Page 3073
1 Thursday, 30 October 2008
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.16 p.m.
5 JUDGE ROBINSON: Let me say at the outset that in the absence of
6 Judge Van den Wyngaert, Judge David and I sit pursuant to the provisions
7 of Rule 15 bis.
8 Mr. Groome, you may not have understood me yesterday when I asked
9 you to confirm when was the first time five sets of documents were
10 disclosed by the Prosecution to the Defence, because it may be that I
11 wasn't sufficiently clear. I identified five witnesses and I want to
12 find out when was the first time that these documents were disclosed to
13 the Defence. VG-094, two documents; Wil Fagel, 10 documents; VG-042,
14 five documents; VG-131, ten documents; and VG-138, 1 document.
15 MR. GROOME: Your Honour, the first time that they were
16 disclosed, with exceptions that are listed in the annex, was the date of
17 that disclosure. So if you look in the last column in the annex, some of
18 those documents with respect to one of the witnesses, and I forget
19 precisely which one, it says previously disclosed by e-mail and it gives
20 the date. I believe I have a copy of the filing from yesterday,
21 Your Honour. If I can ...
22 So, Your Honour, with respect to VG-042, if you look in the far
23 right column, item 16 was disclosed on 22nd of September, 2008, and item
24 number 17 was disclosed by e-mail on the 22nd of October, 2008. Then the
25 other materials, Your Honour, this was the first disclosure on that day.
Page 3074
1 JUDGE ROBINSON: Very well, Mr. Groome. Thanks. Thank you.
2 MR. GROOME: Your Honour, just on a related topic that
3 Your Honour had also asked for information about disclosures in
4 September. I have two attorneys working on that, and by tomorrow we will
5 be making a written submission that in great detail sets out all of the
6 history of the disclosure of those documents.
7 JUDGE ROBINSON: Yes. So we are now.
8 MR. GROOME: The next witness for the Prosecution that the
9 Prosecution will call, Your Honour, would be Mr. Ib Jul Hansen.
10 JUDGE ROBINSON: Let Mr. Hansen be called, subject to what
11 Mr. Cepic has to say.
12 MR. CEPIC: Your Honour, with your leave, yesterday during the
13 examination by my omission I forgot to request admission of document ICRC
14 list of missing person in Visegrad. I used that document in the
15 cross-examination of witness.
16 JUDGE ROBINSON: Yes, we'll admit it.
17 MR. CEPIC: Thank you very much.
18 THE REGISTRAR: As 2D26, Your Honours.
19 MR.IVETIC: And, Your Honours, I would just take the opportunity
20 to bring to the Court's attention, I believe courtesy copies were served
21 of our motion relating to the testimony of Mr. Masovic, who is scheduled
22 to be the second witness today, and it's a very -- we believe very
23 serious matter that goes to the integrity of his evidence and the
24 proceedings and what ought to be properly brought in through that
25 witness. We would bring that to Your Honours' attention so that if you
Page 3075
1 don't have a copy if that could be provided to you so that you have time
2 to review the same, and if need be, ask for additional information in
3 oral submissions which we would be more than happy to provide following
4 Mr. Hansen's testimony. Thank you.
5 JUDGE ROBINSON: Mr. Ivetic, I can see I am going to have a
6 problem with the way you speak. I have difficulty understanding you
7 perhaps because you speak very fast. You are saying that a motion has
8 been filed, is that it?
9 MR.IVETIC: That's correct, Your Honours. A motion has been
10 filed clarifying our objections to Mr. Masovic's testimony and, in
11 particular, aspects of his written statement and where they are actually
12 asking Mr. Masovic to do what Your Honours told us in the last week in
13 this courtroom that we cannot do which is to present testimony of
14 witnesses who are out-of-court declarants by way of written statement by
15 presenting to a witness who is not the out-of-court declarant. The
16 statement of Mr. Masovic is about two-thirds full of conclusions that
17 Mr. Masovic reaches and presents based upon statements that we neither
18 have disclosed to us nor have been opportunity to investigate or confront
19 relating to out of court --
20 JUDGE ROBINSON: Very well. Let us deal with that when the time
21 comes.
22 [The witness entered court]
23 MR.IVETIC: Fair enough, Your Honour.
24 JUDGE ROBINSON: Let the witness read the declaration. Please
25 make the declaration.
Page 3076
1 THE WITNESS: I solemnly declare that I will speak the truth, the
2 whole truth, and nothing but the truth.
3 JUDGE ROBINSON: You may sit. You may begin, Mr. Groome.
4 MR. GROOME: Thank you, Your Honour.
5 WITNESS: IB JUL HANSEN
6 Examination by Mr. Groome:
7 Q. Mr. Hansen, can I ask you to begin by stating your full name for
8 the record.
9 A. My name is Ib Jul Hansen.
10 Q. Where were you born?
11 A. I was born in --
12 THE INTERPRETER: Would the speakers kindly observe the pause
13 between questions and answers for the interpreters. Thank you.
14 JUDGE ROBINSON: You are both being asked to observe a pause
15 between question and answer in the interest of the interpretation.
16 THE WITNESS: I was born in the town Randers in Denmark
17 Q. And when were you born?
18 A. I was born on the 31st of December, 1944.
19 Q. You were an employee of the ICTY, the Office of the Prosecutor;
20 is that correct?
21 A. That's correct.
22 Q. Can I ask you, in a sentence or two, to summarize your
23 investigative experience prior to coming to work at the ICTY?
24 A. I joined the Danish police back in 1969 and since 1974 I've been
25 employed with criminal investigations.
Page 3077
1 Q. When did you first come to the Office of the Prosecutor at the
2 ICTY?
3 A. I was seconded from my government from 1995 to 1997, and then in
4 1999, I joined the Tribunal as a staff member, investigator.
5 Q. When did you terminate your employment?
6 A. I terminated my employment at the end of 2006 when I turned 62
7 years, which is the maximum age for an -- sorry, for an investigator.
8 Q. And are you currently engaged in any work for your government?
9 A. I am. When I returned to my country, I joined the reserve
10 police, and I'm now part-time employed with the Danish police reserve.
11 Q. And what unit do you currently work in?
12 A. I work in a unit called Special International Crimes Office,
13 which is located in Copenhagen
14 committed abroad by persons that are living in our country.
15 Q. Now, I know that you worked on several investigations for the
16 Office of the Prosecutor. Was the investigation into events in Visegrad
17 one of them?
18 A. Yes, it was one of them.
19 Q. How long did you work on that investigation?
20 A. I believe I worked from the very beginning of 2000 until sometime
21 in 2003, maybe a little later.
22 Q. And did you have a primary partner or colleague that you worked
23 with on this investigation?
24 A. Yes. My partner in the investigation was Canadian investigator
25 Yves Roy.
Page 3078
1 Q. Can I ask you to summarize your responsibilities on the case?
2 A. We tried to find witnesses in the former Yugoslavia or abroad
3 concerning incidents that happened in Visegrad in 1992, and we
4 interviewed those witnesses. We also collected evidence and we did a few
5 searches, and, yeah, that's more or less what we did.
6 Q. Can you list some of the names of the people whose activities you
7 were investigating in relation to crimes committed in Visegrad?
8 A. Yes. Shortly before my arrival, an indictment was created
9 including three persons, Mitar Vasiljevic, Milan Lukic and Sredoje Lukic.
10 And we concentrated on investigating those three persons.
11 Q. At the time you began your investigation, did you know what
12 Milan Lukic looked like?
13 A. No, we didn't.
14 Q. Did you know what Sredoje Lukic looked like?
15 A. No. No.
16 THE INTERPRETER: Would the speakers kindly observe the pause
17 between questions and answers. Thank you.
18 MR. GROOME: Apologies to the Interpreter.
19 Q. Did there come a time when you were able to obtain a confirmed
20 photo image of Mr. Milan Lukic?
21 A. Yes. I believe in June 2000, my colleague Yves Roy came across a
22 videotape in Sarajevo
23 a few years before, most probably 1999.
24 Q. Did there come a time when you were able to obtain an image of
25 Sredoje Lukic?
Page 3079
1 A. Yeah. By coincidence during the Mitar Vasiljevic case, after the
2 arrest of Mitar Vasiljevic, we were looking through a lot of videotapes
3 from 1992, 1993 shot in Visegrad, and one of those sequences that were in
4 the hands of the Tribunal already in 1998 showed an incident that took
5 place at the very beginning of a war at a dam outside Visegrad where, I
6 don't know how many, a handful of police officers maybe were held
7 hostages by a Muslim, he was called an extremist, and after some days
8 they were released. After the release of the police officers, they gave
9 interviews to the press, and one of those interviews were in one of the
10 numerous videotapes that we had from Visegrad.
11 Q. During the course of your duties on the Visegrad investigation,
12 or in particular, this case, were you called upon to try to identify the
13 whereabouts of both Milan Lukic and Sredoje Lukic?
14 A. Yes, we were.
15 Q. Did there come a time when you conducted photo identification
16 procedures in relation to this case? When I say "this case," I mean the
17 original indictment of all three men, Mr. Vasiljevic and the two Lukics?
18 A. Yes. We went through all statements that were taken and found
19 possible -- found persons that might be able to recognise the suspects.
20 And we decided to go and see those persons and ask them to pick photos in
21 a photo array that were arranged by a staff member Zoran Lecic here in
22 The Hague
23 Q. The photo -- the initial photospread, how many photographs in
24 total did it include?
25 A. The initial photospread included ten photos. Later on we created
Page 3080
1 a new one including 12 photos.
2 Q. And were there any photographs of the three men the subject of
3 the indictment placed in that -- in those original photo arrays?
4 A. Yes. We used the arrest photo of Mitar Vasiljevic, and then we
5 had some concern concerning the photos that we froze from the videotapes
6 because they didn't fit in the -- they didn't look like the arranged
7 photos that were put on the original photospread with Milan -- sorry,
8 Mitar Vasiljevic photo. So we had some problems. We decided to show a
9 photospread for most of the witnesses including only Mitar Vasiljevic who
10 was arrested already at that time.
11 Q. The photographs of the other people in the photospread, where did
12 you obtain those from?
13 A. Zoran Lecic got them from the Dutch authorities, and we asked for
14 persons that had a Balkan look, so to speak.
15 Q. Could I ask that Prosecution Exhibit 87 be now displayed on the
16 monitor.
17 Mr. Hansen, the monitor to your right will in a few minutes show
18 a document. When it does appear, I would ask you whether you recognise
19 it. While we are waiting for that document to load, can I ask you a
20 question with respect to the photo array. In which position in the photo
21 array was Mitar Vasiljevic placed?
22 A. He was placed in different positions. So we shuffled the photos
23 so he wasn't on each A4-size paper not in the same position. So once he
24 was, let's say, number 3, the next that was shown he was number 4 and
25 number 11, and so in order to avoid problems that could arise when
Page 3081
1 witnesses met and talked about this, so they shouldn't be able to tell
2 that Mitar or the suspect was number 3 in the top row.
3 Q. Do you see P87 now before you on the screen?
4 A. Yeah, I do.
5 Q. And can you describe what we are looking at?
6 A. We are looking at an array with 12 persons, one of whom is
7 Mitar Vasiljevic.
8 Q. When a witness was shown such a photo array, how were the results
9 recorded?
10 A. We interviewed the witness -- or I, to speak for myself, I
11 interviewed the witness. I wrote a statement, and the comments from the
12 witness were stated in that statement. And at the end, the witness
13 signed the photospread and also had the statement read back and signed
14 the statement.
15 Q. And what question was put to the witness when they were shown the
16 photospread?
17 A. First of all, if they recognised any on the photospread. And if
18 they said yes, I ask who, and then they pointed to the person that they
19 thought they knew.
20 Q. Were these photo arrays ever used with groups of witnesses or
21 more than one witness at a time?
22 A. No, no, no. It was always one witness at a time.
23 Q. Now, did you personally conduct some photo identification
24 procedures?
25 A. Yes, I did. I think I conducted ten.
Page 3082
1 Q. Okay.
2 MR. GROOME: Your Honour, I'm going to be asking the witness
3 about specific information I think too much to retain in his memory. He
4 has made some notes and he has brought some of his records from that time
5 and some of the statements. I would ask that, with permission of Court,
6 when necessary he be allowed to refer to some of these notes to refresh
7 his recollection.
8 JUDGE ROBINSON: Where were the notes made?
9 MR. GROOME: The notes were made in his review of his statements
10 earlier this week, Your Honour. So I'm about to ask him which ten people
11 he showed a photo array to. He has gone through all of the records and
12 he has made a list to refresh his memory about the ten witnesses who he
13 showed photo arrays to.
14 JUDGE ROBINSON: And all of that was done, you say, earlier this
15 week?
16 MR. GROOME: Well, the statements, Your Honour, as we've heard
17 him say, he recorded the results in the statements. Now he has made some
18 notes to cross-reference the statements to assist him in remembering. He
19 is going to be talking about several dozen witnesses and who did --
20 showed what photo arrays to which witness. It's not something that he
21 was able to keep in his mind or in his memory and is asking for an
22 opportunity to refresh his memory when necessary.
23 JUDGE ROBINSON: Yes, Mr. Alarid.
24 MR. ALARID: Your Honour, we just -- we simply have not -- we
25 would like a copy of the notes if the Court -- otherwise we would object.
Page 3083
1 But if the Court allows it from a refreshing recollection perspective, I
2 understand this witness did deal with a voluminous amount of documents
3 and witnesses, we would like a copy of the witness's notes.
4 JUDGE ROBINSON: Yes, I'm disposed to allow it. Do you have a
5 copy?
6 MR. GROOME: I don't have a copyright now, Your Honour. I can
7 either have someone run out and make a copy now or I can have it done --
8 JUDGE ROBINSON: Mr. Hansen appears to have one. Do you have
9 an --
10 THE WITNESS: The notes are handwritten, so ...
11 JUDGE ROBINSON: Well, how long would it take?
12 MR. GROOME: The usher is telling us that we may be able to make
13 a copy in hopefully a few minutes.
14 JUDGE ROBINSON: All right. The usher will see to the copying of
15 this statement. We have very advanced technology here. It works most of
16 the time.
17 MR. GROOME: Your Honour, it might seem a bit out of order, but
18 while we are standing here might I make -- raise an issue with the
19 Chamber and make productive use of this hiatus? It's nothing related to
20 this witness.
21 JUDGE ROBINSON: Yes, as long as it's appropriate to raise it in
22 the witness's presence.
23 MR. GROOME: It has nothing to do with his evidence.
24 JUDGE ROBINSON: Yes, go ahead.
25 MR. GROOME: Your Honour, at the beginning of the week you asked
Page 3084
1 for written submissions on in-court identifications and related questions
2 and the deadline given was Friday. The submission is well underway and
3 it is our present intention to file it late Friday evening. It occurs to
4 me that, Your Honour, that it will not be distributed by the registry
5 until Monday morning. Given the importance of the issue, and the fact
6 that the document would benefit from the extra two days of work over the
7 weekend, would the Chamber consider extending the deadline to 9.30 on
8 Monday morning with the provision that the parties also send courtesy
9 copies to the senior legal officer, and that way, I believe the Chamber
10 would have hopefully an improved submission at the same time it would
11 have had the submission were it filed Friday evening.
12 JUDGE ROBINSON: Yes. And the submissions from the Defence,
13 Mr. Alarid and Mr. Cepic?
14 MR. ALARID: Well, we were working on ours. Marie was working on
15 it last night until late. We were intending to do it late tomorrow night
16 as well, so we would have no objection.
17 JUDGE ROBINSON: Well, we'll grant the extension requested by the
18 Prosecutor.
19 MR. GROOME: Thank you, Your Honour.
20 JUDGE ROBINSON: And the same will apply for the Defence, if they
21 wish it.
22 MR. GROOME:
23 Q. Mr. Hansen, perhaps there's some other areas that I can move on
24 to that may not require the kind of detailed memorization such as
25 witness's pseudonyms. Were any photo arrays containing a photograph of
Page 3085
1 Sredoje Lukic ever shown to a witness?
2 A. No. We decided not to show any photo of Sredoje Lukic because of
3 the quality of the -- it wasn't an original tape but we will call it the
4 original tape. It was very poor quality.
5 Q. And what was your concern given the quality of the photograph of
6 him?
7 A. We thought it might be possible for the witness to pick that
8 picture without knowing or -- because of the quality, it would be easy
9 for a witness to see that this wasn't an original photo.
10 Q. And with that --
11 A. Sorry. At the same time, this poor quality photo was used on the
12 SFOR posters that were put up all over Bosnia after the indictment was,
13 how do you call it, unsealed.
14 Q. For those of us who might not be familiar with the SFOR posters,
15 can I ask you to describe in essence what the SFOR posters were that you
16 are referring to?
17 A. The posters were pictures of the fugitives with their names and
18 day of birth and put up on official offices in -- all over Bosnia
19 Herzegovina
20 Q. What was your concern about showing a photo array that had a
21 picture from the SFOR poster?
22 A. Because SFOR poster was known by each and everybody, each and
23 everyone in the former Yugoslavia
24 to avoid any problems by identification, we decided not to show the photo
25 from the poster in the photo array.
Page 3086
1 Q. Was the photograph of Milan Lukic placed in any photo array that
2 was shown to a witness?
3 A. It was placed in one photo array that I showed to a person who
4 was in a country far from the former Yugoslavia.
5 Q. And why was -- why was it different rationale applied in this
6 case?
7 A. We thought it was acceptable because the location of this
8 country, this witness didn't have the opportunity to see the posters that
9 were in the Balkans.
