good morning, Your Honours. We

10 haven't heard the name of the witness that is being called, but we assume

11 it is Tariq Malik.

12 JUDGE RODRIGUES: [Interpretation] Yes, I think so.

13 MR. NIKOLIC: [Interpretation] In relation to this witness, the

14 Defence has an objection, and the objection is upheld by all the Defence

15 counsel. Will you give me a few minutes to explain, please?

16 JUDGE RODRIGUES: [Interpretation] How many minutes do you need,

17 Mr. Nikolic?

18 MR. NIKOLIC: [Interpretation] One, just one.

19 JUDGE RODRIGUES: [Interpretation] Just one? Go on, please. Fine.

20 MR. NIKOLIC: [Interpretation] Thank you.

21 We received today a summary of the examination-in-chief of

22 investigator Tariq Malik, and a problem has arisen in that connection.

23 The Defence previously received a summary of the expert reports

24 that will be referred to by witness Tariq Malik in reference to eight

25 victims covered by these forensic reports. However, this expert needs to

Page 6374

1 testify also about the death of another 33 persons, and we received those

2 documents -- the date on the document is the 29th of September. We have

3 only received it in English. There are two problems in that connection:

4 Seven days are required, and there is no B/C/S translation.

5 We wish to refer to the decision of the Trial Chamber of May this

6 year, and it is our submission that the same principle should apply as to

7 shortened version of witness statements, that is, that they have to be

8 translated into the B/C/S language. Therefore, our objection is that, in

9 respect to the evidence regarding the death of 33 persons, the

10 investigator cannot testify today about those 33 cases.

11 That is our submission and position.

12 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Nikolic.

13 Ms. Hollis?

14 MS. HOLLIS: Your Honour, I think we have a dispute as to what

15 constitutes a statement. The statement of the witness was translated into

16 the Bosnian language. The rules require that statements be translated

17 into the Bosnian language.

18 Regarding several of the named victims in the schedule, documents

19 have been prepared indicating additional evidence of proof of death. That

20 is documentary evidence that we will offer. In the Prosecutor's position,

21 that is not a statement, and documents do not have to be translated into

22 the language of the accused.

23 To hold that documents that are used in court must be translated

24 into the statement -- into the language of the accused is to expand the

25 rules and, in effect, to make the language of the accused the third

Page 6375

1 official language of the Tribunal. We don't believe that's required by

2 the rules. We think the rules do limit it to statements, and we would

3 oppose expanding it to all the documents we're going to use.

4 And again, I would remind -- I take that back, I will not remind

5 the Court. I would indicate again that one of the requirements for

6 counsel appearing before this Tribunal is that they are fluent in one of

7 the official languages of the Tribunal.

8 JUDGE WALD: Have the seven days gone by?

9 MS. HOLLIS: For documents, Your Honour?

10 JUDGE WALD: No, no, no, for the statement. For the statement.

11 MS. HOLLIS: The witness's statement was given more than seven

12 days ago.

13 JUDGE WALD: That's all I'm asking. Fine.

14 MS. HOLLIS: Now, Your Honour, in fairness, there was a summary

15 attached to these documents to indicate what the documents were. That was

16 not translated. Our position is it is a summary of what the documentary

17 evidence is and it's not a statement; and if need be, we will simply pull

18 that and not refer to it and not offer it to the Court. But we don't

19 believe that's a statement, and we don't believe we have a seven-day

20 requirement for documents.

21 JUDGE RIAD: And the seven days would be over tomorrow.

22 MS. HOLLIS: No, Your Honour. Well, 29 September, but when did

23 we -- excuse me, Your Honour. We gave it to them last Friday, so tomorrow

24 it would be over, yes, Your Honour.

25 JUDGE RODRIGUES: [Interpretation] Mr. Nikolic.

Page 6376

1 MR. NIKOLIC: [Interpretation] Apart from what I have said, all I

2 can add is that this is something that we would use for the

3 cross-examination of the investigator. In view of the position of

4 Ms. Hollis, that it need not be translated, we are unable to

5 cross-examine. We believe that, regardless of the arguments of

6 Ms. Hollis, that the situation is the same for summaries because it is

7 used in cross-examination. We found this in our lockers on the 30th. The

8 29th was a Friday, that was Friday evening.

9 JUDGE RODRIGUES: [Interpretation] The question that arises here --

10 there are two aspects to be considered: The question of seven days and the

11 question of translation. Ms. Hollis agreed that it would be possible not

12 to tender this document into evidence.

13 From the point of view of the Defence, can we hear the witness and

14 cross-examine him, or are we going to hear the examination-in-chief and

15 leave the cross-examination for another date? That is the only

16 possibility we have and the question we can ask.

17 But in any event, I wish to remind you what Ms. Hollis has just

18 said, which is true, that it is not without reason that at least one of

19 the Defence counsel should be fluent in one of the official languages of

20 the Tribunal. As you know, the B/C/S is not an official language.

21 So my question is, are you ready to cross-examine the witness,

22 bearing all this in mind, or are we going to have the examination-in-chief

23 and then examine the possibility of another date for the

24 cross-examination?

25 MR. NIKOLIC: [Interpretation] I haven't had time to consult with

Page 6377

1 my other colleagues in the Defence, but I think that we can only -- that

2 we would all agree that all we can engage in now is the

3 examination-in-chief, just the examination-in-chief.

4 JUDGE RODRIGUES: [Interpretation] I will confer with my

5 colleagues.

6 Ms. Hollis, do you have a suggestion to make?

7 MS. HOLLIS: No, Your Honour. I was simply going to say that the

8 Prosecution does object to that. As Judge Riad pointed out, they would

9 have received the documents on the seventh day tomorrow, even if you count

10 the 30th as the first day.

11 The thing I was talking about, the portion of this document I was

12 talking about not submitting was the first two pages which could, in some

13 -- giving great leeway to the definition of "statement" -- could be

14 considered a statement.

15 As to the other documents, it is our position they've had

16 sufficient time to review them. They must be prepared to deal with

17 documents in either English or French, so we would oppose delaying

18 cross-examination. They have had since, by their own statement, the 30th

19 of September to prepare for these.

20 JUDGE WALD: Can I ask you just additionally for my edification:

21 The documents, the documents they're talking about that have not been

22 translated into B/C/S but which they say they need for cross-examination,

23 how long have they had those documents in English or whatever the language

24 is, approximately?

25 MS. HOLLIS: They were placed in the lockers --

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Page 6379

1 JUDGE WALD: The documents.

2 MS. HOLLIS: Yes, Your Honour. They were placed in the lockers on

3 the evening of the 29th. According to Mr. Nikolic, they received them,

4 they actually picked them up out of their lockers on the 30th.

5 JUDGE WALD: That is not only the statements, but the documents.

6 MS. HOLLIS: Not only the summary but the documents, yes, Your

7 Honour.

8 [Trial Chamber confers]

9 JUDGE RODRIGUES: [Interpretation] Mr. Nikolic, I have a question

10 for you. For the cross-examination, would you prefer to do it today or

11 tomorrow? It is a purely technical matter.

12 You are right when you say that there is this requirement of seven

13 days, and that period will run out tomorrow. The question is whether the

14 Defence prefers to cross-examine only tomorrow or whether they will agree

15 to cross-examine today.

16 MR. NIKOLIC: [Interpretation] Your Honours, there was this problem

17 of language. This Defence team fully meets the requirement, as

18 Mr. O'Sullivan is fluent in English, of course, but it is not a question

19 of the Defence team; it is a question of the accused. It is his right for

20 the documents to be provided to him in his own language so that he may

21 prepare his defence.

22 With these documents, we were not able to consult with our client

23 and, therefore, whether we have a cross-examination today or tomorrow

24 means very little for this Defence team. But I hear that that applies to

25 all the Defence counsel as well.

Page 6380

1 JUDGE RODRIGUES: [Interpretation] So you are raising, in the first

2 place, the question of language, and for you it is the same thing whether

3 you cross-examine today or tomorrow. Is that correct?

4 MR. NIKOLIC: [Interpretation] Precisely so.

5 JUDGE RODRIGUES: [Interpretation] Very well. The Chamber will

6 make a decision.

7 [Trial Chamber deliberates]

8 JUDGE WALD: Before we make a break to make a decision, I just

9 want to ask you one question. Do you have something that you are relying

10 upon in Tribunal precedents or the fact that Rule 66(ii) about statements

11 and affidavits having to be in the language of the accused does not

12 include documents?

13 MS. HOLLIS: Your Honour, if you look elsewhere in the Rules --

14 JUDGE WALD: I will.

15 MS. HOLLIS: -- they talk about documents, and they don't say they

16 have to be translated. They specifically limit it to the words

17 "statements" and they include now affidavits. So those are specific

18 documents.

19 JUDGE WALD: Do you think -- I just want to get your argument

20 here. Do you think that that includes a sort of overview witness who is

21 sort of testifying not as an eyewitness but on the basis of underlying

22 documents?

23 MS. HOLLIS: Your Honour, I believe the statement of that witness

24 will still have to be translated, but as to any documents of any witness,

25 we believe that if they do not fall within the definition of "statements,"

Page 6381

1 or now "affidavits," or I guess we would extend that to formal statements

2 under Rule 94, then there is no requirement that they be translated, and

3 we certainly do not believe it is the right of the accused to have

4 provided to the accused every document in his or her language. We totally

5 disagree with that. We find no basis in the Rules for that. It doesn't

6 say that anywhere, and we don't believe the Statute says that.

7 JUDGE WALD: I understand that. Do you know whether or not

8 there's been any prior rulings of the Tribunal on this subject?

