1 Monday, 19
2 [Status Conference]
3 [Open session]
4 --- Upon commencing at 4.02 p.m.
5 [The accused entered court]
6 JUDGE RODRIGUES: [Interpretation] Please be seated.
7 I see that some Defence counsel are not present. Is it of their
8 own choice? Shall we begin? Yes, well, let's.
9 As was announced previously, our main issue today is the question
10 of the documents of the Prosecution. It's a long story, as you know,
11 which begins in January 1999, regarding a decision of the 17th of March,
12 1999 by the third Chamber, and it concerns the question of authenticity,
13 one of the prime reasons behind this Status Conference.
14 There are also documents that were sent by Mr. Krstan Simic that
15 we shall also discuss. After that we have some other matters which we
16 might examine, such as the question of affidavits by the Kvocka Defence;
17 the notification by the Prosecution regarding the Kvocka expert witnesses;
18 then also regarding the Kos Defence request for protective measures; then
19 regarding the Radic Defence, the question of expert witnesses again and
20 the response of the Prosecution; also, a binding order for obtaining
21 medical documents with respect to Witnesses A and F; and with respect to
22 the Zigic Defence, a request for lifting the confidentiality on the
23 schedules attached to the indictment; also, a request for the signature of
24 Mr. Ganic and another request for protective measures. But we'll go
25 through these matters one by one.
1 The first is the question of documents. As you know, at the end
2 of the Prosecution case, Ms. Hollis requested that the situation regarding
3 certain documents be clarified, that is, whether those documents had been
4 admitted or not, and the Chamber did reply that they had been admitted.
5 But as I have already said on another occasion, I don't think it was
6 necessary to say that they had been admitted since they were the subject
7 of a decision of the 17th of March, 1999. But the question of
8 authenticity does arise.
9 So I will give the floor to Ms. Susan Somers now who can guide us
10 through a discussion which will lead us to a solution, I hope. Ms. Susan
11 Somers, will you be kind enough to assist us? You have the floor.
12 MS. SOMERS: Thank you, Judge Rodrigues.
13 Consistent with what Your Honour has just said, the plain language
14 of the order of March 17th indicates that admission has been granted, and
15 if I understand correctly, we're trying to find out how to interpret the
16 language of what it means to raise a challenge to authenticity after
18 I just want to first inform the Chamber that this is a sister
19 order to the Keraterm case in which the identical -- I guess an identical
20 order was entered, and because there has been no challenge, everything is
21 deemed admitted. That case, of course, will proceed in front of the other
22 Chamber -- another Chamber. So it was not handled uniquely to this case;
23 it was handled also for Keraterm.
24 We have discussed it amongst ourselves, and it appears that the
25 only way we can reconcile the status of admission upon which, of course,
1 we have relied by virtue of the plain language and the notion of raising
2 subsequent challenges, would be on a document-by-document basis to --
3 where a document, for example, would not be considered potentially
4 self-authenticating, if an official document would normally -- if taken
5 from an official archive and made in the course of the archivist's
6 responsibilities or as part of the records of an institution, would not
7 cause serious issues.
8 Looking through the various documents that have been submitted, a
9 goodly number of the documents, in fact, are of such a nature, including
10 documents such as the one I think that gave rise to Mr. O'Sullivan's
11 comment, and that was a Brdjanin document which was taken from one of the
12 various searches in Prijedor municipality.
13 I think any challenge that should be considered should also be
14 considered by way of looking at what the document purports to be, and if
15 in fact it falls in the category of an official document or pronouncement
16 of someone like Brdjanin, I'm not even clear how Mr. O'Sullivan finds it
17 something that he -- on behalf of his client should challenge. However,
18 if in fact such a challenge were to be made and permitted, the best that
19 we could offer, which I think under the circumstances, given our
20 understanding initially, would be to have our investigators itemise
21 locations of seizure and dates, very much in the way that Her Honour Judge
22 Wald has requested of us, ordered us, to do where other questions where
23 the document is not so evident arises.
24 However, the concern is that -- is having essentially to go back
25 for several hundred or more documents and do this when it was not
1 necessarily contemplated that each and every document would cause or raise
2 a challenge. In fact, the Prosecutor's case ended with no such challenge.
3 And although the language of His Honour's order is perhaps a bit broad in
4 that it says "during the course of the trial," it would have seemed that
5 if the Prosecution were tendering these documents, it would have been
6 appropriate to have raised it during the Prosecution's case. And I'm sure
7 that is what my predecessor, Ms. Hollis, intended to clarify at the time
8 or just prior to resting.
9 If the Chamber for any reason is not satisfied with that, although
10 I believe that both the language of the order and the response at the end
11 of the Prosecutor's case - I think it was in December or December 14th,
12 perhaps, of 2000 - when considered together and in the context of what was
13 contemplated, I would hope that that would suffice. If there is a
14 particular document that raises in the minds of the Chamber such an issue,
15 then perhaps we could address it, but I don't think that there appears to
16 be a terribly serious gap in understanding.
17 Looking back, I read the two orders, the two events together, both
18 the issuance of the decision and Ms. Hollis's timely approach to the
19 Chamber, and the Chamber's having effectively, I would say, waited for a
20 response from the Defence which was not forthcoming. And that should be
21 determinative of the issue. If the Chamber asks of us something else, of
22 course we will do what we have to do, but I don't think -- from just
23 looking at things, it seems to have been covered.
24 If the Chamber would indulge me one more comment, I'm sorry.
25 Because of reliance on what appears to have been an issue put to rest, it
1 would work a tremendous hardship and disadvantage to the Prosecution to
2 have to revisit each and every document if, in fact, that were what the
3 Defence were trying to assert. And I would ask the Chamber at this time
4 also to consider that the fairness issues that go into reliance on
5 decisions of the Chamber and on the content of proceedings.
6 So I wanted to make sure that I indicated for us it would be a
7 tremendous, tremendous and unexpected burden where we had no reason to
8 believe we were in a different position other than the way we finished out
9 the year when the Prosecution rested.
10 Thank you very much.
11 JUDGE RODRIGUES: [Interpretation] Very well. I think my first
12 impression, if I may convey it, is that I think we're all at fault, and
13 I'm speaking of this Chamber, because as you know, I have a lot of respect
14 for the work of others, but we are to resolve this issue.
15 The Prosecutor, because it accepted this from the beginning,
16 Ms. Hollis did not explicitly raise this question of authenticity. She
17 just asked whether the documents had been admitted or not. Why, if they
18 had already been admitted?
19 The Chamber, because we ourselves did not take into consideration
20 this question which was, in a sense, concealed, if I might put it that
21 way, because eventually we decided, as Ms. Susan Somers said, in our
22 decision of the 14th of December, we ruled that the documents were
23 admitted, but we did not address this matter which could be an obstacle.
24 And the Defence has the merit of drawing our attention to the fact that
25 there is a problem, and I think that there is a problem and that is what
1 we have to deal with now.
2 I will give the floor to the Defence in a moment. I think that
3 the axis of the discussion could be the question of the ruling of the 17th
4 of March, the question of challenging the authenticity of documents during
5 the trial. You see, does that mean during the Prosecution case until the
6 Prosecution rested its case or at the end of the whole trial? You see,
7 this is rather confusing, because how can the Prosecutor complete its case
8 if the documents it relied on could, at any moment, be challenged until
9 the end of the trial?
10 Therefore, what does this mean, that the Defence can challenge the
11 authenticity of documents which are admitted? As I have already said,
12 this may be a personal opinion, but I think that before admitting a
13 document, the authenticity of that document should be discussed;
14 otherwise, it is a futile endeavour.
15 Another axis of discussion could be: What does this mean, that
16 the Prosecutor should address the questions relating to the authenticity
17 of documents admitted during the rebuttal? So these things are a bit
18 complicated for our present situation.