10 Q. And were there -- do you recall the pseudonym of this witness, or
11 do you need your notes to --
12 A. I believe it's VG-032.
13 Q. Do you know with respect to which crime in the indictment he was
14 a witness?
15 A. He was a witness in the -- what we called the Drina killings, an
16 incident took place north of Visegrad at the Drina bank.
17 Q. And the photo array that was shown to him, were there any
18 photographs of other people listed on the indictment in this case?
19 A. Yes. There was a photo of Mitar Vasiljevic. And I remember the
20 witness pointed the photo of Mitar Vasiljevic 100 per cent sure, but then
21 he commented on the photo of Milan Lukic saying that he was 90 percent
22 sure of this was Milan Lukic. He further said that he had, I don't
23 remember whether he had lost weight or gained weight, and he looked older
24 than he remembered him. Because he picked him with only 90 percent, he
25 decided not to sign the photo array.
Page 3087
1 Q. Was his statement about being 90 percent sure recorded in his
2 statement which he then signed?
3 A. Yes, it was.
4 Q. We are still waiting for your notes to return. Trying to --
5 JUDGE ROBINSON: I'm told that they should be here shortly.
6 Let me just get it clear, this photo array was shown to the
7 witnesses the last week.
8 MR. GROOME: No, Your Honour.
9 JUDGE ROBINSON: When was it shown?
10 MR. GROOME: These were -- perhaps I better ask the witness.
11 JUDGE ROBINSON: Yes.
12 THE WITNESS: The photo arrays were shown from mid-2000 until
13 mid-2001, approximately. I showed them during this period of time.
14 JUDGE ROBINSON: When were the accused arrested?
15 MR. GROOME: In the summer of 2005, Your Honour.
16 Q. During your time working on the case, did you ever come into
17 possession of photographs of either Milan Lukic or Sredoje Lukic that you
18 thought could appropriately be used in a photospread?
19 A. I remember once we was on a mission to Belgrade. I don't
20 remember when it was, maybe 2003 or 2004. I had problem with the witness
21 that didn't show up, so instead of just sitting, waiting and doing
22 nothing, I decided together with an interpreter to go and see the newly
23 established Serbian war crimes unit, a courtesy visit. And I was well
24 received. We discussed certain cases, and I asked, Do you by the way
25 have fingerprints or a photo of Milan Lukic. And he said, the leader of
Page 3088
1 the unit, Yes, we have, just request them. So when I came home we
2 requested those photos and they were used for the red notice with
3 Interpol later on. I was told the photos -- the photo was taken when
4 Milan Lukic was arrested for, as far as I remember, illegal weapon
5 possession.
6 JUDGE ROBINSON: Do you ever hold identification parades?
7 THE WITNESS: No.
8 JUDGE ROBINSON: No. You are not familiar with the practice of
9 an identification parade in which an accused is put in a parade with a
10 number of other men and a witness asked to identify?
11 THE WITNESS: Yes, I have to -- I have to say that at the end of
12 2004, I left The Hague
13 Sarajevo
14 the Sarajevo
15 JUDGE ROBINSON: This is taking much longer now than I thought it
16 would. Far too long. It's not a profitable use of the Court's time.
17 Can you proceed until such time as we have the copies of the notes. And
18 it's only because Mr. Alarid said he wanted it and I believe he would be
19 entitled to it.
20 MR. GROOME: Yes, Your Honour. Hopefully they are here.
21 Q. Mr. Hansen, can I now ask you, returning to where we were before
22 we attempted to photocopy your notes, how many witnesses did you
23 personally conduct a photo identification procedure with?
24 A. For this purpose I met with ten witnesses.
25 Q. Can I ask you to slowly just enumerate them so we have them on
Page 3089
1 the record.
2 A. Yes. VG-003, VG-024, VG-032, VG-059, VG-078, VG-089, VG-101, and
3 VG-104.
4 Q. Can I ask you to summarize the results. It's not directly
5 relevant to this case, but if you just summarize the results.
6 A. Yes. VG-003 said or picked Mitar Vasiljevic. VG-024 picked
7 Mitar Vasiljevic. VG-032 picked Mitar Vasiljevic and said he was always
8 with Milan
9 with 100 percent Mitar Vasiljevic. VG-064 picked Mitar Vasiljevic, and
10 so did VG-078. VG-089 said he or she knew the face but didn't remember
11 the name. VG-104, that's something special because it was a photo array
12 with a person in by the name Momir Safic and this Momir Safic was picked.
13 And VG-101, Mitar was picked.
14 Q. With respect to the photo identifications that you personally
15 conducted, are all of the photo arrays accounted for and available should
16 the Chamber wish to look at them?
17 A. No, unfortunately, the photo array for VG-003 is not available.
18 Q. Aside from that one, are the other ones accounted for and
19 available?
20 A. Yes, they are.
21 Q. Now, I just want to ask you briefly about whether you are aware
22 of photospreads done by other investigators?
23 A. Yes. In total five investigators did this during the
24 investigation. Besides me, it's Yves Roy. It's investigator
25 Rita Pradhan and investigator Azela Dassanayake and investigator
Page 3090
1 Finn Tollefson.
2 Q. Can you ask you to deal with Yves Roy first. How many photo
3 identification procedures did he perform?
4 A. Yves Roy performed six.
5 Q. Can you enumerate the witnesses that he conducted such procedures
6 with.
7 A. Yeah, he -- Witness VG-038 picked Mitar Vasiljevic. VG-058
8 picked or recognised, as it's written in the statement, Mitar Vasiljevic
9 and added he is always with Mitar Lukic [sic]. VG-079 picked
10 Mitar Vasiljevic. VG-084 didn't pick any. VG-097 picked
11 Mitar Vasiljevic and the last one was [indiscernible] who also picked --
12 Q. Picked who, sorry?
13 A. Mitar Vasiljevic.
14 Q. Can we now deal with Rita Pradhan, how many did she conduct?
15 A. She conducted two. VG-013, and the witness picked
16 Mitar Vasiljevic. And VG-63 was negative. The witness didn't pick
17 anybody.
18 Q. So to be clear, when you say "negative," when asked did you
19 recognise anyone, the witness said, I do not?
20 A. Yes.
21 Q. Finn Tollefson?
22 A. Finn Tollefson met with one witness, VG-119. 119. And she said
23 or I don't know -- I think it was a woman, mentioned that she had seen
24 number 7 and number 4 before but she didn't give a name, and number 4 was
25 the photo of Mitar Vasiljevic.
Page 3091
1 Q. And then finally, investigator Dassanayake, you mentioned that
2 that investigator also showed some photographs. Were these the photo
3 arrays that you've been describing?
4 A. No. Azela Dassanayake met with three witnesses back in 1998, and
5 those photos that he showed the witness -- showed for the witnesses were
6 surveillance photos taken in Visegrad.
7 Q. Who were the surveillance photos taken by?
8 A. They were taken by SFOR.
9 Q. What was the purpose of these surveillance photos?
10 A. To identify whether -- try and identify whether Milan Lukic was
11 in Visegrad at that time.
12 MR. GROOME: Your Honours, I'm going to ask that ERN number
13 06428898-06428903 be shown. Your Honour, just to note, this is not
14 something that is on the 65 ter list. I'm not seeking to admit it. This
15 is one of the collections of photos that was found quite recently. It is
16 not a photograph of Milan Lukic, but I believe it would be important for
17 the witness to describe what occurred when this witness -- when he showed
18 these photographs -- or when these photographs were shown.
19 JUDGE ROBINSON: Can I ask the witness this: In relation to all
20 of the witnesses, you use the word "picked." But in one case, you said a
21 witness "recognised."
22 THE WITNESS: Yes.
23 JUDGE ROBINSON: Is there a distinction and what is it?
24 THE WITNESS: I don't know if there's a difference, but I'm using
25 the word that was in the statement taken by Yves Roy when he met with the
Page 3092
1 witness. He said "recognised." I'm a little reluctant about the meaning
2 of that word, that's why I used the word.
3 JUDGE ROBINSON: So you are just simply using the word that the
4 witness used in the statement?
5 THE WITNESS: Yes, yes.
6 MR. GROOME:
7 Q. While these photographs are being brought up, who are these
8 photographs shown to?
9 A. The photos were shown to VG-014, VG-024 and VG-025.
10 Q. And what was the purpose of showing these photographs to these
11 witnesses?
12 A. The purpose was to establish whether Milan Lukic was one of the
13 persons on the photos.
14 Q. And why did SFOR want to have that information or why were --
15 what was the purpose?
16 A. They wanted to arrest him, I think.
17 Q. Was it a picture of Milan Lukic?
18 A. It was never established whether it was Milan Lukic or somebody
19 that looked like him. The witnesses that Azela met with had some
20 comments that I don't have in my papers, but were -- the wording were in
21 the statement.
22 Q. Let's do each witness individually. And first, what period of
23 time were witnesses shown these photographs?
24 A. It happened in December 1998.
25 Q. Who is the first witness that was shown?
Page 3093
1 A. VG-014 said that there was some similarity to Milan Lukic, but
2 since the photos were vague, he or she wouldn't say anything for sure.
3 Witness VG-024 said that the person in the red jacket was
4 Milan
5 Q. And what --
6 A. And Witness VG-025 said that the photos resembled Milan Lukic.
7 MR. GROOME: I have no further questions. Thank you, Mr. Hansen.
8 JUDGE ROBINSON: Mr. Alarid.
9 MR. ALARID: Thank you, Your Honour. Your Honour, I would like
10 to reserve the ability to recall this witness understanding on the
11 Defence case that he was one of the obvious primary investigators in this
12 case. However, today we'll just be touching on the identification issues
13 raised on direct by the Prosecutor.
14 JUDGE ROBINSON: You are saying you'd like to --
15 MR. ALARID: Well, we may call him in the Defence case --
16 JUDGE ROBINSON: In the Defence case, I see.
17 MR ALARID: Yes. But given the limited direct examination, we
18 are just going to touch on the issues as given.
19 Could the court assistant go back to the photospread including
20 Mitar Vasiljevic, please.
21 Cross-examination by Mr. Alarid:
22 Q. And good afternoon, Inspector Hansen. Are you still -- you are
23 still currently a police officer; correct?
24 A. Yes and no. I'm a reservist.
25 Q. My name is Jason Alarid and I represent Milan Lukic. And just
Page 3094
1 going to this, this photo array, is it -- just a second. The photo array
2 that included Mitar Vasiljevic as is, you used the same -- and you said
3 Dutch photographs, they were from Dutch authorities?
4 A. They are from Dutch police.
5 Q. Now, you did have some relationship with the Balkan authorities.
6 Why not use photographs, mug shots, whatnot, from the Balkans?
7 A. We didn't or the investigations team didn't request those photos.
8 We just requested and array, and later on, I was told by Zoran Lecic that
9 he got them from the Dutch police.
10 Q. Did I hear you correctly that one point in time Momir Safic was
11 included in this photo array?
12 A. Yes.
13 Q. And at one time was Sredoje Lukic included in this photo array?
14 A. No.
15 MR. ALARID: Could we simply mark this as a Defence exhibit and
16 have it introduced into evidence.
17 JUDGE ROBINSON: Yes.
18 MR. GROOME: Your Honour, it's already in evidence as a
19 Prosecution exhibit.
20 MR. ALARID: Oh, is it? In relation to which witness was it
21 entered under?
22 MR. GROOME: I'm not sure. It's P87, but ...
23 MR. ALARID: P87.
24 JUDGE ROBINSON: Mr. Alarid, you'll have 45 minutes for this
25 witness.
Page 3095
1 MR. ALARID: Thank you, Your Honour.
2 THE REGISTRAR: Your Honours, the Exhibit was admitted with the
3 Witness VG-078.
4 MR. ALARID: And could next we call up 1D21-0316.
5 Q. Do you recognise this photograph?
6 A. Yes.
7 Q. Is this the photograph you recovered from the Serbian
8 authorities?
9 A. I believe so.
10 Q. And I have a smaller version, this is what we received in terms
11 of being blown up, but we just kept it as part of the packet. And can we
12 just quickly go through the next two pages of this exhibit. And this is
13 the fingerprint board you received?
14 A. Milan Lukic name is on it.
15 Q. Do you recognise it? Did you handle this document at some point
16 in your career?
17 A. No. I never handled that document.
18 Q. Okay.
19 A. It was sent to the request unit from the Serbian authorities and
20 from there it went to Interpol.
21 Q. But it did come with the same packet with the aforementioned
22 photograph?
23 A. I believe so, yes.
24 Q. Okay. Next page, please. And again, is this a continuation of
25 that, a palm print?
Page 3096
1 A. Well, it's a palm print, yes.
2 Q. Okay. And just looking at the ERN numbers, does it appear to be
3 part of the same packet you received for Milan Lukic?
4 A. I didn't receive the package for Milan Lukic. It was requested
5 from ICTY's request unit and it was sent to the request unit from the
6 Serbian authorities. Later on, we received copies of this in the team
7 area.
8 Q. Okay. And next page, please. And does this appear to be the
9 internal memorandum related to that ICTY request unit?
10 A. It seems so, yes.
11 Q. And is that on the regular and customary format that the request
12 unit would use?
13 A. Yeah.
14 Q. Okay. And next page, please. And this is a translation we
15 received in relation to the response of the liaison in Belgrade, and does
16 this appear to be the letter that accompanied the said documents?
17 A. Yes.
18 Q. Okay. And next page. And this appears to be the official
19 Yugoslav document and I won't ask you to read that one, of course.
20 A. I don't know.
21 MR. ALARID: Your Honour, at this point in time we would ask that
22 1D21-0316 be tendered into evidence.
23 MR. GROOME: Your Honour.
24 JUDGE ROBINSON: Mr. Groome.
25 MR. GROOME: I think clearly Mr. Hansen recognised the
Page 3097
1 photograph. I'm very reluctant to agree to or not object to the
2 admission of fingerprints. Clearly Mr. Hansen isn't able to say that
3 they are the fingerprints. I see ERN numbers on it. It may be a matter,
4 and I'm happy to work with Mr. Alarid on this, if I can confirm that this
5 is -- this is in fact something that we did receive. I will stipulate or
6 I will agree to the admission of them, but at this point I'd have to
7 object until I have an opportunity to check with the request unit to see
8 if this was, in fact, something that was transmitted to our office.
9 MR. ALARID: And, Your Honour, of course we received them from
10 the Office of the Prosecutor so we just assumed, and they are batched in
11 consecutive ERN numbers, so we just assumed they are all together and
12 contemporaneous.
13 JUDGE ROBINSON: So until authenticated we can mark them for
14 identification.
15 MR. GROOME: I have no objection to them being marked so,
16 Your Honour, and I will try to confirm sometime today.
17 MR. ALARID: Thank you.
18 THE REGISTRAR: That will be admitted as Exhibit 1D71, marked for
19 identification.
20 MR. ALARID: And could we then place on 1D21-0301. Sorry, it's
21 1D0021? I am sorry, 1D21-00301. I apologise, it's 00300. I've got to
22 say, scanning reduces the quality of what we have printed out,
23 Your Honour, considering the nature of the photographs.
24 Q. But, sir, can you recognise the photographs on this page?
25 A. I think the photo in the lower right corner is the one from the
Page 3098
1 poster.
2 Q. And also on the lower left-hand corner as well?
3 A. Yeah, looks so.
4 Q. Okay. And is that the photo lower left-hand corner minus the
5 miniature photo to the left of it, was that the one that was used with
6 VG-032?
7 A. Yes.
8 Q. Okay. And just to let you know we got these photos off the
9 internet so that's where we pulled them off to do a board. Is it fair to
10 say that the one in the upper right-hand corner stating "2001 Lukic,
11 Milan
12 A. Is that the one I saw a few minutes ago?
13 Q. I believe so, just big and ...
14 A. If that's the case -- if that's the one from before.
15 Q. Well, assuming you had that from 2003, what prevented you from --
16 because would it be fair to say given the nature of the photoboards that
17 you produced earlier, this would have been an appropriate photo sort of
18 in that mug shot array that you used with Mitar Vasiljevic?
19 A. We decided to stick with the original or with the plans we had
20 from the very start that we wouldn't present witnesses for photos that
21 were not of a decent quality.
22 MR. ALARID: Well, could the court assistant approach with the
23 ELMO, please, for the use with the ELMO, please.
24 Q. Now, sir, this is just what we scanned in, so obviously there is
25 some problems. When you scan something in it tended to darken the
Page 3099
1 photographs and obscure some of the details, but it would be fair to say
2 that the photo as you see on the ELMO in the upper right-hand corner is
3 of better quality, of course, than what we scanned in.
4 A. Yes, that's right.
5 Q. And I am assuming that when you received the photo in 2003, it
6 was of a better quality than maybe an ordinary photocopy.
7 A. I have to say again, I didn't receive any photos in 2003.
8 Q. Okay. Then let me just ask you, just assuming, since you are an
9 investigator, would the photo as presented on the ELMO be of a sufficient
10 quality to do a photoboard with?
11 A. Oh, yeah.
12 Q. Okay. And there's nothing that prevents you as an investigator
13 from going back and re-interviewing witnesses for purposes of clarifying
14 identification; correct?
15 A. That's right.
16 Q. So would it be fair to say that there was nothing that prevented
17 you in 2003, even before Mr. Lukic was apprehended, that would have
18 prevented you from approaching all of the witnesses, if you chose, with
19 new photoboards and arrays?
20 A. That would be possible, yeah.
21 Q. Okay. And of course, we've seen interviews and follow-up
22 interviews in this case that have gone right up to the month before they
23 testified. And is it fair to say that that is an ordinary practice in
24 proofing and following up of an investigation?
