1 Tuesday, 4 March 2008
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 8.59 a.m.
5 JUDGE BONOMY: Good morning, everyone. We have a long day ahead
6 of us, but I hope fulfilling and productive day and we resume the
7 evidence of Judge Marinkovic.
8 [The witness entered court]
9 JUDGE BONOMY: Good morning, Mrs. Marinkovic.
10 THE WITNESS: [Interpretation] Good morning.
11 JUDGE BONOMY: The examination by Mr. Ivetic is not quite
12 complete I understand, so we start with the last part of his examination
13 of you.
14 Mr. Ivetic.
15 MR. IVETIC: Thank you, Your Honours. I ought to be fairly brief
17 WITNESS: DANICA MARINKOVIC [Resumed]
18 [Witness answered through interpreter]
19 Examination by Mr. Ivetic: [Continued]
20 Q. Judge Marinkovic, if we could first turn to -- I trust you have
21 the binders back that we had last week that you were working with. Is
22 that accurate?
23 A. Yes.
24 Q. All right. Then for purposes of e-court if we can look at 6D625,
25 and if you could look at that exhibit within the binders that you have.
1 And if you could tell us if you had a personal role in this investigation
2 and what can you tell us about the same.
3 A. In this document we find a criminal complaint that was submitted
4 by the Pristina SUP. We're looking at the crime of murder committed
5 against Fazlia Murtezi from Pristina. If I look at the substance of this
6 criminal complaint, I see that this occurred on the 13th of April, 1999.
7 Q. [Previous translation continues]...
8 A. In connection with this incident, what I can say is this, I and
9 the other members of the on-site investigation team carried out an
10 on-site investigation that day.
11 Q. If we can move along to 6D -- strike that. 6D338 is on the
12 screen, but while we're waiting for that I can ask you some questions of
13 a preliminary nature. First of all, what do you recall about the killing
14 of Mr. Kelmendi and his sons, was that a matter fully investigated in
15 accord with the applicable laws and rules?
16 A. I see the attachment on the screen in front of me. This was done
17 in keeping with the Law on Criminal Procedure. This is exactly what is
18 done whenever a crime occurs. A criminal complaint was drawn up.
19 There's a record of an on-site investigation, an indictment sent to the
20 Ministry of the Interior, or rather, the organs of the interior for them
21 to take any measure to track down the perpetrator of this crime. And if
22 you look at 6, 7, and 8, what you find is information concerning persons
23 who on that day were found on the site when we conducted our
25 Q. And now does Exhibit 6D338 reflect all the steps taken in the
1 official investigative process?
2 A. Yes. Certain steps were possible in terms of being taken by the
3 appropriate state bodies at the time, given the circumstances surrounding
4 this. There was a war on, and no more than that was possible. One thing
5 I can't see in this letter is this, in this specific case when we came
6 across the bodies of these persons, I issued an order for a corpse
7 inspection to be carried out, which is another step that had to be taken
8 under the circumstances, and given the circumstances of the actual
9 on-site investigation. All these were investigative steps that could
10 have been taken by the SUP, the prosecutor, and the investigating
12 Q. Now --
13 JUDGE BONOMY: Mrs. Marinkovic, could you remind us, please, who
14 Kelmendi was?
15 THE WITNESS: [Interpretation] Yes. Bajram Kelmendi was a lawyer
16 based in Pristina. He was one of the better ones. He was exceptionally
17 familiar with criminal law, and I used to work with him during my time in
18 Pristina. Our cooperation was professional and fair.
19 JUDGE BONOMY: Thank you.
20 Mr. Ivetic.
21 MR. IVETIC: Thank you.
22 Q. Now, Judge Marinkovic, based upon your experiences and work on a
23 daily basis in 1999 during the course of the NATO war, how would you
24 describe the level of cooperation that you witnessed from the Serbian MUP
25 in facilitating on-site investigations and investigating criminal -- and
1 in the work of the investigative judges investigating criminal acts?
2 A. In my capacity as an investigating judge I cooperated with the
3 bodies of the Ministry of the Interior, and in terms of our on-site
4 investigations the cooperation was very professional and fair. Whenever
5 I issued an order, bodies of the interior would always take all the steps
6 necessary depending on the situation in the circumstances; however, even
7 regardless of the security situation and even regardless of the difficult
8 circumstances that surrounded all of this, whenever a crime occurred I
9 would issue an order and they would do everything to collect any evidence
10 remaining at the crime scene. They would record all of this, draw up
11 files for the prosecutor, themselves, and the appropriate court, and then
12 there would be an order by the public prosecutor for them to proceed and
13 track down any perpetrators. All of this of course was always done in
14 keeping with the Law on Criminal Procedure.
15 Q. Now, if you could tell us according to the system that was in
16 place in 1998 and 1999, under whose authority fell the detention centres,
17 jails, et cetera?
18 A. The institutions in which any detained persons were kept were
19 under the Ministry of Justice. As for the investigation stage, whenever
20 a detained person wanted to exercise one of their rights, they would go
21 to me because I was the investigating judge, anything that had to do with
22 their status as persons or anything to do with any visits that they were
23 expecting and were allowed to receive.
24 Q. One moment. I think I have about two questions left for you,
25 ma'am. The first question is: During the course of your work during
1 1998 and 1999, was there anyone in the Serbian Ministry of Internal
2 Affairs that could influences or impact upon your work in any way to
3 control the same, et cetera?
4 A. No. I was independent in my work and professional. No one at
5 all had the power to influence my work. As for how my work was monitored
6 during an investigation, you could tell after an indictment had been
7 issued, if these were criminal proceedings that we're talking about; and
8 then after that, as soon as there was a verdict, this would be sent for
9 verification to a second-instance court which was normally the one in
11 Q. And I think the last question I have for you is during the course
12 of 1998 and 1999, was the work of the investigative judges independent of
13 any other organ, including the Serbian MUP?
14 A. Yes. All of us who worked for the court were independent and
15 worked on our own. The MUP had no power to influence us or any other
16 state bodies, and other state bodies had any influence over the work of
17 the courts of law.
18 Q. Thank you, Judge Marinkovic. I think you have answered all the
19 questions I have prepared for you.
20 MR. IVETIC: I have no further questions for this witness, Your
22 JUDGE BONOMY: Thank you, Mr. Ivetic.
23 Mr. Aleksic, do you have questions? No cross-examination by any
24 other Defence counsel.
25 You'll now be cross-examined by the Prosecutor, who in this
1 instance will be Ms. Carter.
2 Ms. Carter.
3 Cross-examination by Ms. Carter:
4 Q. Good morning, Mrs. Marinkovic.
5 A. Good morning.
6 Q. I'd like to start out the cross-examination with just some
7 general information with regards to your background as well as the
8 day-to-day functioning of the court. You had indicated on direct
9 examination that you became a judge in 1984. Can you tell me in 1984
10 what type of judge were you?
11 A. For that let me tell you this, before I became a judge I worked
12 as an associate at the Kosovo Supreme Court in Pristina from 1976 to
13 1984. I was an associate dealing with administration and litigation
14 concerning administrative issues. When I was appointed judge of the
15 district court in Pristina, I first started dealing with litigations. I
16 started in 1984 and I continued all the way until 1994, when I started
17 working as an investigative judge with that same court.
18 Q. So you said between 1984 and 1994 you were dealing with
19 litigations. What does that mean? What type of cases were you dealing
20 with and what were your functions?
21 A. This was mostly about damages, damages of any type, as a result
22 of a traffic accident, for example, or other kinds of damage that were
23 incurred. I dealt with debts, I dealt with property-related issues, I
24 did divorce.
25 Q. And so you said in 1994 is when you became an investigative
1 judge. Are there different types of investigative judges in the Pristina
2 district court?
3 A. No. In the Pristina district court there is only one type of
4 investigative judge, and they deal with all kinds of cases depending on
5 how and where a case is assigned and at what time a case is received.
6 Q. In the Milosevic case you had testified in regards to the
7 rostering of the investigative judges, that the president of the court
8 makes a schedule, and those in his employ are appointed to criminal
9 cases, civil cases, or an investigative judge. That's what I'm trying to
10 figure out. What type of investigative judges are there or do they
11 handle all types of cases, both criminal and civil?
12 A. I explained on Friday when I started my evidence, I'm not sure if
13 that was recorded or not. Only the president of the court has the power
14 each year when he draws up the yearly schedule, and this is something
15 that is in keeping with the rules --
16 JUDGE BONOMY: Mrs. Marinkovic, I wonder if I could stop you.
17 The question is more specific than that. Are the functions of an
18 investigative judge confined to criminal cases or do you investigate
19 civil cases?
20 THE WITNESS: [Interpretation] Investigative judges deal with
21 criminal cases.
22 JUDGE BONOMY: Thank you.
23 Ms. Carter.
24 MS. CARTER:
25 Q. Now, once you became an investigative judge, were you able as the
1 district judge rostered each year into the criminal cases, the civil
2 cases, or the investigative judge, were you able to be rostered in any
3 one of those three slots; or once you became an investigative judge you
4 could only be an investigative judge?
5 A. When I was appointed as an investigative judge, I dealt with
6 investigations only. Sometimes I was a member of the first-instance
7 chamber dealing with criminal cases whenever I was not in charge of an
8 investigation, and the president would put me in one of those chambers.
9 Afterwards -- while I worked as an investigating judge I was not involved
10 in trials.
11 Q. When you were appointed to be a criminal investigative judge,
12 what type of training, if any, did you receive to be able to take on
13 those new duties?
14 A. No special training is required for that. Whenever I started
15 investigation, I was duty-bound to apply criminal law and the Law on
16 Criminal Procedure, because when you have a trial different kinds of laws
17 are applied.
18 Q. Dealing with state security cases, there has been an indication
19 by the United Nations report of the Special Rapporteur to the Commission
20 of Human Rights that it was customary for trials involving state security
21 to only be handled in one district and to be brought by one public
22 prosecutor and to be heard by one bench. Is this an accurate picture of
23 what was occurring in Pristina at the time that you were an investigative
25 A. My apologies, I didn't receive the first part of the
1 interpretation, which means I'm unable to fully comprehend your question.
2 Q. Dealing strictly with state security cases, were they all handled
3 in the Pristina district court?
4 A. I'm not sure what you mean when you say "state security cases."
5 I don't think I quite understand that. I'm not sure what you have in
6 mind when referring to state security cases.
7 Q. Were terrorism cases held exclusively in the Pristina district
9 A. Terrorism cases and conspiracy to commit hostile acts were
10 something that was dealt with by all the district courts in -- throughout
11 Kosovo and Metohija because they all had the power to deal with these
12 cases. So it wasn't just the Pristina district court, it was other
13 district courts, too, that dealt with these cases.
14 Q. Within the district courts, was there a designated prosecutor who
15 dealt with this type of case?
16 A. I'm not really aware of that. There were district prosecutors
17 and deputy district prosecutors. They had a roster and they took up
18 cases as they came. I'm not sure if there was a special prosecutor who
19 was in charge of such cases alone.
20 Q. Now I want to deal with the make-up of the courts. Is it
21 accurate that out of the 756 judges and prosecutors in Kosovo, that only
22 30 were actually Kosovar Albanians?
23 A. I'm in no position to confirm the figure for you since I'm not
24 familiar with the exact number of judges and prosecutors in Kosovo and
25 Metohija. I could tell you about the Pristina district court, though.
1 I'm not familiar with any other courts.
2 Q. In the Pristina district court, how many judges and prosecutors
3 were there?
4 A. What period are we looking at? Because the breakdown changed
5 over time, so you'll need to be more specific than that, please.
6 Q. We'll first deal with 1998. In 1998 how many prosecutors and
7 judges within the Pristina district court were there?
8 A. Well, there was the district prosecutor, all together a total of
9 seven I believe. The judge of the Pristina district court and the
10 president -- I think a total of 19.
11 Q. How many were Kosovar Albanian?
12 A. At the court? There were three working with us, three Albanians.
13 Q. In 1999 did those figures change?
14 A. When the war began we were still all together, but as I mentioned
15 there was one of our colleagues who had died as a result of a heart
16 attack, a stroke. A month later an Albanian colleague of mine who was
17 working an investigation with me left Pristina with his family. So there
18 was one remaining throughout, another Albanian colleague who dealt with
19 second-instance cases, and he was a member of the chamber of the district
21 Q. Now I want to move on to --
22 JUDGE BONOMY: Are we clear, these answers, the figure you gave
23 us, three Kosovar Albanians out of 19 related to the judges and the
24 prosecutors taken together?
25 THE WITNESS: [Interpretation] No, just the judges.
1 JUDGE BONOMY: We don't have a clear answer, Ms. Carter, if you
2 want to explore the matter further.
3 MS. CARTER: Certainly, briefly.
4 Q. You had indicated a figure of 19 persons that were both
5 prosecutors and judges, that was the question that was asked. Does that
6 19 include prosecutors or is it judges alone?
7 A. 19 judges.
8 Q. How many prosecutors were there?
9 A. Well, at the Pristina district court there was one and he was a
10 Turk by ethnicity.
11 Q. All right. So out of the 19 judges there were three that were
12 Kosovar Albanian, and out of the prosecutors, the single prosecutor, he
13 was a Turk; is that correct?
14 A. That's right.
15 Q. Thank you.
16 JUDGE BONOMY: To make sense of that we need to know how many
17 prosecutors there were.
18 MS. CARTER:
19 Q. How many prosecutors were there?
20 A. I think I said it a while ago, a total of seven --
21 JUDGE BONOMY: You did give us that figure, thank you.
22 MS. CARTER:
23 Q. Now I'd like to move on to the day-to-day functioning. Now, you
24 had indicated that prior to the NATO bombing that you performed on-site
25 investigations upon the direction of the prosecutor; is that correct?
1 A. Yes, but as far as on-site investigations were concerned it was
2 me as an investigating judge who decided whether an on-site investigation
3 should go ahead, and normally this is something I would agree with the
4 prosecutor. But any on-site investigation would fall within my purview
5 because I was an investigating judge.
6 Q. However, prior to the NATO, the only way that an on-site
7 investigation would be started would be at the direction of the
8 prosecutor; is that correct?
9 A. No. I could carry out an on-site investigation with or without
10 the prosecutor's consent or approval.
11 Q. How would a case be referred to you for an on-site investigation
12 that had not come through the prosecutor's office?
13 A. No application or request was compulsory for an on-site
14 investigation to take place. For example, I happen to be on duty on a
15 Sunday and an incident occurs, there are reasons to suspect that a crime
16 has occurred. I in my capacity as investigating judge am duty-bound to
17 go to the scene of crime to carry out an on-site investigation, and it is
18 the duty team of the Pristina SUP who would be responsible for informing
19 me about any such incidents occurring. They would also have to advise
20 the district public prosecutor.
21 Q. So outside of the SUP and the prosecutor, those would be the only
22 two ways that you would be notified of the need for an on-site
23 investigation; is that correct?
24 A. I would receive notification from the SUP on an incident. As to
25 whether I would go for an on-site investigation or not, this is something
1 I decide on in agreement with the prosecutor. But, for example, a
2 prosecutor can say that they cannot attend the on-site investigation, and
3 in that case I can go ahead alone. It is important that the other team
4 members are present, these being the -- an operational inspector or
5 detective as well as a crime technician, whose attendance is obligatory
6 so that he could take photographs and make sketches. Members of the
7 local police station also have to be present to provide security, and
8 they have to seal off the site itself so as to prevent any unauthorised
9 personnel or people to enter the scene before the arrival of the
10 officials needed.
11 Q. Now, you just noted that the members of the local police would
12 provide security, and you'd also indicated during direct examination that
13 at times on-site investigations were foregone due to security issues.
14 Did that happen frequently or infrequently, that you had to forego an
15 on-site investigation due to security concerns?
16 A. In 1998 and during the air-strikes, that's when it was happening
17 although not frequently, those were individual cases in which our
18 security was in question and I wasn't able to go there since I was either
19 busy with another on-site investigation or I had hearings or interviews
20 conducted at the court of certain persons involved in investigations.
21 And then the organs of the interior on my authorisation could carry out
22 an on-site investigation without a judge. Also, if we had urgent cases
23 and judges unable to attend for any reason, due to the weather, distance,
24 or security, in such cases more organs of the interior under law were
25 authorised to conduct that piece of investigation on their own and then
1 to further notify both the judge and the prosecutor.
2 Q. If the MUP was conducting the investigation on their own, was
3 there any limit to the tasks that they were going to be providing?
4 A. During the on-site investigation they could do the basic things,
5 for example, to search for includes, evidence, and they had to take
6 photographs and sketches with the assistance of the crime technician.
7 They also were obliged to preserve such evidence and hand it over to the
8 authorised judge. The only thing they could not do is issue an order for
9 a corpse inspection and an autopsy to be conducted; only a judge could do
10 that. If there were any witnesses on site or if some persons were found
11 at the site, they could detain them, waiting for an investigative judge.
12 If the judge should not appear, then those people could be taken to see a
13 judge at the court.
14 Q. Are you aware of any instance in which the MUP had to investigate
15 one of their own, meaning that there was an alleged MUP aggressor and the
16 MUP actually had to investigate one of their own?
17 MR. IVETIC: Well, for the record, Your Honour, we did have one
18 last week --
19 JUDGE BONOMY: Well let -- Mr. Ivetic, let's rely on
20 Mrs. Marinkovic's memory for the moment, and then if necessary you can
21 deal with it in re-examination.
22 Ms. Carter.
23 MS. CARTER:
24 Q. Ma'am, can you answer the question, are you aware of any instance
25 in which the MUP had to investigate one of their own, specifically
1 meaning where there was an alleged MUP aggressor and the MUP had to
2 investigate? And specifically -- I'm sorry, one more moment. And
3 specifically that you were not on site, that the MUP had sole freedom to
4 be able to investigate without your overseeing.
5 A. An on-site investigation is a part of an investigation into the
6 case. Concerning on-site investigations, the SUP could conduct those on
7 their own. There was a specific example during an air-strike. A
8 criminal complaint was submitted against an unidentified perpetrator, and
9 the court on the public prosecutor's orders continued gathering data so
10 as to identify the perpetrator --
11 JUDGE BONOMY: I think you've misunderstood the question. The
12 question relates to allegations against a member of the MUP. Were there
13 circumstances in which there may be an allegation of murder, for example,
14 against a MUP official where the investigation was carried out by the
15 MUP? That's Ms. Carter's question.
16 THE WITNESS: [Interpretation] The MUP itself could not conduct an
17 investigation. They could only gather information and try and identify
18 the perpetrator. They could not undertake an investigation on their own.
19 JUDGE BONOMY: You've just told us that with your authority they
20 could do that where you were engaged somewhere else.
21 THE WITNESS: [Interpretation] Concerning on-site investigations,
22 not the investigation as such. An on-site investigation is just an
23 initial phase before an indictment is issued. For that we need to know
24 who the perpetrator is, we have to have reasonable doubt --
25 THE INTERPRETER: Interpreter's correction: Suspicion.
1 THE WITNESS: [Interpretation] -- and that could only be pursuant
2 to a request made by the competent public prosecutor. We needed to know
3 the crime and the perpetrator.
4 JUDGE BONOMY: Mr. Zecevic.
5 MR. ZECEVIC: Your Honours, 15, 22, it is getting really
6 confusing because the witness said: Investigation is a phase of the
7 criminal procedure, and the on-site investigation is just a part of it
8 which the investigative judge decides whether or not to undertake.
9 JUDGE BONOMY: I think the sense of what you're conveying does
10 emerge from the interpretation that we have.
11 So, Ms. Carter, you'll need to make it clear whether your
12 question relates to on-site investigation or overall investigation.
13 MS. CARTER:
14 Q. What types of activities were you allowed to authorise the MUP to
15 conduct? Was this on-site investigations or something more?
16 A. Concerning on-site investigations, as a procedure that means that
17 the case has not been initiated yet. The organs of the interior under my
18 authority could conduct an on-site investigation.
19 JUDGE BONOMY: Ms. Carter, there's a linguistic problem here.
20 You regard I think the conduct of your own investigators, the OTP, as an
21 investigation. I think that the Serb legal system would not regard that
22 as an investigation, that something more formal constitutes an
23 investigation under the Serb system. So if you're asking the question:
24 Would the MUP act as the detectives to see if there is a basis for a
25 case, then that might be a different situation from the one that
1 Mrs. Marinkovic understands by the use of the expression "investigation."
2 MS. CARTER: I'm guided, Your Honour. Thank you.
3 Q. Posing the question as Judge Bonomy has just indicated, were --
4 did the MUP act as the detectives for their own defendants, meaning if
5 somebody was accusing a MUP member of murder or some egregious act, did
6 the MUP itself serve as the detectives?
7 A. Concerning the identification of a perpetrator of a crime,
8 irrespective of who that is, the MUP is authorised pursuant to the public
9 authorities -- public prosecutor's authority to gather data, collect
10 evidence, and conduct interviews and to do anything that would assist in
11 identifying the perpetrator. It doesn't matter whether it's an ordinary
12 citizen, a policeman, male or female, an adult or minor. They act within
13 that purview and they have to do their part in identifying the
14 perpetrator, even if it's a policeman. There was a number of cases where
15 I conducted the investigative proceedings and the policemen were --
16 policemen were perpetrators. There were such cases, I recollect them.
17 Q. Outside of the singular example that was shown to you on Friday
18 with regards to the two policemen that were arrested and there was some
19 public outcry, outside of that singular case when else were policemen
20 indicated as being the perpetrators?
21 MR. IVETIC: Your Honours, I'll object as far as this is not tied
22 to the jurisdiction that the judge was in. There might be -- we heard
23 there were courts in Prizren and elsewhere --
24 JUDGE BONOMY: Yeah, but the Court -- we --
25 MR. IVETIC: I would -- -
1 JUDGE BONOMY: -- I certainly would read the question confined to
2 her personal knowledge and experience --
3 MR. IVETIC: That would be fine.
4 JUDGE BONOMY: And on that basis, it's perfectly proper.
5 MS. CARTER:
6 Q. Judge Marinkovic, you had indicated in your previous answer that:
7 "There were a number of cases where I conducted the investigative
8 proceedings and the policemen were the perpetrators ..."
9 Outside of the singular example that was given on Friday, what
10 other cases did you investigate where police were the perpetrators?
11 A. During the air-strikes, there was a murder. I conducted both the
12 on-site investigation and the investigating proceedings. The person in
13 question was a reserve policeman, Slobodan Marusic, a.k.a. Boban. The
14 murder took place in a bar. He came to the bar, which was packed, and
15 one of the guests there was a military person who was on leave. That
16 person had been injured and subsequently succumbed to the wounds on the
17 way to the hospital. The person suspected of committing the crime was in
18 detention and an indictment was issued and I believe the case was
19 concluded and a judgement rendered.