19 Therefore, this Chamber would suggest that we have this
20 discussion, and then at the end I think the solution is simple: If the
21 Defence wishes to challenge the authenticity of documents, it should say
22 so now, providing the reasons and how they intend to do it. If not, I
23 think we should overcome all these matters by saying either the documents
24 are admitted unconditionally, all of them; or if the Defence needs to
25 investigate the situation, to reflect upon the situation and the
1 significance of such a decision, the Chamber may give some time to the
2 parties to review the matter and come back to the Chamber, upon which the
3 Chamber can rule.
4 I have given some highlights for the discussion. I hope you will
5 forgive me for my own personal perceptions of this discussion. I will
6 give the floor now to Defence counsel, therefore, Mr. Krstan Simic,
8 MR. K. SIMIC: [Interpretation] Your Honours, for some time now, I
9 have a feeling that there is confusion here and I am not able to find my
10 way around when it comes to exhibits.
11 Let me give you an example. In the cross-examination of
12 Mr. Kvocka, my learned friend offered certain documents, and I have them
13 listed here, number 3/186, 3/201, 3/203. We, again, had our own
14 documents, D41/1, and so on and so forth. All the time I was confident
15 that the submission made by the Prosecution in the brief made by the
16 Prosecution, and in my own brief, there was a list of the documents which
17 the Defence intends to use if need be. Everything functioned well until,
18 during the cross-examination, the Prosecution presented a document, had it
19 marked for identification, we objected or did not object to it, and then
20 the Chamber ruled on the admission or non-admission of each document.
21 That is a record of the documents that we have. As a result of all this,
22 there has been some confusion with the numbers, and we are still having
23 some confusion with numbers.
24 As far as this Defence team is concerned, we do not challenge the
25 authenticity of those documents which, during the case, were presented to
1 witnesses, either the witnesses of the Prosecution or the Defence, and
2 when the Defence was able to say whether it objects or not to the
3 admission of such documents. Those documents that were admitted, even if
4 we objected to them and the Chamber admitted them, we can't retroactively
5 challenge that decision. However, we cannot accept that whole list that
6 arrived in the form of a tender as to what will be used because we were
7 not aware that they would be used during the examination.
8 As I'm on my feet, I'd like to raise another matter linked to
9 documents. Ms. Somers here, on a number of occasions, mentioned that
10 these documents had been confiscated, that they were under lock and key of
11 the Prosecution. The Defence has absolutely no access to those
12 documents. We spent an hour talking here about whether Mr. Kvocka signed
13 or did not sign a solemn declaration. The man does not remember, which is
14 quite normal. He may have signed one. And then today, we are shown a
15 solemn declaration, whose authenticity is challenged, it was produced
16 today, so we wonder whether such a statement may exist for Mr. Kvocka
17 too. We simply have no access to documents except those which the
18 Prosecutor is kind enough to show us.
19 So this is a very serious problem for us. Maybe they have a
20 document where it says that somebody was the commander, that somebody was
21 the warden, and I think that is why Mr. Fila requested that he have access
22 to those documents. This is a question that needs to be resolved by the
23 Defence being given access to those documents. The statement we are
24 getting is, "We seized this, it is ours, and we have no ability to review
25 them," and I consider this to be a very serious shortcoming.
1 As for the documents that we did not object to their admission and
2 which were admitted by the Chamber, we are not challenging their
3 authenticity; but the documents that were not discussed, I think needs to
4 be reviewed. We have to know which document we are talking about, whether
5 it is authentic or not, whether we can admit it or whether we can object
6 to it. Of course, the final decision is with Your Honours.
7 Thank you.
8 JUDGE RODRIGUES: [Interpretation] There seems to be a minor
9 methodological point here. No, please remain seated, Mr. Krstan Simic.
10 Ms. Susan Somers, do you wish to respond to each counsel or all of
11 them together? Could you wish to respond to what Mr. Simic has said, or
12 shall I give the floor to the other counsel and then you can respond to
13 all of them? It's up to you to choose.
14 MS. SOMERS: Thank you, Your Honour. Mr. Simic has raised an
15 issue that is unrelated to the bigger issue which the Chamber has raised,
16 and that is 66 --
17 JUDGE RODRIGUES: [Interpretation] No, excuse me. Is your reply
18 that you prefer to respond to each individual Defence counsel?
19 MS. SOMERS: That's what I wanted to know. My preference would
20 be, of course, to rule out any discussion of 66(B) because that is not the
21 discussion before the Chamber right now, and that's what Mr. Simic just
22 raised. We're talking now about the order of the previous Chamber that
23 was seized with this case.
24 JUDGE RODRIGUES: [Interpretation] Very well. Go ahead, then,
1 MS. SOMERS: What Mr. Simic is referring to is a request that
2 would have to be made. There's no other basis for making it other than
3 pursuant to Rule 66(B), which request has been made by Mr. Fila and is in
4 the process of being completed by Mr. Jovan Simic. That is the only
5 request, other than Rule 68, wherein documents are the subject of
6 obligatory turnover by the Prosecution.
7 JUDGE WALD: I don't understand that, Ms. Somers. I know what 66
8 and 66 reciprocal, but if the Prosecution gives a long list of documents
9 which it wishes to have admitted as -- do you mean to say you don't have
10 to show the Defence the documents which you want to have the Court admit?
11 MS. SOMERS: No, Your Honour. Those are not the same documents.
12 Mr. Simic is referring to what is called the Prijedor collection, which
13 are not necessarily in the binders that were the subject of --
14 JUDGE WALD: Well, just indulge me for a moment.
15 MS. SOMERS: Yes.
16 JUDGE WALD: You're not suggesting that if the Prosecution has as
17 whole list of exhibits or documents that it wishes to have admitted, that
18 the Defence doesn't have a right at some point to look at them.
19 MS. SOMERS: It would depend on when we're trying to put them in,
20 Your Honour.
21 JUDGE WALD: How can you argue that they should just be admitted
22 and then, and then say but the Defence can't, can't look at them at any
24 MS. SOMERS: I think the ones that were the subject of admission
25 were available to the Defence to look at.
12 Blank page inserted to ensure pagination corresponds between the French
13 and English transcripts.
1 JUDGE WALD: Okay, that's all.
2 MS. SOMERS: Correct, yes, Your Honour.
3 JUDGE WALD: Okay.
4 MS. SOMERS: What Mr. Simic is talking about is this collection
5 of --
6 JUDGE WALD: All right.
7 MS. SOMERS: There were documents which may or may not ever come
8 before this Chamber, depending on the need to respond, perhaps, to a point
9 on cross or if it's raised during the Defence's case.
10 JUDGE WALD: And they're not in the binders of exhibits?
11 MS. SOMERS: No, Your Honour, they're not.
12 JUDGE WALD: No, it's not your fault. It's useful to get those
13 two categories established.
14 MS. SOMERS: There are a number of other documents which were
15 seized from a number of locations, and that -- which is why, Your Honour
16 Judge Rodrigues, I just wanted to segregate that. I think the issue of
17 the three binders from the March 17th order is quite separate. Mr. Simic
18 at no time ever presented a request pursuant to 66(B). Had he done, so we
19 would have examined it, as we're examining now the request by the other
21 Otherwise, I think it might be best if we responded to all the
22 comments of Defence counsel on the other matters, and of course, we'll
23 always come back to the authenticity being a matter of weight if in
24 fact -- okay, thank you very much.
25 JUDGE RODRIGUES: [Interpretation] Mr. O'Sullivan, please.
1 MR. O'SULLIVAN: Thank you, Your Honour. My position on this
2 matter relates to a distinction which may exist between admissibility and
3 authenticity, and I say it may exist because Rule 89 governs this matter,
4 I submit. And the reason why there may be a distinction between
5 admissibility and authenticity is because if we look at Rule 89(C), that
6 rule states that the Chamber may admit any relevant evidence which it
7 deems to have probative value. But if we continue down in that rule to
8 subrule (E) it says, "A Chamber may request verification of the
9 authenticity of evidence obtained out of court."