9 MS. HOLLIS: Your Honour, I can research that but I can't tell you

10 right now. I'm sorry.

11 JUDGE WALD: Okay.

12 JUDGE RODRIGUES: [Interpretation] Ms. Hollis, I also have a

13 question. If I understood well, the Defence counsel already have the

14 expert reports, and this investigator is going to guide us through those

15 reports, in a sense, present those reports. He's not an expert. We have

16 already agreed on that. But as he monitored all this work, instead of

17 calling each of these experts, he's going to provide a guided tour through

18 those reports. Do I understand correctly your purpose in calling this

19 investigator?

20 MS. HOLLIS: Your Honour, the reason that we submitted this

21 statement and asked that that be admitted rather than have him testify to

22 the contents is that the statement, for us, links what happened at these

23 different gravesites with the flow of the evidence taken from the

24 gravesites to the different specialists. So it is a linkage.

25 Also, he gives some further explanation as to the different

Page 6382

1 numbers and letters that were assigned, and he talks about how those

2 numbers and letters were placed with the remains and stayed with the

3 remains. That's in the written report that we submitted.

4 What the witness will testify to will be some highlights of that

5 that we believe would be of assistance but not to go over what the experts

6 have said and not to regurgitate the report, only a few highlights that we

7 believe would assist Your Honours.

8 In addition to that, the witness will discuss with Your Honours or

9 point out certain parts of a videotape that we want to offer into

10 evidence. That is a videotape of gravesites, and will point to areas

11 where we believe the witness can assist Your Honours in the significance

12 of those gravesites.

13 In addition to that, the witness will testify regarding additional

14 information the Prosecutor has regarding proof of death of a number of

15 persons who are named in the schedules, and it is these documents where we

16 have basically summarised the underlying documents; not his testimony, but

17 the underlying information that the Prosecutor has. It is these

18 documents, one document per each named victim, that the Defence is

19 objecting to. So those would be documents we will submit to you that he

20 will simply testify about the various sources of information, documents

21 that we relied on and which, had the Defence asked, would have been made

22 available to them for them to inspect.

23 So his testimony will not be, Your Honour, to walk through these

24 expert reports. It will focus just more on the highlights of the linkage,

25 the video of the gravesites, proof of death, and he will also answer a few

Page 6383

1 questions about the interview that he conducted with the accused Prcac.

2 So that would be the substance of his testimony, Your Honour.

3 JUDGE WALD: Could you just elaborate a little bit on one of those

4 items, the additional information on what I think Mr. Nikolic -- he used

5 the number 33. I don't know whether -- there is something about an

6 additional 33 persons. I don't know to what that refers, and basically

7 what I'm interested in is if he's going to give new information not in the

8 underlying -- not based upon the underlying expert reports but upon

9 something which is in those documents that wasn't in the underlying

10 reports. He's going to, in other words, summarise some information in

11 these underlying documents which they got last week but in English; is

12 that right?

13 MS. HOLLIS: Yes. And the underlying documents basically go

14 through basically four different sources of additional information

15 regarding these missing people, and it would be these summaries that we

16 would intend to offer into evidence. And again, Your Honour, we would

17 point out that Defence counsel would have been provided with copies of

18 whatever underlying information we had, had the request been made.

19 JUDGE RODRIGUES: [Interpretation] My other question, Ms. Hollis,

20 is as follows: The Defence is, in the final analysis, objecting and

21 having problems with this statement of the witness. I think that you

22 agreed not to tender that statement into evidence.

23 For your purposes, would it be sufficient to bear in mind the

24 expert reports which the Defence has had for a long time and only the

25 presence of the witness here, that is, his testimony here, and not to take

Page 6384

1 into account his statement?

2 MS. HOLLIS: Your Honour, first of all, the Prosecution's position

3 is that the packet of information to which the Defence objects, in our

4 view, consists of two categories. The first category is basically a

5 summary of what the following documents are; and the second category are

6 individual documents summarising information about proof of death for

7 some 30 named individuals who are named in the schedules.

8 The Prosecution's position is that if you were to take the word

9 "statement" and use it in a very, very broad way, then these first two

10 pages could possibly be considered to be a statement. So that the first

11 two pages, if Your Honours were to determine constituted a statement, we

12 could withdraw the first two pages.

13 Our understanding is that the Defence, however, also object to the

14 individual documents summarising information for each named victim. In

15 our view, these individual documents, some 30 documents summarising the

16 information regarding proof of death for these named victims, these

17 documents are not statements. So that we could -- we believe it would be

18 of assistance to Your Honours to have these documents, and we don't

19 believe they're statements. We could have the witness basically go

20 through the documents in his testimony and not put them into evidence,

21 But we think it would assist Your Honours to have the documents,

22 but I don't think that meets the Defence's objection because they consider

23 the documents -- they believe it's required to give everything to them in

24 a language the accused understands. We don't agree with that, and we

25 don't think the rules of the Statute require it. So I'm not sure taking

Page 6385

1 the summary off, it would satisfy their objection.

2 JUDGE RODRIGUES: [Interpretation] Another question, simply to have

3 a better idea. You have already referred to that, Ms. Hollis, partly, but

4 if you look at Rule 66, Ms. Hollis, you have paragraph (A) which says,

5 "Subject to the provisions," and so on, "the Prosecutor shall make

6 available to the Defence in a language which the accused understands."

7 That is the sort of preamble, and under that we have (i) and (ii) which

8 are covered by this preamble, this opening paragraph.

9 So why are you saying that you are not obliged to communicate

10 these documents in B/C/S?

11 MS. HOLLIS: All right, Your Honour. First of all, (A)(i) the

12 material that accompanied the indictment when confirmation was sought,

13 that material has been disclosed in B/C/S.

14 (A)(ii), "...copies of the statements of all witnesses...and

15 copies of all affidavits and formal statements referred to in Rule 94 ter,

16 copies of the statements of additional witnesses." It refers to

17 statements, affidavits, or formal statements under Rule 94 ter. It does

18 not say documentary evidence. If it is not a statement or an affidavit or

19 a formal statement, (A)(ii) does not require that it be in the language of

20 the accused.

21 And we have had, at least in the Blaskic case, some indication of

22 what may be defined as a statement. And in the Blaskic case, they

23 actually defined it more strictly than the Prosecution has defined it in

24 its disclosure. I believe in the Blaskic case they said if it is a

25 judicial or a quasi-judicial statement made by the witness, signed by the

Page 6386

1 witness, or otherwise adopted. We have in fact taken as statements

2 documents that the witness has adopted or signed as their own, so we have

3 broadened that definition. But there is a definition of statement; it

4 does not include documentary evidence as exhibits.

5 So our position is the plain language of (A)(ii) excludes what we

6 believe is the character of these documents we're seeking to tender and to

7 which the Defence is objecting, because these documents are not

8 statements, and we believe the rules do distinguish.

9 And we also believe very firmly that the accused has no right to

10 have every document provided to him in a language he understands. That's

11 the purpose of having counsel who understands one of the official

12 languages of the Tribunal. And if counsel are going to assure the

13 registry that they meet those requirements, then we suggest they have to

14 bring that assurance into the courtroom and act accordingly.

15 JUDGE RODRIGUES: [Interpretation] I see Mr. O'Sullivan on his

16 feet, but before that I saw Mr. Nikolic. Are you delegating your right to

17 Mr. O'Sullivan? Yes. So Mr. O'Sullivan, please.

18 MR. O'SULLIVAN: Perhaps I can respond to a question by Judge Wald

19 and whether there is case law to support the position. I submit there is.

20 I refer the Chamber to the Prosecutor versus Delalic, a decision

21 on Defence application for forwarding documents in the language of the

22 accused. That's case IT-96-21 pre-trial, a decision of December 25th,

23 1996, the bench composed of McDonald, Stephen, and Vohrah.

24 JUDGE RIAD: Just wait a second. The transcript doesn't record

25 anything. We want to see it on the transcript.

Page 6387

1 JUDGE RODRIGUES: [Interpretation] There seems to be a problem with

2 the transcript. We are not seeing anything on our monitors.

3 Yes. I think that we are ready to hear you now. Yes,

4 Mr. O'Sullivan, please.

5 MR. O'SULLIVAN: I'll begin again for the sake of the record.

6 I can draw Your Honours' attention to the case of the decision of

7 the Prosecutor versus Delalic, the decision on Defence application for

8 forwarding documents in the language of the accused. That's case IT-96-21

9 pre-trial, a decision from 25 September 1996, McDonald, Stephen, and

10 Vohrah.

11 Your Honours, we submit that that case stands for the following

12 proposition: Guarantees contained in Article 21(1) and 4(A) of the

13 statute require that all evidence submitted by either party must be made

14 available in one of the working languages and in the language of the

15 accused.

16 That clearly covers these 35 summaries that my learned friend says

17 she wishes to tender into evidence, and I submit the Prosecution cannot

18 get around that by having the witness discuss these orally and not attempt

19 to tender these documents into evidence. That's the first point.

20 JUDGE WALD: Is that a Trial Chamber? Is that a Trial Chamber

21 decision?

22 MR. O'SULLIVAN: Trial Chamber, pre-trial, yes.

23 JUDGE WALD: Okay.

24 MR. O'SULLIVAN: So we submit that the 35 summaries are to -- the

25 intention is to tender them into evidence, and they must be received in

Page 6388

1 one of the languages of the Tribunal and the language of the accused.

2 They have not been received in the language of the accused.

3 The second point, of course, is the statement of the witness which

4 has not been received in the language of the accused. Now, it's a matter

5 of case preparation. At some point, whether it comes from the Prosecution

6 or from the Defence, we submit that those documents must be translated so

7 that we have adequate time to prepare under the guarantees of the Statute,

8 and that's our position.