25 A. I don't understand your question.
Page 3100
1 Q. For instance, we had a witness testify yesterday that gave her
2 statement as recently as a month ago before trial.
3 A. So that's a question in general?
4 Q. Well, yeah. So what I'm saying is there's nothing -- the
5 investigation is ongoing until the conviction is done; would that be
6 true?
7 A. Yeah, that's right.
8 Q. Okay. And so there's nothing that prevented the ICTY or the OTP
9 in producing identification boards using, let's say, this photograph at
10 any time prior to trial; would that be true?
11 A. Yeah, that's right.
12 Q. Okay. And there would be nothing --
13 THE INTERPRETER: Could counsel please pause. Thank you.
14 JUDGE ROBINSON: Please pause between question and answer.
15 MR. ALARID: Yes, sir.
16 Q. And were there any discussions following the receipt of the 2003
17 photograph amongst the investigators working to undertake that role of
18 new photoboards and contacting witnesses?
19 A. There were no discussion among us because actually we didn't know
20 whether we had received this material or not. It happened at a later
21 stage because the material was given to the unit dealing with tracing
22 fugitives, and that was a unit that didn't share the information with the
23 investigators.
24 Q. Now, just looking at the photograph of Mr. Lukic in uniform, do
25 you see that?
Page 3101
1 A. Yes.
2 Q. Was the Office of the Prosecutor in possession of that
3 photograph?
4 A. I've seen it in the team office, yes. Our team area.
5 Q. Okay. And in the Balkan theatre, it wasn't uncommon for soldiers
6 to have these kind of photographs taken; would that be true?
7 A. I don't know but it's possible.
8 Q. And what I ask of you is: Were any efforts undertaken to --
9 because, of course, when you do a photo array, you have to take -- you
10 have to use photographs that are of all a similar nature, such as in
11 Mitar Vasiljevic you used sort of a mugshot approach to the photo array.
12 Simple head shots, nothing in the background, nothing to differentiate
13 where the photos were taken, that kind of thing; correct?
14 A. Yeah.
15 Q. And -- but it's also possible in a photo array to use similar
16 photos so long as they are similar enough, i.e., you could have used
17 several photographs of soldiers in uniform and camouflage, upper body
18 shots, and that would have complied with your requirements for a photo
19 array; correct?
20 A. Yes, that's right. But we could also have decided not to show
21 any photos and just go for the witness statements.
22 Q. Correct. Correct. But I mean, identification is an important
23 part of this case; correct?
24 A. Yeah.
25 Q. Because these are supposedly eyewitness account and victim
Page 3102
1 accounts of crimes directly perpetrated by my client; correct?
2 A. Yes.
3 Q. And so, of course, it's important to exhaust all remedies in your
4 investigation, is it not?
5 A. It is.
6 Q. And when identification is --
7 THE INTERPRETER: Would the speakers kindly observe pause between
8 questions and answers. Thank you.
9 JUDGE ROBINSON: Again too fast.
10 MR. ALARID: I apologise, Your Honour. You know when you give me
11 45 minutes and I have an English speaker, I tend to want to get in as
12 much as possible.
13 THE INTERPRETER: Could counsel please pause to ensure an
14 accurate record. Thank you.
15 JUDGE ROBINSON: You've heard that now. You have been
16 reprimanded.
17 MR. ALARID: Yes, yes, I have.
18 Q. So in any identification case, if possible, photo identification
19 or photo lineups should be used; correct?
20 A. I think it depends on the circumstances.
21 Q. Well, in these circumstances, the OTP was in possession of a
22 useable photograph as early as 2003; correct?
23 A. The one I found in Belgrade
24 Q. Yes.
25 A. Yes.
Page 3103
1 Q. Okay. And Mr. Lukic was arrested when?
2 A. I think he was arrested on the 8th of August, 2005.
3 Q. And just from a follow-up perspective, there was nothing that
4 prevented your office from revisiting each and every witness with a new
5 photo array; correct?
6 A. That's right.
7 Q. And the investigative team of the Office of the Prosecutor failed
8 to do that; correct?
9 A. If we had the means, I think I would be happy to go and see each
10 and every witness at a later stage, but there was a lot of economic
11 problems and we were not allowed to travel as much as we did before.
12 Q. Now, have you ever looked at the Interpol warrant that went out?
13 A. No.
14 Q. Are you aware that the description of Milan Lukic as a
15 blond-haired, blue-eyed individual with tattoos went out over Interpol?
16 A. I've never seen that.
17 Q. Would it surprise you that the arrest warrant that led to the
18 arrest of Mr. Lukic in Argentina
19 blond hair and with tattoos?
20 (redacted)
21 (redacted)
22 (redacted)
23 (redacted)
24 (redacted)
25 (redacted)
Page 3104
1 (redacted)
2 (redacted)
3 (redacted)
4 (redacted)
5 (redacted)
6 JUDGE ROBINSON: Yes.
7 MR. ALARID:
8 Q. Well, would it be -- I mean, I understand there were multiple
9 investigators on this team and not all of you touched the same witness
10 personally; correct?
11 A. Yeah.
12 Q. But did the investigators make a concerted effort to coordinate
13 the information that they were gathering and cross-reference the
14 witnesses for possible problems with the case?
15 A. Yes. For a long period of time, I would say for most of the time
16 I took part in the investigation I was working closely with Yves Roy and
17 sometimes we were supported by one of the other investigators at the
18 team.
19 Q. Okay.
20 A. Not very often.
21 Q. And did you -- do you recall seeing identifying features that
22 disputed what you knew of Milan Lukic?
23 A. I can't remember for sure.
24 Q. Well, I mean, there's certain instances where some witnesses have
25 him 200 centimetres tall.
Page 3105
1 A. I don't believe that.
2 Q. You don't?
3 A. No.
4 Q. Well, I'll dig it out eventually. But if I were to tell you that
5 some people described him as very tall --
6 A. I know it's a problem describing people because you always have
7 to compare with something. The witnesses that I met I asked always -- if
8 I asked for a description, to compare the person they describe with me,
9 with my height and then put a hair colour on and maybe an eye colour and
10 that's the way -- that's normal police work.
11 Q. Okay.
12 MR. ALARID: And at this time, Your Honour, just before I forget,
13 I had like to place the 1D210300 into evidence, and I think it might be
14 proper to put the ELMO version in as a hard copy as well simply because
15 it's a better quality.
16 JUDGE ROBINSON: Yes.
17 THE REGISTRAR: It is admitted as Exhibit number 1D72,
18 Your Honours.
19 MR. ALARID: And could we bring up ERN number 02008281. And
20 I'd -- can we go into private session for a moment?
21 JUDGE ROBINSON: Private session.
22 MR. ALARID: And the reason I asked, Your Honour, is this is the
23 photo array for VG -- oh, apologise.
24 THE REGISTRAR: We are in private session.
25 [Private session]
Page 3106
1
2
3
4
5
6
7
8
9
10
11 Page 3106 redacted. Private session.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 3107
1 (redacted)
2 (redacted)
3 (redacted)
4 (redacted)
5 (redacted)
6 (redacted)
7 [Open session]
8 MR. ALARID:
9 Q. And the photo -- now, were there wanted posters for
10 Mitar Vasiljevic?
11 A. No, there were not.
12 Q. But there are procedures that you can use to ensure that a photo
13 array is relevant with a witness; correct?
14 A. I don't understand the question.
15 Q. Well, how about this: If you have someone that you want to use a
16 photoboard with, before you show it to them you can simply ask them first
17 how they knew or know the person; correct?
18 A. Yeah, that's right.
19 Q. And you can ask them if they have ever seen photographs of that
20 person; correct?
21 A. That's possible, yeah.
22 Q. And you can did them if they've looked on the internet, just out
23 of their own curiosity, to see if there's photographs; correct?
24 A. Yes, that's right. I have never asked that question to a
25 witness.
Page 3108
1 Q. Well, it's because it's new for, I think, a lot of us as well.
2 A. Good.
3 Q. But you can also ask them if they watch television, seen any news
4 reports or photographs on the news.
5 A. Yes.
6 THE INTERPRETER: Again, would the speakers kindly observe the
7 pause between questions and answers.
8 JUDGE ROBINSON: For the hundredth time, please observe a pause
9 between question and answer.
10 MR. ALARID:
11 Q. Now, it's my understanding that based on the procedure you used,
12 when you interviewed a person, let's say you interviewed them for a few
13 hours, was that about the norm for each witness?
14 A. Not always a few hours. Could be four, five, six hours with a
15 break.
16 Q. And some witnesses even took multiple days; correct?
17 A. Oh, yeah.
18 Q. And at the final meeting of that witness, you had prepared the
19 statement, read it back to them and had them sign it; correct?
20 A. That's the procedure, yes.
21 Q. And in the middle of that statement, between the statements, you
22 probably were doing your work of generating a statement; correct?
23 A. That's not my procedure. My procedure was to let the witness
24 talk to the statement and I wrote what he said. We didn't arrange
25 anything, or I didn't arrange anything interviewing a witness.
Page 3109
1 Q. What do you mean by "arrange"?
2 A. I thought you asked whether I arranged the statement during those
3 two or three days when the -- let's say the interview took two or three
4 days, and then I arranged it so it had a -- it looked nice, and so I had
5 a plan from -- I've always had a plan from the beginning which points to
6 go through and then at the end would be shown the witness the photo
7 array.
8 Q. And I guess -- because I don't see memorialized in the statement
9 that question and answer of, Have you seen this person on television,
10 have you seen photographs of them, and I'm assuming in the statement it
11 would say, I have not seen him on TV, I've not seen the photographs, and
12 then I've been shown a photo array including 12 photographs. I didn't
13 see that memorialized in the statements. Is that --
14 A. I didn't ask that question. It depended on what the witness told
15 me. We discussed the suspect, of course, and I never asked a direct,
16 sorry, a direct question to the witness concerning his knowledge about,
17 let's say, he read the newspaper or he saw him on television or he heard
18 something from outside --
19 Q. Why wouldn't you ask that direct question?
20 A. It was all in the indirect discussion with the witness. So it
21 wasn't my -- it wasn't me who put the words in the witness's mouth. It
22 was -- I wrote down what the witness told me.
23 Q. But still, isn't it important for an investigator to ferret out
24 whatever issues may complicate the case for the Prosecution?
25 A. Yeah, but that's also what I thought I did.
Page 3110
1 Q. But if you are showing photo arrays, wouldn't one of the things
2 to ferret out was simply to ask those direct questions because they don't
3 contaminate the witness's knowledge? They either say yes or no?
4 A. I asked the witness whether they recognised any on this
5 photoboard, this specific photoboard and then I jotted down their answer,
6 and then I asked whom do you recognise and then he or she pointed out
7 that person.
8 Q. And, I mean, even though it's the picture of Milan Lukic on this,
9 what is on the screen, he is clearly you know looking in a different
10 direction, it's not a straight-ahead shot such as the rest, so I can see
11 why you could say it differentiated a little bit. But regardless of that
12 fact, you still could have attempted to use these photoboards so long as
13 you asked those direct questions; correct?
14 A. Yeah, that's right.
15 Q. And you chose not to do that; correct?
16 A. I did.
17 Q. But in this particular case, why would you choose to do it only
18 with VG-032?
19 A. Because he was in a country far from the former Yugoslavia. He
20 didn't have the possibility to watch the posters in which this photo was.
21 Q. Well, couldn't you have simply asked each witness, Have you seen
22 those photos on the wanted posters?
23 A. I could, yes.
24 Q. And if they had said no, you could have whipped out the
25 photoboard and it would have probably been in compliance with the
Page 3111
1 procedure; correct?
2 A. But if they said no, was that right? You never know.
3 Q. So you don't know if these witnesses are lying to you; correct?
4 A. You never know whether a witness is lying.
5 Q. You don't know if they might have motives other than telling the
6 truth; correct?
7 A. That's the main object to interview a witness to get the truth.
8 Q. And in this theatre, issues of revenge definitely is a factor?
9 A. I don't hope so but for some it is, I must say.
10 Q. Because someone might point out someone they believe did one
11 thing but they'll point them out for something else because that's the
12 question you asked them.
13 A. It's all -- it's not facts.
14 Q. Well, for instance, in the issue of Milan Lukic, the issue of
15 Behija Zukic came up over and over again in your investigation; correct?
16 A. Now, I have to remember who is Behija Zukic. Who is
17 Behija Zukic?
18 Q. The owner of the Passat.
19 A. Oh, yeah.
20 Q. Okay. And I think you probably got through the witnesses you
21 interviewed that she was a loved figure amongst the people and a
22 well-known figure?
23 A. She was a well-known figure.
24 Q. And everyone had a distaste for Milan Lukic because they believed
25 he killed her because they had supposedly see him in her car; correct?
Page 3112
1 A. I don't know if it's correct, but it was said that Milan Lukic
2 killed this woman.
3 Q. Okay. And yet that is not one of the charges in the indictment;
4 correct?
5 A. That's right.
6 MR. ALARID: Could we introduce this exhibit 02008281 into
7 evidence, Your Honour.
8 JUDGE ROBINSON: Yes.
9 THE REGISTRAR: As Exhibit 1D73, Your Honours.
10 MR. ALARID: And could we now call up 1D21-0279.
11 Q. Now, while we are waiting for that, sir, isn't it true that when
12 you use a photo array, it's not important that the subject witness knows
13 the alleged perpetrator; correct?
14 A. If the witness doesn't know the perpetrator, there's no reason
15 for using a photo array.
16 Q. I mean, in light of the Judge's question for a lineup, I mean,
17 let's just use a purse snatching scenario. You think you got the purse
18 snatcher, you get a picture of the purse snatcher, put it in an array, we
19 can assume the witness didn't know the purse snatcher, but you want that
20 witness to see if that's the person they recognise as grabbing their
21 purse and returning away?
22 A. Oh, you mean knowing by name?
23 Q. Not knowing at all. Really, the purpose of a photo array or any
24 kind of lineup is merely identification; correct?
25 A. That's right.
Page 3113
1 Q. Because recognition is separate; correct?
2 A. Yeah.
3 Q. Recognition -- and the reason I did that is, do you recognise
4 what is on the screen, please? And go up a little bit, please, so we see
5 just -- yes, thank you.
6 A. I think it's a page from the ICTY Rules of Procedure and Evidence
7 or --
8 Q. Now, you are obligated to follow these rules when you can;
9 correct?
10 A. Yeah.
11 Q. All right. Now, just simply read the sentence regarding
12 recognition, please, because isn't it true that investigators must
13 distinguish between recognition and identification?
14 A. Okay. I've read it.
15 Q. And so do you see what I'm saying is that there's no requirement
16 that the person being shown a photoboard having had known the person
17 before from a personal nature; correct?
18 A. That's right.
19 Q. And so regardless of the fact that a lot of the witnesses said
20 they knew Milan Lukic from childhood or earlier, there was nothing that
21 prevented you from showing photoboards to people that both claimed to
22 have never met him before to those people that said they knew him their
23 whole lives?
24 A. Yeah, that's right, but we decided, as I told before, not to put
25 that photo from the videotape in the photoboard. On this in one -- once
Page 3114
1 we did that.
2 Q. Because -- did you ever consider in your investigation the
3 commonality of the name Lukic?
4 A. No.
5 Q. And just in terms of things, I mean, you know every ethnicity or
6 nationality has some names that are very common. You know, the classic
7 American is John Smith. There's lots of Smiths. Did you take any
8 consideration in your investigation that Lukic is a common name in Serbia
9 and Bosnia
10 A. No, we didn't take -- or I didn't take into consideration.
11 Q. Did you take into consideration that there are several names that
12 are similar, Lukic, Lucic, minor variations in spelling but all around
13 that same sounding name?
14 A. No.
15 Q. What about Milan
16 common name in Serbia
17 A. No.
18 Q. And did you take into consideration that there are similarities
19 to even Milan
20 A. No.
21 Q. Now, could we please go down to number 2, and the first bullet
22 point, and I'd like you to read that, please.
23 A. "Prepare photoboard of not less than eight photos. Only one
24 photograph of the suspect is to be included. Where there are multiple
25 suspects, separate photoboards must be used for each suspect."
Page 3115
1 Q. Now, when you see "must" or "shall" in a rule book, that is
2 something that is not open to discussion; correct?
3 A. Yeah. Now, English isn't my first language.
4 Q. Okay. But in terms of "must," I would assume that that means you
5 should use two photoboards per accused; correct? Excuse me, a photoboard
6 for each accused?
7 A. Yes, looks so.
8 Q. And so the photoboard that included both Milan Lukic and
9 Mitar Vasiljevic would be void pursuant to this bullet point; correct?
10 A. Yes.
11 Q. And the photoboard that you used with Mr. Simsic and
12 Mr. Vasiljevic would have been void for that reason as well.
13 A. No, I'm not -- I don't know which one you are talking about now.
14 Q. I'm sorry. I may have gotten the name wrong. Isn't it true that
15 there was another instance where Mitar Vasiljevic was combined with
16 another accused on a photoboard? I could have heard you --
17 A. Can I have a look at my notes?
18 Q. Of course.
19 A. The only one it could be would be VG-104.
20 Q. And that's, I am sorry, Momir Safic?
21 A. Yes. And on that board were Mitar and Milan not -- there were no
22 pictures of those two.
23 Q. And could we go to page 2 of what is on the screen, please,
24 "Procedure with the witness." Now, of course once a photoboard has been
25 used with the witness, sir, you are not supposed to use it with another
Page 3116
1 witness in the same sequence; correct?
2 A. Yeah.
3 Q. And that's why you shuffle photos between witnesses; correct?
4 A. That's correct.
5 Q. Now, procedure with the witness, could you please read that first
6 paragraph for the Court, please.
