1 Wednesday, 9 September 2015
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.32 a.m.
5 JUDGE ORIE: Good morning to everyone in and around this
7 Madam Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. This is case
9 IT-09-92-T, The Prosecutor versus Ratko Mladic.
10 JUDGE ORIE: Thank you, Madam Registrar.
11 No preliminaries were announced. Oh, there was. Oh, I
13 Mr. Ivetic.
14 MR. IVETIC: Your Honours, we'll need to go into private session
16 JUDGE ORIE: We need -- we go into private session.
17 [Private session]
11 Page 38856 redacted. Private session.
6 [Open session]
7 THE REGISTRAR: We're in open session, Your Honours.
8 JUDGE ORIE: Thank you, Madam Registrar.
9 Is the Defence ready to call its next witness?
10 MR. HASAN: Yes, Your Honours.
11 JUDGE ORIE: Yes, Ms. Hasan.
12 MS. HASAN: Good morning, Your Honours.
13 Just before the witness comes in, we had received the 65 ter
14 summary for this witness which had very simply provided that this former
15 OTP investigator, Mr. Bruce Bursik, would be testifying about statements
16 of Momir Nikolic, how they were created and who provided what during the
17 interview process. Yesterday at ten to 4.00, we received a proofing note
18 which the Chamber, I believe, was copied on and which provided us with
19 one small issue that would be covered during the testimony but really not
20 that much more.
21 I spoke to Mr. Lukic just this morning, and he did provide me
22 with further details about what topics would be covered with Mr. Bursik
23 today. And we are prepared to proceed on the basis of what Mr. Lukic has
24 told me this morning, but we will do so carefully and I'll just have to
25 assess where we're at the conclusion of the direct examination.
1 JUDGE ORIE: Yes, that's a -- that's a caveat for --
2 MR. LUKIC: If --
3 JUDGE ORIE: Yes, Mr. Lukic.
4 MR. LUKIC: If I can just respond briefly, Your Honours.
5 There is nothing unknown to the Prosecution that it was their
6 investigation -- investigator, those are their documents, and we saw
7 Mr. Bursik for the first time yesterday. So as soon as we were able to
8 provide the Prosecution with anything --
9 JUDGE ORIE: Let me stop you there. The only thing Ms. Hasan
10 says is that if we're taken by surprise, but we do not know yet, we'll
11 assess that at the end of the examination-in-chief, we reserve our
12 position as how to proceed. That's what she says.
13 Now, there's a fair chance that after the examination-in-chief
14 she says there's nothing, let's just proceed. So, therefore, why start a
15 battle on matters where there may be no need for a battle? At the same
16 time, Mr. Lukic, to say that if it's an OTP investigator you would know
17 everything. That, of course, may be true; may not be true. It depends
18 on what you're talking about. The Chamber doesn't know. Let's wait and
19 see. I do understand that you say we are not taking the OTP in any way
20 by surprise. Let's wait and see where we are at the end of the
22 MR. LUKIC: Thank you, Your Honour.
23 JUDGE ORIE: Then are you ready to call Mr. Bursik?
24 MR. LUKIC: Yes, we are, Your Honour.
25 JUDGE ORIE: Yes. Then could the witness be escorted in the
2 [The witness entered court]
3 JUDGE ORIE: Good morning, Mr. Bursik, I presume.
4 THE WITNESS: Good morning, Your Honour.
5 JUDGE ORIE: Before you give evidence, the Rules require that you
6 make a solemn declaration. May I invite you to make that declaration, of
7 which the text is now handed out to you.
8 THE WITNESS: Certainly. I solemnly declare that I will speak
9 the truth, the whole truth, and nothing but the truth.
10 WITNESS: BRUCE BURSIK
11 JUDGE ORIE: Thank you, Mr. Bursik. Please be seated.
12 THE WITNESS: Thank you.
13 JUDGE ORIE: Mr. Bursik, you'll first be examined by Mr. Lukic.
14 You'll find Mr. Lukic to your left, almost standing. Now standing.
15 Mr. Lukic is counsel for Mr. Mladic.
16 Please proceed.
17 MR. LUKIC: Thank you, Your Honour.
18 Examination by Mr. Lukic:
19 Q. Good morning, Mr. Bursik.
20 A. Morning, Mr. Lukic.
21 Q. Can you please tell us your first and last name and then check if
22 it's correctly spelled.