10 In my submission, the previous Chamber, Trial Chamber III with
11 Judge May presiding, admitted the documents submitted in January 1999 on
12 the basis of Rule 89(C) and did not require at that time any proof of
13 authenticity. Indeed, on the 11th of January, 1999, in the Prosecutor's
14 request for admission, the Prosecution stated that the issues relating to
15 authenticity and reliability should not preclude their admission at this
16 stage. The Prosecution relied entirely on Rule 89(C). And arguably, and
17 I think clearly, a year before this trial began, approximately, these
18 documents were submitted to the parties and the Chamber for admission on
19 the basis of their being relevant. There was never a hearing, any
20 evidence adduced, as to issues of authenticity.
21 Now, that application of Rule 89 is the widespread practice of
22 this Tribunal, in my submission, where starting with, as my learned friend
23 Mr. Saxon said earlier today, that the Tadic case and, more importantly,
24 the Celebici judgement, the Chamber in Celebici ruled that under 89(C)
25 relevant documents may be admitted, but the issue of authenticity will go
1 to weight accorded to those documents, if any, at the close of proceedings
2 in final argument.
3 Now, I'll just briefly, very briefly, Your Honour, quote from
4 Celebici. The Chamber said this: "The Trial Chamber wishes to make clear
5 that the mere admission of a document into evidence does not in and of
6 itself signify that the statements contained therein will necessarily be
7 deemed to be an accurate portrayal of the facts. Factors such as
8 authenticity and proof of authorship will naturally assume the greatest
9 importance in the Trial Chamber's assessment of the weight to be attached
10 to individual pieces of evidence."
11 It seems to me that in this case, our trial, in January 1999, we
12 proceeded on the basis of Rule 89(C), the documents being admitted as
13 being relevant and having probative value on their face, but there was no
14 evidence led at that time in regards to authenticity. And when this whole
15 matter arose a short time ago, perhaps two weeks ago, the objection was
16 based on the fact of the formulation that my learned friend used in
17 cross-examining a witness by stating that you have a document signed by a
18 certain individual, and the objection was that there was no proof in the
19 record to support that assertion by the Prosecution, and Your Honours'
20 upheld the objection precisely because there was no proof of authenticity.
21 So the rules allow two cases to go, in my submission. 89(C) can
22 be read in conjunction with 89(E), and authenticity can be made a
23 condition precedent to admission. On the other hand, as has happened in
24 this case and others, documents may be admitted under 89(C) alone, and the
25 issue of weight or authenticity is tied to weight ultimately when all the
1 evidence is heard.
2 And my objection is based on the latter, the procedure having been
3 followed here, that the burden lies with the Prosecution to prove every
4 element of its case, that is our position, including proof, ultimately, of
5 the authenticity of its documents and the weight that Your Honours can
6 accord to those documents, if any.
7 So that is my position, Your Honour.
8 JUDGE WALD: Let me just ask you this: Does that mean Ms. Somers'
9 great concern about all the documents which have been used up to now, does
10 that mean, in your view, that if the Defence has not, heretofore, raised a
11 particular concern about authenticity and/or proof of authorship, et
12 cetera, that those documents can remain, subject to some argument you
13 might make in the closing statement or something about weight, but they
14 can remain admitted?
15 MR. O'SULLIVAN: Yes.
16 JUDGE WALD: Yes, that's what I thought. Thank you.
17 JUDGE RODRIGUES: [Interpretation] Mr. O'Sullivan, I also have a
18 question for you. I was listening to the French interpretation which was
19 late; I was on the same channel and now it's free.
20 You have heard me, Mr. O'Sullivan, when I spoke about Rule 65 ter
21 (E). Were these documents submitted or tendered into evidence within the
22 framework of Rule 65 ter, that is, during the pre-trial procedure? I no
23 longer remember if, at that period of time, we still had this Rule 65
25 Supposing that it was already there, how do you read the provision
1 that the Prosecutor has to submit a list of exhibits and also to indicate
2 whether the Defence objects to its authenticity or not; that is to say,
3 did the Defence, at that time, already have a standpoint about that, have
4 a viewpoint about this issue? I agree with you and your interpretation of
5 Rule 89(C). We understand what you mean, in view of the legal system you
6 come from.
7 MR. O'SULLIVAN: Well, in response to your question, Your Honour,
8 in the pre-trial phase in these proceedings, we were operating under Rule
9 73 bis, which is identical in wording to 65 ter --
10 JUDGE RODRIGUES: [Interpretation] Yes.
11 MR. O'SULLIVAN: -- so I'll refer to 65 ter. If we look at 65 ter
12 (E)(v), that's the basis upon which an order was made by Judge May for the
13 Prosecution to submit its documents. I think we can look at the plain
14 language used by the Prosecution in its submission of 11 January 1999, the
15 one to which I referred before, there is no agreement as to stipulation by
16 the Defence; 65 ter saying, "... the list of exhibits the Prosecutor
17 intends to offer, stating where possible whether the Defence has any
18 objection as to authenticity." Well, the Prosecution motion is silent in
19 that regard because it appears there was no previous stipulation by the
20 Prosecution, and therefore the Prosecution relied on Rule 89(C).
21 Of course, the parties can always stipulate to authenticity, but
22 in this case, I submit there was no inclusion in the Prosecution's filing
23 of January 1999 because there had been no agreement between the parties as
24 to authenticity, and therefore they were not admitted with that condition
25 having been established.
1 JUDGE RODRIGUES: [Interpretation] From your point of view,
2 Mr. O'Sullivan, is there a problem? And if yes, do you have a solution or
3 a suggestion to make?
4 MR. O'SULLIVAN: My response, quite simply, is that it's a matter
5 for each party to present its case as it sees fit and to prove its case as
6 it sees fit. That's as far as I can take that point, Your Honour.
7 JUDGE RODRIGUES: [Interpretation] Very well. Thank you very much,
8 Mr. O'Sullivan.
9 Mr. Fila.
10 MR. FILA: [Interpretation] Mr. President, the legal system I come
11 from provides for the submission of original documents to the court within
12 a certain period of time. It is, of course, possible to use photocopies
13 for the purposes of the trial for a limited period of time. However,
14 since we are sure that the OTP did not receive copies, photocopies of the
15 documents, but that it made its photocopies later on on the basis of
16 original documents, that initial, original document which is in the
17 possession of the OTP must simply be submitted to the Registry. And then
18 after that, if I think, or any of my colleagues from the Defence - the
19 same goes for the Prosecution if I am the one tendering the document - if
20 a challenge is made in respect of that document, then we have to prove
21 that the document in question is not an original.
22 Second, if we should accept that, in view of the circumstances,
23 those documents were obtained in a somewhat unusual fashion, by use of
24 weapons, tanks, and others which is not a customary procedure to follow,
25 then in that case, it is necessary for the party which obtained the
1 documents in such an unusual fashion to provide us with the list of
2 documents which were obtained, where and when they were obtained, and then
3 there should be a cross-examination conducted before this Chamber with a
4 view to confirming that that, indeed, was the case.
5 I do respect the opinion of my colleague, Ms. Somers, that if we
6 go back to all of these documents, it would then lead us to the end of
7 this trial ad callendas graechas, and the only practical solution which I
8 can suggest would be the following: Let us see what remains in dispute
9 between us. Then once we identify points of dispute, in those cases, we
10 should be shown the original of the document and then we should also be
11 told about the circumstances of how the document was obtained, by whom,
12 and where, and I think that would be enough, and that individual should
13 come to testify.
14 Let me remind you that within the past two years of this trial, we
15 were faced with this problem only during the cross-examination of
16 Mr. Kvocka, it was only at that moment that this problem arose, and only
17 two, three, maybe ten documents are in dispute.