9 We're supported both by the Statute and case law, Your Honours.

10 MS. HOLLIS: Your Honour, could I make comment to the Celebici

11 cite?

12 JUDGE RODRIGUES: [Interpretation] Yes.

13 MS. HOLLIS: Your Honour, it's the position of the Prosecution

14 that that Trial Chamber decision was an erroneous decision, and we would

15 note, Your Honours, that that decision was made in 1996.

16 If you look at the 2 August 2000 Rules of Procedure and Evidence

17 that the Chambers have adopted, you will see that that rule has not been

18 incorporated into the rules. That is not the practice or the procedure of

19 the Tribunal. Even though that Trial Chamber made its ruling in that

20 case, the Chambers did not see fit to incorporate that ruling into the

21 present rules. The present rules do not require that. The present rules

22 are not consistent with that ruling. That is, in our opinion, because

23 that ruling was erroneous. It did go beyond the requirements of the

24 Statute and the existing rules.

25 So we believe that that is not a precedent that has value and that

Page 6389

1 has been adopted into the practice of this Tribunal.

2 MR. O'SULLIVAN: Very briefly, Your Honour.

3 JUDGE RODRIGUES: [Interpretation] Yes, Mr. O'Sullivan, please,

4 briefly. Otherwise, we will proceed tomorrow and we will reach the end of

5 the case.

6 MR. O'SULLIVAN: I'm not sure if I misspoke or whether I was

7 misunderstood, but the decision to which I referred relies on the Statute,

8 Article 21, and the Rules of Procedure must be consistent with the

9 Statute. The Statute is the governing document of the Tribunal, and the

10 rules cannot be ultra vires the Statute.

11 So in my submission, this is good law based on the founding

12 document of this Tribunal, the Statute, Article 21, which enshrines the

13 rights of the accused.

14 JUDGE RODRIGUES: [Interpretation] Mr. Jovan Simic.

15 MR. J. SIMIC: [Interpretation] Good morning, Your Honours.

16 It really wasn't my intention to stand up and to speak; however,

17 since we have already wasted a lot of time, I have to broach another

18 subject.

19 In paragraph 6 of today's summary, we were informed that the

20 investigator, Tariq Malik, would discuss the interview with Mr. Prcac. In

21 that respect, I talked to the Prosecutor, and I learned that the

22 Prosecutor intends to tender into evidence an excerpt from the interview

23 which was conducted with Mr. Prcac in writing, so that would be something

24 similar to a transcript, and to offer that piece of document as an

25 exhibit.

Page 6390

1 We still abide by the interview which was conducted with the

2 accused; however, we believe that the fact that such an exhibit is now

3 tendered into evidence is not acceptable. Such an exhibit can only

4 constitute a basis for a cross-examination. We indicated on a number of

5 times that the -- our accused would testify during our case and the

6 Prosecutor will have an opportunity to question Mr. Prcac and, at that

7 point, the Prosecutor will be able to use that excerpt for his

8 cross-examination.

9 Secondly, we do not have that transcript at the moment. The

10 interview was conducted in Serbo-Croatian, all the answers were provided

11 in Serbo-Croatian, and the Prosecutor told me that we would be provided

12 this transcript, and we would be given enough time to make representations

13 on that. However, it seems that the Prosecutor is faced with a number of

14 problems involving translation. We do not believe that it would be

15 advisable that an interview which was conducted in Serbo-Croatian now be

16 tendered into evidence in English.

17 So the position of the accused Mr. Prcac is the following: Such

18 an exhibit, the one that is listed in paragraph 6, cannot be tendered into

19 evidence, that is, the excerpt of the interview with Mr. Prcac, for the

20 reasons that we have mentioned a number of times here, that is, that the

21 transcript can only serve as a basis for impeachment of a witness.

22 Therefore, I believe that it is more advisable for me to state this at

23 this point and not to interrupt the testimony of the witness with such an

24 intervention.

25 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Jovan Simic.

Page 6391

1 Yes, it was indeed more advisable to be advised of that problem at this

2 point than later on during the testimony.

3 Madam Hollis, do you wish to respond to the objection raised by

4 Mr. Simic?

5 MS. HOLLIS: Your Honour, we believe that the practice in many

6 jurisdictions, including at the Tribunal, is that the Prosecution may

7 offer into evidence, may offer into evidence, records of interviews of

8 accused. It has been the practice in the past, it continues to be the

9 practice, and we believe that that is an acceptable practice.

10 We are not limited in the use of records of interview of accused

11 to only those instances where an accused testifies and we may

12 cross-examine them. We may use a record of interview that way, but we are

13 not limited that way.

14 The Defence, we would suggest, and the accused are put on notice

15 of this at the time of the interview, because if you look at Rule 63,

16 which sets forth the requirements for questioning of an accused, it

17 indicates that the procedure must be followed in accordance with Rule 43

18 and that, at the beginning of the questioning, the witness must be --

19 accused must be cautioned in accordance with Rule 42(A)(iii).

20 We look at Rule 42(A)(iii), and this is at page 30 of the Rules in

21 English: "The right to remain silent, and to be cautioned that any

22 statement the suspect makes shall be recorded and may be used in

23 evidence." That's as to whether we are allowed to use the transcript.

24 In June of this year, in order to provide the Defence and the

25 accused with some form of the interview, Defence counsel were provided

Page 6392

1 with all of the tapes of the interview. We have, since that time, been

2 attempting to transcribe those as we are required to do. We are

3 completing the final review of those transcriptions both in English and in

4 B/C/S. Those have not been provided to the Defence. He is correct.

5 Therefore, what we had explained to the Defence we were going to

6 attempt to do with this Chamber was to offer the transcript in English and

7 B/C/S into evidence, noting to Your Honours that Defence counsel and the

8 accused had not had adequate opportunity to compare the transcript with

9 the tapes, and, therefore, asking Your Honours to withhold ruling on

10 admission of this evidence until such time as Defence counsel had had the

11 opportunity to review the transcripts and compare them with the tape and

12 then to enter in writing to Your Honours whether they objected or did not

13 object to admission of the transcripts.

14 So we believe that that is a procedure which would allow us to

15 offer the document but would still allow the Defence and the accused

16 sufficient time to review it before having to enter an objection or to

17 indicate they have no objection.

18 JUDGE WALD: Do I understand that the only the thing the witness,

19 if allowed to refer to the interview with the accused Prcac, would just

20 authenticate -- I mean, attempt to authenticate the interview? He

21 wouldn't attempt to say, to interpret or do anything with the interview.

22 MS. HOLLIS: We were going to have the witness indicate that he

23 conducted the interview, that it was done in accordance with the Rules,

24 that it was videotaped, that transcripts have now been reviewed by persons

25 in the Office of the Prosecutor.

Page 6393

1 JUDGE WALD: But nothing on the content.

2 MS. HOLLIS: No, Your Honour. We did not intend to have him do

3 that. The record of interview will be before Your Honours for argument.

4 [Trial Chamber confers]

5 JUDGE RIAD: Just on a matter of principle, to avoid future

6 misunderstanding, and Mr. O'Sullivan was mentioning that Article 27 should

7 dominate the interpretation of everything. Of course, I cannot conclude

8 from Article 21 Statute that all documents should be translated in the

9 language of the accused since one of the Defence lawyers is required to

10 know the language of the Tribunal. So it will amount only to a question

11 of giving a fair amount of time for the Defence lawyer to explain to the

12 accused.

13 So I think the matter should be -- should boil down to this: In

14 all fairness, did you have enough time to explain it to the accused?

15 JUDGE RODRIGUES: [Interpretation] Mr. O'Sullivan, we are going now

16 to reopen this debate. I will first give the floor to Mr. Jovan Simic to

17 reply.

18 MR. J. SIMIC: [Interpretation] Thank you, Your Honour. First of

19 all, there is something that should not be disputed, and that is the fact

20 that the accused was interviewed, and we still abide by that interview.

21 We accept it, that interview as such. I don't see any reason why

22 Mr. Tariq Malik would contest the interview which is not contested by the

23 Defence.

24 As regards Rule 43, it says that the transcript should be made as

25 soon as possible. The request was made in the month of April by the

Page 6394

1 Defence. What I would like to suggest to the Chamber is the following: I

2 think Mr. Tariq Malik can authenticate the video recording, however, but

3 that the transcripts are not admitted at this point. We should first

4 review the transcripts, make an agreement with the Prosecution, and that

5 afterwards, if there are no objections, it can be tendered into evidence

6 by the Prosecutor.

7 We believe that the admission of a transcript which we have not

8 seen and which we haven't been able to comment upon can cause certain

9 adverse consequences to us. The document should be treated with an

10 adequate procedure. I think that we can agree with the Prosecutor within

11 reasonable amount of time to review the transcripts, and we can make an

12 oral agreement. If it is necessary, we can submit a written agreement to

13 the Chamber, but only after that procedure has been completed can the

14 transcripts be offered into evidence.

15 JUDGE RODRIGUES: [Interpretation] I think that Mr. O'Sullivan also

16 wanted to intervene once again, but I hope you're not going to engage in a

17 lengthy discussion of this issue. However, let us hear you,

18 Mr. O'Sullivan, once again.

19 MR. O'SULLIVAN: Well, Your Honour, I wish strictly to respond to

20 the question and observation made by Judge Riad.