20 JUDGE CHOWHAN: I just wanted one clarification from you, Judge.
21 You told us that a person could be detained even by MUP or other forces
22 if they see him on the side or if they find him out to be a perpetrator.
23 Now, I just wanted to know the duration of time when he could be detained
24 before his production before a judge for formal arrest or indictment.
25 What is the legal position on that?
1 THE WITNESS: [Interpretation] Before the war and before the
2 introduction of a state of war according to the Law on Criminal
3 Procedure, when a member of the MUP killed a certain person, such a
4 person could be detained until an indictment --
5 JUDGE BONOMY: Sorry, Mr. Fila.
6 MR. FILA: [Interpretation] You misspoke, you said when the MUP
7 kills someone.
8 THE WITNESS: [Interpretation] I apologise. When the MUP takes
9 someone into custody. I guess I misspoke. Thank you. Members of the
10 MUP could keep that person in detention for 72 hours, three days, within
11 which time they had to be handed over to an investigative judge with a
12 criminal report submitted or to have the person handed over to the public
13 prosecutor. During the times of war, there was a decree that was put in
14 place regulating certain provisions of the Law on Criminal Procedure.
15 The dead-line was extended. Organs of the MUP could have that person
16 detained up to 30 days before turning that person over to an
17 investigative judge, and it should be accompanied by a criminal report.
18 JUDGE CHOWHAN: So when he was produced before an investigating
19 judge like your good self, then you'd further hand over his custody to
20 someone or send him to jail or what would you do? Will it be through a
21 written order or will you produce him before a judicial court? How would
22 you act then?
23 THE WITNESS: [Interpretation] When a person is detained and
24 handed over to an investigative judge, after conducting an interview on
25 all of the circumstances pursuant to an investigative request, I decide
1 whether the public prosecutor's request was founded and then I decide on
2 further detention. In this case I extended that detention. After that
3 with that decision, the person is kept in detention during the entire
4 duration of investigation.
5 JUDGE BONOMY: Ms. Carter.
6 MS. CARTER:
7 Q. When we last spoke you'd indicated that you investigated the
8 murder committed by Slobodan Marusic and also on Friday you spoke of
9 Nikolic and Djeletovic. Are there any others that you are aware of where
10 a MUP member is accused of murder or some other egregious act?
11 A. There were other cases. Now that you're asking me, I remember a
12 case against a policeman by the name of Dragan Mitic or Matic. It
13 concerned a murder of a civilian.
14 Q. When was this?
15 A. I don't know if it was in late 1997 or so; however, I do remember
16 the case and the person involved was a policeman. There was another case
17 concerning a policeman, was it Milenkovic. In any case, a civilian had
18 been killed; however, both cases were prior to 1998. I don't know the
19 exact dates. There were such cases and the perpetrators were always kept
20 in detention, indictments were issued, and judgements subsequently
21 rendered, although I don't know exactly what sentences they received.
22 Q. Are you aware of any murders taking place in 1998 or 1999 by
23 policemen, outside of the ones that we've already discussed?
24 A. Concerning my jurisdiction, that is the district court of
25 Pristina, concerning the two cases involving murders -- well, apart from
1 those two I had no other cases. I had cases involving other crimes. I
2 cannot recall any other cases involving murder.
3 Q. Let's expand the question to include cases against life and limb.
4 Are you aware of any sort of, again, aggravated robberies, some sort of
5 beatings, assaults, anything of that account?
6 A. As far as I recall, there was a case involving a robbery.
7 Q. When did that occur?
8 A. I think it was at the beginning of the war. The person was
9 prosecuted, a report was submitted to the district prosecutor; however,
10 that case remained in Pristina. It was not concluded due to many
11 circumstances I have already described. This was not a case that would
12 involve custody; therefore, the prosecutor could only submit a request
13 through the regular channels and then conduct investigation accordingly.
14 There were other cases, for example, involving property crimes; however,
15 that falls under the competence of the municipal court. Therefore, they
16 had many more reports submitted and those cases did not envisage
18 Q. We have had evidence of looting throughout the wartime by both
19 members of the VJ as well as the MUP. If you're dealing with members of
20 the MUP participating in looting, would that be considered a property
21 crime, thereby going to the municipal court?
22 A. Well, when you say "looting," it is rather general. The crime of
23 robbery and aggravated robbery, those are property crimes as well as
24 theft, that falls under the competence of the municipal court. That
25 involves taking away someone's property. I don't know whether you would
1 strictly define it as robbery.
2 Q. Can you please define for us what aggravated robbery would
3 include that would be sent to a municipal court?
4 A. As far as I know, "pljacka" is not part of the criminal law.
5 MR. ZECEVIC: I'm sorry, Your Honours, there is a translation
7 JUDGE BONOMY: Yes.
8 MR. ZECEVIC: I believe the witness is talking about the
9 aggravated theft and not the aggravated -- and it is -- it has been
10 translated over and over as aggravated robbery or robbery or aggravated
11 robbery. She's talking about the theft, the simple theft, and the
12 aggravated theft. Thank you.
13 JUDGE BONOMY: Ms. Carter.
14 MS. CARTER:
15 Q. Ma'am, what I'm focusing on is in many jurisdictions when the
16 moniker "aggravated" is added to a crime it implies some sort of
17 violence. Is that accurate with regards to the Serbian Criminal Code?
18 A. There is theft and aggravated theft. The crime of theft is
19 committed when someone takes another's property. And aggravated theft is
20 robbing a house, taking property by committing burglary by entering the
21 premises. Aggravated theft is more serious and it should involve robbery
22 or breaking in, taking something away in that particular -- such
23 particular means.
24 Q. We --
25 JUDGE CHOWHAN: I think the best thing is to give her an
1 illustration. Supposing on a highway a car is stopped and people are
2 injured and their belongings removed, what would you call this as, an
3 aggravated theft, a robbery, dacoity, what would you call it and what
4 would be the punishment? I think that's the problem because theft is a
5 different thing. What will happen on the roadside, highway, or going
7 THE WITNESS: [Interpretation] The example you cite contains
8 several elements of robbery. It involves forced coercion and illegal
9 taking away of property.
10 JUDGE CHOWHAN: I think that is what Ms. Carter is trying to say.
11 She's not talking of theft, she is talking of the robbery of the kind
12 which you now contemplate.
13 Am I right, Ms. Carter?
14 MS. CARTER: Yes.
15 Q. What we're trying to determine is which type of crimes go to
16 which courts. Now, you have indicated that property crimes go to the
17 municipal court. Included within property crimes you had indicated that
18 there's some sort of aggravated theft. At any time is there a theft
19 crime that includes violence towards the victim that also goes to the
20 municipal court?
21 A. I'll try to be specific. Concerning theft and aggravated theft,
22 that fell under the purview of the municipal court given the sentence
23 envisaged by law for such crimes. The municipal court is competent to
24 hear cases which can be issued sentences of up to ten years --
25 THE INTERPRETER: Interpreter's correction: Ten and over.
1 THE WITNESS: [Interpretation] -- the crimes of robbery, including
2 coercion and force, under the -- at the time it fell under the competence
3 of the district court.
4 JUDGE BONOMY: Mr. Zecevic.
5 MR. ZECEVIC: I'm sorry, Your Honours. First of all, the witness
6 is talking a bit fast, so I would ask her that she talks slowly because
7 what we are getting in transcript is not what she is saying and it's
8 very, very confusing. Actually, the Law on Criminal Procedure which is
9 the evidence in this case is really very strict about it and there is an
10 explanation on that, but just for the purposes of the record and now the
11 municipal court -- the county court is in charge of all cases which
12 are --
13 JUDGE BONOMY: Well, you've now introduced an expression --
14 MR. ZECEVIC: I'm sorry --
15 JUDGE BONOMY: -- we haven't heard. Let's confine ourselves
16 to --
17 MR. ZECEVIC: I'm sorry, the district court. The district court
18 tries the cases where the sentence can be -- that can be given is ten
19 years or more. Municipal court tries the cases which had the sentences
20 lower than that.
21 JUDGE BONOMY: Yeah. That may be the theory and I understand
22 that and I hope it's in a document somewhere and we don't really need
23 this sort of examination for that, but one of the things that's been
24 recorded in English as said by the judge so far is that cases went to the
25 municipal court where custody was not envisaged at all, and that for
1 theft -- property crimes in general, in fact, she said according to the
2 English translation that custody was not envisaged.
3 MR. ZECEVIC: That is not --
4 JUDGE BONOMY: Now, I know that the theory is different, but --
5 MR. ZECEVIC: That is not what the witness said, that's why I'm
6 saying the -- it is very confusing.
7 JUDGE BONOMY: Now, we do, do we not, have these rules as
8 exhibits here? And what you really should be exploring are specific
9 examples that the witness has some knowledge of that she can tell us how
10 it operated in practice. Is that not the position?
11 MS. CARTER: Your Honour, the reason the questioning is being
12 asked is because we have had any number of documents that have been
13 admitted from the Defence in regards to investigations and proper
14 criminal courts being run. Only until this witness has indicated that
15 there are two separate courts. Most of the crimes that we're seeing are
16 coming down to property crimes, theft, looting, that type of thing, and
17 that's being shown that that's somehow a functioning judiciary. I'm
18 trying to explore that bit, is there a difference between the municipal
19 and the district and how each of them were functioning.
20 JUDGE BONOMY: But we have documents that tell us that, don't we?
21 MS. CARTER: Not exactly, Your Honour. It -- there has never
22 been an indication that there was a separate judicial system that somehow
23 between a -- because they're always put in summaries, that somehow --
24 that the property crimes and the crimes against life or limb are all
25 coming in to some of these massive exhibits. In doing so it indicates
1 that it's all the same functioning judiciary. It appears that they're
2 two separate judiciaries, and that's what I'm attempting to explore at
3 this point.
4 JUDGE BONOMY: But don't we have documents about Serbian criminal
5 procedure that tell us that there are municipal courts and district
6 courts and that they have different sentencing powers.
7 MS. CARTER: It does indicate that there are different sentencing
8 powers; however, there appears to be a difference because again
9 aggravated theft and robbery, depending on how you're reading it, seem to
10 be very similar, and that's why I'm trying to explore with the witness,
11 what is envisaged under municipal law, what is envisaged under the
12 district court law, and I'll also follow up with the custody not
13 envisaged inquiry.
14 JUDGE BONOMY: Well, you're going to have to do it with simple
15 questions that are very clear otherwise there is going to be confusion,
16 because in interpretation the distinctions that we clearly understand
17 between robbery and theft are not necessarily ones that are familiar to
18 the interpreters. So you will have to be very specific with your
20 Mr. Fila.
21 MR. FILA: [Interpretation] I will try to be of assistance a
22 little. What municipal courts deal with in Serbia is none of your
23 concern, take my word for it, those are petty thefts, pocket stealing, et
24 cetera, somebody gets drunk --
25 JUDGE BONOMY: Mr. Fila, I don't think first of all -- I'm very
1 sorry to cut you off. I don't think this is an appropriate stage for you
2 to make these submissions. If we feel that the questions are not going
3 to be helpful to us in the end, then we will intervene, but one of the
4 Prosecution's -- one of the elements of the Prosecution's case is that
5 the system didn't work as it ought to work. And for you to tell us and
6 assert the situation is a matter for later based on the evidence, and
7 you're not in a position to give us evidence. I know you're an expert in
8 the field, but you're on nobody's 65 ter list, you're not being led as a
9 witness. If we feel the need, and there may be a need, to have more
10 assistance from counsel because of their experience, we will come to you.
11 But so as not to prejudice the cross-examination, let's leave that till
12 later. Thank you.
13 [Trial Chamber confers]
14 MS. CARTER:
15 Q. Ma'am, I'm going to attempt to --
16 JUDGE BONOMY: Just a moment, Ms. Carter.
17 [Trial Chamber confers]
18 JUDGE BONOMY: Please continue, Ms. Carter.
19 MS. CARTER:
20 Q. To try to get some clarity, I'm going to ask you a series of
21 hypothetical questions, where I would just like you to answer for me
22 whether that case would go to a municipal court or a district court. The
23 first example, if a person were to go to somebody else's yard and take
24 some of their property, first off what would that crime be called and
25 which court would handle it?
1 A. When you say "somebody else's property," we have to know what
2 exactly was taken because "property" is a broad term and it can cover
3 movable, immovable objects, we have to know what it is because it's one
4 of the essential elements in qualifying a crime.
5 Q. Okay. What if the person goes and takes another person's car,
6 what is that crime called and which court would deal with it?
7 A. Well, you see, if we're talking about motor vehicles it can be
8 theft but it can also be misappropriation, but in any case it's within
9 the purview of the municipal court. Only if the car was locked and then
10 the perpetrator used an object to forcibly open the door and start the
11 vehicle using some inappropriate means, that would be aggravated theft
12 because it involved breaking and entering, that makes it aggravated
13 theft, but again the municipal court would be in charge.
14 Q. So taking that into the houses. So if I were to break into a
15 house, break open a lock, go into a house, and steal somebody's TV, is
16 that again aggravated theft?
17 A. Yes.
18 Q. And that would still maintain in the municipal court; is that
20 A. Yes.
21 Q. Same scenario with a couple of additional bits. I go -- I break
22 into a house, I go inside, this time there are people in it. I forcibly
23 remove from those people jewellery. What is that crime and which court
24 does it go to?
25 A. Well, when you say "forcibly," we have to identify how, whether
1 by use of violence, by threat, or coercion. But if this violence is
2 proven in any form, then it would have the elements of the criminal act
3 of robbery and then the district court would be in charge.
4 Q. So that's the change-over, in the event that there is violence
5 towards a person, that rises it to the level of robbery which sends it to
6 the district court; is that correct?
7 A. Yes.
8 Q. Thank you. We'll now move on to another topic.
9 A. If there was violence or if by using violence a serious or
10 less-serious injury was inflicted, there are three or four paragraphs
11 envisaging various forms of qualification. Only -- it's only a
12 difference in sentencing.
13 Q. And just to confirm, now you had said before that if it went to
14 the municipal court that custody was not envisaged. So, so long as
15 there's not violence towards the victim, custody would not be envisaged
16 at the time; is that correct?
17 A. No, that's not correct. The grounds for remand in custody are
18 completely different. Custody is a measure to ensure the presence of the
19 accused. It has nothing to do with the qualification of the criminal
21 JUDGE BONOMY: I don't think that's the question, although I
22 understand why you're answering it that way. There was a suggestion of a
23 different English explanation from the language used earlier in one of
24 your answers. If a person is guilty of aggravated theft, can that person
25 be sentenced to a period of imprisonment?
1 THE WITNESS: [Interpretation] They can. If there are legal
2 grounds to define remand in custody, such as danger that he might escape,
3 that he might not be detectable, that he might influence witnesses or
4 accomplices --
5 JUDGE BONOMY: Please stop. I can't understand this difficulty.
6 I'm not asking about being remanded in custody. I was very specific in
7 using the expression "sentenced" to a period of imprisonment. If a
8 person is guilty, that word I also used, of aggravated theft, can that
9 person be sentenced to a period of imprisonment?
10 THE WITNESS: [Interpretation] They can.
11 JUDGE BONOMY: And is the maximum if they're in the municipal
12 court ten years?
13 THE WITNESS: [Interpretation] Yes.
14 JUDGE BONOMY: And if they go to the district court for robbery,
15 as you've just told us would be appropriate, can they be sentenced to
16 less than ten years?
17 THE WITNESS: [Interpretation] Yes.
18 JUDGE BONOMY: Thank you.
19 Ms. Carter.
20 MS. CARTER:
21 Q. I now want to move on to the concept of direct filing is the term
22 I would tend to use. You indicated yesterday that apart from the organs
23 of the Ministry of the Interior who filed criminal reports for crimes
24 that must be prosecuted ex officio, criminal reports may also be filed by
25 other institutions of the state and by citizens, natural persons. Every
1 citizen has the right to file a criminal report; is that correct?
2 A. Yes.
3 Q. Would that report be sent to you or to the MUP? Is that a yes?
4 A. Well, depending on whether the citizen knows to whom to file the
5 report, he may file it directly to the MUP and he may file it also to the
6 public prosecutor. And then the public prosecutor may redirect the
7 criminal report to the MUP so that the MUP may check the allegations.
8 Normally a criminal report is not filed with the investigative judge, but
9 if the citizen doesn't know these things and files it nevertheless to the
10 investigative judge, the investigative judge would then forward it either
11 to the public prosecutor or to the SUP depending on the criminal act
13 Q. If the person was not sophisticated enough to know the proper
14 procedure yet you became aware that a crime had been committed, would you
15 have a duty to file some sort of report?
16 A. My duty as investigative judge would not be to file the criminal
17 report, but to send that submission or letter to the public prosecutor
18 because he is competent to judge whether there are any grounds to believe
19 that a criminal act had been perpetrated and who the perpetrator is.
20 JUDGE CHOWHAN: I have just a little clarification to request
21 for. Supposing nobody complains but a crime has taken place, who's going
22 to report in such circumstances? Will the police do it or will it be --
23 how will the process of law put into operation?
24 THE WITNESS: [Interpretation] Well, it's the duty of the police
25 as soon as they find out that a crime has been committed to file a
1 criminal report, and it's filed with the public prosecutor depending --
2 regardless of whether it's an identified or unidentified perpetrator. If
3 it's a criminal act that is prosecuted ex officio, it is the duty of the
4 MUP to file a criminal report.
5 JUDGE BONOMY: Ms. Carter.
6 MS. CARTER: I would like to bring up in e-court P3095?
7 Q. Ma'am, were you aware that as of 10 April 1986 the court
8 president, Djordje Aleksic, of the district court in Pristina had issued
9 this mandate that indicated that preference was to be given to cases
10 involving Serbian and Montenegrin victims? Were you aware of that?
11 A. At that time the president of the court was Djordje Aksic, not
12 Aleksic. It must be a mistake.
13 Q. Were you aware of this provision when you became a judge there in
15 A. You know, it was a long time ago, but I do remember we had such
16 instructions from the president of the court.
17 Q. Were you aware of this provision ever being revoked in the
18 Pristina district court?
19 A. I really don't know. Maybe it was for that year because every
20 year we received new instructions. And this one, let me tell you, had to
21 do with the following. In that period a large number of Serbs and
22 Montenegrins had started to leave Kosovo and Metohija and to move out
23 from Kosmet because of all sorts of pressure they were under, and that's
24 why we had been given suggestions on how to work with these cases.
25 Q. You had indicated on Friday that --
1 A. Excuse me. I read here at the bottom it says exactly until what
2 time we had to draft that report. Every judge had to make a separate
3 report by 18th April 1986 covering all the cases they were working on.
4 Q. So you're saying that this type of provision in the Pristina
5 district court occurred only in 1986 and it was not carried through
6 thereafter; is that correct?
7 A. I don't know. I don't remember. Maybe we had the same
8 instruction the following year. I really couldn't say now. It was a
9 long time ago. I didn't especially pay attention to a document like
10 this, it didn't stick in my memory.
11 Q. I ask because you had indicated during your direct examination
12 that it seemed to be quite a congenial area where Serbs and Albanians and
13 other ethnicities were all getting along, but it appears that there's
14 going to be some sort of preferential treatment with regards to some
15 victims. I'm trying to decide when that preferential treatment cut off?
16 A. You know, I really couldn't say. I wouldn't agree that it was
17 preferential because it was a kind of updating of these cases. As for my
18 movement and my contacts with people of other ethnicities, nothing had
19 changed and there were no problems.
20 Q. Why would there be a provision within the district court of
21 Pristina to only update the cases of Serbs and Montenegrins as opposed
22 to, say, the Kosovar Albanians?
23 A. You know, at that time it was the human rights of the Serbs and
24 other non-Albanians in Kosovo and Metohija that were in much greater
25 danger than those of Albanians. I suppose that's one of the reasons.
1 The wish was to stop the moving out, and that's why this instruction was
2 given to update cases where the injured parties were Serbs and
4 Q. This is around the same time that the speech was given at Kosovo
5 Polje where Milosevic indicated, You will not be beaten; and those type
6 of marches. Is that correct?
7 A. Let me tell you honestly, I don't remember that. If you have a
8 document saying that it was so, I'll take your word for it. I was never
9 involved in politics and I cannot tell you anything with any precision.
10 Q. However, your household was involved in politics, were they not?
11 In fact, your husband was taking part in those revolutions; isn't that
13 A. If you have a document proving that, it must be so.
14 Q. In fact you testified to that in the Milosevic case, did you not,
15 that your husband was a part of those demonstrations, that The Serbs
16 would get the status that they deserved in Kosovo and Metohija, those are
17 your words at transcript page 37931, lines 17 through 19.
18 A. If that's the way I said it there, it must be correct. I am not
19 retracting on my testimony.
20 Q. All right. I'd like to move on to the providence of 6D586. This
21 is an exhibit that has been entered as a 92 ter statement of yours where
22 it's serving as a summary of a number of cases. You had indicated in the
23 Milosevic case that the cases that make up that summary were those that
24 you managed to save when you left in Kosovo and these were something that
25 remain in your possession. Are these documents that make up the
1 background of 5D -- excuse me, 6D586, are they the original court
3 A. May I give an explanation beforehand, I did not say and it's not
4 true that I had succeeded in taking the case files with me and that it
5 had been submitted. Those are just parts of the indictments and parts of
6 the judgements, because all the case files, those of my cases and my
7 colleagues, remained in Pristina. And after the signing of the Kumanovo
8 Agreement the representatives of the ICTY - that's how they introduced
9 themselves - came together with some Albanians and the KFOR and gathered
10 all the case files before they had been listed. And I don't know whether
11 those case files had been returned, where they had been taken from, or
12 they are still kept here at the Tribunal.
13 Q. Ma'am, I would hold out to you that in the Milosevic case at
14 transcript page 37727, which has actually been uploaded into e-court at
15 P3115, page 15, you indicated that this is what you managed to save when
16 you went from Kosovo, you go on at page 16 in the e-court and say that
17 this is something that remains in her possession -- or your possession,
18 these are things that were actually stated by Milosevic with regards to
19 the providence of these documents. So and I'm trying to determine, were
20 these documents the court files?
21 A. Yes.
22 Q. And were these the original court files that you kept in your
23 possession or were they copies?
24 A. The originals were in my possession and these are photocopies.
25 Q. So you kept in your own personal archive the originals of the
1 cases that are addressed in 6D586?
2 A. Yes.
3 Q. Why wouldn't you leave official court files with the court as
4 opposed to taking them with you?
5 A. Well, as I said, official court files stayed with the court.
6 This is just a single copy because when an indictment or a judgement is
7 typed up several copies are made, and then my colleagues distributed one
8 of those copies to me because I had been in charge of the investigation.