18 That is the way I see this problem. Thank you very much.
19 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Fila.
20 Mr. Stojanovic.
21 MR. STOJANOVIC: [Interpretation] Thank you very much, Your
23 We should like to take your suggestion and think a little about
24 this very complex matter, and we will guide ourselves with the principle
25 of equality of parties.
1 However, at this point, I should like to join in with my
2 colleagues, Mr. Krstan Simic, Jovan Simic, and Mr. Fila, which relates to
3 the issue of access to documents. We are still searching for a number of
4 documents in respect of which we are sure that they exist, or that they
5 existed at one point in time. I will just give you a few examples.
6 In Omarska, many individuals, many victims gave prior written
7 statements to the investigators of the OTP. Later on, in case of some
8 other victims - and I can tell you exactly which victim I have in mind; he
9 testified under a pseudonym - it was stated that the statement was
10 adequately interpreted and that the witness was given an opportunity to
11 correct his statement if necessary. So those statements can be, indeed,
12 used in some cases.
13 Same goes for Keraterm. It is very strange that, in case of a
14 massacre which happened on the 24th of July, 1993, not a single document
15 was submitted by the OTP. I have to say that at this point, the Defence
16 does not have any such documents either. However, from the information
17 that we have heard, we are sure that there are a number of official
18 documents relating to this particular incident, or that there were such
19 documents at one point in time.
20 Therefore, we should like to be given access to the documents
21 seized, or at least access to the list of such documents, and I'm sure
22 that we will be able to find something that we -- some of the things that
23 we've been looking for. Thank you.
24 JUDGE RODRIGUES: [Interpretation] Thank you very much,
25 Mr. Stojanovic.
1 Mr. Masic.
2 MR. MASIC: [Interpretation] Your Honours, in accordance with Rule
3 66(B) we contacted the Prosecutor with a letter, and we hope that the
4 Prosecutor will give us an opportunity to have access to the documents
5 which are of interest for us before the beginning of our case.
6 As regards the authenticity of document, I accept everything that
7 has been stated in respect of that issue by my colleague Mr. O'Sullivan.
8 Thank you very much.
9 JUDGE RODRIGUES: [Interpretation] We have heard several Defence
10 counsel on this issue, and I hope that you can respond, Ms. Somers.
11 However, before you do that, I should like to address the issue
12 which was raised by Mr. Fila, that is, that the originals should be
13 submitted to the Registry. I think that I spoke about the issue this
14 morning that regards amendment of Rules of Procedure and Evidence, in
15 particular, Rule 41. There is a new wording of this particular rule which
16 says that material evidence collected during the investigation -- I don't
17 quite remember the wording, but you have the rule in front of you. In
18 accordance with that rule, the originals which are in the possession of
19 the Prosecutor must be submitted at the end of the case. In that case,
20 the public in general can have access to the originals of those documents.
21 So this is the amendment of Rule 41. I hope you all have it, and
22 you can draw appropriate conclusions from the new wording of the rule.
23 We are not going to debate the matter ad callendas graechas. I
24 hope you know what it means. It's something that does not actually
25 exist. So I think we have to be able to finish before that time elapses.
1 Ms. Somers, for your response, please.
2 MS. SOMERS: Once again, Your Honour, there were a number of
3 issues just raised before the Chamber, many of which have nothing to do
4 with the question which the three Honourable Judges are trying to have
5 some ideas on resolution for.
6 If going back to the original issue, which is what import in
7 reading is given to the order of Judge May's Chamber, if in fact -- and
8 again, it does not cite to the provisions upon which it was based on -- on
9 which His Honour Judge May had based his order. However, 89(C) says, "The
10 Chamber may admit relevant evidence which it deems to have probative
11 value"; but (E) says, "a Chamber may request verification of the
12 authenticity of evidence obtained out of court." Judge May's order
13 appears to transfer the matter to the Defence. The Defence are at
14 liberty -- I read from the order: "The Defence are at liberty to
15 challenge the authenticity of any of the documents during the trial, and
16 the Prosecution shall deal with any issues raised as to the authenticity
17 of the documents so admitted by way of rebuttal."
18 If in fact admission has been made and there are questions raised
19 during -- either during proceedings or during argument, it would seem that
20 weight, the issue of weight would be the crucial issue upon which the
21 Chamber would focus its attention, having decided there was relevance
22 which would have been the threshold finding for admission. And we think
23 that would be perhaps the best resolution of the immediate issue, given
24 some of the ambiguities which unfortunately have arisen, maybe because at
25 the time of issuance of the order there were no questions raised and that
12 Blank page inserted to ensure pagination corresponds between the French
13 and English transcripts.
1 two years have gone by with no additional questions raised, effectively.
2 It would seem that that would square with the rules and with what
3 appears to have been -- and again, having not been present, it is a bit
4 difficult for me to look past anything that I see in writing, but what
5 appears to have been, and it seems may -- this may also be borne out by
6 Mr. O'Sullivan's reading of it, the intention of the Chamber.
7 And so it would seem a resolution consistent with what appears to
8 have been the intent to treat as admitted, and should particular questions
9 arise, to so note, and those questions should be raised in argument so
10 that the Chamber is reminded at the time that there was an issue raised.
11 I think under all circumstances, that would be the most equitable
12 and consistent with what appears to have been the understanding of both
14 Again, I wish I could cast some light on what took place, but it
15 is nowhere indicated. And just by virtue of a lapse of time, the
16 noticeable lack of objection by the Defence in the course of two years,
17 and the other events which have allowed the Prosecution to rest its case
18 without any type of concern as to the security of admission or not, this
19 may be the best for all parties. As we would do with any documents, for
20 example, which the Defence may choose to put in. If we have a question,
21 if our objections go to an issue of authenticity, we will, of course, so
22 note. And if admitted over objection, we shall remind the Chamber in our
23 arguments of these issues, and I think that's incumbent on the parties to
24 do. But I think that it would seem that that may, if the Chamber feels
25 this covers all aspects of possible concern, be a reasonable resolution.
1 The other issues which were raised by various learned friends
2 opposite concerning searches and what may or may not be in the possession
3 of the Prosecution, except under Rule 68, and the searches under 68 have
4 been effected. Those matters lay in the hands of the Judges who issued
5 lawful search warrants, and there is -- my understanding is there is no
6 standing on the part of persons from whose custody, actual or
7 constructive, these items were not [sic] seized, and that would include
8 any and all of the accused.
9 Therefore, any request to see documents which are not used by the
10 Prosecution specifically would have to fall within the materiality
11 section, material to the Defence. There are several prongs to 66(B), and
12 this is the basis for the application or for the request made by my two
13 learned friends opposite. That determination is being made in accordance
14 with the jurisprudence of the Tribunal, so that is a separate issue.
15 I don't know if there is a third issue that I should address, but
16 I think those would be the overriding concerns. And if the Chamber might
17 consider letting us know if there's some other avenue it sees, we would be
18 very grateful, because really looking at it from a very common sense point
19 of view, it would seem that the ability to argue at the end issues of
20 potential objections to authenticity or questions would be a particularly
21 useful resolution.
22 I must bring to the Chamber's attention, having looked at the,
23 cursorily looked at the terms of the new rule that has just been brought
24 in, there will, of course, be issues where there are sister cases -- for
25 example, this case is a sister case to Keraterm, which is a sister case to
1 the ARK investigations and trials, which may also have shared evidence
2 with Krajisnik and Plavsic. So I don't know at what point the Registry
3 will find a mechanism by which, if a document in the original is given to
4 the Registry for, let's say, the Omarska case, how it will find some means
5 by which that very same document can also be used for the sister cases
6 which have the same operative facts or similar ones.