23 A. My name is Bruce Bursik. It's correctly spelt.
24 Q. Thank you. Can you tell us your date of birth, please.
25 A. My date of birth is the 3rd of August, 1969.
1 Q. I will make pauses after your answers so we give the opportunity
2 to the translators to translate to other languages.
3 Can you tell us when did you join the OTP office at this
4 Tribunal, please.
5 A. I joined the OTP on the 1st of September, 1999.
6 Q. And when did you stop working for the OTP?
7 A. I stopped working in March 2006.
8 Q. Can you tell us roughly how many suspects did you interview
9 working for the OTP of this Tribunal.
10 A. Your Honour, I can't recall exactly -- the exact amount but it
11 would be in excess of 20 suspect interviews that we had, not necessarily
12 every one of them being persons that were indicted but treated as
14 Q. With so much experience, do you think you have a good feel for
15 the truthfulness of the witness?
16 A. Yes, I do.
17 Q. And does your role as an investigator involve judging the
18 truthfulness of the statement told to you?
19 A. My role as an investigator is to uncover the truth and part of
20 that process is to try and establish whether a witness is telling the
21 truth or not, yes.
22 Q. What was your perception of the demeanour of Momir Nikolic during
23 your interview or your interviews with him?
24 A. In the beginning stages of our interviews, bearing in mind we had
25 many interviews with him, I found him to be quite evasive, and then it
1 reached a point where he started to give us more information, which
2 seemed to be in line with what we believed happened.
3 Q. So, at the end, you believed what he said, or most part of it
4 what he said. How would you define it?
5 A. By the end of the -- my involvement with Mr. Nikolic, I believe
6 that most of what he had told us was the truth. However, I didn't
7 believe in entirety that he had told us everything.
8 Q. Is it -- do you know that he amended a lot of things he put in
9 writing even, that he amended later?
10 A. Yes, I am aware of that.
11 Q. Having a person like Mr. Momir Nikolic, why would we believe what
12 he said if he is, as you said, an evasive person?
13 A. Sorry, could you just rephrase that. I don't understand the
15 Q. Yes. You confirmed that he was evasive.
16 A. That's correct.
17 Q. Why would we trust what he said, this Court, if even you
18 characterised him as evasive?
19 A. Well, I'll leave that up to the Court to decide whether to
20 believe that. As I said, my job was just to uncover the truth. So where
21 he was being evasive, we would challenge him on that and try to get to
22 the truth.
23 Q. Thank you. And I'm sorry that I bugged you with something that
24 you don't deem necessary fit to answer.
25 JUDGE ORIE: Well, I think the question was unfit and therefore,
1 apparently, the witness better understood that than you did.
2 Please proceed.
3 MR. LUKIC: So I don't understand my questions. That's not good,
4 I think. I think I do but I'll move on.
5 Q. Mr. Bursik, you acted based on some rules, is that correct, as an
6 investigator for the OTP?
7 A. That's correct.
8 Q. Were you aware of the existence of the Rules of Procedure and
10 A. Yes, I was.
11 Q. I would just read the entry portion of Rule 43, and I'll ask you
12 something about that.
13 So Rule 43, "Recording Questioning of Suspects," this rule was
14 adopted in 1994. I quote:
15 "Whenever the Prosecutor questions a suspect, the questioning
16 shall be audio-recorded or video-recorded in accordance with the
17 following procedure," and there is all set of rules.
18 My question to you: Were you aware at that time that Rule 43
20 A. Yes, I was.
21 Q. Did you understand its requirements?
22 A. Yes, I did.
23 JUDGE MOLOTO: Can I just ask a question.
24 Sir, were you an investigator or were you a Prosecutor?
25 THE WITNESS: An investigator, Your Honour.
1 JUDGE MOLOTO: Thank you.
2 MR. LUKIC: Can we have D301 on our screens, please.
3 Q. Mr. Bursik, are you familiar with this statement of facts and
4 acceptance of responsibility?