21 Your Honour, the Delalic decision to which I referred earlier in

22 fact does make a distinction between different types of documents and

23 discovery. The decision -- the decision did hold, as I said, that all

24 documents which would be tendered into evidence had to be in the language

25 of the accused. The decision went further and said that all discovery did

Page 6395

1 not have to be translated into the language of the accused. That was the

2 distinction the Chamber made. In fact, the accused had sought an order

3 that even the trial transcript be translated into his language, and the

4 Chamber, based on Article 21 of the Statute, arrived at the compromise

5 position that only documents which would be tendered into evidence -- and

6 that's our situation here -- need be translated into the language of the

7 accused. That's the right, we submit, governs this particular matter so

8 that the accused can be made aware and his Defence can prepare

9 accordingly.

10 MS. HOLLIS: Your Honours, I beg your indulgence. I have before

11 me on the screen the order in the Celebici case. I would like to read to

12 you the pertinent portions.

13 JUDGE WALD: Is this the same order that he refers to --

14 MS. HOLLIS: Yes, Your Honour.

15 JUDGE WALD: -- December [sic] 25th? Okay. I just want to make

16 sure.

17 MS. HOLLIS: 1995, 25 September.

18 JUDGE WALD: I know, but he -- he went -- is it 25? It's the same

19 one. Okay.

20 THE INTERPRETER: Could you please read slowly for the benefit of

21 the interpreters. Thank you.

22 MS. HOLLIS: Hereby orders as follows:

23 "1. All items of evidence, including the material provided in

24 support of the indictment, shall be translated by the Registry" -- not the

25 Prosecution, by the Registry -- "into the language of the accused.

Page 6396

1

2

3

4

5

6

7

8

9

10

11

12

13 Blank page inserted to ensure pagination corresponds between the English

14 and French transcripts.

15

16

17

18

19

20

21

22

23

24

25

Page 6397

1 "2. Discovery of documents shall be made in the language in which

2 the document, the item, was originally obtained if that is the language of

3 the accused or in one of the working languages of the International

4 Tribunal, and any translation desired shall be the responsibility of the

5 party requesting it."

6 Not the party providing it, the party requesting it.

7 We believe those are the two relevant sections, and we do believe

8 that that's a somewhat different language than has been argued before the

9 Court.

10 JUDGE WALD: Well, I don't have the decision in front of me, but

11 it sounds as though what you just read about the party wanting the

12 translation being responsible for getting it applies only to the

13 discovery. Is that wrong? Is that -- I don't have it in front of me.

14 MS. HOLLIS: Well, Your Honour, it does, and we are talking about

15 what they're given ahead of time. This evidence is not -- these documents

16 are not in evidence yet. It was disclosed to them.

17 JUDGE WALD: Your interpretation of that would be that if you want

18 to put an item into evidence, if you want to put an item into evidence of

19 the Celebici decision, you, the Prosecutor, don't have to translate it,

20 but how can the Defence cross-examine on it? They can't wait for the

21 Registry three weeks from now, can they?

22 MS. HOLLIS: Your Honour, I think, first of all, you'd have to ask

23 the Trial Chamber that, but that is the language of the Trial Chamber;

24 secondly, I believe that the language would really be consistent with the

25 argument we're making. They have to be able to deal with one of the

Page 6398

1 official languages of the Tribunal, and, ultimately, if they're not able

2 to do that, then the Trial Chamber has to determine how much more time

3 they need. But when they are put on these cases, they indicate they're

4 able to deal with one of the languages of the Tribunal.

5 But that decision, we believe, does not say what Defence counsel

6 has said it does say. But again, our position on the decision is that it

7 is erroneous, that not all the evidence does have to be provided in the

8 language of the accused, either by the Registry or by the Prosecution.

9 JUDGE WALD: All right. Last question, and I asked it before but

10 I need to try to nail it down. Are you telling me that, in your

11 experience in the Tribunal after this decision, other cases, other

12 Tribunals are not requiring evidence tendered into admission -- tendered

13 for admission be in the language of the accused?

14 MS. HOLLIS: That's what I'm telling you, Your Honour. If it's

15 not a statement, if it doesn't fall within (A)(ii), it's not required to

16 be in the language of the accused.

17 When we can, we attempt, as a matter of courtesy, to provide

18 translations if we already have them, but to create them simply for the

19 accused, then our position is and our understanding is that is not the

20 practice of the Tribunal in other cases.

21 JUDGE RODRIGUES: [Interpretation] I have only one question, Madam

22 Hollis. This motion that you addressed to the Chamber was discussed --

23 was it discussed beforehand with the Defence?

24 MS. HOLLIS: Your Honour, I'm sorry. Which motion are you talking

25 about? I apologise.

Page 6399

1 JUDGE RODRIGUES: [Interpretation] Motion or, rather, request to

2 have admitted into evidence the statements by Tariq Malik. I think there

3 has been a misunderstanding. You told us in writing that the Defence was

4 agreeable to that and then later on it turned out that the Defence did

5 not -- I'm sorry. I withdraw the question. It was my mistake.

6 The Chamber is going to make a ruling. It is a good time for a

7 break, but I don't think we can come back before quarter to twelve. So we

8 will have our usual half-hour break, and because we have to discuss this

9 issue, we cannot come back before quarter to twelve.

10 --- Recess taken at 11.08 a.m.

11 --- On resuming at 12.32 p.m.

12 JUDGE RODRIGUES: [Interpretation] Please be seated.

13 Madam Registrar, I should like to have, for the record,

14 confirmation regarding the language of the accused, please.

15 THE REGISTRAR: Yes, Your Honour. I would like to confirm to the

16 Chamber that all the Defence counsel teams for the accused understands and

17 speaks English.

18 For the Defence counsel for Mr. Kvocka, Mr. Lukic, the co-counsel,

19 speaks English.

20 For the team of Defence counsel for Mr. Kos, Mr. O'Sullivan speaks

21 both English and French.

22 Mr. Fila speaks French.

23 Mr. Jovanovic speaks English.

24 Mr. Masic speaks English and as well as Mr. Jovan Simic.

25 Mr. Stojanovic, the Defence counsel for Zigic, also speaks

Page 6400

1 English.

2 JUDGE RODRIGUES: [Interpretation] Thank you very much, Madam

3 Registrar.

4 We're going to render our decision, and I'm going to speak slowly

5 for the benefit of the interpreters.

6 Rule 66 of the Rules of Procedure and Evidence does not require

7 that documents attached to the statement of Mr. Tariq Malik in the motion

8 of the Prosecutor filed on the 29th of September should be translated into

9 a language which the accused understand. The Chamber, however, must make

10 sure that the process is fair, and that the rights of the Defence are

11 respected.

12 In this connection, the Chamber notes that in each of the Defence

13 teams, at least one of the Defence counsel understands and reads English.

14 Furthermore, the Chamber underlines that the documents in question are

15 simple to read and understand, and if necessary, it is easy to explain

16 them to the accused. Some of them are, in addition, in the B/C/S

17 language. Others are photographs, tables, or graphic presentations. It

18 would not be any excessive burden for the Defence due to the fact that the

19 documents in question have not been translated into B/C/S.

20 The Chamber, therefore, admits the documents and states that the

21 cross-examination of the witness Tariq Malik will take place tomorrow, 6

22 October 2000.

23 Regarding the interview with the accused Prcac by the Office of

24 the Prosecutor, witness Tariq Malik will be able to authenticate the

25 videotape of that interview, and that tape can be entered into evidence as

Page 6401

1 an exhibit.

2 The Prcac Defence will be able to convey their observations

3 regarding the transcript of the interview once it has had the opportunity

4 to compare the English and B/C/S versions. The Chamber will subsequently

5 rule regarding the actual admission into evidence of the same.

6 JUDGE WALD: Let me just make a correction on the English

7 translation here.

8 I believe, after consulting with our Presiding Officer, that

9 7.12.48.19 should read, "And that tape can be offered into evidence as an

10 exhibit," not "entered," because the actual admission into evidence will

11 come, as even Ms. Hollis suggested, after the transcripts have been

12 compared and Defence counsel has had a chance to make its objections.

13 JUDGE RODRIGUES: [Interpretation] So that is the decision, and so

14 we now can begin with the examination-in-chief of witness Tariq Malik.

15 Ms. Hollis, are you ready?

16 MS. HOLLIS: Yes, Your Honour, and Mr. Saxon will lead the

17 witness.

18 JUDGE RODRIGUES: [Interpretation] Mr. Usher, will you please bring

19 the witness into the courtroom.

20 MS. HOLLIS: Your Honours, while the witness is coming in, I

21 believe the Prosecution, to ensure that the record is accurate, needs to

22 clarify the documents that were, in our understanding, the subject of the

23 earlier discussion.

24 [The witness entered court]

25 MS. HOLLIS: I believe that Your Honours have ruled regarding

Page 6402

1 documents that were attached to the statement which was filed. The

2 documents I believe that were in question this morning have not been

3 filed. They are documents that have been disclosed to the Defence. So in

4 fairness to the Defence, I believe that we need to note for the record

5 that the documents in question this morning have not been filed; the

6 documents are not before Your Honours.

7 So perhaps there was a miscommunication when we were arguing this

8 issue earlier, but there are separate sets of documents, and the documents

9 in dispute this morning were not documents which had been filed with the

10 Court. They were documents disclosed to the Defence on the 29th of

11 September, received by at least some of the Defence on the 30th. And in

12 light of our duty of candour to the Tribunal, I want to be sure that that

13 is clear to Your Honours.

14 JUDGE WALD: It's not clear. It hasn't been clear.

15 MS. HOLLIS: Obviously was not, Your Honour.

16 JUDGE WALD: We don't even know what those documents are.

17 MS. HOLLIS: No, Your Honour. You know the category because we

18 have discussed them this morning: They were the proof of death by

19 inquiry. But, no, Your Honours have not been given these documents.