7 And I just wanted to bring this to the Chamber's attention because
8 I'm confident that all members of the Chamber are aware of how cases
9 either come in piecemeal here and are tried because of serial surrender or
10 because of other similar factors, perhaps severance. But this will always
11 be an issue, and I'm hopeful that there will be some means of address to
12 this by the Registry as well.
13 Thank you very much.
14 JUDGE RODRIGUES: [Interpretation] Thank you, Ms. Somers. I think
15 that we have just heard a suggestion by Ms. Somers here. I don't know
16 whether the Defence wishes to reply to this very practical suggestion
17 which was made by Ms. Somers.
18 Mr. Simic? No. Mr. O'Sullivan?
19 JUDGE WALD: I'm sorry, I have a question on your practical
20 suggestion. Are you suggesting that it all be taken care of in argument?
21 For instance, the other day we had a sort of unsigned un-source-indicated
22 unsource list of people theoretically in category 1 at Omarska, okay? We
23 didn't -- it wasn't signed by anybody. We don't know where it came -- you
24 told us it was seized.
25 You would say that then if Mr. O'Sullivan, I'm just using an
1 example, got up and objected to that document being used, that it should
2 just be handled when closing argument came, you would argue, or are you
3 still going to abide by your earlier offer that at least you would, you
4 would share with us by affidavit or somewhere else a few details of when
5 and where it was seized; and in the case of some documents which are
6 challenged because we only have a Xerox copy and can't see the signature,
7 whether the signature comes in.
8 I just wasn't clear whether you were -- what you just talked about
9 weight and argument, you think it should all be handled just two people
10 arguing. Because as a fact finder, I don't find that satisfactory. If
11 you tell me it was seized and the other side says, "We don't have enough,
12 enough proof," and I don't find argument to be a satisfactory way to solve
13 something. I would find it a satisfactory way if there were something
14 which reasonably authenticated it.
15 MS. SOMERS: Which is what I had in my hands. I had not gotten to
16 point B.
17 JUDGE WALD: Sorry.
18 MS. SOMERS: Of course in instances, and there were specific
19 instances where a document -- it is not evident, perhaps, even from the
20 face of the document.
21 JUDGE WALD: That's right.
22 MS. SOMERS: About -- for example, if it were found in archive,
23 that should be indicated, and absolutely, I --
24 JUDGE WALD: Okay, all right, all right.
25 MS. SOMERS: It's only fair, it's only appropriate. I will deal,
1 of course, at the end of this, because I believe one of the items on
2 today's agenda was the moving into evidence of the Kvocka
3 cross-examination documents, and this was indeed one of those matters, so
4 I will address specifically that document as well as the other matter that
5 Your Honour Judge Wald raised. But yes, of course, we're preparing that.
6 JUDGE WALD: All right, all right.
7 JUDGE RODRIGUES: [Interpretation] Yes, Mr. O'Sullivan.
8 MR. O'SULLIVAN: If I can respond briefly to that question raised
9 by Judge Wald. It may, in fact, arise in this or any other trial that a
10 party has a document admitted and, for one reason or another, cannot
11 satisfy the fact-finder as to authenticity, in which case argument will
12 follow and the fact-finder must decide what weight to attribute to that
13 document. So there are issues that go beyond provenance of documents
14 which are relevant to authenticity. For certain documents, that may be
15 all you need; in certain cases, it may not be enough. Ultimately, if a
16 party does not or cannot prove its documents to the satisfaction of the
17 Chamber, that is argued by the parties at the end of the case, whether
18 it's a Prosecution document or a Defence document.
19 JUDGE RODRIGUES: [Interpretation] Now that we have discussed the
20 matter, the Chamber will decide.
21 Another question we have here, if I may call it the practical side
22 of all this, are the documents which the Kvocka Defence, that is,
23 Mr. Krstan Simic, has sent to us.
24 As we have said, there were some documents which were already
25 admitted into evidence by -- tendered by the Prosecutor. I think that the
1 Registry has separated and identified those documents and I think now
2 Mr. Krstan Simic has received their report. After that, we have to see
3 whether you are satisfied with the result of that effort, that is, whether
4 you are asking now only for the admission of those documents, and, on the
5 other hand, to see what is the position of the Prosecution.
6 So, Mr. Krstan Simic, you have the floor.
7 MR. K. SIMIC: [Interpretation] Your Honours, I have received a
8 document in which the differences have been stated which are the result of
9 the method of work applied. So the following documents remain in dispute,
10 documents tendered by the Defence: D41/1, the request for an
11 investigation by the military prosecutor of the 7th of August, 1995, and a
12 decision on the investigation of the military tribunal, and a decision
13 that Andza Jovic did not give her vehicle for use.
14 Also, a large number of documents have been admitted from our
15 list; however, the discharge papers from Miroslav Nisic, discharge from
16 hospital, who was injured in a shooting on the 30th of May, 1992, that
17 document has not been admitted.
18 Also, a document tendered by us, it is an abstract from the
19 penalties for Miro Behanovic [sic] from the 12th of August, 1994 -- I
20 apologise, the name is Emir Beganovic - Emir Beganovic - rather than Miro
21 Behanovic. Emir Beganovic.
22 JUDGE RODRIGUES: [Interpretation] Mr. Simic, does that document
23 have a number? Has it been marked for identification? I'm sorry for
24 interrupting you. You mentioned the document D41/1, and in that same
25 category, I have the document D45/1. Those two documents were tendered
1 but have still not been admitted. I don't know if you are talking about
2 both at the same time or whether you are talking about two different
4 MR. K. SIMIC: [Interpretation] Your Honour, I do apologise, I
5 wasn't focused enough. Some documents were given numbers by us, for
6 instance, D44/1, and we established that it has been marked 2/3-70 by the
7 Prosecution. If we were to continue using our own numbers, then the
8 hospital discharge papers for Miroslav Nisic would be numbered 48/1. Then
9 the records on penalties for Emir Beganovic should be marked 49/1.
10 JUDGE RODRIGUES: [Interpretation] Mr. Simic, I'm really afraid we
11 are going to get lost altogether. You're talking about 49/1, but in the
12 list of the Prosecution documents I have from the Registry, the highest
13 number is D47/1. Has the Registry given you this list? Yes?
14 MR. K. SIMIC: [Interpretation] Yes, and I am going on from that
15 last number, giving you new numbers so as to avoid all confusion, carrying
16 on from that last number.
17 JUDGE RODRIGUES: [Interpretation] Yes, but you've gone on to 48
18 and 49. What do you wish to tell us? I'm sorry. I'm lost; maybe others
19 too. Maybe it's my fault. Surely, it's my fault.
20 MR. K. SIMIC: [Interpretation] Your Honours, I received a document
21 from the Registry in which documents were marked which were not the
22 subject of discussion or adoption. According to that document, they have
23 not yet been marked for identification, and I have in front of me five
24 such -- rather, six such documents. My intention now was --
25 JUDGE RODRIGUES: [Interpretation] You're talking about documents,
1 Mr. Simic, which were admitted by the Prosecutor or, rather, were tendered
2 by the Prosecution and also by the Defence; is that what you mean?
3 Because there are documents, as you know, that have already been given
4 numbers by the Prosecution, and they have different numbers given by the
5 Defence. According to what I have, there are seven such documents.
6 MR. K. SIMIC: [Interpretation] Yes, yes, but, Your Honours, there
7 are some documents which are different, and I'm talking about the
9 JUDGE RODRIGUES: [Interpretation] So you're talking about
10 documents -- you're talking about seven documents on which a decision
11 needs to be taken, a decision on their admission; is that right?
12 MR. K. SIMIC: [Interpretation] Yes, documents which were not
13 marked either by the Prosecution or the Defence.
14 JUDGE RODRIGUES: [Interpretation] And there are seven documents
15 again of that kind?
16 MR. K. SIMIC: [Interpretation] Six documents. But there are five
17 sentences of the military tribunal which could be all under one number.