7 A. "The investigator must ascertain whether the witness has seen the
8 suspect in a photograph, on television or on a poster. It may be that
9 the photoboard procedure would then be inappropriate. The team legal
10 advisor should be consulted if an identification (as opposed to
11 recognition) witness has seen the suspect in such circumstances."
12 Q. And you -- could you -- so then wouldn't it be true that every
13 witness that you used the photoboard that you did not ascertain that
14 ahead of time could be null and void?
15 A. Let me just read this once more.
16 Q. Yes, sir. And so do you have an answer, sir?
17 A. Please, your question.
18 Q. Wouldn't it be true that unless the investigator ascertains
19 whether a witness has seen the suspect in a photograph, on television or
20 poster, it's -- the photo array may be null and void for failure to ask
21 that question?
22 A. Yeah. According to what is written here, yes.
23 MR. ALARID: And so could we please have 1D21-0297 entered into
24 evidence, please?
25 JUDGE ROBINSON: Yes.
Page 3117
1 MR. ALARID: And now --
2 THE REGISTRAR: As Exhibit 1D74, Your Honours.
3 MR. ALARID: And now could we have 1D21-0310.
4 JUDGE ROBINSON: Just another 5 minutes, Mr. Alarid.
5 MR. ALARID: That's why I've been hurrying, Your Honour.
6 Q. Okay. Sir, this was the surveillance photos shown by the
7 Prosecutor to you; correct?
8 A. Yes, that's right.
9 Q. But there was two other photos, that's X1. Could we go to the
10 next page, please. Page 3, please. I apologise, and this is X2 as
11 referenced in the identification. That's a little bit closer; correct?
12 A. Yes.
13 Q. And isn't it true that two witnesses identified this person as
14 Milan
15 A. It is.
16 Q. And could we please --
17 A. I'm not sure it was 2.
18 Q. X2?
19 A. Two witnesses.
20 Q. But at least one of, was it VG-025 and VG-024 and VG-014 that all
21 looked at these photos; correct?
22 A. Yes.
23 Q. And isn't it true that VG-024 and VG-025 identified the gentleman
24 in the red jacket as Milan Lukic?
25 A. VG-025 said the picture resembled Milan Lukic.
Page 3118
1 Q. Okay. And it was VG-014 who couldn't tell; correct?
2 A. That's right.
3 MR. ALARID: Could we have 1D21--- and we'd like the 1D21-0310 in
4 evidence, please.
5 THE REGISTRAR: As 1D75, Your Honours.
6 MR. ALARID: No further questions at this time, Your Honour.
7 JUDGE ROBINSON: Thank you. Mr. Cepic, we'll take the break now.
8 MR. CEPIC: Thank you, Your Honour.
9 --- Recess taken at 3.48 p.m.
10 --- On resuming at 4.11 p.m.
11 JUDGE ROBINSON: Mr. Cepic. Mr. Dieckmann to cross-examine.
12 MR. DIECKMANN: Yes. Thank you, Your Honours.
13 Cross-examination by Mr. Dieckmann:
14 Q. Good afternoon, Mr. Hansen. My name is Jens Dieckmann and I am
15 I'm Defence counsel for Mr. Sredoje Lukic. Mr. Hansen, on the 28th and
16 29th October 2008, you met in The Hague with Mr. Groome from the
17 Prosecution, true?
18 A. That's right.
19 Q. And it was to conduct a proofing session, true?
20 A. Yes.
21 Q. In this proofing session, you stated, and I want to put it to you
22 from the proofing note we received from the Prosecution, a quote:
23 "Photos of Sredoje Lukic were never used in a photo identification
24 procedure of concerns that they could not be made to appear neutral with
25 other fill-in photographs and because the photographs were on the
Page 3119
1 fugitive posters prominently displayed in the former Yugoslavia." As I
2 understood your testimony today on page 12, line 16, of the provisional
3 transcript, you stand by this statement today?
4 A. Yes.
5 JUDGE ROBINSON: Just a minute, Mr. Groome.
6 MR. GROOME: Your Honour, Mr. Hansen doesn't have the benefit of
7 seeing whatever's on 12 -- whatever the transcript reference was that he
8 is being asked whether he stands by that statement. If it could be read
9 to him, perhaps he would be able -- in a better position to affirm.
10 MR. DIECKMANN: Yes, of course.
11 JUDGE ROBINSON: Yes, let line 16 on page 12 be read to the
12 witness.
13 MR. DIECKMANN: It's: "No. We decided not to show any
14 photograph of Sredoje Lukic because of the quality of the -- it wasn't
15 original tape but we will call it the original tape. It was very poor
16 quality."
17 May I continue, Your Honours?
18 JUDGE ROBINSON: Well, the witness is looking at it, so we'll
19 wait for his answer.
20 MR. DIECKMANN: I'm sorry. I am sorry.
21 THE WITNESS: It's not what I said because I said I used the,
22 quoting, "original tape," but it was a tape we got that we called the
23 original tape, but it -- the actual tape was far from the original. It
24 was a very poor -- I think it was third or fourth copy of something. It
25 was a poor quality.
Page 3120
1 MR. DIECKMANN:
2 Q. Is it true that you never used a photo of Sredoje Lukic in a
3 photo identification procedure?
4 A. Yes.
5 Q. Thank you.
6 MR. DIECKMANN: Ms. Court Usher, we could please show to the
7 witness, 2D20. It is a witness statement tendered into evidence from 7th
8 November 2000 of Mr. Adem Berberovic, former VG-03.
9 Could we show it on the screen, please. Thank you. The English
10 version. Yes, thank you. Could we go to the bottom of the statement,
11 please.
12 Q. Mr. Hansen, is this your signature on the left side of the page?
13 A. Yes.
14 Q. And this confirms that you conducted the interview with
15 Mr. Berberovic on the 7th November 2000?
16 A. That's right.
17 Q. Thank you.
18 MR. DIECKMANN: Could we go now to page 3 of the English version
19 of this witness statement to the bottom of the page. Thank you.
20 Q. Mr. Hansen, now, I would like to read to you the last paragraph
21 of page 3: "You have showed me a photospread with 12 photo of men.
22 Picture 3 is Sredoje Lukic. Picture 3 is Milan Lukic and 9 is
23 Mitar Vasiljevic, but he looks older than I remember him and he has no
24 mustache. I can tell you for sure that 11 is a man from Visegrad, I
25 cannot remember his name."
Page 3121
1 A. I think that's --
2 Q. Excuse me, sir.
3 A. I am sorry.
4 Q. You take then that you never used a photo of Sredoje Lukic in
5 photo identification procedures, and that you conducted the interview
6 with Adem Berberovic. Do you agree with me that picture 3 on this
7 photospread shown to Mr. Berberovic was not Sredoje Lukic?
8 A. Let me explain. I think this is a statement that, unfortunately,
9 doesn't have a photospread attached. We couldn't find that photospread
10 during the search.
11 Q. Thank you.
12 A. And I am quite --
13 Q. Could you just -- I am sorry, sir.
14 A. Okay.
15 Q. I put a question to you and I just invite you to answer my
16 question. If you never used a photo of Sredoje Lukic, photo 3 could
17 never be Sredoje Lukic; isn't it true?
18 A. I'll agree.
19 Q. Thank you. After the statement was produced, you gave the
20 statement together with the photospread to the Prosecution, didn't you
21 not?
22 A. Yeah.
23 Q. Who was your contact person at the OTP in the year of 2000 you
24 have given this statement and the photospread from Mr. Adem Berberovic?
25 A. Returning from a mission to The Hague, the first task for the
Page 3122
1 team was to, what we call, MFI
2 electronically. So we updated something in the system and with a
3 printout of the MFI
4 statement, the attachment and the MFI
5 evidence unit to handle the document.
6 Q. Thank you. Another topic, sir. You worked as an investigator
7 for the ICTY Prosecution from 1995 up to 2006 with a short period of
8 interruption, as you explained to us; is it true?
9 A. Yeah, that's right.
10 Q. When you first began work for the ICTY, you were trained in how
11 to conduct investigations at the ICTY, true?
12 A. I wouldn't say exactly trained.
13 Q. Were there training courses to make you familiar --
14 JUDGE ROBINSON: No, no. Let him say what it was. He says it's
15 not exactly trained, then what was it? Witness, how would you describe
16 it?
17 THE WITNESS: I had a person attached who told me about the
18 system in the house and the way the investigations were done. It wasn't
19 education, so it wasn't that way. It was learning by doing.
20 MR. DIECKMANN:
21 Q. Could you give us the name of this person?
22 A. No.
23 Q. You do not remember or --
24 A. I don't remember. It's not because I don't want.
25 Q. Okay. Was --
Page 3123
1 A. Sorry. I can tell you in 1999, when I came, I was attached to
2 Yves Roy, so we worked closely together.
3 Q. This person was a Prosecutor?
4 A. No, he was an investigator.
5 Q. Have you been aware of the existence of the OTP identification
6 guidelines for photographic procedures during your work as an
7 investigator?
8 A. I might have seen it, but I don't remember when. Is it from the,
9 I have to ask a question, is it from the Rules of Procedure and Evidence?
10 Q. I came to this later on, sir. So, my learned friend Mr. Alarid
11 showed to you a document on the screen; do you remember?
12 A. Yes.
13 Q. The OTP guidelines. When did you see this document the first
14 time, could you remember?
15 A. I don't remember.
16 Q. But you have seen this document before?
17 A. I believe so.
18 Q. You believe so, does it mean you are not sure?
19 A. I'm not sure because I can't answer that question before I'm told
20 where it comes from.
21 Q. Sir, this document has been disclosed from the Prosecution to the
22 Defence and this is the OTP guidelines for the work of the Prosecution
23 investigation at the ICTY.
24 A. Okay.
25 Q. Sir, let us go a moment back to the statement from the 7th
Page 3124
1 November 2000 of Mr. Adem Berberovic. Do you agree with me that
2 according to the statement on the third page, on the last paragraph
3 regarding the photospread, that you did not ask Mr. Berberovic before you
4 showed him the photospreads whether he had already seen the suspect in a
5 photo, TV or a poster? You did not verify this point.
6 A. According to the statement, yes.
7 JUDGE ROBINSON: Sorry, just meaning that you did not verify the
8 point put to you by counsel.
9 THE WITNESS: Right, Your Honour.
10 JUDGE ROBINSON: Yes, okay.
11 MR. DIECKMANN: Ms. Court Usher, could we call up again 1D74, the
12 OTP guidelines.
13 And just go to the middle. I am sorry, to page 2.
14 Q. And I would like to read to you the first sentence under the
15 headline: "Procedure with witness." "The investigator must ascertain
16 whether the witness has seen the suspect in a photograph, on television
17 or a poster. It may be that the photoboard procedure would then be
18 inappropriate."
19 Do you agree with me that following the statement of
20 Mr. Adem Berberovic, page 3, this conduct of photo identification with
21 Mr. Berberovic was not in accordance to the OTP guidelines?
22 A. No. Because not everything that was discussed between the
23 investigator and the witness was put on paper. Can I have a look at the
24 bottom line of this document, please?
25 Q. Bottom line from this document?
Page 3125
1 A. No, no, the very bottom of the page. Oh, yeah.
2 Q. But, sir, you agree with me that the statement of
3 Mr. Adem Berberovic does not present any information about it that you
4 have asked this question?
5 A. The statement of Berberovic doesn't contain those words.
6 Q. Thank you very much.
7 MR. DIECKMANN: Ms. Court Usher, could we call the document with
8 the ERN number 0642-8898. Thank you.
9 Q. I refer to your prior testimony today on page 19, line 20, where
10 you said that this photospread from the 17, 18 December 1998 was shown to
11 VG-014, 24 and 25. This is your statement?
12 A. Yes. It's according to the statement taken during those two
13 days.
14 Q. So you used this photospread three times with these three
15 witnesses?
16 A. I didn't use a photospread.
17 Q. But it was used by the investigator.
18 A. It was used by somebody, yes.
19 Q. Thank you.
20 MR. DIECKMANN: Could we go back to 1D74, please. And could we
21 go to page 2, and the upper part of the page, please.
22 Q. Mr. Hansen, I would like to read out to you the third and fourth
23 bullet point.
24 "If it is intended to show photoboards to more than one witness
25 on a mission, several photoboards should be prepared, if possible, with
Page 3126
1 the photographs arranged in a different sequence in each photoboard.
2 Each should then be photocopied."
3 Next one: "Once you have a positive identification, ideally the
4 photoboard should not be used with other witnesses. If this is
5 necessary, however, the positions of the photographs should be changed
6 and the suspect's photograph, in particular, should be moved. Take a
7 fresh photocopy of the new layout for use in the procedure."
8 Mr. Hansen, do you agree with me that the frequent use of the
9 photospread from 17, 18 December 1998
10 not in accordance with this part of the OTP guidelines?
11 A. That's correct because there are no suspect on that photoboard.
12 Q. Thank you.
13 MR. DIECKMANN: Your Honours, could we tender -- I'm sorry. Your
14 Honours, could we tender the photospread 0642-8898 into evidence.
15 MR. GROOME: Your Honour, if I'm not mistaken, isn't that in
16 evidence as 1D75? Am I incorrect in that?
17 MR. DIECKMANN: No. I don't have it.
18 JUDGE ROBINSON: We'll admit it then.
19 THE REGISTRAR: As Exhibit number 2D27, Your Honours.
20 MR. DIECKMANN: Thank you. Ms. Court Usher, could we go to ERN
21 number 0206-2640.
22 Q. This is a photospread from 11th and up to 15th May 2000
23 we go to the next page. Thank you. Mr. Hansen, this signature are your
24 signatures; is it true?
25 A. No. It's Yves Roy.
Page 3127
1 Q. Sorry. Thank you. Are you in a position to identify if all the
2 three signatures are the same signatures of Mr. Yves Roy?
3 A. Yes. This unreadable thing.
4 Q. Thank you. Is this practice of signing on the back side of a
5 photospread an indication that this photospread was used exactly the four
6 times with the signature here?
7 A. It looks so, yes.
8 Q. Thank you.
9 MR. DIECKMANN: Could it be admitted into evidence under these
10 circumstances.
11 JUDGE ROBINSON: Yes.
12 THE REGISTRAR: As Exhibit number 2D28, Your Honours.
13 MR. DIECKMANN: Thank you. Can we go to ERN number 0100-5961.
14 Sorry, this is number 13 on the exhibit list of the Prosecution sent to
15 us before this session. Number 13. Sorry, perhaps it's -- no. Yes,
16 this is 0100-5961. Photospread from 12 and 13th June 2000. So we have a
17 hard copy here, I don't know. So it will be shown? Okay, thank you.
18 Q. Sir, if you look at this photospread, it was a photospread from
19 the 12th and 13th June 2000 which was used with VG-119. This photospread
20 is identical to the one used on the 11th May 2000 I showed you before,
21 isn't it?
22 A. I don't remember now.
23 Q. Shall we show you the other one?
24 A. Can we put the other one next to it?
25 MR. DIECKMANN: Perhaps is it possible to show the first page
Page 3128
1 side by side from both documents? The other document was 0206-2640,
2 tendered into evidence with 2D28. This is the first page.
3 Q. Do you agree with me that both are identical?
4 A. Yes.
5 Q. Thank you.
6 MR. DIECKMANN: Can we show the second page of both documents, if
7 possible. The next one, the next page. Thank you.
8 Q. You agree with me that also the second page is identical?
9 A. Yes.
10 Q. And do you agree with me that this use of this photospreads,
11 those documents, is also not in accordance with OTP guidelines for using
12 photospreads, page 2, bullet points 3 and 4, I read out to you some
13 minutes before?
14 A. I need to know on which dates those photospreads were used. I
15 think you mentioned the date but I forgot.
16 Q. Yes, the first page was used in May 2000, 11th through the 15th
17 of May, 2000. And the document on the right side was used on the 12th
18 and 13th June 2000
19 JUDGE ROBINSON: What guidelines do you say they breach,
20 Mr. Dieckmann?
21 MR. DIECKMANN: It is from the guidelines page 2 and the third
22 and fourth bullet point I read out because the same photoboards are shown
23 to more than one witness without any change, and even in the case they
24 have been suspect in it. Yes. The third bullet point: "If it is
25 intended to show photoboards to more than one witness on a mission,
Page 3129
1 several photoboards should be prepared, if possible, with the photographs
2 arranged in a different sequence in each photoboard. Each should then be
3 photocopied." And here in fact it was shown to VG-058, the first
4 document, and the other one was shown to VG-119 on the same mission, just
5 one month after the other.
6 JUDGE ROBINSON: And they are the same? Are you saying they are
7 the same?
8 MR. DIECKMANN: I say they contain the same photos and in the
9 same arrangement, and they are identical, yes.
10 JUDGE ROBINSON: The photos on the left you say are identical to
11 those on the right?
12 MR. DIECKMANN: Yes.
13 JUDGE ROBINSON: Will it be a matter of appreciation. Let's hear
14 what the witness answers.
15 THE WITNESS: I don't know much about this because one was shown
16 by Yves Roy, the other one was shown by Finn Tollefson. The
17 circumstances I don't know about.
18 MR. DIECKMANN: Your Honours, could we tender the document
19 0100-5961 into evidence.
20 JUDGE ROBINSON: That's the photospreads on --
21 MR. DIECKMANN: The right side.
22 JUDGE ROBINSON: On the right side?
23 MR. DIECKMANN: Yes.
24 JUDGE ROBINSON: Yes.
25 THE REGISTRAR: Admitted as Exhibit number 2D29, Your Honours.
Page 3130
1 MR. DIECKMANN: Ms. Court Usher, could we go to ERN number
2 0206-2586. Thank you. Could we go on the second page. Thank you.