5 A. Yes, I am.
6 Q. Just to be fair to you, can we see the last page of this
7 document, please. As we can see, it's signed on the 6th of May, 2003,
8 signed by Momir Nikolic. At the end, Momir Nikolic made corrections to
9 paragraphs 10, then 9 and 10, and it says --
10 JUDGE MOLOTO: Could we see the paragraphs, please.
11 MR. LUKIC: It's on the bottom of the page, Your Honour. I will
12 go back to the paragraphs. It says:
13 "In relation to the amended rejoinder indictment, Annex A, Momir
14 Nikolic and the Office of the Prosecutor, I would like to make the
15 following corrections," and it says, "paragraph 10, paragraphs 9 and 10,"
16 and it says, "paragraphs 11 and 45." Although there was only, I think,
17 15 paragraphs in that statement. And it says, "paragraph 46.6."
18 First, I will ask you about this document. To your best
19 knowledge, did Momir Nikolic correct his statement of facts at the end as
20 we can see from this document; and did he personally provide corrections?
21 A. Your Honour, I can't -- I know he did make amendments, but I was
22 not present during those amendments. But I did have access to the
23 documents afterwards and then learned that he had made amendments.
24 Q. Do you know who decided what should be corrected? Momir Nikolic
25 or somebody else?
1 A. Again, I can't say whether it was himself or someone else, but I
2 believe that the statement of facts was read over to him according to
3 normal procedure with his Defence counsel at the time. So I presume the
4 amendment would have been made by himself through his counsel.
5 Q. Thank you.
6 MR. LUKIC: Can we have in this document page 4 in both versions.
7 We need paragraph 9, as we can see on our screens. We need paragraph 5
8 of this number 9, which starts with "I was at Konjevic Polje," and I will
9 read this paragraph.
10 "I was at Konjevic Polje for approximately 45 minutes before
11 General Mladic arrived. His car arrived from the direction of Bratunac
12 and stopped at the intersection at Konjevic Polje. He got out of his
13 vehicle and we met in the middle of the road. I reported to him that
14 there were no problems. He looked around and saw ... prisoners. Some of
15 the prisoners asked him what would happen, to which he responded that
16 they would all be transported away and they should not worry."
17 Then, as we can see in the same paragraph, he talks about
18 something that happened after General Mladic left.
19 JUDGE FLUEGGE: One little mistake while reading, Mr. Lukic. The
20 sentence "he looked around and saw the prisoners," you left out the term
22 MR. LUKIC: Thank you.
23 JUDGE FLUEGGE: Not just "prisoners," but "the prisoners."
24 MR. LUKIC: Thank you, Your Honour.
25 Can we go back to the last page.
1 Q. We can see that he corrected paragraph 9 and in these
2 corrections, we do not need -- see any corrections in relation to General
4 So do you have any knowledge that somebody prevented Momir
5 Nikolic from correcting part of his statement of facts and acceptance of
7 A. I have no knowledge about anyone preventing him from making any
8 corrections at all.
9 Q. Thank you.
10 MR. LUKIC: Can we see D300 on our screens, please.
11 Q. And while we are waiting, Mr. Bursik, for this document, I just
12 want to -- we had some discussion this morning so I want to clarify
14 Did the Defence provide you with a binder of documents?
15 A. Yes. On my arrival in The Hague, I was provided with a binder of
16 these documents, yes.
17 Q. When was it?
18 A. I arrived late evening on the 7th of September.
19 Q. Did the Defence provide you with the specific portions of those
20 documents that we were discussing in this court?
21 A. Yes. And certain documents, certain sections were, I would say,
22 highlighted by way of a covering letter.
23 Q. Thank you. In front of us, we have a statement, and in brackets,
24 it says "Supplementary Statement." On the left-hand side, it says,
25 "Momir Nikolic, prison, Finland."