18 May I list those documents and give them a number, going on from
19 the last number that we had?
20 JUDGE RODRIGUES: [Interpretation] Those documents were never
21 tendered by the Prosecution, so it is the Defence that has requested that
22 they be admitted; is that right?
23 MR. K. SIMIC: [Interpretation] Yes.
24 JUDGE RODRIGUES: [Interpretation] Very well.
25 Ms. Susan Somers, you were going to say that you have no
1 objections; is that right?
2 MS. SOMERS: I wish I could be that charitable, Your Honour.
3 JUDGE RODRIGUES: [Interpretation] It would facilitate things.
4 MS. SOMERS: I'll let the Court know that we have prepared a
5 written response for those documents. If the Chamber recalls, our
6 objection on the military court was simply that it cited a provision of
7 law without submitting the actual law, and we were waiting for Mr. Simic
8 to present the law upon which these convictions were based, and that would
9 have alleviated it, and that's all we had been waiting for. We had some
10 relevance issues, but we'd be happy to see what the law says that formed
11 the basis for those judgements, the actual violation under which these
12 individuals were charged, and that would help us enormously. So if that
13 were provided, that could, perhaps, knock out or eliminate some of these
15 We have drafted, ready for filing, a document which itemise our
16 responses to those few controversial items. Would that be helpful, to
17 have that in front of all parties? Otherwise, there is a lot of guessing
18 and making up numbers. Would that be something I could submit to counsel
19 and to the Chamber, and then perhaps at the end of some session, the
20 Chamber would -- okay, great.
21 JUDGE RODRIGUES: [Interpretation] So, you see, Mr. Simic, I think
22 that Ms. Susan Somers really does want to facilitate our work.
23 MR. K. SIMIC: [Interpretation] Yes, Your Honour, but I would ask,
24 since the cross-examination of Mr. Kvocka is over, I would ask to be
25 allowed to present those documents, and I will respond to Ms. Somers once
1 we receive her responses. Allow me to read them out so that they be part
2 of the record, and then we can comment on them, if necessary, at a later
4 JUDGE RODRIGUES: [Interpretation] What you are asking is to
5 identify those documents now; is that right?
6 MR. K. SIMIC: [Interpretation] Yes, and for them to go down in the
7 record as my suggestion for admission.
8 JUDGE RODRIGUES: [Interpretation] Go ahead, please. Go ahead,
9 please, Mr. Simic.
10 MR. K. SIMIC: [Interpretation] Thank you, Your Honour.
11 So D48/1, hospital discharge papers for Miroslav Nisic, who was
12 injured on the 30th of May, 1992 and was discharged from hospital on the
13 18th of June, 1992; 49/1, an abstract from the record of convictions for
14 Emir Beganovic; 50/1, an information, dated the 13th of July, 1992, on the
15 implementation of the conclusions of the Crisis Staff of Prijedor
17 Also, judgements of the military tribunal, dated the 16th of June,
18 1995, against Vladislav Vekic; and of the same tribunal, dated the 20th of
19 April, 1995, again Zeljko Kvetma; again, of the same tribunal, the 20th of
20 April, 1995 against Dzuro Petkovic; of the same tribunal, dated the 24th
21 of July, 1995, against Svetko Masic; and a judgement of the military
22 tribunal, dated the 27th of February, 1995, against Zoran Karenovic; all
23 those judgements would be marked as D50 -- sorry, D51/1, and they could be
24 marked A, B, and C as they are all part of one and the same judgement and
25 they illustrate the possibilities of abandoning police or military units.
12 Blank page inserted to ensure pagination corresponds between the French
13 and English transcripts.
1 Document 52/1, D52/1, is the case history of Emir Zjakic, son of
2 Ahmet, of the 11th of June, 1992, also injured in a shooting of the 30th
3 of June; D53/1 is an announcement of the Ministry of Justice of Republika
4 Srpska, dated the 14th of December, 2000, that it never issued any
5 document on the appointment of Miroslav Kvocka as an official serving as
6 the warden of the prison in Omarska.
7 Your Honours, those are documents that are in addition to
8 documents tendered by the Defence and by the Prosecution, and that would
9 complete the list of documents being tendered by the Defence.
10 Thank you.
11 JUDGE RODRIGUES: [Interpretation] I think things are a little
12 clearer now. These documents that have now been identified and whose
13 admission will be discussed, Ms. Somers will respond as soon as she has
14 the abstract from the mentioned law.
15 On the other hand, if I remember correctly, Ms. Susan Somers
16 mentioned some documents that you would like to tendered on behalf of
17 witness Markovski, I think, and within the framework of the
18 cross-examination of Mr. Kvocka at a minimum. So we would now like to
19 address that matter. Do you remember? Do you recollect? If you're not
20 ready for it, we can find another opportunity.
21 MS. SOMERS: No, thank you very much for the opportunity. On the
22 Kvocka cross, that, of course, I would like to deal with while it's fresh
23 in everybody's minds. I can't recall anything outstanding on Markovski.
24 There may be another witness. I think the Chamber did admit the next day
25 after Mrs. Kvocka's testimony, it was the day Your Honour Judge Wald was
1 not feeling well and the next day the Chamber dealt with two exhibits.
2 Perhaps that may have been -- because I recall Your Honour Judge Rodrigues
3 mentioning something, and that was the next day. I think that was 201 and
4 202. Those were dealt with by the Chamber and admitted.
5 And then specifically there are several from the examination of
6 Mr. Kvocka that I would like to make sure I move into evidence. Would now
7 be a convenient time to do that?
8 JUDGE RODRIGUES: [Interpretation] If you have the necessary
9 element; if not, we can grant you some other time and another opportunity.
10 But I would like to remind you, yes, I remember the moment when
11 Judge Wald had to leave and she wasn't feeling too well, and you were just
12 about to ask for admission.
13 And there was another when I said we can deal with it at a Status
14 Conference. I think that was at the end of the cross-examination of
15 Mr. Kvocka. You asked me whether you could do that at a Status
16 Conference, and I said "Yes, of course." Do you remember that? I don't
17 have my notes on me just now, but on another occasion I could maybe
18 prepare myself.
19 MS. SOMERS: My concern was that, effectively that the
20 cross-examination of Mr. Kvocka be considered open until I had an
21 opportunity to move these documents in. Your Honour correctly recalled.
22 And if I may run through them now, I have the numbers. It really should
23 be a quick exercise.
24 JUDGE RODRIGUES: [Interpretation] Yes, please. Go ahead.
25 MS. SOMERS: First document was Prosecution Exhibit 3/185 which
1 was tendered, and it is the order regarding firearms training involving
2 Mr. Kvocka purporting to be signed by Hasan Talundzic. That was the first
3 one. Mr. Kvocka was asked about this and, in fact, commented on the
4 nature of the firearms training. That would be the first.
5 Second is 3/186 which was of 18 May 1991. It was signed --
6 purported to be signed by Fikret Kadiric, the then commander from
7 Prijedor. The Chamber rightly reminded us that there was a problem in the
8 translation which was remedied that day, so the English translation is
9 correct, and I would move also -- that was put to Mr. Kvocka as well. The
10 English translation, I think, was given a revised number of 3/186 bis.
11 The next document was also one that caused a problem of my learned
12 friends opposite on 3/188, which was a statement under oath that had for
13 some reason a parenthetical addition of "loyalty oath." We checked with
14 the translation section and they indeed have reviewed their own
15 translation and have submitted a corrected, revised edition which we have
16 for Chamber and counsel. And indeed, there is no mention of "loyalty," so
17 the solemn oath is the correct -- it's called "Solemn Declaration." If I
18 may offer this, too.
19 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers, this exhibit
20 will be marked 3/188 bis, is that what you're saying?