9 I was supposed to follow those cases through all the way to the final
10 result, and this is something that is perfectly legitimate.
11 Q. I've got a quick question on the court documents. In official
12 court documents, what is the name used for Albanians? Can you both state
13 it and spell it.
14 A. I don't know. I'm not sure I understand your question.
15 Albanians, what other name could there possibly be?
16 Q. Well, we've heard in this courtroom that there's a term called
17 Siptar and that there are other terms such as Albanac. I want to know in
18 official court documents what word is used to designate Albanian
20 A. Albanian, and they actually had a court interpreter for Albanian.
21 Q. Okay. Can you please spell for me which word was used when
22 designating Albanian in official court documents.
23 MR. ZECEVIC: I'm sorry, Your Honour. I will have to object at
24 this time because I think my learned colleague should ask in -- in which
25 language as well because we know that the Albanian and Serbian are both
1 used in Kosovo as official languages.
2 MS. CARTER: Actually, I will address more specifically.
3 Q. In 6D588, which is listed from 1993, I would hold out to you that
4 the name that is used in the original court document for Albanians is
5 Albanac, A-l-b-a-n-a-c, and not Siptar. Are you aware of that? You can
6 look to the very first page of it. All of these defendants are of
7 Albanian ethnicity and each are listed as Albanac, the first one
8 beginning at the third line.
9 A. Yes.
10 JUDGE BONOMY: Well, you really need to do as Mr. Zecevic
11 suggested so that the transcript is clear. This is which language?
12 MS. CARTER:
13 Q. What language were the official court files stated in?
14 A. Both languages were used as official languages, Serbian and
15 Albanian. So both languages were used for documents and whatever part is
16 required an Albanian translation, their requests were complied.
17 Q. But the language --
18 JUDGE BONOMY: The question -- sorry, on you go.
19 MS. CARTER:
20 Q. What language is 6D588 in?
21 A. This indictment was written in Serbian, but there was also an
22 Albanian copy and it was served on all of the parties involved in their
23 own mother tongue.
24 Q. However, in the Serbian copy beginning at least in 1993 when
25 designating a person of Albanian ethnicity, the word "Albanac" is used in
1 the Serbian; is that correct?
2 A. Yes.
3 JUDGE BONOMY: What language is on the screen?
4 MS. CARTER: Serbian, Your Honour.
5 JUDGE BONOMY: Let --
6 MS. CARTER: Pardon me --
7 THE WITNESS: [Interpretation] The indictment is in Serbian, and
8 on the right-hand side we see an English translation I assume.
9 JUDGE BONOMY: And this Serbian indictment is written in Latin
10 script. Is that because the persons involved are Albanian?
11 THE WITNESS: [Interpretation] No. It depended on the typewriter
12 used, there were Cyrillic ones and Latin script ones, and at the time we
13 were using Latin script typewriters.
14 JUDGE BONOMY: Ms. Carter.
15 MS. CARTER:
16 Q. Ma'am, I would now direct your attention to 6D589. This is a
17 court document dated 1995, and I would hold out to you that again --
18 well, first of all, can you identify the language used in 6D589?
19 A. Will that be shown on the screen?
20 Q. It will be shown on the screen, but it's also in the notebooks
21 that you've received.
22 A. Yes, 589, right?
23 Q. Yes. Can you please tell me what language is 6D589 written in?
24 A. Serbian.
25 Q. Okay. And again, in the Serbian the word for Albanian is being
1 used "Albanac," A-l-b-a-n-a-c, in official court documents in 1995; is
2 that correct?
3 A. Yes.
4 Q. I would now direct you to a 1997 indictment, and that will be
5 6D587. Can you please identify the language for me.
6 A. Serbian.
7 Q. And again, the word that's being used is not "Siptar," but rather
8 "Albanac"; is that correct?
9 A. Yes.
10 Q. Unfortunately, we do not have another document provided after
11 1997, so I'm just going to have to ask you. In the Serbian court
12 documents of the Pristina district court, was it ever changed where
13 "Albanac" was not used but rather "Siptar"?
14 A. No, never.
15 Q. Would you ever expect to find the word "Siptar" in any sort of
16 legal document?
17 A. I don't quite understand your question.
18 Q. There has been testimony in this case that "Siptar" is a word
19 like any other with no foul intent to it. What I want to know is: Would
20 you expect to ever see the word "Siptar" in any sort of indictment,
21 order, or any sort of legal document?
22 JUDGE BONOMY: Mr. Ivetic.
23 MR. IVETIC: I'll -- rather than persuading the witness, I'll let
24 her answer, but then I do have a comment after the question.
25 JUDGE BONOMY: Ms. Carter.
1 MS. CARTER:
2 Q. Ma'am, can you tell me, would you expect to ever see the word
3 "Siptar" in any sort of indictment, appellate judgement, court order,
4 anything like that?
5 A. What I can say is this, I spent a long time in Pristina from 1976
6 onwards. People who were natives of the area --
7 JUDGE BONOMY: Mrs. Marinkovic, please think of the question and
8 please answer the question. It's related to your experience of
9 indictments and other court documents, not about the practice of people
10 in general in their relationships in Pristina. That can be explored if
11 others wish to explore it further in due course.
12 MS. CARTER:
13 Q. Ma'am, I would reiterate my question. In court documents, be it
14 an indictment, appellate judgement, or any sort of official court order,
15 would you expect to see the word "Siptar" used?
16 A. As far as my work was concerned, the term "Albanian" was always
17 used because that's what those people declared themselves to be. If
18 there was a trial one would ask them, What's your ethnicity, and they
19 would say Siptar. They didn't mind. It wasn't a derogatory term or
20 anything [as interpreted], this was a term that they had always used
22 Q. Ma'am, you indicated: "As far as my work was concerned, the term
23 'Albanian' was always used ..." now, when you used the word "Albanian,"
24 were you using this word spelled A-l-b-a-n-a-c?
25 A. Yes.
1 Q. Thank you. I'd now like to move on to a specific case that you
2 handled, specifically 6D589 --
3 MR. IVETIC: Before counsel moves on, we do have a transcript
4 error at page 40, lines 15 through 17, at the end of the witness's answer
5 she said they didn't mind, it wasn't a derogatory term or anything, this
6 was a term they had always used themselves previously is I think the most
7 concise addition to that. And for the record, since counsel's question
8 was: If there was ever any official court document calling someone
9 Siptar, the United Nations indictment in this case officially translated
10 by CLSS has Siptar and Siptari.
11 JUDGE BONOMY: Just identify the paragraph, Mr. Ivetic --
12 MR. IVETIC: I'm sorry. It's page --
13 JUDGE BONOMY: Yes, on you go.
14 MR. IVETIC: Yes. Page 40, paragraphs -- 14 through 18 is the
15 entire answer, but I think the part that was omitted is at the end of 18,
16 where the witness said that they had used that themselves previously or
17 in the past --
18 JUDGE BONOMY: No, I follow that. That's redundant. I mean, you
19 can only use things in the past -- if you use the word "had," it must
20 always be in the past. But I'm more interested on the page in the
21 indictment on which in reference can be found.
22 MR. IVETIC: The entire Albanian version, Your Honour, based on
23 recollection. If the Court requires, I could check that and present a
24 written memorandum or submission just to --
25 JUDGE BONOMY: I think the way to deal with that is to ask
1 questions of the witness. The indictment's a perfectly legitimate
2 document to be used --
3 MR. IVETIC: It is --
4 JUDGE BONOMY: -- in examination.
5 MR. IVETIC: It is and that's why I withdrew the objection as
6 soon as --
7 JUDGE BONOMY: But my reason for asking you is that repeatedly
8 through the English version the expression is simply Kosovo Albanians,
9 and I thought you were referring to the English official indictment when
10 you said the word "Siptar" was used, but I take it your comment is
11 confined to the Albanian translation?
12 MR. IVETIC: That's correct.
13 JUDGE BONOMY: Not the Serb?
14 MR. IVETIC: I don't think I've ever actually looked at the Serb
15 version of the indictment --
16 JUDGE BONOMY: You may have more questions in re-examination than
17 you thought.
18 MR. IVETIC: It seems like it.
19 JUDGE BONOMY: Would this be a suitable opportunity for us to
20 take our break, Ms. Carter?
21 MS. CARTER: Yes, Your Honour.
22 JUDGE BONOMY: Mrs. Marinkovic, we have a break now for half an
23 hour. Could you please leave the court with the usher.
24 [The witness stands down]
25 JUDGE BONOMY: We shall resume at 11.15.
1 --- Recess taken at 10.45 a.m.
2 --- On resuming at 11.17 a.m.
3 JUDGE BONOMY: I think, Mr. Ivetic, you caught me when I wasn't
4 thinking, but thinking about it immediately after leaving the court is
5 Siptar not the obvious word to use in an Albanian version of the
6 indictment because that is the word for Albanian? And I think it says
7 Siptari Kosoves.
8 MR. IVETIC: Correct, that's been our point to since day one that
9 Siptar is not a derogatory term as CLSS has in one fell swoop made it.
10 [The witness takes the stand]
11 JUDGE BONOMY: Yes, but we dealt with that, as you know, earlier
12 and the whole point of that remark is the use of the word Siptar in a
13 Serb-language document, which is a completely different thing from the
14 use of the word Siptar in an Albanian-language document. So I was
15 slightly misled -- I misled myself, but I think I'm now clear on the
16 issue so far as it relates to the indictments.
17 Ms. Carter.
18 MS. CARTER:
19 Q. Judge Marinkovic, I would direct your attention to 6D589 in your
20 binder of documents. You had discussed that case pretty thoroughly in as
21 two -- sorry, transcript 23516, starting at line 14, last Monday. This
22 case is the -- basically the illegal MUP case from the KLA; is that
24 JUDGE BONOMY: Sorry -- no, please continue. I'll interrupt you
25 in a moment.
1 THE WITNESS: [Interpretation] This document is in reference to
2 the illegal MUP. There are no members of the KLA MUP.
3 JUDGE BONOMY: Could you just give us a moment, please,
4 Ms. Carter.
5 MS. CARTER: Certainly.
6 [Trial Chamber confers]
7 JUDGE BONOMY: I'm very sorry about that, Ms. Carter. There was
8 a matter troubling us which I think we've now resolved. Please continue.
9 MS. CARTER: No apologies needed, Your Honour. That's why you
10 wear the red robe. You get to do whatever you want in your courtroom.
11 Q. Judge Marinkovic, do you believe that this illegal MUP case was
12 professionally handled by all parties involved?
13 A. You mean 590, the judgement?
14 Q. 589 is the indictment, I believe, and 590 is the judgement, yes.
15 Do you believe that case was professionally handled by all parties
17 A. Yes.
18 Q. Were you aware that out of the 70 indictees that make up 6D589,
19 ten of them were beaten while incarcerated during the investigation?
20 A. I'm not aware of that. If you have a document to show me to that
21 effect, please do so.
22 Q. Absolutely. And just to remind you, you actually were discussing
23 these beatings in the Milosevic case beginning at page 37937 which is
24 here in e-court at P3115, beginning at page 225, but specifically I would
25 like to bring to your attention the medical reports beginning with the
1 first defendant, defendant number one, at P3101 is the medical
2 certificate about what occurred to Avdija Mehmedovic. You actually
3 signed the order in order to have this man observed, and it was indicated
4 that he had damage to his right palm, to his left palm, as well as the
5 central and frontal part of his lower legs, that in fact those were
6 excoriated and exposed skin is dry and the scab had to be removed and
7 that this was caused by a heavy blow from a blunt heavy mechanical
8 implement. Do you recall that?
9 A. I see the medical finding, but beating is a generic term. That
10 is the first thing I have to say. It can cover a multitude of
11 situations. I would not agree that this is a case of beating. I do see
12 this finding, the medical finding, with the doctor saying that only a
13 slight injury was sustained.
14 Q. Ma'am, what would you call an injury being afflicted [sic] by a
15 heavy blow from a blunt heavy mechanical implement, what would you call
16 that if not beating?
17 MR. IVETIC: Your Honour, it's not within the jurisdiction and
18 authority of the judge to make determinations like that. She is not a
19 doctor and I believe under the criminal procedure system in the FRY that
20 the prosecution would handle cases of that nature. So I think that this
21 question is outside the bound width of what the witness can be competent
23 JUDGE BONOMY: Yes. The witness herself, though, has raised the
24 point by saying that beating is a generic term.
25 [Trial Chamber confers]
1 JUDGE BONOMY: I don't think we are going to be usefully assisted
2 Ms. Carter by an exchange of views about beating unless it has a
3 technical definition which in some legal systems it may have, but the
4 witness has said it's generic in her experience which suggests there
5 isn't a technical definition. It's a matter of the interpretation of the
6 context, is it not, which is at the end of the day a matter for us.
7 MS. CARTER: And along those lines, Your Honour --
8 Q. Ma'am, it is a generic term, it's generic because this type of
9 injury, specifically a heavy blow from a blunt heavy mechanical
10 implement, happened not only one time but against ten separate defendants
11 in this case, did it not?
12 A. Well, you know, I can't remember this specifically. If you have
13 a document such as this one, I'm sure then that this was the case;
14 however, as to how these injuries were inflicted by what instrument and
15 the types of injuries themselves, I'm no expert in those matters and
16 that's why I sent an order to the forensic institute to establish this,
17 what sort of injury occurred, did such injuries exist. You've shown me
18 one such finding, and it would have been down to the prosecutor had the
19 existence of such injuries ever been ascertained, they would have known
20 what to do about it. It's not job to study the manner in which these
21 injuries came about, what those injuries were, or who they were inflicted
22 by if indeed this was the case.
23 Q. To complete the first line I would hold out to you the defendant
24 number 7 Bljerim Oloni his medical report is at P3100; defendant 13,
25 Ramadan Ferizi his medical report is at P3102, all of these taking place
1 on the 14th of December. Moving on to the 15th of December we have the
2 medical reports of defendant 21 -- excuse me out of 6D589 Bejtulah
3 Alidema at P3104; a defendant 38, Tahir Caka at P3103; and defendant
4 number 4, Seremet Ahmeti at P3099. A full week later you have another
5 series of defendants of this case that all contain similar language to
6 being -- having a heavy blow by a heavy mechanical object and that's
7 defendant 10 Murat Sahiti at P3105; defendant 27 Isak Aliu at P3096;
8 defendant 35, Kemalj Aliu at P3098; and defendant 39, Sali Bruti at
10 Given that you had ten members of the same case all receiving
11 injuries that are consistent with a heavy blow from a blunt object, are
12 you aware of any sort of prosecution or investigation into the injuries
13 inflicted upon these defendants?
14 JUDGE CHOWHAN: Ms. Carter, you're trying to say that there's a
16 MS. CARTER: Absolutely.
17 JUDGE CHOWHAN: That's if you tell it like that.
18 MS. CARTER:
19 Q. Ma'am, there is a pattern of beating -- sorry, a pattern of
20 injuries being inflicted by a blunt force by a mechanical object. With
21 this pattern was this ever investigated or anybody ever identified for
23 A. The issue at hand is not a matter of pattern, it is rather the
24 instrument and manner of -- used to inflict injuries. If you look at the
25 dates in the indictment and the dates of detention, it means that at that
1 moment I had interviewed them as an investigative judge. There's a time
2 span of ten and more days between that and the findings; therefore, the
3 time of injuries is important, the place, the manner, the gravity of
4 injuries, and everything else. It is all pertinent. You mentioned all
5 of the dates which are in mid-December 1994 concerning the findings
6 shown. It is most likely that the defendant himself or that his attorney
7 complained concerning his medical status and in keeping with the law. I
8 ordered the institute to conduct an examination of those persons in order
9 to ascertain what the issue at hand is --
10 Q. Ma'am, let me stop you there. Again I'm going to reiterate my
11 question. Was anyone investigated or anybody identified for prosecution
12 based on these injuries received on the ten defendants?
13 JUDGE BONOMY: Mr. Ivetic.
14 MR. IVETIC: Your Honour, I would ask that the witness be allowed
15 to continue her answer. Again, she's explaining what's within her
16 competence I believe, and as I had mentioned before there is a system in
17 place in the SFRY that perhaps is unfamiliar just to -- to other legal
18 jurisprudences, but it's -- it's akin to asking a question of a police
19 officer what the fire department does. I mean, the witness is answering
20 within her competence what she did and she's entitled to give that answer
21 and to provide what she did. And the fact that the prosecution's office
22 is not happy with the answer they're getting is of no relevance.
23 MS. CARTER: Your Honour, I object to the sidebar comments made
24 by Defence counsel and I would also argue that this witness is not
25 answering the question asked. I specifically asked: Were these
1 member -- was anybody prosecuted for these injuries? And given that the
2 witness quite distinctly indicated over Friday that she was involved in
3 this case and in fact includes within her documents all documents up to
4 and including the final judgement of these defendants, she certainly
5 would be in a position to be able to answer the question.
6 JUDGE BONOMY: Well, she has given you the answer that she thinks
7 that she instructed the investigation of -- by the pathologists involved.
8 MS. CARTER: Your Honour, she indicated that she did -- because
9 as you can see within those documents that I indicated, the medical
10 investigations, that she did sign off requesting that that be done.
11 JUDGE BONOMY: Yeah.
12 MS. CARTER: What I'm trying to determine --
13 JUDGE BONOMY: Indeed.
14 MS. CARTER: -- is once this was received what if anything
16 JUDGE BONOMY: Well, you interrupted her answer, which is what
17 Mr. Ivetic is saying, because she said that this was done in order to
18 ascertain what the issue at hand is.
19 Now could you tell us what emerged once you got these reports.
20 What did you do about it?
21 THE WITNESS: [Interpretation] I wanted to continue and you are
22 correct, I was interrupted by the Prosecutor. When I received the
23 reports, I forwarded a copy to the attorney representing the defendant
24 and the set of documents pertaining to these people was forwarded to the
25 relevant public prosecutor. This is where my competence ends. The
1 public prosecutor, based on the documents received, assesses whether any
2 further investigation will be done. If they believe there are elements
3 of crime and that there is a need to identify perpetrators, then it is
4 within their purview to undertake measures to follow that up, to see
5 whether it indeed happened. As to whether there were any proceedings
6 instituted, I don't know.
7 JUDGE BONOMY: Ms. Carter.
8 MS. CARTER: Thank you.
9 Q. In regards to this case, you also indicated in Friday's testimony
10 that you issued an order disallowing the Defence attorneys from reviewing
11 the file and participating in certain investigative procedures, did you
13 A. Yes.
14 Q. And I would hold out to you that that document was issued five
15 days after you received the final reports about the beatings -- I'm
16 sorry, about the injuries sustained within this case. Isn't that
17 correct? You issued that order on the 27th of December, 1997, and these
18 injuries were all documented by the 22nd of December. Isn't that
20 A. I don't know about the exact dates. Perhaps you can show me the
21 document you're referring to so that I can compare the dates.
22 MS. CARTER: I call up P3106.
23 Q. I show you the beginning indicating the top right-hand corner
24 indicating the date of December 27th, 1994, and I would move you to page
25 3 of that document, page 2 in the B/C/S, where it indicates your rulings.
1 A. I see that this is the document is of the 26th of December.
2 Q. Judge Marinkovic, I would hold out to you the indication that you
3 gave to this court is after receiving the documents that these
4 individuals had sustained injuries you sent it on for processing, sent it
5 on to the Defence attorneys and they -- whatever happened from there was
6 not in your province. But I would indicate to you that you interjected
7 yourself into that because five days after you issued an order
8 disallowing the defence attorneys from even reviewing the file, did you
10 A. Can you tell me what your question is specifically, what is it
11 that you want to know.
12 MR. IVETIC: And just for the record, Your Honour, I think this
13 is part of clearly in the direct examination we're talking about the
14 investigative pre-indictment stage at which point I don't know whether
15 it's a file or a case at that point in time.
16 JUDGE BONOMY: Well, let's leave the parties, Mr. Ivetic, the
17 counsel and the witness to deal with this between themselves.
18 Ms. Carter.
19 MS. CARTER:
20 Q. Ma'am, I would direct you to page 3 in the English and page 2 in
21 the B/C/S --
22 JUDGE BONOMY: Yeah, but the order speaks for itself. What's
23 your question?
24 MS. CARTER: My question is, Your Honour, that --
25 Q. Well, ma'am --
1 JUDGE BONOMY: She did issue the order; there's no dispute about
2 that. So what's the question?
3 MS. CARTER:
4 Q. Ma'am, if you indicated that you sent in for processing the
5 investigation on these ten injuries, yet you in turn close the file to
6 the defence attorneys. Do you believe that that could have been properly
7 investigated or properly reviewed by their counsel?
8 A. Well, I still do not comprehend. The medical documentation
9 doesn't have anything to do with the case itself and concerning the
10 perpetrator or the crime committed or it has no relation to any material
11 evidence existing. This medical documentation could be an indication for
12 another case file to be opened precisely because of the contents of those
13 documents. Therefore, this decision on my part had nothing to do with
14 the documentation mentioned.
15 Q. Ma'am, you indicated that the procedure once you received these
16 medical reports was that you delivered that material to the defence
17 attorneys and it went on for any sort of investigation as needed. Are
18 you telling me that closing the file to the very same defence attorneys
19 was an appropriate action?
20 JUDGE BONOMY: Ms. Carter, you would need to establish, first of
21 all, that there's some link between the two. The file is the file in
22 relation to the investigation of the allegations. The medical position
23 was submitted to both defence attorneys and the prosecutor for them to
24 take whatever action they considered appropriate, which the witness has
25 told you would, if necessary, have involved raising or opening a new file
1 on a new case alleging beating. What's the link? What's that got to do
2 with the file in the investigative process?
3 MS. CARTER: Specifically, Your Honour, that once the file is
4 closed and once these defence attorneys are prohibited from full
5 participation in the investigation, if anything were to continue, any
6 more beatings, any more issues -- the defence attorneys weren't even in
7 the position to be able to communicate with their clients, and that is
8 something that this witness specifically did by issuing the --
9 JUDGE BONOMY: Sorry, does the order prevent them from
10 communicating with their clients?
11 MS. CARTER: It indicates from attending certain investigative
12 activities --
13 JUDGE BONOMY: But that's nothing to do with the medical injuries
14 they had sustained by the allegation of beating.
15 MS. CARTER: Your Honour, it seems a bit odd that --
16 JUDGE BONOMY: Well, that's a matter for submissions later, but
17 I -- please bear in mind I at the moment don't see the link. If you can
18 establish a link, then perhaps we can make some progress.
19 No, please, just listen to the question.
20 JUDGE CHOWHAN: Sorry, Ms. Carter, do you -- are you trying to
21 think of any further torture while they were in custody and are you
22 thinking of any torture?
23 MS. CARTER: Your Honour, I would argue that anything described
24 in the way that these ten reports did out of the single case would rise
25 to the level of torture, yes.