20 The documents that were associated with the statement that was

21 submitted were documents that were relevant to the exhumations themselves,

22 not additional information regarding proof of death.

23 JUDGE RODRIGUES: [Interpretation] Regarding this matter, it is the

24 opinion of the Chamber that the way to proceed is for the witness and the

25 Prosecutor to use these documents. As I said, the Chamber doesn't have

Page 6403

1 the documents and is not familiar with their substance, so we need to see

2 the documents.

3 The Prosecutor is going to use those documents in the

4 examination-in-chief of the witness. The Chamber will evaluate at the end

5 whether they will admit them or not. But to be quite clear and frank with

6 the parties, it should be said that if we decide not to admit those

7 documents, we are not going to consider the relevant sections as evidence,

8 as proof. The relevant parts of that testimony will not be taken into

9 consideration as evidence.

10 I think that Ms. Hollis wants some clarification.

11 MS. HOLLIS: No, Your Honour. I would simply say, Your Honour,

12 that we cannot risk having what we believe is relevant evidence end up not

13 being admissible should Your Honours determine that the documents don't

14 come in and you won't accept testimony from this witness based on the

15 documents. We have explained why we think that is permissible, even if

16 the documents do not come in.

17 However, given what Your Honours have just indicated, we are in a

18 very difficult situation because the witness is not prepared to go forward

19 without relying on these documents about the evidence, but we need to

20 elicit that evidence from the witness. So now we're in a position of

21 either having to forgo what we believe is relevant evidence or to put it

22 on with the risk that it will later not be considered.

23 So the witness is not prepared to fully testify today given --

24 within the parameters of the ruling you just made. And it's a difficult

25 position for us. It's certainly a difficult position for you, but that

Page 6404

1 really is the reality of it.

2 There are other things the witness can testify about it, but when

3 it comes to proof of death, if he must testify totally on his own without

4 recourse to these documents, he's not prepared today to do that.

5 JUDGE WALD: Would it not be possible for the witness today to

6 testify to anything that doesn't involve the documents in dispute, we get

7 the documents in dispute tonight, make our decision, and certainly this

8 witness, I assume, would be available in the morning to continue with that

9 portion which we will make a decision on.

10 MS. HOLLIS: Yes, Your Honour. If we would be permitted to

11 proceed that way, we would be able to do that.

12 The problem, of course, that we face is that tomorrow is the last

13 day that has been given to us. Throughout the last two sessions, much of

14 the time that we were supposed to be allowed to have witnesses testify has

15 been taken up with other matters.

16 So we find ourselves with two witnesses, and we find ourselves

17 spending all of today until 1.00 on matters that don't involve our witness

18 testimony. And our estimates were the amount of time it takes for our

19 witness to testify, so we may very well end up tomorrow being unable to

20 call our last witness who we believe is very relevant, not because we have

21 not for the last several sessions adhered to our schedule, but because

22 other matters have prevented us from going forward with testimony during

23 the time allowed. So that is the situation we find ourselves in.

24 Now, we will, if we are forced to do so, of course, not call our

25 last witness. We believe we have a right to do that, but we believe that

Page 6405

1 if we had to choose, we would go forward with Mr. Malik. If that means

2 waiting for part of his direct until tomorrow, we will do that. But I

3 want Your Honours to appreciate the position we find ourselves in, and not

4 through what we believe has been dilatory action on our part.

5 So I just wanted to make that clear to Your Honours.

6 JUDGE RODRIGUES: [Interpretation] Yes, Madam Hollis, I do believe

7 that we should try and do our best to finish tomorrow; however, we are

8 available. We are mindful of this time problem.

9 Please, will you follow our guidelines, and tomorrow we will

10 continue, if necessary, with witness Tariq Malik, and after that, if

11 necessary, we will perhaps go on a little further. We will see.

12 Will you now please proceed with the witness.

13 Good afternoon, Mr. Tariq Malik. Could you now please read the

14 solemn declaration that the usher is giving you.

15 THE WITNESS: I solemnly declare that I will speak the truth, the

16 whole truth, and nothing but the truth.

17 WITNESS: TARIQ MALIK

18 JUDGE RODRIGUES: [Interpretation] Thank you. You may be seated

19 now.

20 You probably are familiar with the procedure. You will first be

21 answering questions that will be put to you by Mr. Saxon.

22 Mr. Saxon, you have the floor.

23 MR. SAXON: Thank you, Your Honour.

24 Examined by Mr. Saxon:

25 Q. Sir, will you please state your full name and spell your last

Page 6406

1 name, please.

2 A. My name is Tariq Nawaz Malik. Last name is spelled M-a-l-i-k.

3 Q. When were and where were you born?

4 A. In Pakistan on 1st of August, 1961.

5 Q. Would you inform the Trial Chamber of your professional

6 background, please.

7 A. I'm a police officer and a member of the police service of

8 Pakistan.

9 Q. When were you recruited into the Pakistani police service?

10 A. I was recruited in the federal police service of Pakistan in 1992.

11 Q. And at what level were you recruited at when you joined the

12 Pakistani police service?

13 A. As assistant superintendent of police.

14 Q. Mr. Malik, what specialised training did you receive when you were

15 recruited as an assistant superintendent of police in Pakistan?

16 A. Excuse me. I and others who joined with me received training at

17 the national police academy in law, criminology, administration, weapons

18 handling, investigations, et cetera.

19 Q. And as an assistant superintendent, what were your duties?

20 A. As an assistant superintendent, I was head of the police in my

21 area of responsibility which was known as the police subdivision. The

22 police subdivision comprised of two or more police stations. I oversaw

23 the routine police work on a day-to-day basis. I was responsible for

24 conducting investigations of all important cases and of supervising

25 investigations into other minor offences.

Page 6407

1 Q. And as part of your work in Pakistan, did you ever conduct

2 homicide investigations, including those involving exhumation of a dead

3 body or bodies?

4 A. I did.

5 Q. Mr. Malik, what was your rank in the Pakistan federal police at

6 the time of your joining the ICTY?

7 A. I was superintendent of police.

8 Q. When, if ever, have you worked in Bosnia and Herzegovina?

9 A. I was a member of the international police task force, which is a

10 part of the United Nations mission in Bosnia and Herzegovina, for one year

11 and three months in 1997 and 1998.

12 Q. Are you able to speak and understand the Bosnian language?

13 A. I can communicate with Bosnian and Serbo-Croat speakers without

14 the assistance of a translator, but I use a translator for all complex and

15 in-depth conversations.

16 Q. When did you commence employment with the Office of the

17 Prosecutor?

18 A. In September 1998.

19 Q. And what is your role or function within the Office of the

20 Prosecutor?

21 A. I am an investigator working with the group of investigators who

22 are investigating the events that took place in the Prijedor area.

23 Q. And would those events include events concerning the Trnopolje,

24 Keraterm, and Omarska camps?

25 A. That is correct. Our area of responsibility includes these three

Page 6408

1 camps in Prijedor area.

2 Q. Mr. Malik, in anticipation of your testimony today, have you

3 prepared a written statement?

4 A. I have.

5 MR. SAXON: Your Honour, I've prepared copies of what's been

6 marked as Prosecution Exhibit 3/155A, and if I can ask the usher to place

7 the original copy by Mr. Malik, and I have copies for the Judges and for

8 the Defence. I will note for the record this is the same statement that

9 has been provided previously to the Trial Chamber, only now it bears a

10 signature and a date. 3/55A would be the English version and 3/55B would

11 be the B/C/S version. 3/115. I misspoke.

12 Q. Mr. Malik, do you recognise this document?

13 A. I do.

14 Q. What is it?

15 A. This is the statement that I prepared in connection with my

16 testimony.

17 Q. And are those your initials on the bottom of the first page in the

18 right-hand corner?

19 A. Yes, they are my initials.

20 Q. Are your initials contained on each page of that statement?

21 A. They are.

22 Q. Could you turn to page 13, please, of the English version. Is

23 that your signature and date which appears beneath the Witness

24 Acknowledgement?

25 A. Yes, it is.

Page 6409

1 Q. Thank you.

2 MR. SAXON: If that document can now be removed, please.

3 Q. Mr. Malik, are you aware that the Prosecution has submitted a

4 schedule of additional particulars for each of the accused in this case

5 and that each schedule of additional particulars contains the names of

6 persons who allegedly died at the Omarska and Keraterm camps?

7 A. I am aware that such schedules were prepared and submitted.

8 Q. Now, apart from the forensic evidence collected by the Office of

9 the Prosecution in this case, did you participate in the collection of

10 other kinds of evidence pertaining to the fate of the Omarska and Keraterm

11 detainees who purportedly died at one of these two camps?

12 A. Yes. I and other colleagues on my team were asked to obtain

13 documentary and other information which would help establish whether the

14 persons listed in these schedules were indeed dead or not.

15 Q. I'd like to ask you some questions about the kinds of

16 investigative activities that were performed in order to gather evidence

17 relating to proof of death of the detainees.

18 Perhaps first, have you determined if any victims listed as dead

19 or killed in the schedules of particulars have been identified using DNA

20 analysis or other means among the remains exhumed from graves in

21 northwestern Bosnia?

22 A. Yes, there are such prisoners who have been identified, either

23 through DNA testing or by other means.

24 Q. And to your knowledge, has anyone listed as dead or murdered or

25 killed on the schedules of particulars submitted by the Prosecution been

Page 6410

1 identified through DNA analysis?

2 A. A man named Miroslav Solaja, who was reported as being detained,

3 as having been detained and killed at Omarska camp was exhumed from one of

4 the sites in Prijedor area, and his remains were identified using DNA

5 analysis as being that particular victim.