1 Did you have a chance to check how many paragraphs from the
2 original statement of facts and acceptance of responsibility Mr. Nikolic
3 corrected in this supplementary statement?
4 A. Your Honour, I did read through the document, but I didn't count
5 the number of corrections that he had made. But there were quite a few.
6 JUDGE ORIE: Before we continue, Mr. Lukic, is there any -- oh,
7 let me just check.
8 MR. LUKIC: We counted. He corrected 12 out of 15.
9 JUDGE ORIE: Yes. But I was just looking at the previous
10 document. That was a document which is from 2003. And what I see is
11 that the English translation of this document does not include the
12 header --
13 MR. LUKIC: Yes --
14 JUDGE ORIE: -- the facsimile header.
15 MR. LUKIC: Can we see the last page, please. We can see on the
16 last page that the corrections were made on the 16th of April, 2009.
17 JUDGE ORIE: Yes, I see that. So we have now a better time-frame
18 for both the documents.
19 Please proceed.
20 MR. LUKIC: Thank you, Your Honour.
21 Can we have page 3 in English and page 6 in B/C/S version,
23 Q. At the bottom of the page in English version and top part of the
24 B/C/S version, we see that Mr. Nikolic was discussing paragraph 9 on the
25 statement and he would quote even sentences he was correcting from the
1 previous document, and we have it under quotations marks. For example,
2 we have under quotation marks: "I directed the work of the forces
3 present in Potocari."
4 And it's the last sentence from the first paragraph of
5 paragraph 9 from his original statement. And then he would give the
7 Would you agree -- actually, did Mr. Nikolic, Momir Nikolic, in
8 his supplemental statement, correct his part in regard of General Mladic
9 or anywhere else in this document? Did you have a chance to check?
10 A. I did not notice that he made any corrections with regard to
11 General Mladic, no.
12 Q. So this was before -- this was after his testimony in Blagojevic
13 trial. And before he testified in Blagojevic, he gave a statement to
14 Mr. Ruez.
15 MR. LUKIC: So I will kindly ask to have 65 ter 25934 on our
16 screens, please. This is the interview Momir Nikolic gave to Mr. Ruez on
17 the 15th of December, 1999. And we need page 59, please. I cannot give
18 you the correct page in B/C/S. I didn't work with B/C/S, but it's line
19 24 in English version, and it says -- it was recorded that Momir Nikolic
20 said, I quote: "I saw Mladic on one occasion, I think it was one day
21 after the fall of Srebrenica, and it was when he was supposed to
22 negotiate with General Karremans. After that, I haven't seen him."
23 Q. My question to you, Mr. Bursik, is during your conversations,
24 have you confronted Momir Nikolic with this statement of his?
25 A. I never directly confronted him with this previous statement
1 about Mladic. The information that he gave about Mladic during my
2 interview he gave voluntarily, so I didn't -- it wasn't as a result of a
4 Q. Thank you.
5 MR. LUKIC: Can we go back now to D300, please. It is
6 supplementary statement to his -- to Momir Nikolic's statement of facts
7 and acceptance of responsibility from 16th of April, 2009, and we'll need
8 page 5 in English and page 7 in B/C/S. So we'll see the part that
9 explains paragraph 12 from the statement of facts.
10 Q. In this document written by his hand --
11 MR. LUKIC: We need page 5 in English, please.
12 [Trial Chamber and Registrar confer]
13 JUDGE ORIE: Madam Registrar informs me that we have only four
14 pages in English, and that is what I see on e-court as well, Mr. Lukic.
15 JUDGE FLUEGGE: I think it --
16 JUDGE ORIE: It refers to paragraphs --
17 MR. LUKIC: My mistake. I stand corrected, Your Honours. It's
18 page 4.