1 JUDGE CHOWHAN: No, you mean further to these injuries, another
2 torture while in custody?
3 MS. CARTER: That is conceivable, Your Honour, yes.
4 JUDGE CHOWHAN: No, the question would be did they have the
5 opportunity of getting themselves medically examined, because if they
6 will get themselves medically examined and they are injured further then
7 that would be a complaint because that's the way.
8 MS. CARTER: I will back up then, Your Honour.
9 JUDGE CHOWHAN: Thank you.
10 MS. CARTER:
11 Q. Ma'am, you indicated that an order was issued to stop the Defence
12 counsel from involving themselves in certain aspects of the
13 investigation. Can you please be more specific. What were the defence
14 counsel disallowed from doing starting on 27 December 1994?
15 A. I did not issue an order. It was a decision on my part, in
16 keeping with my competences under the Law on the Criminal Procedure,
17 which is Article 73, Article 2, and Article 168, paragraph 5, as stated
18 in the decision. I'm authorised to do that, and at the given moment on
19 the proposal of the public prosecutor I assessed that it was in the
20 interests of the state and its security as well as its defence to have
21 this put into place, that there are justified reasons --
22 JUDGE BONOMY: That's not -- again, Judge Marinkovic, that's not
23 the question. The question is: What were the certain investigative
24 activities that the defence were not permitted to participate in? It's
25 not clear from the order. It just uses the -- well, the English word
1 used is "certain" investigative activities.
2 THE WITNESS: [Interpretation] In the decision, perhaps we can go
3 back a bit, we have the measures described specifically. Could we please
4 have that on the monitor. I can only see the second page here. We
5 didn't -- we don't see the pronouncement itself.
6 MS. CARTER: [Microphone not activated]
7 THE INTERPRETER: Microphone for counsel, please.
8 MS. CARTER: For ease of the witness I can provide a hard copy of
9 both pages so she can have each in front of her at the same time.
10 JUDGE BONOMY: Do we not have the English version of the order
11 either then?
12 MS. CARTER: Yes, Your Honour, it's P3106.
13 JUDGE BONOMY: Yes, indeed, but are we on the wrong page?
14 MS. CARTER: Your Honour, no, the third page of the English
15 indicated that the investigative judge has found grounds for the
17 JUDGE BONOMY: It's the ruling we need to see here.
18 MS. CARTER: Page 2, it lists the requests to the prosecutors and
19 then the finding that the investigative judge has found grounds for the
21 JUDGE BONOMY: Yes. Well, that page doesn't give it in English.
22 MS. CARTER: Certainly, Your Honour, it does. The very final
23 thing it says: "Therefore, security reasons demand that the defendants
24 at this stage of the proceedings be denied access to files" --
25 JUDGE BONOMY: No, I'm not reading that on the page I'm looking
1 at, Ms. Carter. I'm trying to get the English page in front of me that
2 deals with this.
3 MS. CARTER: It's page 3 of the English.
4 JUDGE BONOMY: Well, that's the page we had before and that
5 doesn't specify what the activities are.
6 MS. CARTER: Yes, Your Honour, the very final sentence right
7 above -- it says the above ruling, final paragraph it says: "Therefore,
8 security reasons demand that the defendants at this stage of the
9 proceeding be denied access to files and collected evidence and not be
10 present during certain investigative activities" --
11 JUDGE BONOMY: Correct, I understand that. So what are certain
12 investigative activities.
13 MS. CARTER: That was my question, Your Honour.
14 JUDGE BONOMY: Well, it was mine about ten minutes ago, and
15 Mrs. Marinkovic tells us it's set out somewhere in the order.
16 So can you direct us, Mrs. Marinkovic - it's not an order, I
17 apologise - where in the decision will we see the specific investigative
18 activities which the defence are not permitted to participate in?
19 THE WITNESS: [Interpretation] In the decision itself, towards the
20 bottom, I don't know if it says the same in English, but it says they are
21 prevented from studying the files and inspecting physical evidence as
22 well as attending certain investigative activities.
23 JUDGE BONOMY: So what are these investigative activities that
24 they are prevented from attending? That's all we want to know.
25 THE WITNESS: [Interpretation] For example, a witness interview,
1 if there were any witness interviews in the case or if there were any
2 investigative activities as such. We have in this case as evidence --
3 JUDGE BONOMY: So that means they can't attend any investigative
4 activities; is that what it means?
5 THE WITNESS: [Interpretation] In that moment, apart from
6 attending defendant interviews, other investigative activities were
7 prohibited for defence counsel to attend.
8 JUDGE BONOMY: And you've already told us that the defendant
9 interviews were already done and finished?
10 THE WITNESS: [Interpretation] Yes.
11 JUDGE BONOMY: Thank you.
12 Ms. Carter.
13 MS. CARTER:
14 Q. What precisely had the defendants done at this stage of the
15 proceeding that required this finding to be made, that they cannot
16 participate in certain investigative activities?
17 A. Since the defendants were charged with the crime of associating
18 for hostile activities and the crime of violating the constitutional
19 order, since it goes directly against the constitutional basis of the
20 state, following an application by the public prosecutor this decision
21 was put in place since it was in the interest of the country, its
22 security, and defence.
23 Q. If that is the actual reason, why wasn't this order issued at the
24 inception of the case? Why was there a delay?
25 A. I don't understand the question. I don't see where you're going.
1 I believe my previous answer was sufficiently clear.
2 Q. Respectfully, Judge Marinkovic, your indictment was issued on 7
3 April 1995. It indicates throughout - and this is at 6D589 - it
4 indicates that all of these men were brought into custody in late
5 November of 1994, yet they serve in detention for over a month prior to
6 you issuing this order. I want to find out what intervening action took
7 place that made you issue this order.
8 A. Well, you know, I cannot be very specific since at the given
9 moment it was simply our assessment that the interests of security and
10 defence of the state were at stake. As to what specific activities were
11 undertaken, I don't know. Many years have passed. In terms of physical
12 evidence pertaining to this case, a number of disks was retrieved and
13 they had to be gone through in order to see what the contents were --
14 Q. I'm more specific --
15 A. -- whether there was anything illegal concerning --
16 Q. I'm more specific in my question. What occurred while these men
17 were in detention that caused you to issue an order to disallow the
18 defence attorneys access to certain investigative activities as well as
19 access to the case file?
20 A. You know, in the investigative phase nothing necessarily needed
21 to happen. However, the factual situation pointed at the importance of
22 one such decision to be put in place, and it was temporary until an
23 indictment was issued by the district public prosecutor.
24 Q. So you're indicating that the indictment was issued on several --
25 on 7 April 1995, so from the end of December through April 1995 these
1 defendants were not allowed access to the court file or their defence
2 attorneys were not allowed access to the court file or to be
3 participating in the investigation?
4 A. I cannot see the whole indictment and I don't know when I
5 concluded the whole investigation. Once that was done, I forwarded the
6 entire file to the public prosecutor, and they require a certain amount
7 of time to issue an indictment. Therefore, that time-period may overlap
8 with the documents being with the public prosecutor. They were preparing
9 themselves, deciding against who to issue indictments.
10 Q. During this investigative phase, when if ever did you take
11 statements from these defendants?
12 A. During the investigation, in this case after they were once heard
13 or interviewed by the investigative judge there was no need for me to
14 interview them again. This should only take place if there were any
15 amendments or expanding of the scope of the investigation in order to
16 include other persons, and this could be done by the public prosecutor in
17 relation to that case. Therefore, I re-interviewed those persons again.
18 Concerning this decision, I don't know whether the prosecutor heard the
19 legal remedy. Anyone who wasn't happy with the decision I made in the
20 investigative phase could appeal, and it was submitted to the counsel of
21 the district court in Pristina. If people were dissatisfied with the
22 decision, they could have forwarded a complaint to the district court in
23 Pristina penal chamber. If I was mistaken in pronouncing this
24 decision --
25 Q. Ma'am, I'm going to reiterate my question. During the --
1 JUDGE BONOMY: Just one moment.
2 Mr. Zecevic.
3 MR. ZECEVIC: I'm sorry to interrupt, but I maybe I might be of
4 some help here; 59, 14, it was submitted to the counsel of district
5 court, it is a specific chamber that decides on the appeal in that stage
6 of the proceedings.
7 JUDGE BONOMY: Yeah. Thank you.
8 The question you were asked, Mrs. Marinkovic, is when you took
9 statements from or interviewed the defendants.
10 THE WITNESS: [Interpretation] Statements from the accused were
11 taken within the legal dead-line when they were remanded in custody and
12 turned over to me as the investigative judge. What is written here is
13 when they were in custody, but the dates differ from the date when the
14 decision to remand them in custody was made.
15 MS. CARTER:
16 Q. Did you interview these individuals after you issued the order
17 disallowing their defence counsel from participating in certain
18 investigative activities?
19 A. No. No, because that is not allowed.
20 Q. You indicated that these people came in, the investigative judge
21 interviewed them, and then at page 59, line 60, you said: "Therefore, I
22 re-interviewed these persons again. If they were only in custody for
23 approximately one month prior to you issuing that order when did those
24 interviews take place?
25 JUDGE BONOMY: Give me that line again.
1 MS. CARTER: Just hold up.
2 JUDGE BONOMY: She said there was no need for me to interview
3 them again.
4 MS. CARTER: At 59, 11, Your Honour, it says: "Therefore, I
5 re-interviewed those people again."
6 JUDGE BONOMY: Yeah, but --
7 THE WITNESS: [Interpretation] That's not what I said.
8 JUDGE BONOMY: You can see the circumstances in which that would
9 be appropriate. If there was a change in the indictment, then that would
10 become appropriate. The witness has said several times that the
11 interviews were long over before any of this was done.
12 MS. CARTER:
13 Q. Mrs. --
14 A. May I just explain one thing to the Chamber. If you look at this
15 decision of mine, you will see at the top the KIO number and then number
16 161 with different letters. All these were expansions. The first one
17 related to Avdija Mehmedovic. What follows are various extensions under
18 which I continued to work. And when the investigation was complete, when
19 I had heard all the accused, then the decision was made applying to all
20 these persons.
21 Q. Judge Marinkovic, when I'm asking you questions, if I'm asking
22 you specifically about a single case if we can deal with what happened in
23 that case as opposed to what generally happens. I think that's causing
24 some of the difficulties that we're having. So you have indicated that
25 at no time were these individuals interviewed without presence of their
1 counsel, is that correct, in this case?
2 A. That's not what I said because it can't happen that way. Now I
3 can explain the right to defence, in which case -- in which case as the
4 presence of the defence counsel is obligatory and in which cases it is up
5 to the accused to decide whether he wants his defence counsel to be
6 present or not. In this group everybody had at least one, but usually
7 two or three defence counsel. Some did not -- want an appointed counsel,
8 and in other cases the crime involved did not require a defence attorney
9 to be present and that was recorded always in the minutes.
10 Q. With regard --
11 A. And they themselves waived the right to counsel.
12 Q. With regard to the ten individuals that we have medical reports
13 on, did you at any time interview these people outside of the presence of
14 their defence counsel?
15 A. We have to look at the minutes that I kept at that time. I
16 cannot remember specifically for each person. Avdija Mehmedovic is the
17 only one that stands out in my memory because the first time he was
18 supposed to make a statement before me, he and his defence counsel
19 required on that day an adjournment of 24 hours because the accused or
20 the defence counsel were tired and short on sleep. So I granted them a
21 delay of 24 hours, and the next day they came at the appointed time.
22 Everybody had the right if they did not want to appear on the appointed
24 Q. Now, at page 61, beginning at line 18, it says you "can now
25 explain the right to defence, in which case the presence of the defence
1 counsel was obligatory and in which cases it is up to the accused to
2 decide whether he wants his defence counsel to be present ..."
3 Did the court have the authority to prohibit -- this is generally
4 speaking. Did the court have the right to prohibit defence counsel if
5 the defendant wanted it from attending interviews and other investigative
6 activities, specifically the interviews?
7 A. I don't understand the question.
8 Q. You have indicated that there are certain times when defence
9 counsel is obligatory and sometimes when defence counsel's presence can
10 be waived at the request of the defendant himself. What I'm asking is:
11 Does the court have the right to prohibit contact between defence counsel
12 and their defendant?
13 A. No, no. It is the right of the defence counsel to be in
14 communication with his client.
15 Q. Does the court have the right at any time --
16 JUDGE CHOWHAN: Sorry, Ms. Carter. Are you wanting to say that
17 does the investigating judge, not the court in that sense, I think she's
18 confused, has the right to prohibit a counsel from joining the
19 investigative process. Are you saying that or differently?
20 MS. CARTER: I am saying in regards to the type of order that we
21 have seen that was in place in the case that's listed at 6D589, was there
22 any other type of similar order that could be issued that would prohibit
23 defence counsel from being able to communicate with their client or be
24 present when their client is being interviewed.
25 JUDGE CHOWHAN: And by this you mean by the investigating judge?
1 MS. CARTER: Certainly.
2 Q. Ma'am, does the court, and specifically, does the investigative
3 judge, meaning you, do you have the right to have client contact
4 supervised or impose yourself or the keepers of the defendant into the
5 contact between the client and the defence attorney?
6 JUDGE BONOMY: You must start that question again and please ask
7 it in clear English.
8 MS. CARTER: Okay.
9 Q. You have indicated that the court cannot stop defence counsel
10 from being able to communicate with their client. Based on that, can the
11 court impose certain criteria in regards to that contact, such as
12 supervision or monitored correspondence?
13 MR. IVETIC: Your Honours, is Ms. Carter asking about what the
14 law permits or what the judge is empowered under the law permit. I'm
15 confused by the question.
16 JUDGE BONOMY: Well, they would both amount to the same thing I
17 assume. What's misleading -- I thought you were asking questions about
18 preventing communication between counsel and client; now you've moved to
19 something else without getting that one answered. You're now on to
20 present supervision.
21 MS. CARTER: No, I am still speaking of the communication between
22 client and counsel. We've learned that you can't stop that
23 communication. I want to see can you limit that communication.
24 JUDGE BONOMY: And that's not confined to an interview by an
25 investigative judge, this is in general?
1 MS. CARTER: This is in general.
2 JUDGE BONOMY: All right. Well, if you would just ask that
3 simple question we might get the answer.
4 MS. CARTER:
5 Q. Judge Marinkovic, can you limit the communication between an
6 investigative -- I'm sorry, between a client and his defence counsel?
7 A. I cannot limit their communication. The defence counsel may
8 communicate with his client whenever he's able to. The only limitation
9 is the house rules of the detention facility. If there are many inmates
10 and there is not enough time to ensure visits for everyone on a certain
11 day, a list is made saying that defence counsel may visit their clients
12 between 1000 and 1400 hours. It is again a matter of the house rules of
13 the detention facility that when the defence counsel is talking to his
14 client they do so in the presence of the guards who are -- who do not
15 take part in the discussion, they just stand there for security reasons
16 and monitor the situation.
17 JUDGE BONOMY: Ms. Carter, is there a live issue somewhere in
18 this case about counsel not being allowed to communicate with Albanian
19 accused that we are spending a lot of time on this. There must be
20 something hidden in there that so far hasn't emerged.
21 MS. CARTER: Your Honour, again we're talking about the
22 functioning of the judiciary, the witness --
23 JUDGE BONOMY: Yeah, but our lives aren't long enough to explore
24 the functioning in general of the Serb judiciary, and we really have to
25 get to the issues that actually relate to the present case. And at the
1 moment we're dealing with one that doesn't even fall into 1998 and 1999
2 at extraordinary length.
3 MS. CARTER: Your Honour, the -- in the pre-trial brief at
4 paragraph 145 we were indicating that while the judiciary was
5 functioning, there is a difference between the way Serbian defendants are
6 being treated and the way Albanian defendants are being treated. That is
7 what I'm trying to explore. I'm also trying to explore --
8 JUDGE BONOMY: And we have Prosecution evidence to that effect,
9 do we?
10 MS. CARTER: I'm sorry.
11 JUDGE BONOMY: There is already evidence from the Prosecution in
12 the case to that effect?
13 MS. CARTER: Your Honour, this is the first judge that is dealing
14 with the MUP side. We do have VJ evidence in regards to the judiciary,
15 but this is going to be the first instance that we're going to be able to
16 explore extensively with the Court and I would say that -- and I do plan
17 on showing a number of documents beginning with the one that we've just
18 seen and through the time that's directly implicated by the witness that
19 many of these provisions that she says are sacrosanct were actually
20 violated in the Pristina district court, and I would offer P3109, I'd
21 like that to be brought up and we can address a 30 October 1996 order
22 that will keep us closer into time.
23 JUDGE BONOMY: Mr. Ivetic.
24 MR. IVETIC: Your Honour, the problem I have with the manner in
25 which this is being presented by Ms. Carter now, as I recall they did not
1 even lead any positive evidence in the OTP case issued from this issue,
2 and to me it sounds like they're trying to now re-open the case that
3 perhaps show one side or perhaps show an incomplete picture. The way
4 it's phrased here, it might just be my reading of it but it just doesn't
5 sound very encouraging.
6 JUDGE BONOMY: As you know, Mr. Ivetic, one of the hazards of
7 leading Defence evidence is that the Prosecution case can get better.
8 Indeed it is often the result of the presentation of a Defence case,
9 there's no rule against that in this system.
10 So please continue, Ms. Carter.
11 MS. CARTER: Thank you.
12 Q. I would show you P3109, focusing on page 1 in the B/C/S as well
13 as the English. In the middle where it's discussing the decision it
14 indicates there's a lawyer by the name of Kelmendi. Was this the same
15 attorney that you were speaking of earlier today that you found to be a
16 very professional and appropriate attorney?
17 A. Yes. I see here in the disposition.
18 Q. Now, in many of these cases there are joint accused, such as what
19 we're doing here in court today, is that correct, in many of the cases
20 that you handled?
21 A. Yes.
22 Q. In this it indicates that attorneys, including the very
23 professional one that you had commented on, are refused to attend
24 execution of some investigative measures, such as interrogation of the
25 accused, except for their own accused, the confrontation of witnesses and
1 hearing of witnesses, and to examine documents and records, except for
2 records on interview with their defendants, as well as to examine items
3 that might be of evidence.
4 When you were dealing with these multiple accused cases, did you
5 use evidence brought by one accused against the others?
6 MR. IVETIC: Your Honours, again this is an investigative judge,
7 it's not a -- she's not a trial judge --
8 JUDGE BONOMY: Well, she has been in trials, Mr. Ivetic.
9 Mrs. Marinkovic gave evidence earlier that when she wasn't involved in
10 investigations she was part of a trial chamber, so she can deal with the
12 THE WITNESS: [Interpretation] Well, this decision that I see on
13 the screen has to do with a case where I did the investigation, and I
14 made a decision like in the previous case. It's the same decision, same
15 legal grounds. I don't know what to comment on. The only thing that I
16 can say about this case is that a large number of the accused were on the
17 run. So I had not had the chance to question them, and therefore the
18 presence of the defence counsel was a moot issue.
19 JUDGE BONOMY: Mrs. Marinkovic, the matter is a much more
20 specific one again. In your procedure in general, can the things said by
21 one accused person be used in the file of a case against another accused
22 person if they are jointly accused. We've got six accused here, for
23 example. Now, it's -- the case is being conducted as one trial, and the
24 question that Ms. Carter's asking you is: If you took statements from
25 one accused in an interview and he said things against one of the other
1 accused, could you use that against the other accused as part of the case
2 dossier against him?
3 THE WITNESS: [Interpretation] This may be done when an indictment
4 is issued, and at the trial the judge compares the statements of
5 respective accused and he may use whatever evidence is available to
6 decide whether somebody was a perpetrator or an accomplice, in light of
7 course of all the other evidence in the case.
8 JUDGE BONOMY: Thank you.
9 Ms. Carter.
10 MS. CARTER:
11 Q. Judge Marinkovic --
12 JUDGE BONOMY: I'm sorry.
13 Mr. Zecevic.
14 MR. ZECEVIC: I'm sorry, Your Honour, but this really needs some
15 explanation to be done in that respect.
16 JUDGE BONOMY: Well --
17 MR. ZECEVIC: Because our law --
18 JUDGE BONOMY: No, I don't want you to explain because
19 Mrs. Marinkovic's own knowledge of matters may become an issue in
20 relation to her reliability as a witness.
21 MR. ZECEVIC: I --
22 JUDGE BONOMY: This is a matter for re-examination not for
23 submissions --
24 MR. ZECEVIC: No, I understand very well, but I just thought that
25 Your Honours --
1 JUDGE BONOMY: I understand --
2 MR. ZECEVIC: -- not be misled with that.
3 JUDGE BONOMY: Indeed. I understand your concern, and at the end
4 of the evidence if you think that there is something in there that could
5 well mislead us and you as a responsible court officer feel it ought to
6 be drawn to our attention, that would be the time to do it.
7 MR. ZECEVIC: Thank you very much. I understand, Your Honour.
8 JUDGE BONOMY: Ms. Carter.
9 MS. CARTER:
10 Q. Judge Marinkovic, were you aware that in 1997 the Pristina
11 district court, and even you specifically, were brought to the attention
12 of the UN Commission on Human Rights in regards to a report of the
13 Special Rapporteur of the situation of human rights in the territory of
14 the former Yugoslavia? Were you aware of that?
15 A. No, nobody ever told me at the time.
16 MS. CARTER: I would bring up P3090. Unfortunately at this point
17 this is only in the English. Any bits of it that have to be translated
18 will be done so.
19 Q. Judge Marinkovic --
20 MS. CARTER: And specifically referring to page 2, paragraph 15
21 of this report.
22 Q. Judge Marinkovic, the UN report indicates that within the
23 Pristina courts - and this is in several cases in 2000 -- I'm sorry in
24 1997 - that several lawyers had met their clients for the first time
25 after the investigative judge had already conducted the crucial stage of
1 the investigation. Was this common practice in the Pristina district
3 MR. IVETIC: Well, Your Honours, since we don't have it in
4 Serbian I think it's only fair to have counsel read the precise portion
5 from the report giving details, I mean otherwise we're mixing apples and
7 JUDGE BONOMY: What do you say to that, Ms. Carter?
8 MS. CARTER: Your Honour, I'm just putting to the witness whether
9 it was a common practice for lawyers to meet their clients for the first
10 time after an investigative judge had already conducted a crucial stage
11 of the investigation. However, I certainly can read paragraph 15 --
12 JUDGE BONOMY: Yeah, I think it would help.
13 MS. CARTER: The finding: "The Special Rapporteur concludes that
14 a number of defendants were denied an adequate defence for a variety of
15 reasons. First, several lawyers met their clients for the first time
16 after the investigative judge had already concluded the crucial stage of
17 investigation, the results of which the prosecution relied upon. Lawyers
18 experienced legal and practical difficulties obtaining access to clients
19 at an early stage ."