6 MR. SAXON: With the Court's indulgence, Your Honour.

7 [Prosecution counsel confer]

8 MR. SAXON:

9 Q. I'd like you to turn your mind, please, to the work of yourself

10 and your investigation team involved in the location and exhumation of

11 gravesites in Northern Bosnia where the bodies of former detainees in the

12 Omarska camp were believed to be buried.

13 What are the names and locations of these sites and when were they

14 exhumed?

15 A. Four sites have been identified in Prijedor area where it is

16 believed that prisoners detained in Keraterm or Omarska camp were buried.

17 The first site, known as Jama Rastova Glavoca [phoen], was exhumed near

18 Podunavac village in Sanski Most area in December 1998. In May and June

19 1999, a mass gravesite was exhumed in Kevljani, which is about

20 5 kilometres from Omarska camp. Earlier this year, a gravesite in

21 Prijedor area, known as Pasinac, was exhumed. And lastly, in June 2000, a

22 site known as Jama Lisac was identified and exhumed near Bosanski Krupa.

23 Q. As part of your work with the Office of the Prosecutor, have you

24 visited the Kevljani and Jama Lisac mass gravesites?

25 A. I have.

Page 6411

1 Q. Let's just focus on those two sites, if we may, Kevljani and Jama

2 Lisac.

3 MR. SAXON: We have a map that we would like to show to the

4 Chamber, which has been marked as Prosecution Exhibit 3/157, which I'd

5 like to distribute, please. Just for the record, Your Honour, I have

6 skipped over the number 3/156 which would have been the documents that we

7 have been discussing at great length today. I've skipped over that number

8 for now.

9 Q. Mr. Malik, if you could, could you explain to the Trial Chamber

10 the relative positions of Prijedor, the Omarska camp, Kevljani, and Donji

11 Dubovik on that map, please. Use the pointer that's next to you, if you

12 would, please.

13 A. Before I do that, I would request that the camera be zoomed out so

14 a larger portion of the map can be shown at the same time.

15 JUDGE RODRIGUES: [Interpretation] I would like to ask the

16 technical booth, if possible, to give us a view of the whole map, if

17 possible, to begin with, the whole map.

18 MR. SAXON: Your Honour, I'm not sure if that is technically

19 possible because the width of the map is greater than the width of the

20 ELMO.

21 JUDGE RODRIGUES: [Interpretation] Perhaps you're right. But at

22 least take into consideration what the witness has asked, and that is to

23 have a broader view of this area, as far as that is possible, of course,

24 from the technical standpoint.

25 A. Okay. The whole --

Page 6412

1 JUDGE RODRIGUES: [Interpretation] Please proceed.

2 A. Thank you. The whole map cannot be seen at the same time, but I

3 can move it so all the areas are eventually on the screen.

4 This is Prijedor, and to the southeast is Omarska. This is the

5 Omarska village, and the camp was located 2 kilometres south of Omarska

6 village.

7 This here is Kevljani, where one of the mass gravesites was

8 located. This is approximately 5 to 6 kilometres from the camp.

9 Immediately south of Prijedor is -- immediately south of Prijedor

10 is Sanski Most, and the distance is approximately 30 kilometres, to give

11 you some idea of the scale.

12 Southwest of Prijedor is Donji Dubovik which is a village

13 approximately 15 kilometres east of Bosanski Krupa, which is another major

14 town. So Donji Dubovik is one of the places where a mass grave was

15 located, and Kevljani is another.

16 Q. Can you give the name of the mass grave that was located in the

17 Donji Dubovik area, please?

18 A. It's a cave and it is known as Jama Lisac site, "Jama" meaning

19 "cave."

20 MR. SAXON: Thank you. If that map could be removed now.

21 Q. Mr. Malik, have you read the reports submitted by experts utilised

22 by the Office of the Prosecutor with respect to the gravesites at Kevljani

23 and Jama Lisac, and are you familiar with their contents?

24 A. I have read them and I'm familiar with their contents.

25 Q. What kinds of evidence were removed from these two sites?

Page 6413

1 A. The evidence included complete or nearly complete bodies, human

2 body parts, clothing, shell cases, sometimes ligature, identity documents,

3 bank cards, et cetera, et cetera.

4 Q. What function, if any, did you perform with respect to evidence

5 found at the gravesites at Kevljani and Jama Lisac?

6 A. Kevljani was a site that was exhumed by the ICTY exhumation team.

7 My job was to receive and log all evidence and connected documentation

8 when it arrived at The Hague.

9 Q. What about Jama Lisac?

10 A. Jama Lisac was a site that was exhumed by the Bosnian State

11 Commission for missing persons, or rather, the Bosnian State Commission

12 for tracing missing persons. I helped the Bosnian authorities locate the

13 grave and then monitored, monitored through on-the-spot presence, the

14 recovery of bodies from that site.

15 Q. And in the course of your work, did you become familiar with the

16 procedures followed at the Kevljani and Jama Lisac exhumation sites in

17 order to maintain a valid chain of custody of the evidence located at

18 those sites?

19 A. Yes, I did.

20 Q. Would you describe the general procedures followed at both the

21 Kevljani and Jama Lisac sites in order to maintain the order and integrity

22 of the evidence?

23 A. After a particular piece of evidence has been spotted or exposed,

24 it is photographed in situ with a given serial number that is unique to

25 that particular item. An entry is made in the records as to the time and

Page 6414

1

2

3

4

5

6

7

8

9

10

11

12

13 Blank page inserted to ensure pagination corresponds between the English

14 and French transcripts.

15

16

17

18

19

20

21

22

23

24

25

Page 6415

1 place where this item has been found.

2 Subsequently, in the case of Kevljani, the artifact or the

3 evidence found would be kept in the custody of the scene-of-crime officer;

4 and in the case of Jama Lisac, this function was performed by the crime

5 technical staff from Una Sana Canton, Bihac.

6 Q. And how would material be transferred or handed from one person to

7 another?

8 A. Once the evidence had been logged and given in the possession of

9 the scene-of-crime officer or the technical crime staff, it would only be

10 handed over from one person to another in writing and under signature.

11 Q. Were the same chain of custody procedures followed for artifacts

12 such as bullets, personal documents, and jewellery as were used for human

13 remains found in the graves?

14 A. In respect of whether the evidence was human remains or artifacts,

15 the chain of custody procedures were the same.

16 Q. Now, with respect to the Kevljani site, can you describe the

17 physical location of that mass grave?

18 A. The Kevljani gravesite was located in a meadow immediately next to

19 the destroyed mosque in the village.

20 MR. SAXON: Your Honour, at this time, we would like to show a

21 video that I believe Mr. Malik has brought with him. Perhaps if this

22 videotape could be marked as Prosecution Exhibit 3/158. Copies of this

23 tape have previously been provided to the Defence, Your Honour.

24 I think if I could -- someone could hand the videotape to the

25 registrar so it could be marked. Thank you.

Page 6416

1 Q. Mr. Malik, I'd ask you to begin playing the tape, and if you

2 could, describe the scenes visible regarding the Kevljani site, and then

3 stop at the end of those scenes, please.

4 [Videotape played]

5 A. The video is being played, but I cannot see it on my screen.

6 Okay.

7 What you're seeing now is the destroyed minaret of the mosque in

8 the Kevljani village, and the gentleman on the screen is Richard Wright.

9 He was the chief forensic archaeologist.

10 What you're looking, what you're looking at just now before the

11 video disappeared was a shot of a trench. It was a shot of the trench

12 that, that was uncovered by the exhumation team and determined -- and it

13 was their opinion that this was an area that had been robbed previously

14 before the exhumation had commenced. What they meant by that was that

15 bodies had been removed from here and taken elsewhere.

16 And you can see the various areas. For example, in the immediate

17 foreground, this would have been grave number one, but the exhumation team

18 found that all bodies had been removed and nothing had been left behind in

19 this particular grave.

20 MR. SAXON:

21 Q. Can we move forward a little bit, please.

22 A. You're now looking at grave number 24, which is another completely

23 robbed grave.

24 Q. What are we seeing here?

25 A. These are members of the exhumation team, working towards the end

Page 6417

1 of the trench. I believe no bodies were found here. The bodies that were

2 found were -- are immediately to the right of the screen. Those graves

3 have already been exhumed and covered over.

4 What you're now looking at is the place where the scene-of-crime

5 officer would usually sit. It was his job to allocate a new serial number

6 to each piece of evidence as it was uncovered, and also to keep

7 possession --

8 Q. Stop the tape now.

9 A. Yes. To keep possession of any articles that had been recovered.

10 Q. Mr. Malik, how was evidence located, numbered, and removed at the

11 Kevljani mass gravesite?

12 A. As soon as the evidence had been uncovered, the scene-of-crime

13 officer allocated a unique serial number to that evidence which then

14 stayed with that item throughout the transaction, throughout the

15 subsequent transactions, regardless of where the item was taken.

16 It was logged in a register that was maintained by the

17 scene-of-crime officer. In the case of human remains, they were

18 immediately shifted to a refrigerated trailer; and in the case of physical

19 evidence, artifacts, they were kept by the scene-of-crime officer

20 himself.

21 Subsequently, these -- this evidence was shifted to Visoko

22 mortuary.

23 MR. SAXON: Mr. Usher, if you could help me again. I have a

24 photograph which has been marked as Prosecutor Exhibit 3/159. If copies

25 could be distributed and one copy placed on the ELMO, please.

Page 6418

1 Maybe now if the audio-visual people could help us focus in a

2 little closer. Right there, perhaps.