3 Q. Sir, do you agree with me that there are signatures of four
4 different persons with four different dates?
5 A. Yes.
6 Q. On the left corner of the page it is VG-059. On the right side
7 is VG-064. Then left on the left side down it is VG-063, and down on the
8 right side is VG-13.
9 MR. DIECKMANN: Perhaps we should go into private session,
10 Your Honours. And it should be redacted, I think.
11 JUDGE ROBINSON: Private session. And a redaction.
12 THE REGISTRAR: Your Honours, we are in private session
13 [Private session]
14 (redacted)
15 (redacted)
16 (redacted)
17 (redacted)
18 (redacted)
19 (redacted)
20 (redacted)
21 (redacted)
22 (redacted)
23 (redacted)
24 (redacted)
25 (redacted)
Page 3131
1
2
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4
5
6
7
8
9
10
11 Pages 3131-3138 redacted. Private session.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 3139
1 (redacted)
2 (redacted)
3 (redacted)
4 (redacted)
5 (redacted)
6 (redacted)
7 (redacted)
8 (redacted)
9 (redacted)
10 (redacted)
11 (redacted)
12 (redacted)
13 (redacted)
14 (redacted)
15 (redacted)
16 (redacted)
17 (redacted)
18 (redacted)
19 (redacted)
20 [Open session]
21 MR. GROOME:
22 Q. My question to you was: Was there a monetary reward advertised
23 on this poster for capture of the people contained on it?
24 A. Yes, there was.
25 Q. And can you give the Chamber some idea of the distribution of
Page 3140
1 these posters, how widespread, how commonly were they available in
2 Bosnia-Herzegovina?
3 MR. ALARID: Objection, calls for speculation.
4 MR. GROOME:
5 Q. If you know, sir.
6 JUDGE ROBINSON: How is that speculation? Either he knows or he
7 doesn't know.
8 MR. ALARID: I'd ask for a -- lack of foundation.
9 JUDGE ROBINSON: Can you answer the question, Witness?
10 THE WITNESS: I've seen quite many posters when they were
11 distributed in Bosnia
12 MR. GROOME:
13 Q. And where would these posters be posted?
14 A. In official offices, post offices, banks, police stations.
15 Q. Now, Mr. Alarid brought out, this was the photospread that was
16 shown to VG-032, one of the Drina
17 person said with respect to Mr. Lukic's photo on this photospread?
18 MR. ALARID: Objection. Asked and answered.
19 MR. GROOME: Your Honour, I didn't have the benefit of this
20 exhibit when the --
21 MR. ALARID: He testified on direct to what he said. Mr. Groome
22 is asking him to repeat himself.
23 JUDGE ROBINSON: Has this question already been asked because we
24 don't want to be wasting time, Mr. Groome.
25 MR. GROOME: Your Honour, I did not have a -- this was not on the
Page 3141
1 65 ter list so I did not, in fairness attempt, to use it. Now that it is
2 a Defence exhibit, I would like to ask the witness what he recalls about
3 what VG-032 said about it. I did ask him --
4 JUDGE ROBINSON: What is the answer, Witness? What is the
5 answer?
6 THE WITNESS: The witness that I met outside former Yugoslavia
7 picked Mitar Vasiljevic, number 1 in the top left corner, with 100
8 percent. And concerning Milan Lukic, he put his finger -- let me just --
9 he put his finger on the picture and said: "This is Milan Lukic, but I'm
10 only 90 percent sure. That's why I don't want to sign the photo."
11 MR. GROOME: Could I now ask that the witness be shown 1D75. I
12 believe I have the right exhibit. And could we go to the second page of
13 this exhibit. Is there another page with a close-up of the ...
14 Q. You were asked on cross-examination whether VG-014, another
15 survivor of the Drina River
16 question to you is: When this photograph was shown to that person, did
17 he make any comment on the hair of the person in this photograph?
18 A. Since I don't have the statement with me, I have to say I'm not
19 quite sure but he said something about curly hair. I don't remember the
20 quoting in the statement.
21 Q. And what did he say generally with respect to --
22 MR. ALARID: Objection, calls for speculation.
23 MR. GROOME: What did he say?
24 MR. ALARID: He just answered --
25 JUDGE ROBINSON: Let him finish his question.
Page 3142
1 MR. ALARID: He just said without the benefit of the statement he
2 can't be sure, so he is being asked to speculate.
3 JUDGE ROBINSON: Let me hear the question. What is the question
4 you are asking, Mr. Groome?
5 MR. GROOME: Could I ask him --
6 Q. Do you recall what he said in comparing this person to the person
7 that he was telling you was Milan Lukic?
8 A. He said this person was curly -- had curly hair where Milan Lukic
9 didn't have.
10 MR. GROOME: Thank you. No further questions, Your Honour.
11 MR. ALARID: May I have recross, Your Honour?
12 JUDGE ROBINSON: Re?
13 MR. ALARID: Re-cross, yes. Based on the questioning of the --
14 because I have the statement so we can put that up.
15 MR. GROOME: Your Honour, I don't believe -- I think the only
16 time re-cross is appropriate is if I've gone outside the boundaries of
17 cross-examination and I haven't --
18 JUDGE ROBINSON: I am not familiar with that procedure. We don't
19 have that here --
20 MR. ALARID: Well, he -- and he has gone outside the bounds of
21 cross-examination. I didn't talk about the statement and -- or nor asked
22 this witness to refer or recollect the statement and we have the
23 statement.
24 MR. GROOME: Your Honour, I didn't introduce this exhibit. It
25 was introduced by Mr. Alarid, he asked questions about. I simply asked a
Page 3143
1 questions arising out of his use of this exhibit. There's no grounds
2 here for a renewed -- if Mr. Alarid wants to make an application to
3 re-open his cross-examination, that's one thing, but it certainly isn't a
4 matter for re-cross.
5 JUDGE ROBINSON: I don't see where the re-examination did not
6 arise from cross-examination, Mr. Alarid. So I don't understand how you
7 would have any basis for asking permission to ask further questions.
8 MR. ALARID: Could we tender, then, the statement simply into
9 evidence? It is a statement of the witness.
10 JUDGE ROBINSON: Yes.
11 MR. ALARID: It's 1D21 -- excuse me, we have the ERN number.
12 00672114 and 200672115.
13 MR. GROOME: Your Honour.
14 MR. ALARID: And 00672116.
15 MR. GROOME: I must say I'm concerned that the VG-014 has been
16 here, has testified. If there's something in his statement that
17 Mr. Alarid wanted to put it him, it seem that that would have been the
18 appropriate time. I'm not even sure whether Mr. Hansen is the
19 investigator who actually took the statement.
20 THE WITNESS: No, I wasn't.
21 MR. ALARID, and Your Honour, the problem is -- that regards to
22 that is the photos that Mr. Groome said he just found, we didn't have, so
23 we didn't have the ability to cross-examine that witness with the photos.
24 We've introduced the photos, so I think the statement relating to the
25 photos should come in accordingly.
Page 3144
1 MR. GROOME: Your Honour, I will concede that that is correct,
2 that those photos were found recently after VG-014 had completed his
3 testimony.
4 JUDGE ROBINSON: Well, what can this witness say about the
5 photographs?
6 MR. ALARID: You just allowed him to testify as to what occurred
7 during that statement which he didn't take, so I think the best evidence
8 is the statement, Your Honour.
9 JUDGE ROBINSON: All right. We'll admit it.
10 THE REGISTRAR: As Exhibit number 1D76, Your Honours.
11 JUDGE ROBINSON: Witness, that concludes your evidence. We thank
12 you for giving it. You may now leave.
13 THE WITNESS: Thank you.
14 [The witness withdrew]
15 JUDGE ROBINSON: The next witness?
16 MR. GROOME: Your Honour, the Prosecution now calls Amor Masovic.
17 Mr. Adam Weber will be doing the examination of Mr. Amor Masovic.
18 JUDGE ROBINSON: Before the witness is called, we received today
19 a motion filed by the Defence for Milan Lukic to bar the Prosecution from
20 the introduction into evidence of the proffered Exhibit statement of
21 Amor Masovic and related testimony.
22 First, I'd like to ask Defence why is this motion so late?
23 Mr. Masovic is testifying today.
24 MR.IVETIC: Is that a serious question, Your Honour? With the
25 manner in which the Prosecution have been filing motions and the fact
Page 3145
1 that we've been responding to them --
2 JUDGE ROBINSON: Don't you ask me if it's a serious question.
3 That's out of order.
4 MR.IVETIC: I -- I apologise, Your Honour, but --
5 JUDGE ROBINSON: If I ask you the question, you answer it.
6 MR.IVETIC: Your Honour, it was filed late because we -- as
7 Your Honour knows, the Prosecution provided information yesterday. We
8 were going to file the motion last night, but I had to review the
9 documentation that the Prosecution had just disclosed to us for this
10 witness in order to make sure that there was not anything further that
11 needed to be included in the motion with respect to objections asked to
12 Mr. Masovic.
13 We have been responding to the Prosecution's case, witness by
14 witness. Your Honour knows I've been assigned as co-counsel on this case
15 rather recently. The original 65 ter summary for Mr. Masovic does not
16 include any of the factors that are raised in the witness statements for
17 which we are objecting to. The original mode of testimony was set to
18 be -- was set to be viva voce in the latest in the latest witness
19 notification for this witness. Yesterday was the first time that they
20 indicated he would be brought 92 ter and that the statement, which had
21 been listed just as an exhibit that might be referred to, now becomes
22 actual as being the bulk of his testimony. And I apologise again, in the
23 heat of the moment, to making the comments to Your Honour as I -- as I --
24 reflecting back, some of these matters may not be part of the public
25 record and therefore may not be available to Your Honour. And again I
Page 3146
1 apologise and take back the comments I made at the beginning.
2 JUDGE ROBINSON: Part of the difficulty, of course, is that we
3 have to rule, we have to hear arguments on this motion. It's a motion to
4 bar the testimony of the witness who is to testify now.
5 MR.IVETIC: One suggestion I have on that, Your Honour, one thing
6 we did do in another case, the case wherein the decision is cited from
7 Milutinovic et al. We heard the witness, kept the motion pending, and
8 then following the completion of the testimony of the witness, having the
9 full picture of the witness's qualifications, testimony, et cetera, the
10 Trial Chamber then made its ruling. And that was something -- that's why
11 I asked for oral submissions, that was something I was going to propose
12 in this instance. Given the fact that we have Mr. Masovic here, we have
13 time in the courtroom, which is quite valuable, and that was what I was
14 going to suggest to Your Honours as a viable alternative. Just so long
15 as you do realize that it is a very serious motion that has -- and I've
16 taken the effort to give everything to Your Honours in the written motion
17 so that you have the full picture that you need to reach your decision.
18 Thank you.
19 JUDGE ROBINSON: What should we then -- should we follow that
20 procedure and at the end of the day agree with the motion, we would have
21 our wasted time.
22 MR. WEBER: Your Honour, may I respond?
23 JUDGE ROBINSON: Yes.
24 MR. WEBER: Good afternoon, Your Honours. At 1.24 p.m. today,
25 the Prosecution received an e-mail containing a courtesy copy of
Page 3147
1 Milan Lukic motion to -- seeking to bar the Prosecution from the
2 introduction into evidence of the proffered exhibit statement of
3 Amor Masovic, which is referenced as the statement of the 4th of
4 September, 2008, and related testimony.
5 The relevant procedural history relating to Mr. Masovic is as
6 follows: On the 15 of --
7 THE INTERPRETER: Would the counsel please slow down for the
8 interpreters. Thank you.
9 JUDGE ROBINSON: I think you are going too fast.
10 MR. WEBER: Thank you, Your Honour. Of course. On the 15th of
11 February, 2008, the Prosecution filed a motion to admit the testimony and
12 related exhibits of Amor Masovic pursuant to Rule 92 bis. This is over 8
13 months ago. After being granted an extension during a status conference
14 on the 12th of March, 2008, the accused filed his response to the
15 Prosecution's 92 bis submission for Mr. Masovic. In this response, the
16 accused requested the ability to cross-examine the witness but did not
17 raise any issues pursuant to Rule 94 bis.
18 On the 22nd of August, 2008, the Trial Chamber issued its
19 decision allowing Mr. Masovic pursuant to Rule 92 bis to appear before
20 this Tribunal with the Prosecution to lay the foundation for
21 Mr. Masovic's exhibits pursuant to Rule 92 ter and for cross-examination.
22 No motion for certification of appeal was filed on behalf of either of
23 the accused in relation to this decision.
24 On the 22nd of September, 2008, the Prosecution filed its motion
25 to add an updated statement of Amor Masovic dated the 4th of September,
Page 3148
1 2008, this included updated tables and a B/C/S version of the witness's
2 curriculum vitae. The Prosecution disclosed the English translation of
3 the curriculum vitae on the 26th of September, 2008, over a month ago.
4 On the 7th of October, the accused response -- filed a response
5 to that motion. This response, again, did not raise any of the
6 substantive issues that are raised in the current filing made today.
7 This was the proper forum to raise these concerns in relation to the
8 witness's statement of the 4th of September, 2008, which the Defence now
9 claims to be making today. But this two-page motion that was filed in
10 response on the 7th of October did not contain any of these matters.
11 There was no response filed on behalf of the co-accused, Sredoje Lukic.
12 On the 23rd of October, 2008, the Chamber issued its decision admitting
13 the updated statement and tables of Mr. Masovic. This updated statement
14 is what is the subject of the current motion that's pending today.
15 It was in the context of this litigation, over the course of 8
16 months, that the matter of whether the substance of Mr. Masovic's
17 evidence falls rightly under 94 bis or under 92 bis should have been
18 rightly raised by the Defence. They had adequate opportunity to do so.
19 The proper forum for this discussion would have been in the response to
20 the Prosecution's motion to admit the testimony of Mr. Masovic under 92
21 bis filed on the 15th of February.
22 THE INTERPRETER: Slow down, please, for the benefit of the
23 interpreters. Thank you.
24 MR. WEBER: Would have been to raise these issues in the response
25 to the Prosecution's motion to admit the testimony of Mr. Masovic under
Page 3149
1 92 bis filed on the 15th of February, 2008, or alternatively, in the
2 response to the motion to admit the updated statement and tables filed on
3 the 22nd September 2008
4 required to follow with respect to the timeliness of submissions before
5 this Tribunal. These submissions -- this submission that is filed today
6 is not timely and thus not abiding by the Rules of Procedure and
7 Evidence. The Defence's wish is have an unhindered right to raise any
8 matter at any time in any format. This should not be permitted.
9 Based on these reasons, the Prosecution requests that the
10 Trial Chamber bar this motion from being filed and proceed with
11 Mr. Masovic's testimony in full today pursuant to the previous rulings of
12 the Chamber.
13 JUDGE ROBINSON: You say it should have been filed when? Just
14 remind us.
15 MR. WEBER: The accused had multiple opportunities to raise this
16 issue. We filed a motion to admit Mr. Masovic's materials in the
17 Vasiljevic case and related exhibits back on the 15th of February, 2008
18 They filed a response to that in March of 2008, March 28th. We then
19 filed an additional -- well, just going back. There was a decision on
20 that submission rendered by the Tribunal -- rendered by the Chamber on
21 the 22nd of August, 2008. They could have raised that in a certification
22 to appeal that decision; they failed to do so. Then we submitted an
23 additional updated statement on the 22nd of September, 2008, in which
24 they could have raised these issues in response. On the 7th of October,
25 2008, they failed to raise those issues in the response, and those would
Page 3150
1 have been the opportunities that they would have had to raise these
2 issues.
3 JUDGE ROBINSON: Thank you. Mr. Ivetic, Mr. Alarid then.
4 MR. ALARID: The only thing that --
5 JUDGE ROBINSON: No, no. Just -- I'm not asking you about that.
6 Forget for the moment the question of the timeliness of the motion. What
7 is the substantive issue that it raises?
8 MR.IVETIC: Twofold, Your Honour. The witness statement of
9 Amor Masovic, which I presume is going to be the bulk of his testimony,
10 has two deficiencies. First of all, we did not know the expert nature of
11 his testimony until his new report was received in September. The
12 statement purports to indicate -- and we did object to the report. The
13 statement indicates that he is reaching conclusions and making an
14 analysis of certain data that is in the possession of his organisation
15 and certain statements of out-of-court declarants.
16 The thrust of our motion, Your Honour, is that for the past two
17 days, at least twice this Trial Chamber has prevented Defence counsel
18 from using statements of out-of-court declarants with the witness who is
19 not the out-of-court declarant. Mr. Masovic is -- almost the entirety of
20 his testimony in the statement is doing exactly that which the Defence
21 was denied the ability to do. So I would dictate, irrespective of the
22 filing issue, the interests of justice, equality of arms and having a
23 fair and impartial proceeding dictate that this matter be addressed. And
24 indeed I did not have to file a motion, I could have objected at the time
25 that the witness is called when they seek to introduce an exhibit, which
Page 3151
1 is what we'd intended to do when he was listed as a live witness.
2 But in any event, the second thrust of that, and I've cited to
3 the decision in the Milutinovic case where the Trial Chamber, chaired by
4 the Honourable Judge Bonomy, did in fact bar, after hearing the
5 testimony, those statements saying, this is page 10 of the decision:
6 "Most of the tendered excerpts of the challenged reports set forth
7 allegations of criminal conduct made by persons who claim to be victims
8 or witnesses to these crimes. Not having had the opportunity of a
9 hearing, any of the persons upon whose statements these excerpts are
10 based, the Chamber is not in a position to assess the reliability of the
11 factual contentions contained therein. So we object to the portion of
12 Mr. Masovic's statement that is the result of his review of an untold
13 number, unidentified and undisclosed by the Prosecution, witness
14 statements collected by the Bosnian authorities upon which -- which he is
15 now retelling to this Trial Chamber in his report.