20 Q. Was it common practice in the Pristina district court in 1997 to
21 deny lawyers access to their clients until after an investigation had
22 already concluded in that crucial stage?
23 A. I said a moment ago that defence counsel were in communication
24 with their clients whenever they asked for permission and whenever they
25 found the time to visit them at the detention facility to talk to them.
1 So I don't know what is the basis of this allegation. All that I said
2 was so customary and it's the letter of the law that a defence counsel
3 may visit and talk to his client in the course of preparing a defence,
4 and there is evidence of that because every visit is recorded by the
5 detention facility, every approval given is also recorded.
6 Q. The United Nations also took concern with one of your very
7 specific orders in paragraph 17 of this same report. In it it indicated
8 that access to nearly all relevant trial documents was denied to defence
9 lawyers until shortly before the start of the trial, leaving them
10 insufficient time to prepare a defence. "On 14 February 1997, the
11 investigative judge of the district court in Pristina, Ms. Danica
12 Marinkovic, made the following ruling to all applicable persons and their
13 defence lawyers. She ruled that, for reasons of state security: 'All
14 documents and records, as well as objects gathered as evidence and
15 presence in certain stages of investigations, namely during the
16 examination of the indicted and the confrontation and examination of
17 witnesses, will be denied to the defence.' In practice, the order
18 prohibited defence lawyers from having access to any trial documents
19 other than the statement made by their own client to the investigative
20 judge" --
21 THE INTERPRETER: Please read more slowly.
22 MS. CARTER:
23 Q. -- "and also prevented them -- prevented their being present
24 during the investigation of other accused persons. Consequently, access
25 to any statements by the co-accused or essential documentary evidence for
1 the preparation of a defence was only granted to the defence about one or
2 at most two weeks before the start of trial."
3 Was that common practice that defence counsel were only allowed
4 to have a complete court file two weeks before they went to trial?
5 A. Whether it was two weeks, three weeks, or a month, I really can't
6 remember, but there are legal delays envisaged by the Law on Criminal
7 Procedure within which the defence counsel have the right to prepare
8 after the indictment is brought and becomes valid. My colleagues and I
9 abided by these dead-lines, so the defence counsel had the opportunity to
10 prepare themselves. This decision was only provisional and was in force
11 only until the end of the investigation.
12 JUDGE BONOMY: You remember that this particular case -- or is
13 this the illegal MUP case?
14 THE WITNESS: [Interpretation] I think it's not the illegal MUP.
15 This is 14 February 1997, it involved the group of suspects where I
16 investigated the charges of terrorism.
17 JUDGE BONOMY: And this is an accurate account of the decision
18 that was made? What was read to you was an accurate account of --
19 THE WITNESS: [Interpretation] Yes, yes.
20 JUDGE BONOMY: Thank you.
21 Ms. Carter.
22 THE WITNESS: [Interpretation] Yes. That's the decision that I
23 issued at the stage of investigation, based on my legal powers.
24 MS. CARTER:
25 Q. Ma'am, were you aware that at paragraph 23 it indicates that:
1 "The apparent practice of not permitting defendants to communicate with
2 their legal counsel in private is a clear violation of international
3 human rights standards for a fair trial," indicates the Human Rights
5 Within the Pristina district court was there a limitation to the
6 concept of the right of attorney and client privileged communications?
7 A. After the issuing of the indictment, defence counsel had the
8 right to communicate with their clients in privileged communication.
9 That privilege was guaranteed. After the indictment was issued when they
10 had all the elements, when they knew the charges, and the evidence
12 Q. In paragraph 24 it goes on to say that one lawyer told the United
13 Nations observer that interrogations of virtually all defendants in this
14 case started in the evening, when it was difficult for them to obtain the
15 services of a lawyer. In this case, most defendants retracted in court
16 the statements which they had previously made, often without having
17 received legal advice before the investigative judge, on the grounds that
18 their statements had been extracted under torture, ill-treatment, or
19 duress. Nevertheless, the prosecution relied upon these statements as
20 important evidence."
21 Do you disagree with what's contained within this UN report?
22 MR. IVETIC: Your Honour, without knowing the identity of the
23 lawyer, I don't know how she can disagree with what one lawyer said.
24 JUDGE BONOMY: Let us hear the answer to the question,
25 Mr. Ivetic.
1 THE WITNESS: [Interpretation] I can say that things did not stand
2 this way. I hope defence counsel will not be offended, but when the
3 trial began defence counsel used every means possible to get away with
4 whatever they could get away with on behalf of their clients. They had
5 to prove that -- this claim that the statement was taken under duress,
6 and if such an allegation was proven then the court would never base
7 their decision on such a statement, that was provided for by the law and
8 it was done in practice. I can say that some defence counsel attacked me
9 during trial and the defendants got on their feet to say that it was not
10 true. I had a specific case when the accused whom I had investigated
11 before came to trial saying that he had a stomachache, and I gave him a
12 pill and then in the presence of his defence counsel, the guards, the
13 court interpreter, and all the others, I gave him a pill for the
14 stomachache and later I asked, Are you better now? Are you feeling well
15 enough to explain yourself? And he told his story. At trial later the
16 defence counsel abused this fact, said I gave him a pill for some other
17 purpose, and the accused himself got on his feet to deny what his defence
18 counsel was saying, saying, No, the judge gave me a pill to help me with
19 my pain. So the defence counsel can and do use everything, all the
20 means, to defend their clients which they believe is his main job.
21 JUDGE BONOMY: Ms. Carter, just give a moment, would you, please.
22 [Trial Chamber confers]
23 JUDGE CHOWHAN: I just, Judge, wanted to ask what was the method
24 adopted for recording statements of those who were later to be accused?
25 How was this done? What language was used? Was this read over to him?
1 Was his lawyer -- was this done in the presence of his lawyer? How was
2 it done? Were the police also -- MUP also present while this statement
3 was being recorded? Was this man brought right from incarceration into
4 the court to record these statements which later were retracted by such
5 and such person. Would you kindly elaborate and explain to us how did
6 you record these statements, I mean what environment.
7 THE WITNESS: [Interpretation] When a person is apprehended and
8 detained for 72 hours, he's already in a prison facility. From there,
9 he's taken to see a judge by the guards. It is no longer the police that
10 do that. Once he's before me, when giving his statement his attorney is
11 present, the one the accused chose. In a great number of cases when the
12 accused was Albanian, we had an Albanian interpreter. Since I spoke no
13 Albanian and the defendant knew no Serbian, therefore we used
14 interpreters to proceed. I would pose questions, the defendant would
15 respond, and then I would dictate. My dictation would then be
16 interpreted by the court interpreter and that is entered in the record.
17 After the session is finished, the accused is asked whether he wants to
18 read the notes, some of them did, others would say, I have listened to
19 everything that was interpreted and recorded, I have no objections to
20 make. And we end with the sentence stating that they had no objection to
21 the procedure and it is signed by the judge, the interpreter, the
22 defendant, and the reporter.
23 JUDGE CHOWHAN: What about his lawyer, did he also sign it or did
24 you record in the order the presence of the lawyer? Because you don't --
25 we don't find one.
1 THE WITNESS: [Interpretation] The transcript reflects who is
2 present, including the defence counsel, the prosecutor, the name of the
3 Albanian interpreter, the name of the judge, and the reporter. Only the
4 accused signs all of the copies. In case the way the right to appeal is
5 waived by the counsel, in that case it is signed by the counsel himself
6 as well, that is the legal remedy part.
7 JUDGE CHOWHAN: Does he have sufficient opportunity of engaging a
8 counsel of his choice after those 70 -- or within those 72 hours when
9 he's produced before you? I mean, how is he able to get a lawyer?
10 THE WITNESS: [Interpretation] Well, it is known immediately since
11 relatives find counsel and attorneys come in with their powers of
12 attorney and they say, I am this and that person's counsel, once there is
13 a hearing scheduled to inform him so that I can come in. Anyone who
14 chose counsel, or rather, their counsels were notified. When asked
15 whether they would want to be represented by a counsel, the accused would
16 have to choose from the list or maybe they have someone beforehand, and
17 then the counsel is invited to come in. If we are unable to locate
18 counsel that very day, everything is postponed until next day, until the
19 counsel is present. This is all recorded in the transcript.
20 JUDGE CHOWHAN: And what are your basis for formulating questions
21 that you put to the accused, on what basis?
22 THE WITNESS: [Interpretation] I have a request to conduct
23 investigation. In the request we have the factual description of the
24 crime that the particular defendant is charged with.
25 JUDGE BONOMY: Thank you.
1 Ms. Carter, can you help us by indicating the issues in the
2 indictment that all of this goes to?
3 MS. CARTER: Your Honours, persecution features predominantly
4 within the indictment. I would indicate that that's the primary
5 objective of this line of cross-examination, that the judiciary was
6 functioning; however, it was not being fairly assessed on -- for the
7 Albanian defendants. And this is going to bear in mind also as to what
8 you're dealing with for the later prosecutions and allegations made by
9 the same individuals.
10 JUDGE BONOMY: So this is to do with Count 5, is it, which is
11 persecution on political, racial, and religious grounds?
12 MS. CARTER: Yes, Your Honour, and it also goes to the bias of
13 this witness.
14 JUDGE BONOMY: Well, that's a -- I understand that issue and
15 there's a limit to the time we can spend on that particular point. But
16 on the actual case itself I have to say I find it difficult. Is there an
17 averment that the judicial system was being used in a discriminating way?
18 MS. CARTER: No, Your Honour, it's generally the persecution
20 JUDGE BONOMY: Well, looking at the Prosecution charge, I'm
21 not -- speaking for myself, being assisted greatly by this; however,
22 please continue as quickly as we can.
23 MS. CARTER: Your Honour, I'm happy to move on to the Gornje
24 Obrinje incident at the end of 1998. The witness spoke of it in Friday's
25 transcript beginning at 23526.
1 Q. Ma'am, you indicated in Friday's testimony that you were the
2 investigative judge assigned to the Gornje Obrinje matter; is that
4 A. You mean the exhumation that was supposed to be carried out in
5 Gornje Obrinje; if that is the case, then yes.
6 Q. Were you also assigned within your area of responsibility the
7 areas of Golubovac, yes or no, is that within your area of
9 A. I don't know what municipality Golubovac belongs to. I'm not
10 familiar with Golubovac. I don't know whether it was within our
12 Q. How about Urosevac?
13 A. No, Orahovac did not fall under my competence.
14 Q. How about Kleka?
15 A. Urosevac, yes.
16 Q. How about Kleka?
17 A. I heard about Kleka for the first time --
18 JUDGE BONOMY: One of these answers -- at least one is confusing
19 if not wrong. The question: "How about Urosevac was answered: 'No,
20 Orahovac did not fall within my competence.'"
21 But what about Urosevac?
22 THE WITNESS: [Interpretation] Urosevac does fall under the
23 competence of the district court.
24 MS. CARTER:
25 Q. Is Glodjane in your area of responsibility?
1 A. Well, if you give me the name of the municipality, I might tell
2 you. I don't know what municipality Glodjane was part of.
3 Q. I'll do that at the break. And how about Volujak, V-o-l-u-j-a-k?
4 A. Volujak, I think it is the district court of Pec not under our
6 Q. Ma'am, with regards to the investigations that were to be
7 conducted by the Finnish authorities, were you aware that the six
8 locations that I have just named, all six were to be reviewed by the
9 Finns, that's Gornje Obrinje, Golubovac, Orahovac, with an O, Kleka,
10 Glodjane, and Volujak. Were you aware that all six of those were to be
11 addressed by the Finns?
12 A. I don't know what it was that was in Urosevac that was supposed
13 to be done by the Finnish team. I know of Gornje Obrinje, they
14 participated there, since we set out to the on-site investigation
15 location together. As for Kleka, I don't know what it refers to. If you
16 mean Klecka, then, yes, they did participate in that. I don't know about
17 the other locations.
18 JUDGE BONOMY: Ms. Carter, can you find a suitable place to
19 interrupt, please.
20 MS. CARTER: We can interrupt here, Your Honour.
21 JUDGE BONOMY: Thank you.
22 We have to break again, Mrs. Marinkovic, for lunch this time for
23 hour. So could you please leave the court with the usher once more and
24 we'll see you at 1.45.
25 [The witness stands down]
1 --- Luncheon recess taken at 12.46 p.m.
2 --- On resuming at 1.46 p.m.
3 [The witness takes the stand]
4 JUDGE BONOMY: Ms. Carter.
5 MS. CARTER:
6 Q. Judge Marinkovic, speaking of the Finnish forensic team that was
7 invited into Kosovo, were you aware that that team was actually invited
8 by Belgrade at the highest levels?
9 A. Yes, I'd heard of that.
10 Q. I would like to bring up P441, generally pages 98 through 100.
11 The six sites that I had mentioned before, those were the six
12 sites selected for the forensics team to address, specifically the KLA or
13 KLA atrocities at Klecka, Glodjane and Volujak and the suspected
14 atrocities by the Yugoslav forces at Gornje Obrinje, Golubovac, and
15 Orahovac. This actually features in a Human Rights Watch report called
16 "a week of terror in Drenica," where it discusses this investigation.
17 You had indicated before that you believed that you were entitled to be a
18 part of the investigation there at Gornje Obrinje; is that correct?
19 A. Yes.
20 Q. Were you aware that in a session of the Joint Command when
21 addressing this Finnish forensic team on October 22nd of 1998, that it
22 indicated that a five-man monitoring group -- and this is actually at
23 page 142 in the B/C/S and page 157 in the English, but for our purposes
24 it indicates that: "A five-man monitoring group arrived from Finland
25 today to investigate the situation in Kosovo and Metohija and to exhume
1 bodies." And I highlight this: "It was ordered that the cases which are
2 currently being processed be handed over to them."
3 Did you hand over the case of Gornje Obrinje to the Finnish
4 forensics team?
5 A. Well, I said about that on-site investigation that we had no time
6 to carry one out. It was safety concerns that had prevented us. I don't
7 know what became of those bodies. The main thing is I was not able to
8 carry out an on-site investigation that day.
9 JUDGE BONOMY: Mr. Fila.
10 MR. FILA: [Interpretation] I saw something here, some sort of
11 Joint Command. I have no idea what this is about. Did you --
12 JUDGE BONOMY: The position is quite clear in the notes of the
13 Joint Command meeting on the 22nd of October, 1998, there is reference to
14 a five-man monitoring group arriving from Finland that day to investigate
15 the situation in Kosovo and to exhume bodies, and the part that's being
16 highlighted from the notes is it was ordered that the cases which are
17 currently being processed be handed over to them. Now, if that's not
18 actually in the documents, then we'll look at it; but if it is, what can
19 your objection be to the question?
20 MR. FILA: [Interpretation] My objection is this: There are two
21 questions: Does she know that there is a Joint Command, there's
22 something written there, and then we have to look into that --
23 JUDGE BONOMY: No, there aren't these two questions. The
24 question has been very carefully phrased: Did you hand over the case of
25 Gornje Obrinje to the Finnish forensics team? That's the only question
1 that's been asked, and Mrs. Marinkovic did not answered that question, so
2 no doubt it's going to be put again.
3 MR. FILA: [Interpretation] Fine.
4 JUDGE BONOMY: Thank you.
5 Ms. Carter.
6 MS. CARTER:
7 Q. I reiterate my question: Did you turn over the investigation to
8 Gornje Obrinje to the Finnish forensics team?
9 A. As I said the last time around, I wasn't able to carry out an
10 on-site investigation. There were safety concerns that kept us that day
11 from going to Gornje Obrinje and exhume the bodies there. I never
12 managed to reach those bodies --
13 JUDGE BONOMY: Would you just please answer the question first of
14 all, and then we can move on to the next stage. Did you hand over that
15 case to the Finnish forensics team or did you hold onto it?
16 THE WITNESS: [Interpretation] Well, there was no case to hand
17 over for me because I'd never had a case to begin with. I never reached
18 the bodies. That's what I'm saying.
19 JUDGE BONOMY: But you didn't reach the bodies because you
20 insisted on going and having a team of MUP officers in uniform with you,
21 and the point's being made that if you had followed what apparently had
22 been discussed at a meeting you would not have been involved and the
23 investigation would have taken place. So the suggestion is that you
24 obstructed it. And let's not beat about the bush, let's get right to the
1 THE WITNESS: [Interpretation] First of all, it is definitely not
2 true that I obstructed the on-site investigation. It was those who were
3 with the Finnish team and the OSCE people who were there that did. We'd
4 had an agreement and we were off to this on-site investigation, and then
5 on the way into Gornje Obrinje they stopped us and said that we could
6 proceed no further because there's some sort of a swing gate in place
7 there that could not be crossed and there were KLA people behind it. It
8 was risky to go in there with the police because they would be opening
9 fire, that's what they said, and I didn't agree to do what they were
10 proposing. It was risky, they couldn't guarantee my safety. I refused
11 to go with them.
12 So secondly, I was in no position to carry out an on-site
13 investigation without the other members of my team and the police were
14 there to secure the scene.
15 MS. CARTER:
16 Q. Judge Marinkovic, I would hold out to you that this order was
17 coming from Belgrade on the 22nd of October, 1998, several months before
18 you attempted to arrive in Gornje Obrinje. Why were you trying to enter
19 with anybody, given the fact that it was ordered that the cases be handed
20 directly to the Finnish forensics team?
21 A. You know, I'm not sure what sort of a question this is. I had
22 been invited by the court president even before there had been a request,
23 a specific request, by the family of one of the damaged parties from
24 Donje Obrinje for an investigation to take place and a request was
25 submitted to the investigating judge of the Pristina district court. And
1 it was the president who got in touch with the OSCE people and the
2 Finnish team. There was a meeting that everybody attended, but I wasn't
3 there nor had anybody told me about that, that the president spoke. He
4 got back to me and simply informed me that on such and such a day the
5 on-site investigation would be taking place.
6 Q. About in this investigation performed by the Finnish team, in the
7 Human Rights Watch report it indicates within the footnote that you were
8 actually also the investigative judge in regard to the Klecka case; isn't
9 that correct?
10 A. Klecka, yes, that's right.
11 Q. And at that time you were called out by the Human Rights Watch
12 because you were interrogating two ethnic Albanian suspects in front of
13 television cameras; is that correct?
14 A. One of them gave a statement in the presence of a camera, but the
15 camera was being handled by a forensic officer and that was in my office.
16 Under the Law on Criminal Procedure, this was perfectly legitimate as
17 long as the suspect agreed to this procedure, the suspect being
19 Q. Okay. I would hold out to you in this Human Rights Watch report
20 it indicated that the Finnish team conducted the investigation at Klecka
21 without interference from the Yugoslav government or the KLA. Were you
22 on site when the Finnish forensics team went into Klecka?
23 A. This is the very first I hear of the Finnish team going there or
24 carrying out an on-site investigation there. This is not something that
25 I was previously aware of, and I have no idea who allowed them to do
2 Q. And I would also hold out to you that the Finnish team per Jan
3 Kickert during --
4 JUDGE BONOMY: Let's go back. You gave an answer this morning
5 that as for Klecka, then, yes, they did participate in that, referring to
6 the Finnish team. Are you now saying they didn't to your knowledge
7 participate in it?
8 THE WITNESS: [Interpretation] They did participate after I had
9 taken some investigative steps and after our own forensics institute had
10 carried out an investigation concerning the human bones that had been
11 found at Klecka, but I don't know that the Finnish team actually went
12 there, carried out an on-site investigation, or actually launched an
13 investigation of their own at all.
14 JUDGE BONOMY: Thank you.
15 Ms. Carter.
16 MS. CARTER:
17 Q. Now, moving off of Klecka and back to Gornje Obrinje, were you
18 aware that the Finnish forensics team had already been on site the day
19 before you tried to go with them?
20 A. I'm not aware of that.
21 Q. In fact, Jan Kickert testified in this case at transcript 11278,
22 line 16, that the day before the Finnish team had gone in by themselves
23 with no MUP, no judge, no one at all, and he goes on later to say at page
24 11279, 5, that there was no security risk felt whatsoever by the Finnish
25 team, as the KLA had given their assurances and wanted the exhumation of
1 their relatives.
2 Were you aware of that?
3 A. No. The situation was interpreted for my benefit in quite a
4 different way. When they stopped us along the road and told us not to
5 proceed to Gornje Obrinje, they told us that there were KLA soldiers
6 there, that there was some sort of a check-point or a swing gate and that
7 they were unable to guarantee my safety should I to go on without them in
8 terms of being able to carry out an on-site investigation. Secondly, I
9 couldn't do this on my own. Thirdly, I have no idea how the Finnish team
10 could possibly carry out an on-site investigation or investigate anything
11 at all without the approval of a state body. They were there as
12 observers, they were forensic experts. How they could possibly have
13 intended to carry out an on-site investigation is entirely unclear to me
14 because this is not in keeping with the Law on Criminal Procedure, it
15 would have run counter to it.
16 Q. However, I've already held out to you in Belgrade and
17 specifically within the Joint Command it was indicated that this case --
18 that it was ordered that the cases which are currently being processed be
19 handed over to the Finnish, that that is where they got their authority
20 to go review these sites. Are you indicating that you had no knowledge
21 whatsoever that it was the Finns who were supposed to be processing these
22 crime sites?
23 A. First of all, I don't know that such a document existed and that
24 they had been granted authorisation, but they could only go to the case
25 files, that's all they could do to see what the investigation had been
1 like up to that point or at any stage of the procedure at all. Having
2 inspected those documents they would have been in a position to offer
3 their opinion on issues that they were qualified to offer opinions on,
4 maybe in terms of that. As for an on-site investigation, I don't think
5 they could have received authorisation for anything like that. Under the
6 Law on Criminal Procedure you know who is in a position to carry out an
7 on-site investigation, who would be allowed to do that. They were
8 foreigners, they could only be there to observe or perhaps provide an
9 additional opinion that would complement the one that had already been
10 provided by our own forensic experts.
11 Q. However, Jan Kickert testified in this trial at page 112 --
12 JUDGE BONOMY: Mr. Fila.
13 MR. FILA: [Interpretation] Well, President, sir, I don't
14 understand this. Look at line [as interpreted] 87, lines 3 and 4, what
15 sort of a Joint Command are we talking about in Belgrade? I think the
16 witness should be shown what this entire story is about. I bade my time
17 until the witness finished answering, but I think we should go back to
18 this, look at this, Belgrade, meeting of the Joint Command, what sort of
19 a Joint Command is this? I have no idea what we're on about here,
20 because that's what it says, doesn't it, lines 3 and 4, 87. I want to
21 see that, I want to be shown that.