3 Q. Mr. Malik, what does this photograph show?

4 Let's wait a minute because the other copies have not been

5 distributed.

6 What does this photograph show?

7 A. This is the photograph of a body that was found in Kevljani mass

8 grave.

9 Q. Approximately when was the photograph taken?

10 A. In summer of 1999.

11 Q. Now, there are some numbers that are placed next to that body.

12 Can you explain what the numbers next to the body mean?

13 A. Yes. KV, KV refers to the fact that this body was found at the

14 Kevljani site; 14 represents the 14th subgrave within this larger Kevljani

15 mass gravesite; and the number 4 shows that this body was the fourth item

16 found within this 14th grave.

17 Q. Now, Mr. Malik, you mentioned that after bodies were removed from

18 the Kevljani site, they were taken to the Visoko mortuary. What was done

19 with those bodies at Visoko?

20 A. A team of pathologists, led by Dr. John Clark, performed autopsies

21 on the remains exhumed from Kevljani.

22 Q. And was there a numbering system used to refer to bodies at the

23 mortuary?

24 A. Yes.

25 Q. Can you explain that system?

Page 6419

1 A. The same numbering system that was used at the Kevljani site

2 itself was maintained and used in the morgue. Therefore, when this

3 skeleton was taken to the Visoko mortuary, it had the same number, and it

4 was referred to as such, KV14 004.

5 Q. So then, for instance, how would an autopsy report prepared by the

6 personnel at Visoko regarding the examination of a body from Kevljani

7 refer to the body that was examined?

8 A. It would have the title KV14 004.

9 Q. That's if we're talking about the autopsy report for this body?

10 A. Yes. For this particular body, the autopsy report would show the

11 title KV14 004.

12 MR. SAXON: Mr. Usher, if you could remove that photograph,

13 please, and if a copy of this photograph which I have marked as

14 Prosecution 3/160 could be placed there and distributed as well. Thank

15 you.

16 Q. Mr. Malik, what does this photograph show?

17 A. This photograph shows the same skeleton that we saw in the

18 previous photograph. This is a body recovered from Kevljani. The body

19 number is KV14 004B.

20 Q. And approximately -- let me start again. The number -- the letter

21 "B" that is in that serial number, what does the "B" stand for?

22 A. The annotation "B" shows that this particular piece of evidence,

23 that is, the fourth item in the 14th grave in Kevljani, was a body or a

24 complete or nearly complete body.

25 Q. And approximately when and where was this photograph taken?

Page 6420

1 A. This was taken in Visoko mortuary itself, and there is a date in

2 the left-hand corner. It shows it was taken on 28th of June, 1999.

3 Q. And again, what do the numbers mean next to that body and where do

4 they originate?

5 A. The numbers KV14 004B show that this body was found in the

6 Kevljani site. "KV" refers to Kevljani. Number 14 shows that this body

7 was found within the 14th subgrave in that larger mass gravesite. 004

8 shows that this was the fourth item in the 14th subgrave, and the

9 annotation "B" shows that this was a complete or nearly complete body as

10 opposed to a body part or an artefact.

11 Q. And who would place the letter "B" on the unique designation for

12 that body?

13 A. It was the job of the pathology team ultimately to determine what

14 constituted a body or a body part.

15 Q. Mr. Malik, are you familiar with inquiries that were made with

16 respect to the identity of the body KV14 004B?

17 A. I am.

18 Q. Can you explain that, please?

19 A. After the autopsies at Visoko, the bodies were returned to the

20 Bosnian authorities. They displayed these remains and the associated

21 clothing in Sanski Most.

22 Sometime this year, a woman named Mejra Dautovic visited the

23 morgue in the company of another person. She explained to the

24 anthropologist on the site that her son had last been seen in Omarska and

25 that the person she had brought with him [sic] had been detained with his

Page 6421

1 [sic] son in the camp. She said that the person who was accompanying her

2 had recognised the clothes associated with this particular body as being

3 those that were worn by his [sic] son while he was in the camp. The name

4 of this woman's son was Edvin Dautovic.

5 JUDGE RIAD: Excuse me. In the transcript, it says that the

6 person she has brought with "him."

7 A. I apologise. I should have said the person she brought with

8 "her."

9 JUDGE RIAD: With "her." Thank you.

10 JUDGE RODRIGUES: [Interpretation] I take advantage of the

11 opportunity to interrupt and say that we have to have a break because we

12 have been working for quite some time in one way or another, I think since

13 12.15. But in view of time constraints, we still can't have less than a

14 half-hour break, otherwise, the accused cannot leave the courtroom. I

15 think we should have the break now, otherwise, we'll be coming back just

16 for a quarter of an hour. So let's have a break now.

17 My colleague, Judge Fouad Riad, was suggesting whether we could

18 perhaps work a little longer today to catch up a little bit, but it is

19 always a bit complicated because of the obligations of individual people,

20 and also we have an obligation here in the afternoon. But we'll consider

21 the matter during the break and let you know after the break. So we are

22 now having a half-hour break.

23 --- Recess taken at 1.37 p.m.

24 --- On resuming at 2.10 p.m.

25 JUDGE RODRIGUES: [Interpretation] You may be seated.

Page 6422

1 Let us continue. Mr. Saxon.

2 MR. SAXON: Thank you, Your Honour. If I could ask for the

3 usher's assistance again. If Exhibit 3/131 could be placed on the ELMO

4 next to the witness, please.

5 Q. Mr. Malik, I'd like to ask you to direct your attention to the

6 photograph that's been placed beside you. Do you recognise this

7 photograph?

8 A. I do.

9 Q. Where were the clothes in this photograph found?

10 A. These clothes were worn by a person whose body was recovered from

11 the Kevljani mass gravesite.

12 Q. Do you recall which body and which grave it was found in at

13 Kevljani?

14 A. Yes. This was the body found in the 13th subgrave in Kevljani,

15 and this particular body was the sixth item found in that 13th grave in

16 Kevljani.

17 Q. As an investigator, what, if anything, drew your attention to this

18 particular clothing?

19 A. During my investigations, I had learned from a number of

20 statements that a man, a prisoner by the name of Miroslav Solaja, who was

21 detained and killed at Omarska, was wearing a tracksuit or a sports suit

22 and that he had shoes which had no laces and they were non-athletic.

23 Q. And to your knowledge, were any other items found with or near the

24 body known as KV13 006B?

25 A. Yes. In the same 13th grave, a plastic bag was found which

Page 6423

1 contained, among other things, a partially legible identification

2 document.

3 MR. SAXON: Mr. Usher, if you could remove that photograph now,

4 Exhibit 131, and if a copy of the photograph that I'm giving you now,

5 which has been marked as 3/161, could be placed on the ELMO and

6 distributed, please.

7 JUDGE RODRIGUES: [Interpretation] Mr. Simic, Krstan Simic?

8 MR. K. SIMIC: [Interpretation] Your Honours, I have an objection.

9 My objection relates to the manner of examination. I should like to

10 present you with a document which was signed by the witness. The cause of

11 death was not established, and now the witness is telling us that the

12 person in question was killed, Miroslav Solaja, that is, and that he was

13 killed in Omarska.

14 JUDGE RODRIGUES: [Interpretation] Mr. Saxon, could you perhaps

15 rephrase your question.

16 MR. SAXON: I will rephrase my question, Your Honour. Thank you.

17 Q. Previously I had showed you some clothes. Can you describe more

18 briefly what drew your attention to that clothing, without getting into

19 areas such as manner of death.

20 A. Yes. During my investigations, I had learnt that a prisoner by

21 the name of Miroslav Solaja, who was purportedly detained at Omarska, was

22 wearing similar clothes. So when I saw the clothes in the photograph, I

23 thought that this might be the same person.

24 Q. Now, if you could, please, take a look at the photograph that's

25 next to you now. It's been marked as Exhibit 3/161. Do you recognise

Page 6424

1 this photograph?

2 A. I do.

3 Q. Now, in the corner of the photograph, and as I'm looking at it now

4 on the screen it's on the left-hand side, near the foot of the body, there

5 seems to be an item that's dark in colour. Do you know what that item is

6 or was?

7 A. Yes. This is a plastic bag.

8 Q. And in the course of your work as an investigator, have you had an

9 opportunity to examine some of the contents of that plastic bag?

10 A. Yes.

11 Q. What kinds of items were found in that plastic bag?

12 A. In this bag was found an identification document that was

13 partially legible.

14 Q. Anything else found inside that bag?

15 A. Yes. A handwritten note or a letter was also found in this bag.

16 MR. SAXON: Mr. Usher, if you could help me. If you could remove

17 that photograph and place this photograph on the ELMO.

18 This has been marked as Prosecution 3/162.

19 Q. Mr. Malik, what does this photograph show?

20 A. This photograph shows an artefact that was found in grave number

21 13 in Kevljani.

22 Q. And specifically, was it found inside that black plastic bag?

23 A. Yes. This is the first artefact found. A1 shows that this is the

24 first artefact found in another artefact which was titled KV13 008A. That

25 is, that other bag was the eighth item in the 13th subgrave in Kevljani,

Page 6425

1 and within that bag, this was the first artefact.

2 Q. And so what do -- I'll start again.

3 Is there any information on this document indicating the place of

4 residence of the person who owned the document?

5 A. Yes. It shows that this person lived in Prijedor, Marsala Tita

6 Street 22.

7 Q. And what, if anything, drew your attention to this torn

8 identification document?

9 A. Although this is partially legible, there are a number of details

10 which are still quite clear. So after looking at this, it was obvious to

11 me that it would be possible to determine who this document -- which

12 person this document belonged to.