16 Secondly, on the issue of being an expert, the CV and other
17 material that has been disclosed does not make him an expert. There has
18 been no filing by Prosecution seeking to submit him as an expert, and
19 therefore, the portions of statement that purport to give expert opinions
20 are therefore improper. And I've said that --
21 JUDGE ROBINSON: Is he being called as an expert?
22 MR.IVETIC: I don't know to this day, Your Honour.
23 MR. WEBER: No.
24 JUDGE ROBINSON: That's not my understanding, that he is being
25 called as an expert.
Page 3152
1 MR. IVETIC: Well, Your Honour, reading this statement that they
2 even call a report sounds like it's an expert to me. I think they are
3 trying to sneak in pseudo-expert testimony through a factual witness. I
4 would like to submit if they stick to what was in the 65 ter summary,
5 that the witness, a lawyer by profession, was the president of the state
6 commission, and if he will talk about the operation of the commission,
7 his attendance at exhumations, the locations of exhumations, the number
8 of human remains that were recovered, that all is unobjectionable. And
9 if that is what he is testifying about, I have no objection and I have no
10 cross-examination. But all this new material since the 65 ter was filed
11 in March of 2008, changes the picture dramatically, and in light of the
12 cases that I've cited, I believe is a matter that needs to be considered
13 and which affects the integrity of this evidence that's being offered by
14 the Prosecution.
15 JUDGE ROBINSON: In paragraph 11 of the motion, we have a
16 reference at(b) to: "Our team searched the ruins of those houses on
17 several occasions, but until today, we have not located remains of the
18 victims. And it leads to the conclusion that mortal remains were moved
19 to secondary locations." Now "conclusion" is in bold. What is the point
20 you want to make about that?
21 MR.IVETIC: If Your Honour reads further in the motion, you'll
22 see that we have delineated in there, trying to differentiate between the
23 portion of that that is acceptable testimony, i.e., that they went to the
24 site, they performed examination, no mortal remains were found. But
25 where he says the conclusion you draw from that is that there were
Page 3153
1 remains and they were removed, that is the providence of the Trial
2 Chamber to make that legal conclusion based upon the forensic or factual
3 evidence that is presented. This lawyer by profession who is a
4 Prosecution witness is not in a position to present that as evidence that
5 this Trial Chamber is then bound by to consider the charges in the
6 indictment.
7 JUDGE ROBINSON: Wouldn't the proper course then be for you --
8 wouldn't the proper then course be for you in cross-examination to
9 examine him as to his qualifications to make that conclusion and thereby
10 demonstrate that the conclusion is worthless? And ask us to disregard
11 it.
12 MR.IVETIC: With respect to that, Your Honour, that is absolutely
13 correct and with respect to that I can cross-examine him. Where I can't
14 cross-examine him is why he says, I've read statements and based upon
15 these statements I conclude that this event happened. I don't know the
16 statements that he reviewed. I don't have access to them and I don't
17 know how many there are, how they were taken, who they are from. That is
18 the part that I cannot successfully and properly confront him and
19 cross-examine him on. So I agree, there are portions of this that I
20 could examine him on. Therefore, I think that he -- you know, hearing
21 him, there's parts of his testimony that is proper, so he will be heard
22 in some form or another, I believe, no matter how the Trial Chamber
23 rules. That's why I think that we should at least have an opportunity to
24 look at the stuff that is beyond what would be proper testimony for him
25 in our submission and see which of that comes in, which of it doesn't,
Page 3154
1 because if we are talking about --
2 JUDGE ROBINSON: Remind me again of the decision in the
3 Milutinovic case.
4 MR.IVETIC: The decision in the Milutinovic case --
5 THE COURT: You referred to it in your motion?
6 MR.IVETIC: Yes, Your Honour. It's footnoted. I have a copy
7 here that I have only highlighted one page on and written on the first
8 page. I can take the first page off. It's the 1st September 2006
9 decision on evidence tendered through Sandra Mitchell and Frederick
10 Abrahams. Those were the -- Your Honour, and I know you probably
11 remember from the Milosevic case, those were the as seen, as told, and
12 under-orders books that were presented in both proceedings.
13 JUDGE ROBINSON: But wasn't that -- in that case wasn't the
14 witness an expert? Wasn't he -- he wasn't tendered as an expert?
15 MR.IVETIC: No, Your Honour. They're tendered as a --
16 THE INTERPRETER: Kindly slow down for the interpreters. Thank
17 you very much.
18 MR.IVETIC: -- question were tendered as exhibits by the
19 Prosecution to be used in the live testimony of those witnesses, or I
20 take that back, they were 92 ter witnesses, though.
21 THE INTERPRETER: Kindly slow down for the record, please. Thank
22 you. Slow down.
23 JUDGE ROBINSON: You have to slow down.
24 MR. IVETIC: I see that, Your Honour.
25 JUDGE ROBINSON: Now, is it paragraph 10 that you are referring
Page 3155
1 to? Because I see in paragraph 12 a reference to Milutinovic and a
2 reference to Philip Coo. Is that the --
3 MR.IVETIC: I believe so. There should be -- there should be
4 one -- one was an oral decision and one was a written decision. In the
5 footnote they should have 1 September 2006
6 written decision of some 15 or 20 pages, I think it is. And the other
7 one was the oral ruling for which I gave the transcript reference. I
8 unfortunately don't have the copy of my motion in front of me. It's
9 footnotes 2 and 5 of our motion, Your Honour. I apologise again for not
10 having a copy in front of me.
11 JUDGE ROBINSON: The difficulty that the Chamber faces is that we
12 now have to assess this motion very quickly and give a decision on it.
13 So the question of timeliness is in fact quite relevant. But I would not
14 be minded, I would not be disposed to dismiss it on that ground. My
15 background doesn't allow me to do that. I like to look at the substance
16 of things. So I would be prepared to apply Rule 127, even if I did find
17 it was out of time, and not bar it on that ground. And let's get to the
18 substance and deal with the substance.
19 Now, let me hear you, Mr. Weber, on the substantive points very
20 quickly, and then I think I'll have to adjourn briefly to consider it.
21 MR. WEBER: As Your Honour noted, timing is an issue. This just
22 came to the Prosecution's attention this afternoon, less than an hour
23 before court was to begin.
24 JUDGE ROBINSON: Yes, but you can't really plead that now. I
25 mean the substantive questions are -- I mean, this is part of our case
Page 3156
1 law.
2 MR. WEBER: Well, Your Honour, in terms of Mr. Masovic, he is the
3 president of the Bureau of the Institute for Missing Persons in
4 Bosnia-Herzegovina. In the past -- in the period of time between 1995
5 and 2008, the witness took part in the search, exhumations, autopsies,
6 and identification procedures of more than 17.000 victims exhumed from
7 370 mass graves and more than 3800 individual grave sites. During the
8 course of these investigations, of course he had conversations with other
9 individuals. These are what we refer to as statements in his report.
10 Contrary to what has been asserted, the report does not indicate that
11 these are some form of written statements from other people. My belief
12 is that Mr. Masovic had conversations with other people and thus acquired
13 knowledge during his very extensive experience. In terms of the case
14 that's referenced by counsel in support of his position, I believe in
15 that matter, there were summaries of eyewitness testimonies in that
16 expert report.
17 JUDGE ROBINSON: That's the Milutinovic case.
18 MR. WEBER: Correct, Your Honour. I was --
19 JUDGE ROBINSON: Well, I'm just going to alert my legal officers
20 to get a copy of that.
21 MR. WEBER: Unfortunately, Your Honour, I do not have a copy of
22 the case with me right now. But that would be a very different
23 circumstance than what we are dealing with in this report.
24 JUDGE ROBINSON: In what way do you say it's different?
25 MR. WEBER: Well, the portions that were not admissible, with
Page 3157
1 respect to that expert in that case, was the fact that there were
2 statements from eyewitnesss. Mr. Masovic has been admitted pursuant to
3 92 bis because his statements do not reference the acts and conduct of
4 the accused. These references in his current statement do not reference
5 things that relate to eyewitness testimony or eyewitness descriptions of
6 the conduct of either Milan
7 distinguishable from the decision which is being offered in support here,
8 and this witness should be allowed to testify here today and this report
9 should be admitted.
10 MR. GROOME: Your Honour, under the circumstances might I just
11 add a short comment. It seems from what Mr. Ivetic has said is he
12 doesn't object to some of what Mr. Masovic is going to testify to, so can
13 I make the suggestion that we proceed with that portion and whatever
14 portion of Mr. Masovic's testimony Mr. Ivetic takes objection to and
15 believes is the substance of this motion, could he flag it to the Chamber
16 and then could we have an opportunity to look at these cases. And I
17 agree with Your Honour that we shouldn't just dismiss a substantive issue
18 because of timing, but it is important the Prosecution have a fair
19 opportunity to look at the issue and study the cases and have a -- be
20 able to give an informed view to the Chamber.
21 So what I'm suggesting is that we do proceed at least on the
22 portion that is in agreement as perfectly proper, and if Mr. Ivetic flags
23 those portions of the testimony which he feels are the subject of this
24 motion, then we could make some progress today and the Prosecution would
25 have an opportunity, although we are working on several motions and
Page 3158
1 submissions for the Chamber, we would try to, as expeditiously as
2 possible, present our view on the matter.
3 JUDGE ROBINSON: That's a pragmatic approach. The question is --
4 sorry, I'm saying that's pragmatic approach, but the question is how soon
5 will -- in the examination-in-chief will these issues arise? Can you
6 steer clear of them?
7 MR. WEBER: Pursuant to the Chamber's decision on the 22nd of
8 August, 2008
9 for the prior Vasiljevic testimony and exhibits and then subsequently the
10 report and attached exhibits and then tender the witness for
11 cross-examination. There's going to be no direct questions elicited.
12 MR. GROOME: Again, I apologise, Your Honour, for up and down but
13 then it seems to me that then we could deal with -- Mr. Ivetic could
14 simply point to which portions of that should be struck depending upon
15 the Chamber's decision in this matter. And that's something that could
16 be done after the witness is taken here today
17 [Trial Chamber confers]
18 JUDGE ROBINSON: It's time for the break now, so we'll take the
19 break. The break would be half an hour unless you are notified
20 otherwise.
21 --- Recess taken at 5.37 p.m.
22 --- On resuming at 6.07 p.m.
23 [The witness entered court]
24 JUDGE ROBINSON: Mr. Ivetic, you referred to a Trial Chamber
25 which, when faced with this kind of decision, heard the evidence first
Page 3159
1 and then decided on the question of admissibility after. What case was
2 that?
3 MR.IVETIC: That is the Milutinovic. That's the decision that
4 was cited, that was what -- how that occurred, procedurally.
5 JUDGE ROBINSON: I have the decision here. It's all of 18 pages.
6 I believe you -- in the interest of judicial economy, I'm disposed to
7 find favour with Mr. Ivetic's approach, which is that we hear the
8 evidence first and then decide on the question of admissibility
9 thereafter. The issues raised by the motion are serious issues. They
10 are substantive legal issues. The position would then be afforded an
11 opportunity to present any arguments that it wishes in relation to the
12 motion, but I believe this is the best course to adopt in the
13 circumstances, so we'll hear the evidence. We are trying to finish this
14 afternoon.
15 MR. GROOME: Your Honour, we will try to get a response as soon
16 as possible, but noting that the standard period for response would
17 exceed the time that the Prosecution intends to rest, we may be asking
18 the Chamber to rest conditionally pending our response, but we will try
19 to get our response in before --
20 JUDGE ROBINSON: Under Rule 127 we can vary the time, either up
21 or down. Up or down. And that is what we will do in order to achieve
22 the most expeditious result. So let the witness make the declaration.
23 THE WITNESS: [Interpretation] I solemnly declare that I will
24 speak the truth, the whole truth, and nothing but the truth.
25 WITNESS: AMOR MASOVIC
Page 3160
1 [Witness answered through interpreter]
2 JUDGE ROBINSON: You may sit, and you may begin, Mr. Weber.
3 MR. WEBER: Yes, Your Honour. There was one matter raised prior
4 to the witness commencing testimony. This past prior Monday, the Chamber
5 asked for a copy of Mr. Masovic's curriculum vitae in English. I don't
6 know if the Chamber is in a position to render a decision today as to
7 whether or not that will be admitted.
8 [Trial Chamber and registrar confer]
9 JUDGE ROBINSON: The CV will be admitted subject to the
10 procedures under 92 ter being complied with.
11 MR. WEBER: Yes, Your Honour.
12 Examination by Mr. Weber:
13 Q. Could you please introduce yourself to the Chamber.
14 A. My name is Amor Masovic. By profession I'm a lawyer. At present
15 I am performing the duty of a member of the federal parliament of
16 Bosnia-Herzegovina, that is to say, I'm an MP, and the president of the
17 Bureau for Justice, member of the Commission for the Protection of Human
18 Rights, and a member of the Constitutional Commission in the parliament
19 of the Federation of Bosnia-Herzegovina. And at present, I'm occupying
20 the post of president of the Collegium of Directors or Bureau of the
21 Institute for Missing Persons.
22 Q. Mr. Masovic, did you testify in the case of Prosecutor versus
23 Mitar Vasiljevic on the dates of the 24th and 25th of September, 2001?
24 A. Yes.
25 Q. Did you have the opportunity to review that testimony in the
Page 3161
1 Bosnian language before coming to court here today?
2 A. Yes, I have read it.
3 Q. If you were asked the same questions here today, would you
4 provide the same answers as you provided during the course of your
5 Vasiljevic testimony?
6 A. To the general questions I would give the same answers. With
7 respect to the questions that specifically related to certain names and
8 surnames of missing persons, identified persons, numbers and figures from
9 my testimony, then my answers today would be somewhat different because
10 seven years have elapsed since then and the trial, and the search for
11 missing persons and the exhumation of victims from graves and
12 identification of victims as well has progressed considerably during that
13 period of time, that is to say, since the time I testified in the
14 Vasiljevic trial to the present day.
15 MR. WEBER: Your Honour, pursuant to Rule 92 ter, the Prosecution
16 tenders into evidence Amor Masovic's previous testimony in the Vasiljevic
17 case which are 65 ter numbers 50 and 51.
18 JUDGE ROBINSON: Yes, we admit that.
19 THE REGISTRAR: Your Honour, 65 ter number 50 will become
20 Exhibit P172, and 65 ter number 51 will become Exhibit number P173.
21 MR. WEBER: At this time, Your Honour, the Prosecution tenders
22 the underlying exhibits which were authenticated during the course of the
23 Vasiljevic testimony --
24 JUDGE ROBINSON: Mr. Cepic.
25 MR. CEPIC: Thank you, Your Honour. If I may have just one
Page 3162
1 clarification related to other exhibits from that testimony. Do we admit
2 now just -- is it admitted now just the transcript without other exhibits
3 or admission of other exhibits is automatically with the transcript?
4 JUDGE ROBINSON: Mr. Weber?
5 MR. WEBER: The Prosecution didn't even finish its question. We
6 just so far offered 65 ter number 50 and 51, which was the previous
7 testimony, the transcripts. During the course of that testimony, there
8 were a number of exhibits admitted, specifically nine. Based on that
9 previous testimony we were then going to tender now the nine exhibits
10 that were authenticated.
11 JUDGE ROBINSON: Right. Yes, we'll admit those.
12 MR. WEBER: Your Honour, for the record, that's 65 ter numbers 41
13 through 49. Nine exhibits in total.
14 THE REGISTRAR: 65 ter number 41 is now Exhibit P174. 42 is
15 Exhibit P175. 43 is Exhibit P176. 44 is Exhibit P177. 45 is
16 Exhibit P178. 46 is Exhibit P179. 47 is Exhibit P180. 48 is Exhibit
17 P181. And 49 is Exhibit P182.
18 JUDGE ROBINSON: Mr. Cepic.
19 MR. CEPIC: Now is okay. Thank you, Your Honour, for this
20 opportunity. Could those exhibits -- could they be marked for
21 identification because as far as I understood the decision, the final
22 decision will be after the testimony of this witness, about all the
23 exhibits and complete testimony? Maybe I have wrong understanding of the
24 previous order, but ...
25 JUDGE ROBINSON: It's really a question of what is the most
Page 3163
1 practicable procedure. I don't see any harm in the decision that we have
2 taken because if subsequently we decide to -- that the evidence is not
3 admissible, then all of that would be disregarded. But let me hear
4 Mr. Weber on that.
5 MR. WEBER: In terms of whether or not these exhibits should be
6 marked for identification?
7 JUDGE ROBINSON: For identification.
8 MR. WEBER: Your Honour --
9 JUDGE ROBINSON: Well, Mr. Groome, what do you ...
10 MR. GROOME: I agree with Your Honour that it really makes no
11 difference. I mean the Chamber can either admit them later or remove
12 them from the Exhibit list. So my suggestion would be to leave them as
13 they are now and if the Chamber in its written decision could deal with
14 it.