22 JUDGE BONOMY: You have the document, Mr. Fila. You can research
23 it for yourself --
24 MR. FILA: [Interpretation] Yes, yes, I know, but --
25 JUDGE BONOMY: The answer to the question does not require that
1 the witness see the document --
2 MR. FILA: [Interpretation] Yes, but Judge -- okay. All right.
3 JUDGE BONOMY: If you feel you're somehow or other prejudiced by
4 this, you can ask us to allow you to cross-examine later and deal with it
5 at that stage, but it's not appropriate to interrupt the
6 cross-examination by Ms. Carter in this way.
7 MR. FILA: [Interpretation] Well, I waited until the witness
8 finished answering, that much can be said. Thank you.
9 JUDGE BONOMY: And indeed I'm not suggesting you were in any way
10 impolite. I'm just suggesting that this is not the stage at which to
11 raise the matter in the way you've raised it. You can deal with it in
12 further examination if we allow you to do that at your request later.
13 Thank you.
14 Ms. Carter.
15 MS. CARTER:
16 Q. Judge Marinkovic, I would hold out further that Jan Kickert
17 testified that his understanding of the whole procedure was that the
18 district judge, Mrs. Marinkovic, could accompany us, but I was not aware
19 that we would have a tail of 20 armoured vehicles and APCs and police
20 cars. Yet, you're saying that Jan Kickert was mistaken, that it was they
21 who were merely the invitees as opposed to you; is that correct?
22 A. I was the one who was in charge and I was the one who was
23 authorised to carry out an on-site investigation in Gornje Obrinje. I
24 would have been had we been allowed to reach the site. They were only
25 able to observe, to make notes, and perhaps raise additional questions.
1 They were foreigners, after all, and no foreigner could carry out an
2 on-site investigation, only an authorised investigating magistrate can do
3 that or another appropriate state body. What this witness said, Jan
4 Kickert, about the armoured vehicles being there and how many there were,
5 there weren't armoured vehicles there at all nor were there that many,
6 not as many as he suggests. It was not a safe area.
7 One knew at the time that KLA members were in the area and they
8 had taken the entire area previously. It was very risky to go there.
9 The police were there to protect me, my team, as well as the OSCE people
10 there. They were there to make sure that we would be safe going there
11 and returning, all of us who set out for that particular on-site
12 investigation. It was down to them to assess what the numbers would be
13 that were required to head for that on-site investigation and actually
14 secure the scene. All I can say is this: While we were still travelling
15 we reached this point where we started discussing whether we should
16 continue or not. We were getting into the hills. I and others realized
17 at the time that KLA members started encircling us in their black
18 uniforms. We had already realized by this time that --
19 JUDGE BONOMY: You're going way beyond the -- answering the
20 question that you've been asked. Just, please, try to deal with the
21 questions as they are being asked. Now, tell us, please, how many
22 vehicles were with you.
23 THE WITNESS: [Interpretation] I'm certain there were no armoured
24 vehicles. Now, vehicles, were those just plain police vehicles, maybe
25 all-terrain vehicles, or ordinary police vehicles, how many police
1 officers can you fit into one like that, maybe four or five, I don't
2 know. This was not something I was paying attention to. One thing I am
3 certain about is there were certainly definitely no armoured vehicles
5 JUDGE BONOMY: Ms. Carter.
6 MS. CARTER:
7 Q. Judge Marinkovic, you had indicated in previous testimony, both
8 on Friday and today, that in the event there's a security risk that you
9 had the option of foregoing the on-site inspection; is that correct?
10 A. Not in the sense of giving up, but in the sense of authorising
11 the members of the Ministry of the Interior who were already there to
12 finish this stage of the investigation or this investigative action.
13 Q. All right. There is indication within the report at P441 and in
14 your own testimony that there were negotiations back and forth but
15 investigation never took place for Gornje Obrinje; is that correct?
16 A. Yes.
17 Q. Well, then if the circumstances were as you suggest that they
18 were and the Finnish team was merely supposed to watch the investigation,
19 why didn't you request the MUP to later go in to Gornje Obrinje and do a
20 proper investigation?
21 A. Because I didn't have the powers. The security situation on the
22 ground is something that should be assessed by the MUP and not by me as
23 an individual, private individual, or indeed as an investigating judge.
24 Secondly, there was supposed to be an investigation on the site of the
25 bodies there, the exhumation of the bodies, and the MUP people were not
1 authorised to do that in my absence.
2 Q. So --
3 A. They had only been called in to secure the site, that was all.
4 The exhumation was supposed to be carried out by investigating judge and
5 his on-site investigation team.
6 Q. So if you couldn't go you were going to disallow anybody from
7 going to attend to these bodies?
8 A. You know, it wasn't about going to do something or not going to
9 do something; it was about being able to do something or not being able
10 to do something, were there objective reasons to proceed or not, can this
11 investigation be carried out in a safe manner, the one that we'd set out
12 to carry out. We had to bear the following in mind, we wanted to prevent
13 any riots from breaking out or any incidents from happening, all of those
14 of us who were there, because the OSCE people had told me there were KLA
15 members in the area who were armed.
16 Q. However, Judge Marinkovic, I would hold out to you that the
17 Finnish team had already been able to go on site the day before with no
19 MR. IVETIC: Your Honour, for completeness for the record, which
20 I also reflect we have had evidence to this case that the International
21 Red Cross was -- there were some tragedies, based upon mines laid by the
22 UCK and the trenches and the well-fortified positions in Gornje Obrinje
23 that we have. I believe General Zivanovic's report in effect and even
24 after several days of fighting they came -- basically the positions were
25 re-taken, that's just for everyone's recollection. Not making any
1 further comment, yes.
2 JUDGE BONOMY: Well, it does amount to comment that I would
3 suggest to you was not appropriate at this stage in the
5 Please continue, Ms. Carter.
6 MS. CARTER:
7 Q. I would like to discuss the further treatment of the Finnish
8 team, specifically that the treatment of the Finnish ambassador for human
9 rights, that in fact the -- a plain-clothes MUP officer forcibly had his
10 camera film removed. Do you recall that?
11 A. I don't recall that. I know that one of the members of that OSCE
12 team had arrived there with his wife, and he was given every assistance,
13 every form of cooperation, whatever he required, whatever questions he
14 raised were answered. I'm not sure if we're talking about the same
15 person, but even heard from the wife of that OSCE official, she was
16 asking me to not proceed because it was too risky. It was his wife of
17 all people who asked me to please not go any further.
18 Q. I'm going to now move on to the investigation you purported to
19 have conducted on the Fehmi Agani. You testified in this case beginning
20 at transcript page 23495 and going through page 23498. What are you
21 saying today your role was with regards to this investigation?
22 A. Well, when I had been informed by the duty officers of the
23 Pristina SUP that an unidentified male body had been found by the
24 roadside, the first thing I asked them was whether they'd informed the
25 duty public prosecutor and the SUP inspector who was on duty. They were
1 off to check that, and meanwhile the inspector in charge of murder had
2 got in touch with me and confirmed that this male body had been found,
3 but they said they had found nothing on him that would allow for
4 identification to be made. Since at the time neither I nor the
5 prosecutor could actually go out and inspect this ourselves --
6 Q. Ms. Marinkovic, are you indicating that you were the
7 investigative judge on this case?
8 A. I was the investigative judge who was on duty at the time and I
9 was informed of that. As for the on-site investigation, as I said
10 before, this was done by the on-site investigation team without my
11 presence because they were authorised to do that.
12 Q. Judge Marinkovic, that's a bit odd given that in the Milosevic
13 case at page 37921, which is here today in e-court page [sic] 3115 at
14 page 209, you indicated, and I quote: "Linked to the Fehmi Agani case, I
15 had nothing to do with that case, I wasn't the investigative judge."
16 You go on to say: "I didn't compile any on-site report or
17 anything of that kind."
18 You later go on in reading the same document that you brought in
19 court today at page 37 -- I'm sorry, on Friday at page 37922, lines 4
20 through 7, that you -- I quote: "Linked to the Fehmi Agani case, what I
21 know is this: I know a different truth, the truth that was established
22 by the authorised Pristina SUP and I was -- have proof and evidence of
23 that and it was a criminal report that was filed by the SUP of Pristina."
24 Are you indicating today, contrary to what you said in the
25 Milosevic case, that you were an active part of this case?
1 MR. IVETIC: Your Honour, first I have to object to
2 misrepresentations of the record by Ms. Carter. It was actually in the
3 prior question where she indicated that she was informed immediately
4 after --
5 JUDGE BONOMY: [Microphone not activated]
6 MR. IVETIC: That's true.
7 JUDGE BONOMY: [Microphone not activated]
8 MR. IVETIC: I apologise, I probably should have mentioned that
9 as well at the beginning.
10 JUDGE BONOMY: This will not take long, but while there's an
11 objection to a question we have to deal with it as a matter of law and
12 it's appropriate in this case that we should do so without you present.
13 So could you briefly please leave the courtroom. Just go with the usher.
14 Thank you.
15 [The witness stands down]
16 JUDGE BONOMY: Mr. Ivetic.
17 MR. IVETIC: I'm just waiting for the door to close, Your Honour.
18 With respect to -- I have lost the line number, but the testimony
19 the other day was not that she was involved in the investigation, that
20 she was the duty judge, which she just repeated today, and that the
21 investigation was undertaken by the police officers. I just wanted to
22 make sure that something's not being taken out of context because the
23 evidence that was presented through this witness the other day showed
24 that at first the -- what's now called the Fehmi Agani case was an
25 unknown -- an unknown --um -- unknown body that was later identified
1 identified as Fehmi Agani as -- I don't know whether that changes
2 anything the witness will say or not, that's just a comment that I wanted
3 to bring to your attention, since the document for the -- I think it's
4 6D -- it's a 6D defence number starts off with an NN body that was
5 discovered, and I don't know at what point in time it became Fehmi Agani.
6 So to call something the Fehmi Agani case you have to be very specific
7 with the dates I think. I don't know, maybe the witness can handle what
8 Ms. Carter has given her, but if not then I would ask that the documents
9 be shown to her and that the dates be very specific in that regard.
10 [Trial Chamber confers]
11 JUDGE BONOMY: What do you say is the misrepresentation of the
12 record? It's a quote as I understand it.
13 MR. IVETIC: Not this part, Your Honour. The misrepresentation
14 was from the prior question where she said she investigated the scene,
15 whereas both yesterday and today she was clear that she received the
16 phone call and was unable to go out into the terrain and that the police
17 officer, she even mentioned his name, was the individual who actually
18 conducted the on-site -- the on-site investigation. And the case file on
19 that -- on the unknown body that became Fehmi Agani for the Court's
20 information is 6D142, so that -- if it becomes necessary, we can pull it
21 up. I don't want to obviously lead Ms. Carter's questioning.
22 [Trial Chamber confers]
23 JUDGE BONOMY: Well, Ms. Carter, you may have to repeat some of
24 that for the witness, I'm not sure, but we see nothing wrong in the way
25 in which you were actually posing the question so we will repel the
2 Please have the witness back.
3 [The witness takes the stand]
4 [Trial Chamber and registrar confer]
5 JUDGE BONOMY: That matter's been dealt with, Mrs. Marinkovic.
6 We can now proceed and we wish you to answer the question. If you need
7 it repeated, then Ms. Carter will repeat it.
8 MS. CARTER:
9 Q. Do you need me to repeat the question?
10 A. Yes.
11 Q. Certainly. You testified today when I asked you just a few
12 moments ago that you were the investigative judge on duty and that you
13 were responsible for the Fehmi Agani case; is that correct?
14 A. I was not in charge. I was just the one who was informed that
15 there was a body lying by the road. When I received that call, I didn't
16 know who it was about, I didn't know the identity of the person found.
17 Q. Were you the investigative judge of the case that was eventually
18 identified as the Fehmi Agani case?
19 A. In relation to that case, I as the investigative judge gave the
20 order to perform a post mortem at the Institute of Forensic Medicine
21 because the cause of death was suspicious and only a pathologist was able
22 to tell us the truth of the matter, and that was the role I performed as
23 the investigative judge.
24 Q. And I hold out to you, ma'am, that when speaking of this very
25 same matter in the Milosevic case, there at page 37921 you indicated, I
1 quote: "Linked to the Fehmi Agani case, I have nothing to do with that
2 case. I wasn't the investigative judge."
3 You go on to say: "I didn't compile any on-site report or
4 anything of that kind."
5 How is it that when you testified in the Milosevic case you
6 claimed no involvement with the Fehmi Agani case, yet today you sit here
7 saying that you were the investigative judge and became highly involved
8 in that case?
9 JUDGE BONOMY: Mr. Ivetic.
10 MR. IVETIC: I hate to do this, but I think -- I don't want to be
11 accused of influencing the witness by my objection. So if we could just
12 briefly have her out again. I think it relates -- well, I don't want to
13 say too much more with the --
14 JUDGE BONOMY: Mrs. Marinkovic, do you know any English? Do you
15 understand English?
16 THE WITNESS: [Interpretation] No.
17 JUDGE BONOMY: Will you take your headphones off, please, while
18 we discuss this.
19 Yes, Mr. Ivetic.
20 MR. IVETIC: Thank you, Your Honour. That's much more efficient.
21 We spent a great deal of time going through the various steps of
22 an investigative judge, including an investigation and an on-site
23 investigation --
24 JUDGE BONOMY: Mr. Ivetic, before you go any further.
25 MR. IVETIC: Yeah.
1 JUDGE BONOMY: This is the lady who has personal knowledge of the
2 extent to which she was or was not involved.
3 MR. IVETIC: Yes.
4 JUDGE BONOMY: She's the person we would expect to be able to
5 distinguish between being the investigative judge at the NN stage and
6 being the investigative judge at the point when the body is later
8 MR. IVETIC: Your Honour, the investigative judge goes out for
9 the "uvidjaj" or on-site investigation, it is different from the
10 investigative judge that does the investigation.
11 JUDGE BONOMY: Equally, she should be the person who is most
12 equipped to be able to make that distinction.
13 MR. IVETIC: I agree. I just know that in the past the two words
14 "uvidjaj" on-site investigation and investigation have been inter-mixed.
15 So I don't know what the original Serbian was --
16 JUDGE BONOMY: Well, you will have an opportunity to
17 re-examination on anything that's unclear as a result of her answers.
18 MR. IVETIC: Fair enough. Fair enough.
19 [Trial Chamber confers]
20 JUDGE BONOMY: Okay. We've dealt with that matter and we can now
21 proceed with the evidence.
22 Ms. Carter.
23 Ms. Carter wants to know why in Milosevic you said that you
24 had -- you were not the investigative judge and is asking you to explain
25 the difference -- the apparent difference between what you said in that
1 case and what you've said so far in this case.
2 THE WITNESS: [Interpretation] What I said at the Milosevic trial
3 was that as the investigative judge I didn't conduct the investigation
4 because the investigation, as investigation, implies a pre-indictment
5 proceedings where we know who the perpetrator is and what the crime is.
6 In the Agani case, the only thing I did as the investigative judge was to
7 issue an order for a post mortem to be done, which doesn't mean that
8 an -- I conducted the investigation. It is just one of the investigative
9 steps. The investigating judge has to issue the order for a post mortem
10 to be performed. That's the only thing I did in that case. That was my
11 only participation. After that we know that a criminal report was filed
12 and that report was shown to me when I testified in the other case.
13 JUDGE BONOMY: Ms. Carter.
14 MS. CARTER:
15 Q. Judge Marinkovic, I would hold out to you that these distinctions
16 were not drawn by you or by anybody in the Milosevic case, and in fact
17 you were being presented with some statements about you said by Natasa
18 Kandic and you, sua sponte said, linked to the Agani case: "I have
19 nothing to do with case, I wasn't the investigative judge."
20 JUDGE BONOMY: Mr. Ivetic, I hope this is necessary.
21 MR. IVETIC: Well, Your Honour, the fact that in another
22 proceeding no one asked questions to investigative --
23 JUDGE BONOMY: Sit down. You're just interfering with the
24 cross-examination now.
25 MR. IVETIC: I don't believe so, Your Honour. I think this is a
1 very important point.
2 JUDGE BONOMY: Sit down.
3 MR. IVETIC: And I want it on the record.
4 JUDGE BONOMY: Sit down and deal with it in re-examination.
5 Ms. Carter.
6 MS. CARTER:
7 Q. I will begin at page 37920 which brought this to my attention.
8 The question asked to you by Mr. Nice in regards to the Natasa Kandic
9 statements was: "Let's look at the article then for that. What's more
10 important is the rest of what she was able to complain about. If this
11 can be placed on the overhead projector, please. It's an article of the
12 8th of March, 2002, a publication of that date, and it says that you,
13 "Formally investigative judge of Pristina district court, reacted to the
14 Humanitarian Law Centre press release on the murder of Fehmi Agani and
15 accused Natasa Kandic of lying." Did you accuse her of lying?
16 Your answer was: "Let me tell you this: I'm surprised that
17 you're using as a source of information complaints about my work and that
18 for that you have used Natasa Kandic as a source. For me as an
19 individual, well, I don't know her. She's not interesting as far as I'm
20 concerned. I would like you to tell me specifically in concrete terms
21 the complaints made against my work" --
22 THE INTERPRETER: Could you please read more slowly when reading.
23 JUDGE BONOMY: You're being asked to read more slowly, but I at
24 the moment do not see the purpose of this narrative.
25 MS. CARTER: Your Honour, I am about to get to the exact quote
1 that we are arguing about with Mr. Ivetic.
2 Q. It says: "I would like you to tell me specifically in concrete
3 terms the complaints made against my work, whether the parties involved
4 in the proceedings themselves in the investigation themselves that
5 complained about me not this source."
6 And then you were asked again: "Did you accuse her of lying."
7 And your response to that question was: "Linked to your question
8 I have concrete proof that I can put before the Trial Chamber. Linked to
9 the Fehmi Agani case, I have nothing to do with this case. I wasn't the
10 investigative judge."
11 So when you responded in that manner in the Milosevic case, there
12 was no indication that you were investigative judge of some or all of
13 this investigation. You flat out declared that Natasa Kandic was a liar
14 and that you were not the investigative judge. How can you then sit here
15 today and indicate that you were involved in this?
16 JUDGE BONOMY: Well, first of all, could you tell me, Ms. Carter,
17 what Natasa Kandic said? What is the accusation?
18 MS. CARTER: Your Honour, the record in the Milosevic case that
19 was presented this is just that she -- that she had been the subject of
20 many complaints in the course of her work, and Natasa Kandic at 37919 --
21 JUDGE BONOMY: What were the complaints? Give us a specific
22 example of a complaint that she was making as -- I mean, I entirely
23 understand why Mrs. Marinkovic wanted to know what the complaints were.
24 MR. IVETIC: Your Honour, I thought I was put it on the ELMO, so
25 it ought to have been marked as some sort of an exhibit in the Milosevic
1 case as well. I don't know if we can get that on such short notice.
2 MS. CARTER: If it was, it was not noted as an exhibit number, so
3 I'm not sure what was presented. However, my understanding is that there
4 was a question about Mrs. -- I'm sorry, Judge Marinkovic's involvement
5 within the Agani case.
6 JUDGE BONOMY: Now, your -- all right.
7 MS. CARTER: Because the article that was being presented --
8 JUDGE BONOMY: So we don't know what the complaint was, right.
9 Now, where are we? I mean, you've asked repeatedly this question about
10 being investigative judge. What is the specific point you want to put
11 rather than just giving us narratives of what other people have said
12 that's of no value to the progress of this trial?
13 MS. CARTER: Specifically, Your Honour, that this witness has
14 either perjured herself in the Milosevic case or she is perjuring herself
15 now. She was very clear about what her role was there, and I would argue
16 to the Court that by her sitting here today and on Friday and discussing
17 all of the lovely investigation that was done on this case --
18 JUDGE BONOMY: Well, we'll hear the speeches later. What is the
19 specific question?
20 MS. CARTER: How does Mrs. --
21 Q. Judge Marinkovic, how is -- are both statements true, that in
22 Milosevic you indicated that you were not the investigative judge and you
23 had nothing to do with it; however, you sit here today and say that you
24 were the investigative judge and had quite a bit to do with it? How do
25 you --
1 JUDGE BONOMY: Well, you see, that's a mis-characterization of
2 today's evidence. Why do you need to go over the whole narrative again?
3 Why can't you ask pointed questions and then we'll work out what the sum
4 and substance of the evidence is? She's made it clear that her only role
5 was to arrange for a post mortem, that was it. Now, if you say that's a
6 lie, put it to her and see what she has to say, and put it on the basis
7 before that she said before she had nothing to do with the case at all.
8 MS. CARTER:
9 Q. Judge Marinkovic, I'll ask you in the way Judge Bonomy has just
10 stated. How is it that in the Milosevic case you indicate that you had
11 nothing to do with this case whatsoever, yet you sit here today
12 indicating that you have ordered post mortems and any other activity that
13 you had?
14 A. I can only repeat the answer I've already given. The
15 investigation in that case was not conducted because the perpetrator was
16 unidentified and there was nothing for me to do as the investigative
17 judge, and it's correct that I had no participation in the investigation.
18 As for the post mortem, it's just one of the investigative steps which in
19 that moment was ordered alongside the on-site investigation, to collect
20 the evidence, to be available for one day when the perpetrator is found.
21 MS. CARTER: I pass the witness.
22 MR. IVETIC: Is counsel going to be withdrawing the comments
23 about perjury because those are very serious comments coming from a
24 Prosecution that has brought several witnesses who signed sworn
25 statements that are contrary to their evidence on very key issues.
1 JUDGE BONOMY: Just --
2 MR. IVETIC: And I don't make those accusations, and I think that
3 they are very serious accusations to be made with no support.
4 JUDGE BONOMY: The Trial Chamber's going to adjourn just briefly
5 and we will resume in ten minutes or so, about quarter to. So there's no
6 point in everyone standing down. The accused should stay where they are,
7 counsel may be free to move around. Just let us have an opportunity to
8 consider this situation.
9 [The witness stands down]
10 --- Break taken at 2.35 p.m.
11 --- On resuming at 2.48 p.m.
12 [The witness takes the stand]
13 [Trial Chamber confers]
14 JUDGE BONOMY: Ms. Carter, do you want to respond to what
15 Mr. Ivetic said?
16 MS. CARTER: Respectfully, Your Honour, I based my -- the way I
17 responded to -- made that statement to the Court because we've already
18 been told that you can't use the word "liar" or "lying," or anything like
19 that, unless we're going to use Mr. Hannis's suggestion as an unconvicted
20 liar. This would be -- they said at the time we were having this
21 argument, that to call somebody a liar you had to be convicted of
22 perjury. So I'm trying to simply abide by the extreme dislike on the
23 Defence bar in saying that somebody is lying or speaking an untruth.
24 JUDGE BONOMY: I didn't realize we had made any specific rulings
25 on the matter. I think it was a question of being sensitive to different
1 perceptions based on culture or legal practice that might lead to someone
2 being offended by a remark in a way that that -- a person in another
3 country would not be offended. And what happened in this instance was
4 that the statements were made as an explanation of the Prosecution
5 position rather than in the context of a question, and that has led
6 Mr. Ivetic to say, Well, that should be withdrawn, it wasn't there as a
7 question, it was a submission.