21 MS. SOMERS: This is the notation that I have. This I believe
22 came from discussion in the courtroom. Is that correct, how it was
23 marked? Yes, Your Honour.
24 I'm sorry, no, I'm sorry. I beg your pardon. The solemn
25 declaration, no, no, that's 3/188. The solemn declaration that you have
1 in your hands, Your Honour and counsel, 3/188. There was no new number
2 assigned or discussed. The 186 bis was the revised translation of the
3 work schedule of 18 May. What I have just distributed to the Chamber is
4 3/188. There was no changes, simply a correction of the translation. If
5 the Chamber should issue a bis number --
6 JUDGE RODRIGUES: [Interpretation] Excuse me. Why are you
7 distributing this to us?
8 MS. SOMERS: This is a correction of a translation. What the
9 Chamber had been given while we cross-examined the accused was a document
10 which had, for no explanation, "loyalty oath" in parentheses. It was
12 JUDGE RODRIGUES: [Interpretation] Yes. But the Registry doesn't
13 replace documents, so if there is a document already and this is being
14 brought to replace it, it has to have -- be marked bis.
15 But Madam Registrar is here. What is your position? This is a
16 document replacing the other one.
17 MS. SOMERS: Yes. This is what the Chamber had asked us for.
18 JUDGE RODRIGUES: [Interpretation] So I think we need to know that.
19 MS. SOMERS: Okay, okay.
20 JUDGE RODRIGUES: [Interpretation] Let us hear, you Madam
21 Registrar, please.
22 THE REGISTRAR: [Interpretation] In the record there is a document
23 3/188. It is an English version, and there is another one which is the
24 B/C/S version. And now we are given a corrected version of 3/188, so it
25 will have to be marked as 3/188 bis, and we have no objection on the
1 understanding that the only valid document will be 3/188 bis.
2 JUDGE RODRIGUES: [Interpretation] So, Madam Registrar, what is the
3 number of the document we have just received?
4 THE REGISTRAR: [Interpretation] 3/188 bis, the revised English
5 version of the document 3/188.
6 JUDGE RODRIGUES: [Interpretation] Fine. Somebody should pay me
7 for my effort. I'm sorry, please continue.
8 MS. SOMERS: Thank you, Your Honour. The next document was 3/189
9 which was a list of the hours worked by various police employees in June
10 of 1992 with Mr. Kvocka appearing on a particular page. We did inquire of
11 the accused about this document, and we ask to have that moved in, please.
12 Then moving on, if the Chamber is ready, in the course of asking a
13 question about a document that purported to have been from a statement
14 taken of a Serb individual in Bosnia in army custody, was 3/199, I have,
15 perhaps after the fact, studied the rulings of that Chamber, and I would
16 not be permitted under this Chamber's rulings to even attempt to put in a
17 statement, another person's statement under these circumstances. So any
18 attempt to have moved it in would be withdrawn by me, and I simply
19 referred to the document as a -- for purposes of credibility.
20 And in fact, the question had been asked of me to check
21 signature. I was unable -- on the typed version, unable to confirm any
22 signature. However, there does exist a version in the handwriting
23 allegedly of the individual which does bear a signature. However, I think
24 it becomes moot because I'm only using it for purposes of credibility, so
25 that would be withdrawn for any other purposes.
1 As I indicated, the Chamber had previously admitted 3/201 and
2 3/202 which respectively are the Slobodna Bosna interviews of what we've
3 referred to euphemistically as the Bennett interview, and then also
4 contained in the Radio Prijedor, Free Radio Prijedor, sorry, that was
5 previously admitted under Mrs. Kvocka's testimony.
6 Then 3/203 is the 24 June 1998 interview between investigator Bob
7 Reid and Miroslav Kvocka. We would, of course, move that -- seek to move
8 that into evidence.
9 3/204 was the list of category 1 persons from the Omarska
10 Collection Centre about which all members of the Bench had a question, and
11 we have -- I'm not sure of the best way logistically to show this to the
12 Chamber. One of the issues raised by one of my learned friends opposite
13 was the appearance in English of writing "Omarska category 1." I'm happy
14 to report, very happy to report that it was a PostIt on the original, and
15 that when scanned, unfortunately, the PostIt was scanned along with the
16 document. However, the original, in fact, does exist, and I can
17 provide -- if I can circulate or publish to the Chamber the document and
18 the Chamber can advise me of how it would like this handled, it's in exact
19 condition from -- if I might ask the Chamber to consider at this time,
20 until there is some system by which the originals will be handed to the
21 Registry because I think it's a bit raw right now, the whole new rule.
22 Also I have handed to Your Honours a declaration by the
23 investigator as to the date and location of seizure on that particular
24 document. That in its original form I'm very happy to leave with the
25 Chamber, with copies to the Defence. The original document, if I may
1 request to have it back at this time so that I can -- we can discuss with
2 the Registry how we will implement the terms of this new rule. I think
3 it's going to be a bit messy at first.
4 JUDGE RODRIGUES: [Interpretation] Do not have any fears,
5 Ms. Somers. We will get -- we will look at the document, but with the
6 view, of course --
7 MS. SOMERS: Thank you very much, Your Honour.
8 JUDGE RODRIGUES: [Interpretation] -- with the new rule and how to
9 set it in motion. It has to be shown to Defence counsel as well.
10 MS. SOMERS: There are a couple more, Judge.
11 JUDGE RODRIGUES: Pardon?
12 MS. SOMERS: There are a couple more.
13 JUDGE RODRIGUES: Okay.
14 MS. SOMERS: I didn't mean to cut you off. I want to make sure we
15 get this done.
16 The next document was 3/206 which was the rules on internal
17 organisation of the Republic and Secretariat of the Interior dated January
18 1990, and this concerned the description of patrol sector leader's job.
19 The next document, which was 3/207, for the same reasons, that
20 it's a third person's statement, effectively a letter, we would withdraw
21 any attempt to seek its admission. Questions -- this concerned the IPTF
22 letter which had a term which was deemed to be inappropriate within its
23 confines. We asked questions about it; I think that was sufficient.
24 The next is 3/208, a list of workers providing security to Omarska
25 Collection Centre, dated 21 June 1992. The last is 3/209; it is the
1 reserve police station receipt of solemn oaths taken.
2 I hope I have skipped nothing, but I believe that is the entire
3 list of documents which we have put to the witness and would ask to have
4 the Chamber admit them into evidence.
5 JUDGE RODRIGUES: [Interpretation] I haven't seen the documents
6 3/187 and 3/205. What's happened with those?
7 MS. SOMERS: Excuse me. Sorry, Your Honour. Those documents were
8 not used, and we will not be asking the Court to consider them.
9 JUDGE RODRIGUES: [Interpretation] Very well.
10 MS. SOMERS: Thank you very much.
11 JUDGE RODRIGUES: [Interpretation] Very well, thank you.
12 I think that now we can hear Mr. Simic. These documents were used
13 during the Defence case of Mr. Kvocka. Documents 3/201 and 3/202 have
14 already been admitted. We have to bear that in mind.
15 MR. K. SIMIC: [Interpretation] Your Honours, before I respond to
16 the documents that have been tendered by my learned colleague, I have to
17 say that we also discussed a document earlier on, number 3/176. This
18 document was used during the cross-examination of Mr. Kvocka, and my
19 colleague is now telling me that this document was not admitted. But I
20 still don't know anything as to the fate of this document. Once again,
21 let me say it's document 3/176.
22 As regards the documents that have been tendered, I will first
23 speak of those to which I object; that is, I will first give you the list
24 of documents in respect of which I raise my objections.
25 The first document being 3/201, that is the interview which was
1 published in Slobodna Bosna in respect of which we already stated that it
2 was never actually given and that Mr. Kvocka was never talking to
3 Mr. Bennett as part of an interview. What was contained in the interview
4 was, indeed, conveyed from that conversation. But Mr. Kvocka cannot say
5 anything in respect to that, cannot state his position in respect to that,
6 and the article was published two days after his arrest.