13 Q. Can you describe what those details are that drew your attention?

14 A. In the line for first name, you can read the last four alphabet,

15 S-L-A-V; and the line where the last name would be, the two letters J-A

16 are still quite legible.

17 Q. Is there a line for date of birth?

18 A. Yes. And although you cannot see the date, the actual date or the

19 day, you can still see the month and the year.

20 Q. And what month and year is listed on this identification?

21 A. It reads "April 1936."

22 Q. Mr. Malik, do you know the date of birth of Miroslav Solaja?

23 A. I do.

24 Q. What was it?

25 A. 5th, 5th April 1936.

Page 6426

1 Q. Mr. Malik, apart from this portion of an identification document,

2 were any other documents found in the plastic bag near the body now known

3 as KV13 006?

4 A. Yes. There was a handwritten note or a letter.

5 MR. SAXON: Mr. Usher, if you could remove that photograph,

6 please.

7 And I've marked another exhibit as Prosecution 3/163A, B, and C.

8 If a copy could be placed on the ELMO and distributed, please. Thank you.

9 Perhaps if the projector could be moved back a little bit, we

10 might be able to see the full photograph on the screen. A little bit

11 more, please.

12 Q. Perhaps if you could move it down, Mr. Malik, so that we can see

13 the lettering.

14 Mr. Malik, do you recognise these two photographs and the English

15 text that are attached to them?

16 A. I do.

17 Q. If you could look at the first page, what's marked on the back as

18 163A. Can you, first of all, tell us how you recognise the photograph,

19 what this photograph represents?

20 A. This is a photograph of the artefact numbered KV13 008A A3. I

21 recognise this as the photograph of the note that was found in the black

22 plastic bag.

23 Q. So this is a photograph of one page of that note?

24 A. Yes. This is one page of that note.

25 Q. So again, can you explain what those reference numbers mean that

Page 6427

1 are visible on the screen there?

2 A. It shows that this is -- A3 shows that this was the third artefact

3 found within another artefact, and that artefact was the eighth item found

4 within the 13th subgrave at the Kevljani site.

5 Q. Mr. Malik, who was this note addressed to?

6 A. It's a person named Mira or Miro.

7 Q. Can you turn to the page that is marked 163C, please, and read the

8 full English translation. I'm sorry. Go ahead.

9 A. "My one and only Mira." Would you like me to put it on the ELMO?

10 Q. Whatever's easiest for you.

11 A. "My one and only Mira. Be proud. I think that this is our last,"

12 then the rest is illegible, but apparently the word would be "moment."

13 "It has been wonderful living with you. We did not achieve

14 everything we had planned. My Only, try to live on. All those lies they

15 take your breath away. Those were Lazo's drivers. They accomplished

16 everything that they talked about. They lied that I," the rest is

17 illegible, "in Zagreb, Tuka in prison, and many other things. Mira, take

18 all the money and jewellery straight away and take them to a safe place. Do

19 it immediately. Have Lazo take the car and trailer to his garage. Let

20 them use."

21 Excuse me, I missed a line there. "Things because they will know

22 that I'm not there."

23 I will reread that line. "Have Lazo take the car and the trailer

24 to his garage, things, because they will know that I am not there, the

25 land and the house, and let them use. Say hello to everybody, to your

Page 6428

1 family in Zagreb, and Jelicka. My greatest regret is that I'm dying an

2 innocent man. Say hello to my family. Have Una collect the honey. I am

3 dying as my father did. Nobody will know where my grave lies. My dear and

4 only one,from the bottom of my heart. Your Zika. Give Dragana a thousand

5 dinars. Get the document for the garage in Rudnik if you mean to sell."

6 Q. Mr. Malik, have you investigated whether any former Omarska

7 detainee was known as Zika?

8 A. Yes, I did.

9 Q. What did you learn?

10 A. I found out that Miroslav Solaja sometimes used this name to refer

11 to himself.

12 MR. SAXON: If that exhibit could be removed now, please.

13 Your Honour, I see it is now 2.30. If we are going to stop at

14 this time, this would be a convenient time for the Prosecution. I don't

15 know if the Trial Chamber intends to work any later today.

16 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Saxon. The Chamber

17 will work today but on another case.

18 I'm sorry, it is true we cannot work any later today because we

19 have other obligations to fulfil. This Chamber is always in the same

20 composition, and the Office of the Prosecutor changes. I'm not

21 complaining, it's just a reality. We cannot work any longer.

22 We thought we might continue tomorrow. I don't know if there is

23 anyone here who does not wish to finish tomorrow. I think that that's the

24 objective of all of us. However, we have to finish before half past five;

25 that is to say, there is a certain time limit because our colleagues have

Page 6429

1 certain obligations which cannot be changed. So I myself and Judge Wald,

2 the two of us are able to continue after 2.00 in order to finish the case.

3 So, Madam Hollis, we would be sitting from 3.00 until half past

4 four. This is the time framework as it is envisaged by now. However, if

5 it is necessary, we can work until 5.30 to finish. I think that this

6 Chamber has made a lot of effort in order to give you an opportunity to

7 finish your case by tomorrow afternoon.

8 We all know why some time was lost and when, but I think that it

9 is a good idea for all of us, including the technicians and the

10 interpreters, to finish tomorrow. We have to have an objective in mind

11 when we work, and with that objective in mind, we will work a little later

12 tomorrow.

13 So I hope you understand that there are certain circumstances that

14 are beyond our control, but as I have already told you, we all know very

15 well when and why we lost some time during the hearing of this case.

16 I just wanted to hear briefly whether the parties agree or accept

17 this suggestion of the Chamber. Madam Hollis.

18 MS. HOLLIS: Yes, Your Honour. We certainly accept the suggestion

19 to sit until 4.30 and perhaps 5.30, and we will certainly try to structure

20 the testimony of the remaining witness so that we are as brief as we can

21 be. We appreciate Your Honours sitting for additional time tomorrow, and

22 hopefully we'll be able to conclude by that time.

23 JUDGE RODRIGUES: [Interpretation] Perhaps as regards the testimony

24 of Mr. Tariq Malik, documents could be filed in advance and marked for

25 identification in advance so that we not waste any time in the courtroom.

Page 6430

1 What about the Defence?

2 MR. K. SIMIC: [Interpretation] Your Honours, the Defence accepts

3 your suggestion; however, we have a suggestion of our own to make. We

4 have received these documents. The documents will be provided to the

5 Chamber, and I think that we are somehow wasting additional time because

6 not everything needs to be read out from these documents.

7 JUDGE RODRIGUES: [Interpretation] Very well. We will work until

8 half past five tomorrow, tomorrow afternoon. I hope that it is also in

9 your interest to have the Prosecutor's case finished by tomorrow

10 afternoon, Mr. Simic.

11 MR. K. SIMIC: [Interpretation] By all means, Your Honour.

12 JUDGE RODRIGUES: [Interpretation] Very well then. We will make an

13 additional effort and try to finish on time.

14 Madam Hollis.

15 MS. HOLLIS: We have no further business for today, Your Honour.

16 We do have copies of the documents in question to provide to Your Honours,

17 if we may do so at this time. We have marked them for identification as

18 3/156, and we have three, or if the Registry needs a fourth copy, we have

19 four copies of those. These are the documents in question that you are

20 going to review tonight.

21 JUDGE WALD: Do we have any indication on those documents what

22 parts the witness's future testimony will be relying on them as opposed to

23 everything he said so far is his own -- you know, he's been involved in as

24 stuff that he can testify to out of his own knowledge, and do we have any

25 notion of which parts of those are the parts that he really is going to be

Page 6431

1 relying on the exhibits, or not?

2 MS. HOLLIS: Your Honour, the compilation of the information in

3 these exhibits is what Mr. Malik has discovered in his investigative

4 capacity, so in that regard, each of these documents is a summary of what

5 he himself has found as he has gone through various databases or sought

6 other evidence.

7 So to that extent, it would be the same as he were testifying

8 today regarding his own investigations and the results of those

9 investigations.

10 JUDGE WALD: But like today, he would say, "In this plastic bag,"

11 you know, "I saw." That's a kind of an on-site, personally involved

12 testimony.

13 MS. HOLLIS: Yes.

14 JUDGE WALD: If somebody said, "Well, I read in this other book,"

15 or, "I read in this other report" ...

16 MS. HOLLIS: In these documents, he would indicate, for example,

17 that a review of our information in the Office of the Prosecutor disclosed

18 certain documents relative to the death of "X," or he contacted the

19 members of the family, or he looked at the ICRC missing persons book. It

20 would be his own efforts.

21 JUDGE WALD: I got it.

22 MS. HOLLIS: It would be his own efforts.

23 Your Honours, do you want three or four copies of these? Then we

24 would provide four copies for --

25 JUDGE RODRIGUES: [Interpretation] Yes. We can speed up the

Page 6432

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Page 6433

1 things. Perhaps the documents can be given right away to the Defence and

2 the Chamber.

3 MS. HOLLIS: The Defence already has all these documents. The

4 only thing that I am giving you, Your Honours, is the documents that are

5 in dispute for Your Honours' review tonight.

6 We will take your suggestion, and as soon as we leave here, as

7 soon as the Court adjourns for the day, we will speak with the Registry

8 representative, and we will provide the other documents that we will use

9 tomorrow.

10 JUDGE RODRIGUES: [Interpretation] Very well. Let me remind you

11 that tomorrow morning we start at 9.00. Till tomorrow.

12 --- Whereupon the hearing adjourned at 2.39 p.m.,

13 to be reconvened on Friday, the 6th day of

14 October, 2000, at 9.00 a.m.

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