8 Well, Mr. Ivetic, we take the view that it was an explanation of
9 the Prosecution position rather than something that we in any way have
10 approved. We sought that explanation, we got it, and no doubt we'll have
11 an opportunity to resolve it if necessary at the end of the case. I
12 think Judge Marinkovic understands that the practice here is somewhat
13 different from the practice in her own jurisdiction and indeed others
14 with which her jurisdiction might be compared, but it's quite common in
15 this jurisdiction for the assertion to be made that either one statement
16 must be a lie or the other must be a lie. And we as lawyers get used to
17 that sort of thing. We appreciate when in the witness box that that may
18 happen, but until a court makes a pronouncement to that effect it's
19 simply part and parcel of the procedure that's adopted in challenging
20 evidence. So we do not propose to take any action on this matter,
21 Mr. Ivetic. We note the feeling with which you will no doubt address the
22 matter in due course, and that you are giving us clear notice of what you
23 will in due course say.
24 Mr. Fila, do you have any questions you wish authority -- sorry.
25 [Trial Chamber confers]
1 JUDGE BONOMY: Judge Chowhan's anxious I make it clear to you, as
2 I thought I was making clear, Mrs. Marinkovic, that we make no judgement
3 on what the Prosecution are saying at this stage. We will deal with that
4 later once we've heard all the evidence and all the arguments, and you
5 can rest assured we will be sensitive to your position in the whole
6 matter and indeed to the way in which you've addressed the questions that
7 have been posed in cross-examination.
8 Now, Mr. Fila, do you have questions you wish to ask rather than
9 assertions you wish to make that bear a very close resemblance to
10 assertions you have made on many occasions already in this case?
11 MR. FILA: [Interpretation] Your Honour, I'm just trying to be
12 helpful, and I certainly don't want to contradict Ms. Carter. So what's
13 my position? There's the person called Radomir Lukic a famous lawyer in
14 our country, an academician, and he claims that 90 per cent of any sort
15 of discussion that goes on between lawyers is purely technological. I've
16 been listening to the word investigation the whole day today, whenever
17 I'm raising it because of this damned investigation.
18 In your system an investigation is any sort of check; in our
19 country investigation is something that is very precisely and strictly
20 defined. This is something that is done by the investigating magistrate,
21 and it contains the name and family name of a suspect and it states in no
22 uncertain terms what he's suspected of and then there must be a decision
23 by the investigating magistrate. That's all I'm trying to say.
24 As for this other thing I've been saying. In P1468, that's an
25 exhibit, and these are the notes of the Joint Command, the 22nd of
1 November, 1998, page 142 in e-court, there is evidence by Mijatovic where
2 he says that a group of Finnish forensic experts would be there to do
3 some work. It doesn't say anywhere that this is an order from Belgrade,
4 as Ms. Carter suggests. Secondly, it doesn't say anywhere that there
5 will be an investigation because now I'm going back to the first thing
6 that I said, because in our country we can't let someone else run an
7 investigation who is not a judge, but I have to double-check your own
8 meaning of the term investigation. They've got to look at that, they've
9 got to be handed a case, they've got to be handed a post mortem. So
10 that's your investigation, it's not the same sort of investigation that
11 the witness is referring to. That's the second distinction.
12 The third distinction: No notes from the Joint Command from
13 Belgrade exist. There.
14 JUDGE BONOMY: You need to be fair, though, Mr. Fila, to
15 Ms. Carter as well. What she was submitting or what she was saying is
16 contained in the minute of that meeting is a statement that the Finns
17 were to take the lead basically.
18 MR. FILA: [Interpretation] No -- yes, misinterpreted. This has
19 been misinterpreted. It has been entirely misinterpreted. Somebody
20 should read this in the Serbian. You see, you'll get another translation
22 JUDGE BONOMY: Can we have the page on the screen, please, it's
23 P1468 --
24 MS. CARTER: Your Honour, I have no objection to this. I would
25 also note for the court --
1 THE INTERPRETER: The interpreter did not hear Mr. Fila.
2 JUDGE BONOMY: I think Mr. Fila was saying page 142 in e-court.
3 MS. CARTER: And just to point out for the record, Your Honour,
4 that we've already gone through this exercise at page 22231 with witness
5 Stakic, however, if we want to go through it an additional time, that's
6 fine, but the translation was confirmed on that date, that's on 12th
7 February 2008.
8 JUDGE BONOMY: Is that the correct English -- well, which person
9 made the remark, Mr. Fila said Mijatovic. Is that correct?
10 MS. CARTER: Mr. Mijatovic is that one who is: "Is attributed to
11 within the Joint Command notes" --
12 JUDGE BONOMY: Which page in English?
13 MS. CARTER: It's in page 157 in English.
14 MR. FILA: [Interpretation] I think it might be a good idea for
15 someone to read this in the Serbian original. It's very difficult, you
16 know, that's why I put this on --
17 THE INTERPRETER: The interpreter could not hear the last word.
18 MR. FILA: [Interpretation] "I was ordered to give them --
19 ordered -- today -- today one -- today came one group of five from
20 Finland for verifying the situation in Kosovo and Metohija, for exhuming
21 the bodies. They were ordered to be handed over cases that are already
22 being processed about" -- what's it say? Sorry? Yes, that's that.
23 "Ordered to be handed over cases that are being processed."
24 It doesn't say anywhere that they were given the right to carry
25 out any investigations in our sense of the word. In your sense of the
1 word, to have a look, yes. That's why I'm saying that all we're having
2 is a terminological debate between Ms. Carter and the Defence because you
3 see where it says: "They were ordered to be handed over" -- not for the
4 case to be handed over to them entirely, but for them to inspect these
5 cases that are being processed were, for them to have a look, not to
6 actually be in charge of the cases. It's not possible under the Law on
7 Criminal Procedure, and I think this applies to each country that I know
8 of. So that is the essence of what I am saying. And they came there for
9 the exhumation of the bodies, not for the investigation, not to run an
10 investigation. So this is a purely terminological thing you know.
11 JUDGE BONOMY: I don't think I understood it any differently from
12 the way you're explaining, Mr. Fila, but the Prosecution response to that
13 would be of course as soon as you combine it or try to combine it with
14 the on-site investigation or any formal element of the investigation and
15 insist on the presence of uniformed police officers, then the end result
16 may be to thwart the Finnish efforts. That's all that's being said at
17 the moment and that's something we'll have to review in its context in
18 due course.
19 It's a constant issue, as you know, with terrorism all over the
20 world that when you try to carry out a check on what's going on someone
21 will have a point of view that may obstruct the efforts to get at the
22 truth and they may be right. They may have right on their side, but
23 right does not necessarily mean in this situation that you'll establish
24 the truth. So it's always a delicate exercise in the end to try to find
25 a way through the complications that are created by warring parties where
1 one might regard the other as a terrorist and the other might regard
2 himself as a freedom fighter.
3 MR. FILA: [Interpretation] First of all, it was not my intention
4 to offend Ms. Carter, and there's something else. Until there's formal
5 solution on a --
6 JUDGE BONOMY: I'm sure you failed even if it was your effort.
7 MR. FILA: [Interpretation] No, no, I never made an effort to do
8 that, God forbid. And then allow me to go on. Perhaps this would be a
9 good thing to know. Until there is a formal decision that there should
10 be an investigation, and this is something that is done by a judge, we
11 call all of this pre-criminal proceedings in our country and then it
12 suddenly starts making sense, finally.
13 Could Ms. Carter please show what these notes are from Belgrade
14 that she showed the witness. Mrs. Marinkovic, these are Joint Command
15 notes from Belgrade talking about the Finnish forensic experts. I'd like
16 to hear about it, it may be something that I missed during this trial. I
17 think that's actually stated on the record. This might be a mistake. If
18 that indeed is the case, I'll just forgot about it.
19 JUDGE BONOMY: I take it, Ms. Carter, what you are referring to
20 is what Mr. Mijatovic is recorded as saying.
21 MS. CARTER: Yes, Your Honour. I actually do now understand what
22 the objection of Mr. Fila is. When we first began the exercise, I asked
23 the witness if she was aware of direction from Belgrade allowing the
24 Finnish team to come in, and I later asked for the Joint Command and so I
25 think those two things might have gotten confused. She has indicated
1 that she knew it from Belgrade. The Joint Command minutes are obviously
2 held in Pristina, but they are speaking of the same team coming in to do
3 the same thing.
4 JUDGE BONOMY: Well, that's as far as we can take this matter,
5 Mr. Fila. Thank you very much for your assistance.
6 Re-examination, Mr. Ivetic.
7 MR. IVETIC: Yes, Your Honour. I'll be very brief. I thought
8 one other colleague had something he wanted to raise before I -- then I
9 will begin. I guess that's -- I have moot information.
10 Re-examination by Mr. Ivetic:
11 Q. Judge Marinkovic, I will be brief and then we will be finished
12 with you today. The first question I would like to ask of you is: Are
13 there circumstances within the Serbian -- the Serbian judicial system
14 wherein the investigative judge is not utilised but rather prosecutors
15 can proceed directly upon criminal reports or criminal denunciations, so
16 we're on the same page, and directly raise indictments based upon those
18 A. Yes. In the Law on Criminal Procedure, that situation is
19 envisaged as well. The public prosecutor, pursuant to a criminal report
20 and based on the dates -- data contained therein as well as its annexes,
21 can raise an indictment without a previous investigation.
22 Q. Thank you, Judge. And I used the break to go back to the
23 transcript to see the exact wording of the exchange regarding Fehmi Agani
24 because I thought I was going to be able to get rid of one of my
25 questions, but unfortunately the wording is not as precise as I would
1 like it to be. Now, with respect to the -- what's been called the Fehmi
2 Agani case. At the time that you issued a request for a post mortem, had
3 the body been identified or was it an NN, or unidentified, case of which
4 there were many -- I don't know, probably hundreds of thousands in your
6 A. At the moment I issued a request for a report, post mortem, it
7 was an unidentified male corpse. It is only at the forensic institute
8 that the forensic experts established the identity and carried out a post
10 MR. IVETIC: And again, Your Honours, for the record, 6D142 has
11 already been exhibited, so I'm not going to go through it again. That's
12 the whole file on the "Fehmi Agani" case which shows what the first
13 paperwork was with respect to an unknown body.
14 Q. Moving on to my other set of questions. Judge Marinkovic, in the
15 course of interviewing ethnic Kosovo Albanians in the course of your
16 work, when -- did you have occasion to come across Albanian -- Kosovo
17 Albanians that spoke the Serbian language; and if so, what was the name
18 in Serbian that they used to describe their ethnicity?
19 A. I had occasion to see some individuals who appeared before me
20 either as a defendant or the injured party that they knew Serbian and
21 could speak it well; however, it was during the time when I worked in
22 litigation, in civil law. And parties would appear. We would take down
23 their data, and when inquiring about their ethnicity they would use the
24 word "Siptar." They didn't mind to use it. It was a standard term. It
25 was not pejorative. I can tell you of a colleague of ours who was
1 Albanian. We all called him "Siptar" when not using his name. We use it
2 with a degree of sympathy. It wasn't pejorative at all.
3 Q. Thank you. I'm trying to find the exhibit and I'm having a hard
4 time, but I don't need to focus on the exhibit. Hopefully I can describe
5 it in enough detail. There was talk during Madam Carter's
6 cross-examination about a UN report which actually, as I recall, was
7 authored by one individual, Ms. Sophie [sic] Rehn or Stephanie [sic] Rehn
8 [sic] as Special Rapporteur for the UN. And the question I have -- I
9 actually have two questions for you in that regard. Did anyone from the
10 United Nations subsequent to -- pardon -- let's back up. Did anyone from
11 the United Nations prior to publishing this report contact either
12 yourself or the president of the court or anyone else for that matter to
13 conduct an official inquiry into the court records to verify any of the
14 claims that are set forth therein?
15 A. No one talked to me about it. This is the first time I hear that
16 there was a UN representative at the district court in Pristina. Had
17 that person talked to the president of the court, the president would
18 have checked those allegations with me.
19 Q. And I take it then that no one asked you to -- asked either you
20 or the president of the court to confirm any of the allegations contained
21 in the -- in the piece after it had been published?
22 A. No one, no one.
23 Q. And my last question might be redundant given your answer at page
24 113, 16, that was the first time you heard about a UN representative.
25 Did you or anyone else at the Pristina court receive a copy of this
1 report at any point in time, and I apologise, I believe the date was
2 1997 -- 1996 or 1997 for the Court, I don't have it in front of me, but
3 at any point in time after it was published did you ever receive a copy
4 of the same from either the author, Ms. Stephanie Rehn I think it is or
5 from the United Nations?
6 A. No, I was never given a copy of the report.
7 MR. IVETIC: Your Honours, unless you have some further questions
8 for Judge Marinkovic, I'm finished my re-direct examination.
9 Q. Judge Marinkovic, I thank you for your time and patience and I
10 apologise for keeping you here over the long weekend, but it was
11 necessary for the interests of justice for truth to come out.
12 THE WITNESS: [Interpretation] Thank you.
13 [Trial Chamber confers]
14 JUDGE BONOMY: Mrs. Marinkovic, that completes your evidence.
15 Thank you for coming here again to give evidence and to assist the
16 Tribunal. You may now leave the courtroom with the usher. Thank you.
17 THE WITNESS: [Interpretation] I'd like to thank Their Honours for
18 treating me fairly. I understand the conduct of the Prosecutor, since it
19 is their work, but when I go back to Kragujevac my colleagues are waiting
20 for me impatiently to learn of the actual work of this Tribunal. Thank
22 [The witness withdrew]
23 [Trial Chamber and registrar confer]
24 JUDGE BONOMY: Mr. Ivetic, your next witness?
25 MR. IVETIC: Your Honour, we had intended to have Mr. Pantic as
1 our next witness, but he arrived on Sunday afternoon and I had been
2 actually bedridden for the last two days with antibiotics and codeine, so
3 I did not finish preparing him and the witness that Mr. Lukic was
4 preparing after him is almost finished but not quite finished. So we beg
5 the Court's indulgence. I did mentioned to Mr. Haider. I know we have
6 the hearing scheduled for later this afternoon, if no one has any
7 objection and if it works out for the Court we could advance to this time
8 and perhaps give everyone some time this afternoon for other pressing
9 personal matters or something of the like.
10 JUDGE BONOMY: We will need a break, though, that's the problem.
11 Mr. Zecevic.
12 MR. ZECEVIC: I'm sorry, Your Honours. Well, my lead counsel
13 is -- wanted to be present at the hearing so --
14 JUDGE BONOMY: And that was scheduled for 4.00.
15 MR. ZECEVIC: Yeah.
16 JUDGE BONOMY: So we can't really advance that if having
17 announced the time those involved are intending to rely upon it.
18 MR. IVETIC: I was just trying to be helpful. I see now looking
19 at the clock that even with the break we wouldn't make it until after
20 4.00. So I would suggest that with Your Honour's leave that we adjourn
21 until the 4.00 hearing and either Mr. Lukic or I will be hear for that to
22 participate. As I understand, it's primarily a ruling or -- one moment,
24 [Defence counsel confer]
25 MR. IVETIC: Your Honours, I'm sorry, there's some communication
1 between the counsel as to when Mr. O'Sullivan is going to be here and
2 Mr. Ackerman as well. I think with that doubt in mind, we should
3 probably keep the regularly scheduled time so that there's no unexpected
4 absences and that everyone is properly represented at that very important
6 JUDGE BONOMY: What we'll do then is adjourn until 4.00
7 --- Recess taken at 3.16 p.m.
8 [The Accused Pavkovic, Lazarevic, and Lukic not present]
9 --- On resuming at 4.01 p.m.
10 JUDGE BONOMY: This is a procedural hearing at which we're
11 anxious to hear from the parties on certain miscellaneous issues largely
12 connected with the final stages of the case. I note that three of the
13 accused are present and three are not.
14 Mr. Ackerman, Mr. Pavkovic is not here. I take it he's content
15 that this hearing proceeds in his absence?
16 MR. ACKERMAN: Yes, he chose not to be here, Your Honour.
17 JUDGE BONOMY: Mr. Bakrac, can the same be said of Mr. Lazarevic?
18 MR. BAKRAC: [Interpretation] Yes, Your Honour.
19 JUDGE BONOMY: And, Mr. Ivetic, the same be said about Mr. Lukic.
20 MR. IVETIC: That's my understanding and I think the original
21 hearing said that clients may need not be present, so --
22 JUDGE BONOMY: Yeah, but I'm just anxious to see that we proceed
23 with his approval in his absence with his approval.
24 What I think we'd like to do first of all is hear from the
25 Prosecution from Mr. Hannis. The only particular development to note I
1 think was that parties had an opportunity of discussing the programme of
2 events towards the end of the trial process with Mr. Dawson at the
3 request, I think, of the Defence but with the approval of the Bench.
4 Having heard what was said then, we thought it only right that the issues
5 discussed should be discussed with the Bench in open court, and that was
6 the main reason for holding this hearing.
7 So, Mr. Hannis, do you wish to make any proposals in relation to
8 these final stages of the trial?
9 MR. HANNIS: Well, Your Honour, there were a couple things. In
10 the meeting we had with Mr. Dawson, I think the Defence counsel went
11 first and set forth the time-period that they thought they needed and
12 would like to have between the close of evidence and the filing of the
13 final briefs. And I think their time-period they asked for was three
14 months, and I, I guess, trying to be more macho said that the Prosecution
15 intended only to ask for two months, but I couldn't disagree with them
16 that three months might be an appropriate amount of time. Your Honours,
17 I think there is a big pile of evidence in this case and I think it would
18 be helpful to you if the parties have a substantial period of time to try
19 and organize that and present it to you in a coherent fashion. I could
20 spend a few weeks just reading Joint Command meetings and VJ collegium
21 meetings and MUP meetings. There's a lot to be gleaned from that
22 documentary evidence and some of it frankly I'm still trying to get ahold
23 of. So I guess that's where we are. One question I had, I think I
24 raised it with Mr. Dawson, was we did not know whether the Court had any
25 present intention of calling its own witnesses or seeking any additional
1 evidence and maybe it's too early to make that inquiry because you may
2 not know the answer to that until you've heard everything.
3 JUDGE BONOMY: Well, there may be a limited number of Chamber
4 witnesses and we will obviously need to deal with that in the fairly near
5 future, identifying them and determining the procedure to be followed,
6 but I would not envisage hearing them taking a significant period of
8 MR. HANNIS: No, I don't see that taking a significant period of
9 time, but it factors into our calculation of how much time we need from
10 the close of all the evidence until the written briefs are done. And now
11 we know, if there are no additional witnesses from the Court, we know
12 sort of universe of witnesses and documents from which we'll be writing.
13 But if the Court calls some witnesses, depending on who they are and what
14 they talk about, that could have some impact on that, that's reason why I
15 mention that. I don't have anything further for you other than, you
16 know, we will make our best efforts to comply with whatever time-period
17 you set upon us. I know that sounds like a long period of time, but
18 there is a lot of evidence in this case and I think for us to be helpful
19 to you we would benefit from that amount of time.
20 JUDGE BONOMY: On the other hand, we have been in court for a
21 long time, parties in presenting their case have to have in mind the
22 framework of what they're trying to establish or alternatively what
23 they're trying to undermine. And some would say that before you can
24 conduct a meaningful trial you need to know what your closing arguments
25 are. So we have indicated I think a number of times that we expected the
1 final briefs to be a work in progress as the case progressed.
2 MR. HANNIS: And on our side, Your Honour, it has been and we
3 have finished with our Prosecution phase of the case a long time ago. We
4 have been able to marshal that evidence and put it in our working closing
5 brief, but as I think I've said in the past and I know Your Honours
6 understand that evidence is a living, breathing thing, and it changes in
7 this case -- in some cases, in some instances every day.
8 JUDGE BONOMY: One other possibility of course is that you seek
10 MR. HANNIS: Your Honour, we --
11 JUDGE BONOMY: Are you able to help us on that at all?
12 MR. HANNIS: As I stand here today, I don't foresee that. I
13 mean, there are individual issues and small items, but I don't see some
14 big solid kind of thing that we feel like we need to address or that we
15 have a rebuttal case to put to you.
16 JUDGE BONOMY: All right.
17 MR. HANNIS: We don't anticipate asking for that at this point in
19 JUDGE BONOMY: All right. Thank you very much.
20 Mr. O'Sullivan.
21 MR. O'SULLIVAN: Your Honour, to just pick up on the meeting we
22 had with Mr. Dawson, another matter that arose was a suggestion on our
23 part to stagger the time of filing the briefs and have in essence -- give
24 us an opportunity to see the final Prosecution brief in an attempt to
25 stream-line the respective Defence briefs. Now, if -- I'm not sure
1 whether Mr. Hannis considers two months a substantial period or whether
2 he wants more for his substantial period, but if he can do it in less
3 than three months, we'll gladly take those extra 30 days to respond.
4 JUDGE BONOMY: It's not a practice that I think's been followed
5 in this Tribunal to stagger the submission of these final briefs on the
6 basis that the closing arguments are a suitable occasion to respond to
7 issues that you feel need to be addressed further.
8 MR. O'SULLIVAN: I believe there's precedence both ways, Your
9 Honour. In some Chambers they have, the Celebici case for example, in
10 other cases they have not. So there's room there for whatever if the
11 Chamber so choses.
12 I think that this case, and I think there's general agreement on
13 our side of the room, that this very long trial has gone very efficiently
14 because we've sat full weeks and long days. And so this trial in fact
15 has been much shorter in relative terms than the way cases are conducted
16 by other Trial Chambers. But one consequence of being in court as much
17 as we are is that we do not have as much time out of court to work on
18 submissions. I'm fully aware of your remarks that of course throughout
19 the course of the trial we have been marshalling evidence and analysing
21 I believe the Chamber should also bear in mind that the extensive
22 use of 92 ter makes analysis of any individual witness that much more
23 labour-intensive. A tremendous amount of bar table submissions are
24 coming recently and probably more will come from both Ojdanic and
25 Lazarevic and Lukic. A lot of evidence has been coming in on paper as we
1 work our way through the remainder of the live witnesses.
2 JUDGE BONOMY: Were you involved in the Celebici case,
3 Mr. O'Sullivan?
4 MR. O'SULLIVAN: Yes.
5 JUDGE BONOMY: In that case you, no doubt, sat longer days than
6 you've been sitting in this case.