15 JUDGE ROBINSON: Yes, we'll just leave them as they are.
16 MR. WEBER: May I proceed, Your Honour?
17 JUDGE ROBINSON: Yes.
18 MR. WEBER:
19 Q. Mr. Masovic, did you have an occasion to provide an updated
20 statement concerning the commission's work and your personal work to the
21 ICTY which was dated the 4th of September, 2008?
22 A. Yes.
23 Q. Did you have an opportunity to review that statement in the
24 Bosnian language prior to your testimony here today?
25 A. Yes, I have.
Page 3164
1 Q. If you were --
2 JUDGE ROBINSON: Mr. Cepic.
3 MR. CEPIC: If the OTP request admission of this statement, I
4 oppose. Because this statement is not taken in a proper form as other
5 OTP statements are. This is completely something different. Thank you.
6 JUDGE ROBINSON: Let's wait and see. Let's wait and see what he
7 does with it. Yes. Go ahead.
8 MR. WEBER:
9 Q. For clarification, this is a statement that you personally
10 provided and then sent to the ICTY Office of the Prosecutor; is that
11 correct?
12 A. Yes, that is correct.
13 Q. Was this a statement that was taken in the presence of an ICTY
14 Office of the Prosecutor investigator?
15 A. I compiled the statement after talking to the investigators of
16 the Tribunal, and then I sent it to the OTP.
17 Q. If you were asked the same questions today, which were your
18 statements in the September 4th, 2008 statement, would your answers be
19 the same?
20 A. Yes, they would be the same.
21 Q. Is the statement that you provided true and accurate to the best
22 of your knowledge?
23 A. The statement partially incorporates statistical data which were
24 taken over from the database that the institute has at its disposal, the
25 Institute for Missing Persons of which I'm the head, one of the members
Page 3165
1 of the bureau or, rather, the president, and in the portion in which that
2 statement does not have to do with statistical data, my statement would
3 be exactly the same today as it was last time. So I stand behind the
4 statement wholly, the one that I sent to the OTP.
5 MR. WEBER: At this point, Your Honour, the Prosecution tenders
6 the statement of Amor Masovic, dated the 4th of September, 2008
7 evidence. It is ERN number 06412173 through 06412181, and the
8 corresponding English translation is under ERN ET-06412173 through
9 06412181.
10 JUDGE ROBINSON: And this is 92 ter.
11 MR. WEBER: That's correct, Your Honour. Pursuant to the
12 Chamber's decision of 23rd of October, 2008, this statement is being
13 admitted pursuant to 92 ter.
14 JUDGE ROBINSON: Mr. Cepic, you had a point? And Mr. Ivetic as
15 well, but Mr. Cepic first.
16 MR. CEPIC: Could I give the turn to Mr. Ivetic just to find
17 decision, please, Your Honour, if I have that 30 seconds.
18 JUDGE ROBINSON: To Mr. Ivetic.
19 MR. CEPIC: Thank you very much.
20 JUDGE ROBINSON: Mr. Ivetic, yes.
21 MR.IVETIC: Your Honours, I can be very brief in this. As I'm
22 reading the witness's response, it seems to he is disavowing the
23 statistical portion and limiting his answer to the part that is not the
24 statistical portion, that that is the part that he would adopt and that
25 it is accurate. So given the record as it is now on the transcript, I'm
Page 3166
1 not sure that the formalities of Rule 92 ter have been achieved as to the
2 entire statement which might short circuit my cross-examination if in
3 fact that portion is out.
4 JUDGE ROBINSON: Mr. Weber, how do you answer that, that -- the
5 contention that the witness has disavowed the statistical portion of the
6 statement.
7 MR. WEBER: I don't believe necessarily the witness has disavowed
8 it. If the Chamber would like, I'd be happy to ask additional questions
9 to clarify.
10 JUDGE ROBINSON: Go ahead.
11 MR. WEBER:
12 Q. Mr. Masovic, you just provided an answer in which you made
13 reference to both the statistical portions of your 4th of September,
14 2008, statement separate from the remainder of your statement. Could you
15 explain -- please explain the answer that you provided in reference to
16 your statistical portions of your statement and whether or not those
17 portions would be different today.
18 A. I'm not sure that I understood the question, but I'll do my best
19 to answer it as I did understand it.
20 My statement of the 4th of September represents a sort of
21 updating of data provided during the testimony in the Vasiljevic trial.
22 So some of the data, especially the tables and the annexes that go along
23 with my statement have been updated. They are an update of the
24 information data and tables that I presented during my written and oral
25 testimony in the Vasiljevic trial.
Page 3167
1 This present statement contains additions in comparison to the
2 Vasiljevic testimony with respect to comparisons made in
3 Bosnia-Herzegovina, the statistical data about the missing women and
4 children, the number of missing women and children, and the number of
5 missing persons, elderly persons.
6 JUDGE ROBINSON: I understand what you are saying. You had a
7 point, Mr. Cepic, what is it?
8 MR. CEPIC: Your Honour, completely frankly, I never seen in my
9 practice -- in a previous practice that the OTP requested admission of
10 the statement, of OTP witness statement which hasn't got any signature of
11 OTP investigator or someone else. I just see here the signature of
12 Mr. Masovic at the last page, so --
13 JUDGE ROBINSON: Can it be shown on the e-court so that I can see
14 it. Your point is that there's no signature of the investigator?
15 MR. CEPIC: Yes, Your Honour. Yes, Your Honour. Thank you.
16 JUDGE ROBINSON: The investigator who took the statement.
17 MR. WEBER: The investigator did not take the statement.
18 Mr. Masovic provided it.
19 JUDGE ROBINSON: Mr. Masovic provided it. So that's the answer,
20 yes.
21 MR. WEBER: Correct.
22 JUDGE ROBINSON: We admit the statement under 92 ter.
23 THE REGISTRAR: As Exhibit P183, Your Honours.
24 MR. WEBER: At this time, Your Honour, the Prosecution tenders
25 the attached exhibits to that statement which are located under
Page 3168
1 ERN 0641-2271 through 0641-2333. These are the updated statements and
2 charts that were provided with the 4th of September, 2008, statement.
3 JUDGE ROBINSON: Again, Mr. Cepic?
4 MR. CEPIC: Your Honour, with your leave, as I can see, all those
5 documents which my learned friend now quoted are not assigned yet, on 65
6 ter list.
7 JUDGE ROBINSON: Are not?
8 MR. CEPIC: Not yet assigned. I can give this --
9 MR. WEBER: The Chamber on the 23rd of October, 2008, admitted
10 these exhibits. The Prosecution, I believe as Mr. Cepic is referring to,
11 we haven't assigned 65 ter numbers to it, but the Chamber has allowed
12 these documents it its previous decision.
13 JUDGE ROBINSON: Yes, we admit them.
14 THE REGISTRAR: As Exhibit P184, Your Honours.
15 MR. WEBER: Pursuant to today's decision relating to the
16 curriculum vitae, the Prosecution now tenders Mr. Masovic's curriculum
17 vitae into evidence. It's 65 ter numbers 06412268 through 06412270,
18 along with the corresponding English translation under the same ERN dash
19 ET.
20 JUDGE ROBINSON: Yes, we admit the CV.
21 THE REGISTRAR: As Exhibit P185, Your Honours.
22 MR. WEBER: No further questions.
23 JUDGE ROBINSON: Thanks. Then Mr. Ivetic.
24 MR.IVETIC: Thank you, Your Honours. And again I apologise for
25 being so abrupt previously.
Page 3169
1 Cross-examination by Mr. Ivetic
2 Q. Mr. Masovic, my name is Dan Ivetic, and I'm one of the attorneys
3 for Mr. Milan Lukic today. First of all, I'd like to focus on the report
4 that is number P183 -- or, excuse me, the witness statement P183 and your
5 sections 7 through 10, that is what I think you referred to as your
6 statistical analysis.
7 THE INTERPRETER: Could the counsel please slow down.
8 MR. IVETIC:
9 Q. Can you tell us, sir --
10 JUDGE ROBINSON: Mr. Ivetic, the interpreter is asking you to
11 slow down.
12 MR.IVETIC: I should also probably switch channels so I can hear
13 their warnings. Thank you.
14 Q. Mr. Masovic, could you tell us, since your curriculum vitae is
15 absent -- silent on this issue, whether you have any degrees in
16 statistical analysis.
17 A. I said in my introduction that I was a lawyer by profession and
18 have some duties in the parliament today and the Institute for Missing
19 Persons. I'm a graduate of law and I have passed the judiciary
20 examination. I don't have any academic knowledge in the sphere of
21 statistics.
22 Q. Has -- thank you, sir. That is the statistical analysis portion
23 of your statement been subjected to peer review by any statistical
24 analysis academics and professionals, and if so, by whom?
25 A. No. No, it has not been subjected to scientific analysis it is
Page 3170
1 purely on the bases of figures and data in the database and a comparative
2 analysis, if you are referring to the last page of my statement, as I
3 say, a comparative analysis which had as its goal to show the differences
4 in the Visegrad municipality with respect to the rest of
5 Bosnia-Herzegovina. So there are analyses with respect to the number of
6 missing persons, especially focusing on children and females who went
7 missing from 1992 to 1995.
8 Q. What statistical sampling method was employed by you in the
9 preparation of this aspect of your witness statement or report?
10 A. I compared the total number of missing persons in the territory
11 of Bosnia-Herzegovina and the total number of missing persons, Bosniaks
12 and Croats, in the Visegrad municipality. And then I applied that and
13 looked at females and persons from 0 to 16 years of age, and also focused
14 on the individuals who were over the age of 70 in order to show the
15 difference in the data with respect to the Visegrad municipality.
16 And in my conclusion, I put forward an observation of mine to the
17 effect that the number of missing females significantly surpasses the
18 overall number of missing women in Bosnia-Herzegovina. That is to say,
19 in Visegrad, there are three times as many women who are listed missing
20 than there are in the rest of Bosnia-Herzegovina. In percentages, not
21 the absolute figure but percentage-wise.
22 And then I also conducted an analysis of children up to the age
23 of 18 and persons over the age of 70.
24 Q. Okay. Sir, as I'm sure you are aware, your statement has now
25 been tendered to the Trial Chamber so we do have all of your analysis.
Page 3171
1 I'm asking you about the methodology employed in reaching the same. What
2 statistical controls did you use to flush out and harmonize variables
3 that were present in the various municipalities that you reviewed in
4 order to reach the conclusions you've reached in your report?
5 A. I have no pretensions in the sense that my report is a
6 statistical report of any kind. It is a pure observation on the basis of
7 my studies, that is to say, an analysis of the number of missing persons
8 in the whole of Bosnia-Herzegovina compared to the number of missing
9 persons in Visegrad municipality. And I said -- I explained to you how I
10 came by those figures, comparing the total number of missing females with
11 respect and in comparison to Bosnia-Herzegovina as a whole. So no
12 statistical method, that's my answer. No scientific statistic method was
13 used in doing that and I have no pretensions in showing my report to be
14 any kind of statistical report based on statistical research.
15 JUDGE ROBINSON: Mr. Ivetic, how long do you intend to be?
16 MR.IVETIC: I was hoping to finish today. I have about --
17 JUDGE ROBINSON: But I want to finish the witness today. Are you
18 going to cross-examine, Mr. Cepic?
19 MR. CEPIC: Yes.
20 JUDGE ROBINSON: How long are you going to be?
21 MR. CEPIC: Maybe 20 minutes, Your Honour.
22 JUDGE ROBINSON: How much longer will you be?
23 MR.IVETIC: At least 20 minutes if half an hour, depending on
24 witness's answers. I've been trying to short-circuit through these
25 questions.
Page 3172
1 JUDGE ROBINSON: 20 and 30, 50 --
2 MR. IVETIC: So we're close.
3 JUDGE ROBINSON: Let's see how we get on then. Yes.
4 MR.IVETIC:
5 Q. Sir, with that in mind, if we could try to keep the answers
6 directed -- pointed to the question since we do have your report.
7 Now, with respect to the findings in your statement, would it be
8 accurate to say that they are based upon the information that you
9 obtained from witness statements that in addition to your eyewitness of
10 exhumations and also interviews of persons and also official documents of
11 the government of Bosnia-Herzegovina in Sarajevo.
12 A. I didn't hear the question.
13 Q. Is it accurate to state that the rest of your report, apart from
14 the statistical aspect, is based upon your review of statements taken by
15 Bosnian agencies from witnesses, your own interviews with witnesses and
16 families, and official documents of the Bosnian government in addition to
17 your eyewitness of exhumation procedures?
18 A. Yes, all of the above, and of course the records that the
19 commissions have, commissions for exhumation which is the substantive
20 part of my report. I'm talking about the tables which are exclusively
21 based on official records kept with respect to missing persons. And I
22 also used everything else that you enumerated.
23 Q. Thank you, sir. Do you have any number of estimation as to the
24 exact number of witness statements or interviews that you incorporated
25 and whether they were all under oath to tell the truth?
Page 3173
1 A. The records that you are referring to, which is the annexes to my
2 report, are not the result of taking witness statements, but taking the
3 information from the official records of missing and unidentified
4 persons.
5 Q. Okay. Well, let's look at your report then. I guess we are
6 going to have to do it this way. Page 4 of your report, I'm not talking
7 about the annexure, page 4 of your report in the fourth paragraph states
8 that: "Several dozen victims, according to statements of survivors, were
9 executed and burnt at two locations in the town of Visegrad itself." How
10 many statements did you review to reach this conclusion and were those
11 statements all statements that were taken under oath to tell the truth?
12 A. We do not take statements. That's not our job. We don't take
13 statements under oath either. Perhaps I should explain at this point
14 what the aim of the institute is and its existence. It is our task to
15 locate individual, joint, and mass graves and to sound them out once
16 we've established that they are graves, and then to inform the Prosecutor
17 who then unleashes the process of exhumation and autopsies. So we are
18 not a police organ, nor do we take any kinds of statements.
19 JUDGE ROBINSON: Just a minute. The question was in the part of
20 your report which reads: "Several dozen victims, according to the
21 statements, were executed and burnt at two locations in the town of
22 Visegrad itself." It's in your report so the question that is being
23 asked is: How were those statements taken? Can you explain to us
24 because it's in your report, so he is entitled to ask you.
25 THE WITNESS: [Interpretation] Indeed. So these are statements or
Page 3174
1 interviews that we conducted with the surviving members of the families
2 of these people. These were persons who came to the Commission for
3 Missing Persons and they filed a request to have the relative struck
4 down. In these two cases, I also had statements that were available to
5 me. I'm not sure we are in open session, whether I am allowed to refer
6 to specific names, perhaps they are witnesses in this trial, perhaps they
7 are protected witnesses.
8 JUDGE ROBINSON: Mr. Ivetic, you can continue now.
9 MR.IVETIC:
10 Q. Without going into names, you had mentioned some statements. How
11 many statements did you review to reach your conclusion that is specified
12 in here as to Pionirska and Bikavac and the houses that allegedly were
13 burnt and the alleged grave sites containing dozens of victims resulting
14 from these incidents?
15 A. The houses were burned down, I have direct knowledge of this.
16 One of these houses is no longer there, and the other has been -- or had
17 been ruined to a large extent. The one on Pionirska Street, but again,
18 we don't take the written affidavits from these family members. It is
19 rather them who submit requests for their missing relatives to be found.
20 Pursuant to that request, they state the personal details of these
21 persons, the date of their disappearance, the place of their
22 disappearance, the circumstances of these disappearance. What we do is
23 this: We then take these names and we enter the names into our database
24 of missing persons. It is then based on such evidence or such records,
25 and these records exist and they are in our institute, I establish, for
Page 3175
1 example, that a minimum of 46 persons from the Kurspahic family can be
2 considered missing.
3 Q. Maybe I can short circuit this. Sir, is the crux of your
4 testimony and is the only thing that you can actually affirmatively state
5 that you are able to verify the names and numbers of people who are
6 missing and not the manner in which they either met their demise or were
7 missing? Is that what you are telling me, sir? Is that the limit of
8 your capabilities in this report to give us just the verification of the
9 names and numbers of people who are missing from Visegrad?
10 A. I am not sure if you've been following me. I'm telling you that
11 family members, while talking to us, give us also the circumstances under
12 which a person went missing. For example, once victims were chucked into
13 the Drina River
14 Q. You are a lawyer, and now you are a witness. Can you
15 differentiate between what is your testimony and what is the testimony of
16 others that you are presenting? With respect to your testimony, is it
17 limited to a verification of the identities and numbers of persons that
18 are missing from Visegrad?
19 A. So, everything that you can find in this statement is based on
20 existing evidence deriving from the records in the possession of the
21 Institute for Missing Persons. I'm not testifying about this. I just
22 got this from the existing records and the records suggest that certain
23 persons went missing on a certain date at a certain place under a certain
24 set of circumstances. I'm not testifying about that, I'm conveying the
25 substance were our records.
Page 3176
1 Q. I've asked you about the substance of your records, how many
2 statements there are, what form the statements are in, and whether they
3 were taken under oath, and thus far you have not answered that. You keep
4 going around the issue. So tell me if you are basing your findings on
5 some body of documents, what body of documents are those so I can ask to
6 see them so that I can do my cross-examination?
7 A. So, as I said before and I shall now repeat, we do not take any
8 statements under oath. We collect requests submitted by families who are
9 looking for their missing relatives. Our task boils down to this: Track
10 down any missing persons with no further involvement in the sense of
11 prosecuting those potentially responsible for these disappearances. That
12 is down to the public Prosecutor, the police and everyone else who then
13 joins in at the exhumation stage. But we take no statements under oath.
14 We collect and receive requests from families and these are normally very
15 specific. Personal details, circumstances, clothes that a person was
16 wearing when they went missing, what was the last time they were seen --
17 Q. I'm going to interrupt, sir. All these things that you have been
18 reciting, where is that in your statement, where is that in your report?