7 Likewise, we object to document 3/202, that is, a radio programme
8 which was broadcast by a radio station, Slobodne Prijedor. Mr. Kvocka
9 never gave such an interview to this radio station. It is simply a
10 compilation of various materials and documents which we already mentioned
11 in relation to the interview with Mr. Chris Bennett.
12 The third document to which we object is the document marked as
13 3/203, that is, the interview which Mr. Kvocka gave to the OTP, that is,
14 to the investigators of the Tribunal. In objecting to this document, we
15 have in mind the decision that the statements of witnesses will not be
16 tendered into evidence as exhibits but that they can be used as the basis
17 for the examination of witnesses. Mr. Kvocka is a Defence witness. My
18 learned colleague had this document in her possession and she went through
19 this document while cross-examining Mr. Kvocka. We believe that the same
20 logic should be applied in respect of this document.
21 [Trial Chamber and registrar confer]
22 JUDGE RODRIGUES: [Interpretation] I'm sorry to interrupt you,
23 Mr. Simic, but Madam Registrar has just told me that we have been working
24 for an hour and a half. We can either have a ten-minute break and come
25 back - but you know very well that we can never have only a ten-minute
1 break in this case - so the other thing we can do is to finish as soon as
2 possible or -- I really don't know what to do.
3 What do the interpreters think? How do they feel? Yes, I know,
4 but the Judges are also tired. I am tired as well. Let us try to finish
5 within ten minutes. Is this acceptable to the interpreters? Yes, thank
6 you very much. Let us try and do our best to finish as soon as possible.
7 Even if we don't make a decision today, at least we have the facts
8 necessary for us to make our ruling later on.
9 Have you finished with 203?
10 MR. K. SIMIC: [Interpretation] Yes, I have, Your Honour.
11 JUDGE RODRIGUES: [Interpretation] Please go on.
12 MR. K. SIMIC: [Interpretation] Thank you, Your Honour. The
13 Defence does not object to any other document being admitted into
15 JUDGE RODRIGUES: [Interpretation] So we are now only going to
16 listen to your arguments for the purposes of collecting the necessary
17 information for us to make the ruling, Ms. Somers.
18 So what we have in dispute are documents 3/201, 3/202, and 3/203.
19 How do you respond, Ms. Somers, to the objection raised by Mr. Simic?
20 MS. SOMERS: First of all, Your Honour, we already indicated that
21 the Chamber has already admitted 3/201 and 3/202 so I think that those
22 issues are moot as to those documents. Those were done pursuant to
23 Mr. Kvocka's testimony. That's not before us.
24 The --
25 JUDGE RODRIGUES: [Interpretation] Yes, you're right.
12 Blank page inserted to ensure pagination corresponds between the French
13 and English transcripts.
1 MS. SOMERS: The issue of Mr. Kvocka's previous voluntary
2 statement in the presence of counsel, I think, should cause the Chamber no
3 difficulties. From reading the language of decisions, what is
4 contemplated, it appears, is it was a challenge to the -- it was a
5 discussion on the orality of evidence. In this instance, an admission --
6 the admission of the accused's interview is, in no way, of -- in no way
7 offends that principle because the accused testified. In fact, these
8 questions from his voluntary statement in the presence of counsel, his
9 voluntary interview in the presence of counsel, are perfectly consistent
10 with the underlying concern about orality and, in fact, properly belong
11 among the documents to be considered by this Chamber when the Chamber
12 retires to deliberate.
13 National systems would certainly permit this, and the idea of
14 excluding third party hearsay statements, which I believe was one of the
15 concerns of the ruling, is not an issue here. This is a statement that
16 clearly was given by the accused, with all the safeguards that are
17 required under any system which seeks to safeguard the rights of the
18 accused, and the evidence has been put to him with these concerns in
20 I think that there is no doubt that this is a perfectly admissible
21 statement and does not lie within any of the prohibitions that may have
22 been issued by this Chamber concerning hearsay evidence, third party
23 statements. That was not intended for this kind of document.
24 Just to remind the Chamber, I believe that the statement of
25 Mr. Prcac was also taken into evidence.
1 JUDGE RODRIGUES: [Interpretation] Thank you very much,
2 Ms. Somers.
3 Madam Registrar, just to confirm, Exhibits 3/201 and 3/202, have
4 they already been tendered before?
5 THE REGISTRAR: [Interpretation] Yes, they were admitted by the
6 Chamber on the 13th of February, 2001.
7 JUDGE RODRIGUES: [Interpretation] So, Mr. Simic, your objection is
8 now moot. You contested these --
9 MR. K. SIMIC: [Interpretation] I will withdraw my objection, Your
11 JUDGE RODRIGUES: [Interpretation] Thank you very much.
12 As regards all of the exhibits, the Chamber can decide already
13 that those exhibits which are not in dispute are admitted.
14 Exhibit 3/203, which is in dispute, which has been objected to by
15 the Defence, is going to be analysed by the Chamber and the Chamber will
16 make an oral ruling during the following days.
17 We have five minutes left and I would like to use it for something
18 that I think has to be dealt with today. It regards the accused Kos.
19 An application, a motion, was submitted on the 26th of January, a
20 motion for protective measures in respect of one witness. A closed
21 session was requested and the Prosecutor objected to the request made by
22 the Defence. Then following that or at the same time, I don't know, a
23 videolink was requested in respect of that witness.
24 I should like to hear you, Mr. O'Sullivan, and I would like to
25 know whether you have requested the videolink because the Prosecutor
1 opposed protective measures, or if there is another reason for your
3 MR. O'SULLIVAN: No. The request for videolink is not connected
4 to the protective measures. The witness was put on the list of
5 videolink -- request for videolink testimony in our amended witness list
6 and witness order in which we reduced our witnesses down to five here, and
7 we request one further witness, this other individual, DB-1, via videolink
8 from Banja Luka. Those are all the witnesses we're intending to call.
9 JUDGE RODRIGUES: [Interpretation] Very well. Thank you very much,
10 Mr. O'Sullivan. I don't want to risk prolonging this session. I think we
11 will have to find another opportunity to continue this Status Conference
12 because we will be exceeding the time limit. I do understand that the
13 interpreters are tired, we are all tired, but thank you very much for
14 having accepted to work longer to finish.
15 Ms. Somers.
16 MS. SOMERS: I wouldn't ask the Chamber to delay at all today, but
17 because Mr. Simic was kind enough to mention an exhibit, 3/176, may I have
18 the time to check and see what that was? Apparently, we did make
19 reference to it both in Basrak and in Kvocka, and I think we can take a
20 look at whether there was a translation available. I don't want to take
21 the Court's time today. I'll inform the Chamber if the Chamber gives me
22 an opportunity at the end of another session.
23 JUDGE RODRIGUES: [Interpretation] You're quite right, Ms. Somers.
24 Thank you for paying attention to this detail. I had a note regarding
25 that issue, but I was in a hurry, I wanted to finish as soon as possible.
1 We all need that particular piece of information, both Mr. Simic and the
2 Chamber. Thank you very much.
3 Mr. Fila.
4 MR. FILA: [Interpretation] Mr. President, Mr. Nikolic said that he
5 would finish very early tomorrow, so we might perhaps continue with our
6 Status Conference tomorrow as soon as Mr. Nikolic finishes his case.
7 That's just a suggestion, Your Honour, that I wanted to make.
8 JUDGE RODRIGUES: [Interpretation] Yes, of course, gladly. I
9 didn't know that. You are better informed than I am. If your information
10 is correct, and I hope that it is, we can, of course, continue with our
11 Status Conference as soon as Mr. Nikolic finishes his case.
12 Thank you very much. See you tomorrow.
13 --- Whereupon the Status Conference adjourned at
14 5.50 p.m.