7 MR. O'SULLIVAN: Well --
8 JUDGE BONOMY: Those were days when mornings and afternoons were
9 regularly used by one trial; is that correct?
10 MR. O'SULLIVAN: We also had -- it was two weeks -- it was two or
11 three weeks on and two or three weeks off also.
12 JUDGE BONOMY: While you did another case.
13 MR. O'SULLIVAN: There was one courtroom in those days and two
15 MR. ACKERMAN: Your Honour, I was there too, there was one
16 courtroom and we were sharing it with another case. So we would sit for
17 two weeks of full days and then they would sit for two weeks full days.
18 JUDGE BONOMY: How long did the evidence in the case actually --
19 THE INTERPRETER: Would you mind slowing down. Thank you.
20 JUDGE BONOMY: A year?
21 MR. O'SULLIVAN: I believe it started in March of 1997 and
22 finished in the summer of 1998.
23 JUDGE BONOMY: And it was quite a big case?
24 MR. O'SULLIVAN: Four accused, yes.
25 JUDGE BONOMY: It -- I to some extent may be sounding defensive,
1 Mr. O'Sullivan, but when you do look back this case is perhaps not quite
2 as unique as has been suggested at times in the trial.
3 MR. O'SULLIVAN: Well, if you're not sounding defensive, I don't
4 want to sound offensive, but the Celebici case was primarily a camp case
5 where -- with guards and it was not document-intensive except for one
7 JUDGE BONOMY: Yeah.
8 MR. O'SULLIVAN: And this case, of course, is quite the opposite,
9 regardless of the fact we do benefit from electronic software and
11 And I also think that so much will also depend on rebuttal,
12 rejoinder, and Court witnesses. Now, those are perhaps more obvious
13 variables at this stage based on what Mr. Hannis and what the Chamber has
14 said, but regardless there's just an enormous amount of material that all
15 the parties must digest and address, partly because of the fact the way
16 the indictment's framed we have to peruse all the evidence, every accused
17 has to.
18 Now, my colleagues may have more specific submissions in their
19 respective cases, but I think that's the gist of what we discussed among
21 JUDGE BONOMY: Thank you.
22 Mr. Hannis, do you have -- I should have asked you about the idea
23 of staggering the submission of the briefs. Do you have anything to say
24 on that?
25 MR. HANNIS: Just that we were opposed to it, Your Honour.
1 JUDGE BONOMY: Mr. Fila, do you have submissions to make?
2 MR. FILA: [Interpretation] I have arguments that I have
3 personally want to submit. When I write a 200-page submission, I would
4 like you not to force me to read what I've already submitted because this
5 is a practice that I really don't like before this Tribunal. Once you
6 receive something, then I have to argue it orally. This is something
7 that I find quite offensive, both for me and for you. If I have anything
8 to add to it because I will see Mr. Hannis's submission at a later stage
9 or somebody else's submission. So then I may have to add something, but
10 this is something that I have to admit this is where I am lazy. I would
11 like to ask you not to force me to do that. I would like to be given a
12 chance merely to respond to Mr. Hannis. This is all I have to say.
13 JUDGE BONOMY: Mr. Fila, you'll be punished by us if you
14 endeavour to read something you've already written which we can read for
15 ourselves. But the issue really is whether the final briefs are all
16 filed simultaneously or whether they should be staggered. Now, it's not
17 clear to me which version -- which idea you're supporting.
18 MR. FILA: [Interpretation] Well, I am always in favour of any
19 concepts that are detrimental to the Prosecutor, and in this case that
20 would be the 30-day dead-line, after all I am a Defence counsel and this
21 would be something that would be better for me, but I'm not sure if it
22 would be better for Mr. Hannis. But I do agree with that idea and then
23 our closing arguments could be even shorter because then the response to
24 Mr. Hannis would already be incorporated in our briefs and then you could
25 limit us to one hour for our closing arguments, that would be quite
1 sufficient. And I agree that the Prosecutor should then be given more
2 time to respond, that would be only fair.
3 JUDGE BONOMY: Thank you very much.
4 MR. FILA: [Interpretation] Thank you.
5 JUDGE BONOMY: Mr. Visnjic.
6 MR. VISNJIC: [Interpretation] Your Honour, I would like to add
7 something very briefly, follow-up to what Mr. O'Sullivan has said. The
8 way we understand the procedure so far, and unlike other cases before
9 this Tribunal, we've been trying to cut short the trial time in
10 courtroom. That is why so many of us have submitted so many bar table
11 motions for admission of evidence from the bar table, that's one thing;
12 and on the other hand it's been stressed so many times during this trial
13 that some things will be explained at a later stage in our submissions,
14 that we will be given an opportunity to explain some things through some
15 documents and briefs. And if you go back to the transcript, if you do a
16 search you will see that this is something that's been repeated quite
17 often. And at the end we face a situation where we see the light at the
18 end of the tunnel. We can now see the end to our time in the courtroom,
19 but we really don't have enough time or either we're asking to be given
20 enough time to analyse all those things that happened outside the
21 courtroom in this case. And this is really the biggest difference
22 between this case and the other cases before this Tribunal.
23 So far in all the cases including the ancient cases such as
24 Celebici and so on, most of the evidence was admitted in the courtroom;
25 and this new rule really made it impossible for us to get the full
1 picture of what has been admitted from the bar table on the part of the
2 other Defence teams and sometimes on the part of the Prosecution because
3 they had some quite substantial submissions of this kind. So this is the
4 main reason why we asked to be given more time, to be able to deal with
5 all that, to process all that. Unfortunately, given the pace of our
6 trial, we have been given very little time to deal with that. So this is
7 the time that we, at least I'm speaking for myself and for my Defence
8 team, we're asking to be given enough time to analyse the documents that
9 were admitted in this manner.
10 JUDGE BONOMY: Thank you, Mr. Visnjic.
11 Mr. Ackerman.
12 MR. ACKERMAN: Your Honour, I suppose I have two matters I want
13 to touch at least a little bit on. I've been here for over ten years now
14 and I've seen a lot of cases go by here, and I think, Your Honour, you
15 have accomplished something in this case that has never happened in this
16 Tribunal before, and that is you have managed to take an extraordinarily
17 complicated case and compress it into a pretty small bit of time. And I
18 say that by referring to the longer days that we've spent in trial week
19 after week, to the extensive use of 92 ter which has never been used to
20 that extent before that I know of in a case, and the extremely extensive
21 use of bar table admissions. And that's resulted in a -- in a body of
22 evidence that if someone were to analyse it I think would find that on a
23 per-day basis it just vastly exceeds anything that's ever happened in
24 this Tribunal before. That has -- that has I think worked to the
25 definite advantage of this Tribunal in terms of moving this case fairly
1 rapidly through the process.
2 We now get to a point where we need to try to present to you the
3 best that we can do with regard to what this all means, all this evidence
4 that's been going on and coming on in various ways. There are documents
5 that are part of the evidence in this case that I know some of us haven't
6 seen yet, documents coming from the bar table just recently and that will
7 come from the bar table at the end of the Lukic case. We have no idea
8 what those will be or whether once that happens there might be some need
9 to deal with those in some way. We don't know that. In any event, the
10 body of evidence that needs to be dealt with here is significant, and I
11 wouldn't suggest for a moment that we haven't been working quite hard on
12 trying to marshal that together and make some sense of it and start
13 putting together a brief. You've seen me not being here very much and
14 that's because that's what I've been doing. But in the process of trying
15 to do that one keeps getting distracted by things that are going on here
16 everyday, motions that are filed that you need to respond to, requests
17 from the Court that you need to respond to, bar table things that are
18 filed that you try to figure out and read. It's very hard spending your
19 day sitting in the office working on the final brief when the trial is
20 going on and things are happening that are distracting you away from
21 that. And to do any kind of a decent job of assisting Your Honours with
22 a final brief, it needs to be done at a time when you are not distracted
23 by other matters that are going on, when you can actually sit down and
24 think about it and put some brain power into it.
25 With regard to when briefs are filed, it seems to me logic would
1 suggest this. The burden of proof in this case is on the Prosecution, so
2 they should file their brief taking their best shot based on the evidence
3 there is; and we should then, because we do not have a burden, we should
4 then have an opportunity to respond to that brief and present our best
5 case. That way you'll get the most efficient brief from the Defence. It
6 will not then be briefs that are trying to anticipate where the
7 Prosecution might be going to go, but briefs that are directed to the
8 issues that the Prosecution believes are worthy of briefing to you. It
9 might be in fairness to the Prosecution then that upon the filing of the
10 Defence briefs that they have a short period of time to reply to those
11 because they would be replying to the Defence positions that are not
12 necessarily replies to the Prosecution position. And in the view of the
13 law requiring the Prosecution to prove the case beyond a reasonable
14 doubt, that seems to be a very logical way to do it, and I would strongly
15 recommend that it be done that way. There is no precedent in this
16 Tribunal that would send you in either direction; you're free to choose
17 what you think is the most logical and best way to do that. And I'm
18 suggesting to you that I think what I just suggested may very well be it.
19 I know that it sounds at first blush rather excessive to say we
20 need three months to do this, but when you look at the enormous body of
21 evidence there is here to deal with, I don't think it is. I think it's
22 reasonable, I think it's very reasonable, especially when you consider
23 that we don't have the kind of a staff that -- one of the biggest cases
24 ever tried in the United States was the IBM case, for instance, there
25 were 25 lawyers I believe who worked on that case. We don't have that
1 kind of luxury here. We have to deal with very small staffs and we try
2 to deal with this huge body of evidence with nowhere near as many people
3 as a normal case would have working on it.
4 I can also understand why Mr. Hannis would think two months would
5 be sufficient because, as you know, they do have more people than we
6 have. They have a larger staff to work on things, they have people that
7 are out working on this case every day, and Mr. Hannis will agree with
8 that. I know that they feel like they don't have enough people, but you
9 just look at the number of lawyers that troop in here representing the
10 Prosecution, there's a lot more than we have.
11 I know you're looking at him like you're going to respond to
12 this, aren't you Mr. Hannis.
13 But it's true, Judge, it's absolutely true. They do have more
14 people. We just don't have that kind of a staff.
15 So I think our requests are reasonable, I think they should be
16 granted, and I think you'll be pleased with the quality of work you'll
17 get if you do give us the time to do the job that we're all capable of
18 doing if we have the time to do it, and I think our clients would be
19 happy if we were given the chance to represent them to the best of our
20 abilities. I think that would be helpful. Thank you.
21 JUDGE BONOMY: In case it's of any interest to anyone, I have
22 been given the information that in Celebici the Defence briefs -- well,
23 at least three of them were filed three days after the Prosecution brief
24 and one a bit later, another three days later. I don't know if there is
25 any other precedent, other than for simultaneous filing.
1 However, it's an interesting proposition that we will have regard
3 Now, Mr. Bakrac, do you want to add anything?
4 MR. BAKRAC: [Interpretation] Your Honour, I agree with everything
5 that the previous speakers said, but since you're asking me now what
6 option would be chosen by the Lazarevic Defence team, I think that
7 Mr. O'Sullivan's proposal to have 30 days in addition for our own filings
8 after the Prosecutor is a reasonable one. If we file our briefs at the
9 same time, simultaneously, we will have to have a certain number of days
10 and enough time to prepare responses in terms of our closing arguments.
11 At any rate, we will have to have time to respond to the Prosecutor's
12 final brief. That is what I wish to say in relation to that matter.
13 On behalf of General Lazarevic's Defence, I would like to note to
14 the Trial Chamber that we have just finished presenting our own defence
15 and now we are dealing with General Lukic's defence. You know that the
16 fifth defence and General Lazarevic's defence has to follow actively the
17 sixth defence's evidence, so we don't really have time now to deal
18 seriously with the writing of our final brief. Bearing in mind the fact
19 that the last three defences joined this case at a later date, our
20 problem is simply compounded by that.
21 I don't really want to repeat anything I have said, but I have
22 already said that experience has always taught me that it's invariably
23 better if you set my time rather than I speak myself. I would give
24 myself three months' time in this particular case. Thank you, Your
1 JUDGE BONOMY: Thank you, Mr. Bakrac.
2 Mr. Ivetic.
3 MR. IVETIC: Thank you, Your Honours. I'll be brief. I think
4 everyone has said a lot and I think, although I wasn't present at the
5 hearing with Mr. Dawson, I understand it was very productive and a lot of
6 issues were raised forth.
7 The only thing I would like to stress with respect to the Lukic
8 Defence team is that essentially we're going to be going full speed until
9 the end of the case. So -- whereas other people could perhaps get -- the
10 notions someone can get an early start on some of the briefs, we really
11 will need every break and planned pause we have to complete preparations
12 for our Defence case, especially the upcoming break to again finalise
13 some of our non-domestic witnesses from Germany, America, Canada, Spain,
14 et cetera. So really in essence it's -- when we say two or three months,
15 and I think we -- with the Defence is all clear on three months, we
16 envision that time as being from whenever the last witness is completed,
17 be that a 6D witness, a Trial Chamber witness, or be an eventual rebuttal
18 witness. That we believe that that time-period is the logical and
19 reasonable one that I think we need to get the proper job done and to get
20 the proper defence for our clients and to make a proper record.
21 Apart from that we're always at the convenience of the
22 Trial Chamber, and if there's any other submissions or other information
23 that the Trial Chamber thinks following this hearing, as we have in the
24 past we will always try to respond with specifics or if need be written
25 or oral submissions in that regard. But such -- as I said, we're in the
1 unique position that we have to kind of keep going at a heavy pace
2 throughout the rest of this circuit.
3 One thing that we're going to be trying to do to try and not wait
4 until the last minute is I intend to file multiple bar table motions,
5 perhaps sometimes with five or six documents or ten documents depending
6 on what I have translated at any given point in time. I'm not going
7 to -- I've trying to avoid mega bar table motions filed at the last -- at
8 the 11th hour. So I hope that will help everyone in terms of the work
9 that does need to get done from here to the end of this journey. Thank
11 JUDGE BONOMY: In your case, Mr. Ivetic, we do have a rather
12 longer agenda I think. You've dealt to some extent with the question of
13 bar table motion. We need some sort of sign of activity on that front or
14 alternatively we will require ourselves to make an order in everyone's
15 interests to get this dealt with.
16 MR. IVETIC: Agreed. I expect to get -- we -- we should have
17 some of the shorter bar table motions in the near future, in a matter of
18 a week or two I think. We did have of course some motions to amend the
19 65 ter list that I -- that need to be before we can match the estimates
20 they admitted via the bar table. So...
21 JUDGE BONOMY: You also have to have a clear idea in your mind of
22 the length of your case. A report on the use of time has just been
24 MR. IVETIC: Last Friday I think, yeah.
25 JUDGE BONOMY: No yesterday I think, which indicates that you're
1 more than halfway through the allocation of hours when we made the order.
2 Now, as presently advised, that would suggest that your case will be over
3 in the middle of April. I'm not sure -- this bears an uncanny
4 resemblance to what happened with Mr. Lazarevic's case. I'm not sure
5 that you've really worked out how you're going to deal with that
7 MR. IVETIC: Like I said, we have a lot of other issues that are
8 ongoing in our -- in the midst of our preparation of our case, including
9 preparing 92 ters for some witnesses, cutting down the scope of other
10 witnesses, and trying to do bar table motions and not necessarily go
11 through every document with every witness.
12 JUDGE BONOMY: Possibly number one on your list has to be how
13 you're going to make use of your in-court time. The debate so far has
14 largely been about out-of-court time. But if I can give you an example
15 of the problem -- one of the problems we see here, Mr. Lazarevic in his
16 evidence was 20 hours in chief. You have an estimate of ten hours for
17 Mr. Lukic, you haven't got him on your latest list of witnesses for March
18 and April, but you indicated to us last week that you hadn't made a
19 decision about calling him. Now, are you any further forward on that?
20 MR. IVETIC: Not on that, Your Honour. What we have been doing,
21 hopefully and it's been obvious, is trying to present at the beginning of
22 the case what we view as critical witnesses on various topics so that as
23 we get down to some of the other witnesses that had a similar position,
24 you know, the border crossing at Djeneral Jankovic or something, they
25 will not be as extensive as the first witness on the border crossings
1 issue. But we felt that we needed to cover some basic ideas about the
2 operation and functioning, particularly because there has been so much
3 confusion even back in the day, in 1998 and 1999, about how exactly the
4 MUP operated, as I think has been apparent from some of the testimony and
5 some of the military documents, et cetera.
6 JUDGE BONOMY: I'm looking at something a bit more fundamental
7 than that at the moment. It may be that we would require to ensure that
8 if Mr. Lukic is giving evidence he begins that evidence with at least 25
9 hours of your time remaining; and if that's the case, he'll be giving
10 evidence not next week but the following week.
11 MR. IVETIC: [Microphone not activated]
12 JUDGE BONOMY: Are you -- have you got that clearly in your mind
13 that that is the situation you may be facing?
14 MR. IVETIC: Yes, Your Honour. There's a lot of things clear on
15 our mind and a lot of things on our palette.
16 JUDGE BONOMY: As long as we know that you're aware of the
17 situation. And therefore, you will have to indicate fairly soon whether
18 or not he is going to give evidence. That is something you have to make
19 a decision about.
20 There are also certain points that I hope you can clarify about
21 your latest witness notification, that's the one covering the period of
22 two months; and if you can't answer today then the answer can be sent to
23 us tomorrow. You have named on your latest list a witness Radovan
24 Zlatkovic. He does not appear on your Rule 65 ter list, but your Rule 65
25 ter list includes two Radovan Zdravkovics. Now, we would like to know
1 whether one of them is, in fact, Radovan Zlatkovic; and if so, which one.
2 And secondly, you have listed as Zoran Amplic, is it Alimpic?
3 MR. IVETIC: Alimpic, Your Honour.
4 JUDGE BONOMY: All right.
5 MR. IVETIC: And I think I can address the first one. The
6 gentleman that is -- that is on our notification is Zlatkovic, the
7 name -- probably I think both of them had similar positions in Djakovica
8 so there's always a little confusion with similar names, similar
9 positions, but I'm working off the top of my head on that, but I do know
10 that Zlatkovic is the one that made it on this most current list.
11 JUDGE BONOMY: But we need to know which of the wrongly designed
12 Zdravkovics he is so that we can see what his evidence is going to be
13 about and how he fits into the case.
14 MR. IVETIC: Radovan's not -- oh, I see what you mean.
15 JUDGE BONOMY: He's got to relate to the information.
16 MR. IVETIC: Supplement the 65 ter list.
17 JUDGE BONOMY: And since there's two with the same name on the
18 existing list, we don't know which is which.
19 MR. IVETIC: Correct, we will have to do a supplement for the 65
20 ter with leave of Your Honours of course.
21 JUDGE BONOMY: But that should be clarified tomorrow if it can't
22 be done just now.
23 You also have a witness Pantic, Momir Pantic on your latest
24 list -- sorry, in your 65 ter list, but on your list of witnesses for the
25 next two months Pantovic, are they the same person?
1 MR. IVETIC: It's my understanding that's the same person since
2 I'm not aware of a Pantovic on our 65 ter list nor on our supplement, and
3 while I'm on my feet about the supplement I don't know if it was
4 communicated but there has been that outstanding issue about the PJP
5 commanders that we just recently got information about. I believe it's
6 been communicated that we will be dropping all but I think one or two of
8 JUDGE BONOMY: Well, you've made it clear that you're dropping a
9 number, that you're leading one, and that leaves one unclear and you
10 should have received an inquiry about that one.
11 MR. IVETIC: We have, as I said, one or two, and we will react to
13 JUDGE BONOMY: And there is another outstanding issue in relation
14 to your recent notification, but I don't think I need to trouble you with
15 it because these things are hopefully going to become clearer within the
16 next three weeks.
17 And that leaves just one other thing that I have noted,
18 Mr. Ivetic, but I just want to be clear at this moment that I'm not
19 misunderstanding anything about your position. You made a motion on the
20 11th of February objecting to the trial sitting schedule and asking us to
21 amend it, and a decision on that was issued on the 20th of February. And
22 in that decision on the 20th of February we drew attention to a remark
23 that had been made in the motion itself, which depending perhaps on how
24 you interpret it, others might say perhaps not, might have constituted a
25 comment that wasn't exactly appropriate. And we did indicate that you
1 ought to consider whether that comment should be withdrawn or remain.
2 Now, there's been no response from you to that. Do we take it
3 from that that you have made a deliberate decision to take no action?
4 MR. IVETIC: I know that Branko Lukic and I talked about this,
5 and quite honestly, Your Honours, in every motion that we file we
6 carefully think out everything that we say and that particular passage
7 was meant to highlight the very strong feelings that we had and the
8 strong desire to ensure that these proceedings stay within the bounds of
9 justice. And it was not meant as a -- as a criticism or as a -- as an
11 Given that regard, we have to stand up for the rights of our
12 accused, and I think the particular section I believe cited to the
13 Statute and the Rules and several principles that apply to at least
14 several national jurisdictions that I am familiar with. So in all fair
15 conscience I believe professionally I cannot withdraw that comment.
16 JUDGE BONOMY: And for the avoidance of doubt the comment was:
17 "Surely the trial proceedings themselves are of more substantial value
18 than simply being a mere legal formality to be endured before a judgement
19 is rendered particularly" --
20 MR. IVETIC: Along with one other section I believe, if I'm -- if
21 I'm remembering correctly, there was a citation to Article 12 in the
22 Celebici trial not being against the -- it's being called up. That is
23 the -- that is -- that is the section and it does cite to Article 12 I
24 believe of the -- in particularly in light of the requirement of the
25 presumption of innocence. [Microphone not activated]
1 THE INTERPRETER: Microphone, please.
2 MR. IVETIC: -- as complaint about the Trial Chamber. You know,
3 sometimes things get interpreted differently in the heat of the moment,
4 and if I was taken that way I apologise for that misconstruction or
6 [Trial Chamber confers]
7 JUDGE BONOMY: Well, we take note of all that's been said on the
8 various matters raised with us. As indicated last week, we are not in a
9 position to take definite decisions without consulting with Judge
10 Kamenova in the light of her review of the record of this hearing.
11 [Trial Chamber confers]
12 JUDGE BONOMY: What we anticipate is issuing an order next week
13 once we've had that consultation and setting out a timetable and dealing
14 with any other issues that need to be dealt with at that stage for the
15 purpose of ensuring that we deal with the remaining stages of the trial
16 as fairly and efficiently as I hope we've been able to deal with the
17 trial so far.
18 Tomorrow we are here at 9.00, and that session is until 1.45. So
19 we now adjourn until tomorrow at 9.00.
20 --- Whereupon the hearing adjourned at 4.47 p.m.,
21 to be reconvened on Wednesday, the 5th day of
22 March, 2008, at 9.00 a.m.