19 Where are descriptions of what people were wearing when they left, dates
20 of when they disappeared? None of that is in your report. What is in
21 your report is the stuff I'm asking about that says according to
22 statements, the survivors were executed and burnt at two locations in the
23 town of Visegrad itself. And you have said on the record, you are
24 relying upon evidence, records. I want to know what evidence, what
25 records you are relying upon in giving this testimony.
Page 3177
1 A. I'm relying on statements made by the relatives of victims. In
2 the case of Pionirska Street, I'm relying on the statement of a surviving
3 victim, among others.
4 Q. There, now we've gone around full circuit to statements. Again I
5 ask you: These statements that you are relying upon, are they sworn
6 statements? What form are these statements? And how many of them are
7 there?
8 A. No statements were taken that involve this specific statement
9 that I made for this trial. No statements, no special statements were
10 taken from survivors or witnesses. I simply deduced a number of things
11 based on evidence available to the Institute for Missing Persons. I
12 didn't do this specifically for the purposes of this trial, in the sense
13 of interviewing any victims. I extrapolated all of my conclusions based
14 on records that are available to the Institute for Missing Persons.
15 JUDGE ROBINSON: Mr. Ivetic, move on to another point now.
16 MR.IVETIC: Thank you.
17 Q. In gathering information from sources for your report, am I
18 correct that you did -- that you did not consider figures or statistics
19 that were considered unreliable such as those from "enemy" missing
20 persons commissions?
21 A. Yes, you are quite right. As I have pointed out already, these
22 annexes contain the identities of both Bosniak and Muslim and Croat
23 persons. I am not sure if you should warrant any further explanation on
24 this.
25 Q. Let me ask you this, sir: In your 2003 sworn statement, you
Page 3178
1 identified who the enemy is to you as being groups related to the Serb
2 authorities in the Republika Srpska, Croat authorities in Herceg Bosnia
3 and Muslim authorities allied with Fikret Avdic, as well as those
4 relating to the JNA. Do you stand by those qualifications as to whom you
5 consider your enemies to be?
6 MR. WEBER: Your Honour.
7 JUDGE ROBINSON: Yes, Mr. Weber.
8 MR. WEBER: There's a reference to 2003 sworn statement. If we
9 could have a more detailed reference to the exact statement and date.
10 MR.IVETIC: Absolutely, Your Honour. If we could pull it up on
11 the e-court it's 0294-1612, the ERN number. I believe it's an ICTY
12 statement taken by this Office of the Prosecutor in the year 2003 of this
13 witness.
14 MR. WEBER: Thank you.
15 THE REGISTRAR: Could the counsel please repeat the number as
16 well.
17 MR.IVETIC: Yes. ERN number 0294-1612. That's the first page,
18 do you need the whole range?
19 Q. Sir, first of all, I guess, do you recall giving a statement to
20 the Office of the Prosecutor in 2003?
21 A. I gave several statements. This is the fourth time that I'm
22 giving evidence before this Tribunal. I sometimes provided some
23 statements as well. But I can't possibly imagine a reason to believe
24 that what you are suggesting to me is untrue. I provided several
25 statements over the years, but perhaps I might even try to answer your
Page 3179
1 question. In the period between --
2 Q. Go ahead, go ahead.
3 A. In the period between 1992 and the end of the war, I was an
4 official of the government of the Republic of Bosnia and Herzegovina.
5 The only legal government in Bosnia and Herzegovina. Needless to say,
6 you mentioned on some -- you mentioned some forces and I described those
7 between 1992 and 1995 as enemy forces, but from the point of view of the
8 BH government that is a well-known fact. So between 1992 and 1995 those
9 forces were, from our perspective, enemy forces. Enemy in relation to
10 the government in Sarajevo
11 Q. Do you still consider persons who are part of the police or
12 military in Republika Srpska or in the Croatian Herceg-Bosnia or in the
13 Avdic Western Bosnia to be enemies; and if not, when did you stop
14 considering them enemies?
15 A. Probably when the war ended, when peace came again, the
16 hostilities ceased, right? And once the peace agreement or peace accords
17 in Dayton
18 back. As of the spring or summer of 1996, there has been cooperation
19 between forces that up until then during the war had been clashing or had
20 been hostile parties. But if you are asking me personally, even during
21 the war itself, I worked with the enemies, I was the head of the
22 Commission for the Exchange of Prisoners of War and one of my basic
23 missions was to negotiate with the enemy in order to get people released
24 from camps and prisons.
25 Q. Would it be fair to say you still harbour a certain sort of
Page 3180
1 animosity towards the enemy and acts that the enemy committed?
2 A. I'm not sure who you are defining as my potential enemy.
3 Q. In your statement you define who the enemy is and I've read that
4 to you. Do you still consider -- do you hold animosity towards those
5 former enemies still for events that occurred during the war?
6 A. I can't say that I harbour any feelings at all. If you are
7 trying to get me to say that I'm harbouring hostile feelings, I have to
8 say that that wasn't even the case during the war. During the war, we
9 were on the opposite sides and there's no need for you to harbour any
10 feelings. Your enemy is your enemy. You fight your enemy for as long as
11 there are hostility, but if you ask me if I harboured any hostile
12 feelings --
13 THE INTERPRETER: Interpreter's note: One microphone at a time,
14 please. We can't hear the witness. Thank you.
15 JUDGE ROBINSON: Interpreter is pleading again. You are
16 overlapping. Please observe a pause between question and answer.
17 MR.IVETIC:
18 Q. Sir, did you have an occasion to review the indictment in this
19 case against Milan Lukic and Sredoje Lukic?
20 A. I think not. I think I saw bits of it over the internet, but I
21 don't think I've ever seen the whole thing.
22 Q. And with respect to the specific crimes or killings in Visegrad
23 that you have set forth in your report in pages 7 onward, how were those
24 selected to be presented? Did the Prosecution tell you what aspects to
25 cover in your report? How was the coverage of your report selected?
Page 3181
1 A. On page 7, there are no aspects. All I was saying is this:
2 Based on my research, this or that was the difference between Visegrad
3 municipality and Bosnia-Herzegovina as a whole. I also observed that
4 Visegrad municipality, in some cases, had a far larger number of victims
5 from some particularly vulnerable population groups such as children,
6 women or elderly persons. This is not something that someone required me
7 to do.
8 Q. I'm not talking about the statistical parts, sir. I'm talking
9 specifically here, you talk about events in Pionirska and Bikavac. Then
10 you go on to talk about Slap, you go on to talk about an execution and
11 you mention someone's name there. You talk about, later on, again
12 identifying various victims from Bikavac and Pionirska. How was that
13 coverage selected in your report?
14 MR. IVETIC: And Your Honours, I'd like to ask for the previous
15 exhibit, the 2003 statement to be introduced into evidence.
16 JUDGE ROBINSON: Yes, we'll admit it.
17 THE REGISTRAR: As Exhibit 1D77, Your Honours.
18 THE WITNESS: [Interpretation] So what I did boils down to this:
19 I wanted to point out in my statement certain peculiarities of Visegrad
20 municipality in relation to other areas of Bosnia-Herzegovina. Now, one
21 of these peculiarities is the conspicuously large number of missing
22 children, women, and people over 70 years of age. Another peculiarity,
23 and this is reflected in my statement, is the number of missing persons
24 who were found in Visegrad lies under the 50 percent mark as opposed to
25 that in the other areas of Bosnia-Herzegovina. Then I go on to state in
Page 3182
1 my conclusion why that is so. Because statements by survivors provide
2 accounts of bodies being thrown into the River Drina, bodies being burned
3 leaving no remains or traces. This is a peculiarity, it's particularly
4 prominent in Visegrad. This is not the only peculiarity, but it appears
5 in a particularly emphatic or dramatic form in Visegrad municipality.
6 But I was not specifically requested to do this. What I was specifically
7 requested to do is to update information in relation to the Vasiljevic
8 case which I did in my tables.
9 Q. Was it your understanding and do you consider it your work
10 product, this statement, to be your expert report on the research you did
11 and the conclusions you drew? Was that your assignment?
12 A. Again, this is not research. This is not scientific methodology.
13 All this is is an analysis based on such information as was contained in
14 our records on missing persons. This is not research. If I had
15 conducted research, being no expert or researcher myself, I would have
16 enlisted somebody else 's assistance. If I had decided to take that
17 course of action, as I say. On the other hand, I'm a person who has been
18 dealing with this sort of problem for the last 16 years. I have certain
19 information, I have certain knowledge on such issues as missing persons
20 or victim identification. I cannot, however, consider myself an expert
21 in any of these fields.
22 Q. And, sir, what portion of this statement, which is your
23 testimony, is based on your eyewitness knowledge?
24 A. So, if you go to page 3, we are talking about 67 locations that
25 had been processed where the mortal remains of victims had been found. I
Page 3183
1 did go to some of these 67 locations so I have direct knowledge, not of
2 how the victims were killed, but rather, of how they were exhumed at
3 these locations. And then of course everything else that followed the
4 exhumations. PMs, bodies being identified and then bodies being
5 delivered back to their families. I'm now at page 4.
6 I don't, however, have any direct knowledge of Pionirska Street
7 or whatever occurred there. My knowledge is based on accounts provided
8 by family members who were looking for their own kin who had gone
9 missing. And in the case of Pionirska Street, on the account of a
10 witness who had survived Pionirska Street.
11 Bikavac, again, I have no direct knowledge of Bikavac. Zepa,
12 Slap 1, 125 victims; Slap 2, seven victims. I was directly involved in
13 the exhumation work from day one at this specific location. The same can
14 be said of this pit in the village of Paklenik
15 found, some of them from Visegrad. Again, my knowledge is due to a
16 surviving victim, a survivor who took us to this location after the war.
17 He pointed out to us the exact spot where the killing took place and
18 where the remains or the bodies were thrown into a natural pit that was
19 35 or 37 metres deep. And then the last grave site, page 4, the
20 Kurtalici grave site, again, I went there myself when the grave site was
21 discovered and when the exhumation took place and bodies were dug up and
22 extracted from the pit.
23 JUDGE ROBINSON: Mr. Weber, am I right in saying that the
24 Prosecution is relying on this evidence to prove certain aspects of the
25 indictment? For example, the widespread character of crimes.
Page 3184
1 MR. WEBER: Yes, Your Honour.
2 JUDGE ROBINSON: So that in the case of where the report speaks
3 to deaths, we would need to be sure that the report itself is reliable in
4 that regard. Of course he may have other evidence in relation to those
5 matters.
6 MR. WEBER: Your Honour, with respect to the report, I believe
7 this witness is in the course of testifying of his own personal knowledge
8 relating to the mass number of grave sites, both mass grave sites and
9 individual grave sites that were present in and around the Visegrad
10 municipality. This witness has personal knowledge of those grave sites
11 and he is testifying accordingly.
12 JUDGE ROBINSON: Yes, Mr. Ivetic.
13 MR.IVETIC: Thank you.
14 Q. Just briefly on exhumations, sir. Am I correct that you don't
15 have any formal training as a forensic pathologist as a forensic crime
16 scene evidence gatherer or any other scientific forensic expertise, that
17 you were there as a layperson making observations?
18 A. So, I do have some basic -- I don't think I could call it
19 education or training, but I do have some basic knowledge because all of
20 us who were involved in these procedures, six or seven years ago, had to
21 go through some sort of abbreviated training in relation to these
22 matters. Nevertheless, you are quite right, I have no expert knowledge
23 or qualifications as far as the forensic science is concerned, nor would
24 I dare go too far in that direction.
25 Q. Thank you. As far as the work done by your commission is
Page 3185
1 concerned, am I correct that during some period your commission was
2 responsible for issuing certificates on missing and dead persons which
3 enabled families to receive financial benefits?
4 A. This is something that certified the fact that a person had gone
5 missing. This is a certificate that is used to certify that a certain
6 person was identified as missing with the institute. This is not a death
7 certificate, this is not a certificate that would allow a family to
8 inherit something from this missing person in terms of being a relative,
9 marriage or perhaps something to do with custody over children. This
10 certificate is called Certificate on Missing Persons, and families used
11 this certificate under the Federation law to obtain certain financial
12 compensation pursuant to the fact that they had one, two or more family
13 members who had at some point gone missing.
14 Q. Thank you. Now, with respect to the forensic examination that
15 you witnessed at the Pionirska and Bikavac sites, and in your report you
16 state that no mortal remains were found at those locations and you give
17 the conclusion that, therefore, the mortal remains were taken to
18 secondary sites. Isn't it also true that another possible conclusion
19 based upon the forensic evidence at the site was that those crimes in
20 fact did not occur?
21 A. Theoretically, yes. However, that would imply that all those,
22 and we are talking about hundreds of people or more, who came to the
23 institute to report one of their own as missing were lying. All those
24 who came and who said my father, my mother, my child, my brother, my
25 sister went missing in what occurred on the 14th of June at
Page 3186
1 Pionirska Street
2 people were lying, and this is something that I find difficult to
3 believe. I wasn't there myself on the 14th of June. Obviously I can't
4 tell you whether it happened or not.
5 Q. You would agree with me that it's a separate issue. Someone
6 saying that a loved one is missing is a separate issue from affirmatively
7 stating that a loved one perished in a particular incident? Would you
8 not agree with that?
9 A. Again, I need to go back to what I said before. They submit to
10 us a request to track someone down. The families normally state the
11 circumstances of disappearance and when they state that normally they
12 include information like that. My folks were over at the house on
13 Pionirska Street and they were killed or burnt alive there, or another
14 person comes up and says, I saw someone chuck someone else into the Drina
15 River, and then a surviving witness, for example, says, I went over to
16 the Paklenik pit and I know that people had been shot there because I am
17 survivor. Forensic technicians, for example, go to the pit in Paklenik
18 and they find dozens of empty cartridges, again, indicating something
19 that they base their own conclusions on. I was the head of the Committee
20 for Missing Persons and I am into their conclusions. I believe they can
21 draw their own conclusions but I drew mine.
22 Q. I guess, sir, that I'm at loss because I don't have these
23 hundreds of statements from victims, families that you have mentioned.
24 I've asked you over half an hour ago how many statements you had and you
25 didn't answer me then, you've answered me now. These hundreds of
Page 3187
1 statements, did your organisation take any steps to verify the
2 information given by relatives in the same?
3 A. So, the only thing we could verify was the location at which a
4 missing person was buried. Now 13 years after the war, it's perfectly
5 clear that all those and most of those that are listed as missing are no
6 longer alive. The institute has more than 13.000 anti-mortem reports in
7 its possession. It is a special form running into 16 pages. I can't say
8 that specifically because I didn't write this statement based on some
9 statements but, rather, based on the records that we have. The records
10 that are in our electronic database.
11 JUDGE ROBINSON: Mr. Ivetic, how much longer will you be?
12 MR.IVETIC: I am much shorter. I was, in fact, going to inquire
13 if it would be possible just to introduce -- we have a sworn statement
14 from an individual Jasmin Odobasic, that the Office of the Prosecutor
15 disclosed to us yesterday, that makes certain allegations as to the
16 covering up of certain things by various persons, and I would -- in lieu
17 of asking and going through those with the witness, I would tender them.
18 If the Prosecution has anything in redirect, they are free to comment on
19 them.
20 JUDGE ROBINSON: Yes, Mr. Weber.
21 MR. WEBER: The Prosecution would object to this as a form of
22 introducing this evidence, this statement. It's not this witness's
23 statement. I do know that the witness is -- from discussing it with him
24 yesterday when this matter came up, that he would be able to address
25 these issues in closed session if the -- if counsel would like to put it
Page 3188
1 to him.
2 JUDGE ROBINSON: No, it's a question of time. I've been
3 investigating whether it would be possible first for us to meet tomorrow
4 morning to conclude this witness's evidence. And so far what I've heard
5 is, the legal officer will now tell me.
6 [Trial Chamber and legal officer confer]
7 JUDGE ROBINSON: Yes, well, with the information that I have
8 gathered, I'm able to say that there is a courtroom available tomorrow
9 morning. The problem is that everyone has gone home. It's dark outside,
10 in case you don't know, and so we are not able to ascertain the
11 availability of the personnel and staff that we need, but the court
12 deputy says that she will be in a position to let us know relatively
13 early in the morning and so I would say 10.30. We would resume at 10.30
14 unless you are otherwise advised. Mr. Cepic.
15 MR. CEPIC: Your Honour, if I may assist, I will have no
16 questions for this witness.
17 JUDGE ROBINSON: You have no questions.
18 MR. CEPIC: I can give all my time to Mr. Ivetic.
19 JUDGE ROBINSON: Well, in that case we might be able to finish
20 with the indulgence of the interpreters. Mr. Ivetic, how much longer?
21 MR.IVETIC: I would anticipate five to ten minutes.
22 JUDGE ROBINSON: Well, may I ask for the indulgence of the
23 interpreters for another 10, 15 minutes.
24 THE INTERPRETER: Yes, Your Honour.
25 JUDGE ROBINSON: Thank you very much. We are indebted to you.
Page 3189
1 MR.IVETIC: And you have my thanks as well.
2 Q. Sir, before we --
3 MR. IVETIC: Well, I understand we need to be in closed session
4 now. And, Your Honours, and then we should probably redact prior
5 references, I was not advised of any --
6 MR. WEBER: Prosecution has no objection to the prior references
7 just whatever further explanation comes from those questions, if we could
8 handle them in closed session.
9 JUDGE ROBINSON: Private session.
10 THE REGISTRAR: We are in private session, Your Honours.
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23 --- Whereupon the hearing adjourned at 7.35 p.m.
24 to be reconvened on Monday, the 3rd day
25 of November, 2008, at 8.50 a.m.