19 JUDGE ORIE: Page 4, yes.
20 MR. LUKIC:
21 Q. So in the second part of the page we see paragraph 12 discussed.
22 And it says, I quote:
23 "From 14th of July through October 1995, Bratunac Brigade forces,
24 working with the MUP and the other VRS forces, continued to capture and
25 execute Muslim prisoners attempting to escape from the Srebrenica and
1 Zepa areas."
2 And then he says, I quote:
3 "Forces of the Bratunac Brigade took part in searching the
4 terrain independently and, as far as I know, on one occasion together
5 with MUP forces. I myself did not take part in these activities and I do
6 not know what happened in the field, but all those captured by the
7 Bratunac Brigade and brought to the brigade building [sic] were not
8 killed, but were transferred by order of the Drina Corps Command to
9 prison institutions in Batkovici, Vlasenica and Knezina."
10 JUDGE ORIE: Before you finish your question, where you earlier
11 left out reading the word "the," now you included the word "the" in your
12 first quote. "The other VRS forces" where it says -- no, let me see, "on
13 one occasion together with MUP forces" and not "the MUP forces."
14 MR. LUKIC: Obviously, I play with articles too much.
15 JUDGE ORIE: Yes, yes, that's -- but please proceed.
16 MR. LUKIC: Thank you.
17 Q. Mr. Bursik, have you ever checked this part of Momir Nikolic's
18 statement, and if you know when, can you tell us when?
19 A. Sorry, I didn't understand your question. Which statement was I
20 supposed to have checked?
21 Q. Actually, have you ever had this kind of information received
22 from Momir Nikolic by the time you were with the OTP?
23 A. To be honest, Your Honour, I can't recall the specific
24 information. It may have come up in some form of context but I can't
25 independently recall this information.
1 Q. Okay. Fair enough. Thank you. My question is maybe too
3 JUDGE ORIE: Mr. Lukic, where I earlier corrected you, it was not
4 about "the MUP forces" but about "other VRS forces," and not "the other
5 VRS forces." So I made a small mistake there.
6 MR. LUKIC: Okay.
7 JUDGE ORIE: Please proceed.
8 MR. LUKIC: Thank you.
9 Can we have 1D1005 on our screens, please.
10 Q. This is your information report, Mr. Bursik, as it says, composed
11 on 23rd of June, 2003.
12 At this moment, I will ask you about one fact from page 4 of
13 English version, and it's -- it's actually the second-last paragraph on
14 page 4, English version, and we need page 5 in B/C/S version. It's the
15 first paragraph. The second-last paragraph says:
16 "Nikolic estimates that there were about 120 opportunistic
17 killings in Bratunac during this period and estimates the total amount of
18 prisoners [sic] killed in the Bratunac area during that time is 2500 to
20 Did you have the opportunity to check and do you believe it to be
21 true today that in Bratunac area up to 3500 Muslim prisoners were killed?
22 A. At that time, I never corroborated that evidence.
23 And to the second part of your question, I believe this number to
24 be a little bit exaggerated if you take into context what information we
25 had at the time.
1 Q. Thank you.
2 MR. LUKIC: I will move now to P1503.
3 Q. Mr. Bursik, in front of us is declaration of Momir Nikolic from
4 6th of May, 2003. Are you familiar with this document?
5 A. Yes, I am.
6 Q. In this document, Momir Nikolic admitted that he previously lied
7 to the Prosecution. Did you have any role in composing or -- this
8 document or questioning Mr. Nikolic?
9 A. No, I neither compiled this document nor confronted Nikolic on
11 Q. In this document, he stated, I quote:
12 "I made the false statements because I wrongly and
13 inappropriately believed at the time that they would assist me in
14 obtaining a plea agreement."
15 Does this fit into your understanding of the personality of
16 Mr. Nikolic?
17 A. Yes, it does.
18 MR. LUKIC: Let us go back to 1D1005, please.
19 Q. We saw this document a few moments ago, and we will stay with it
20 for a while now. This is your document?
21 A. Yes.
22 MR. LUKIC: We need page 8 in English for now, paragraph 7, and
23 page 8, paragraph 7, in B/C/S as well. It's the second-last paragraph on
24 this page.
25 Q. And it reads, I quote:
1 "Nikolic states that he was at the Kravica warehouse on the 13th
2 of July (later retracted this) and ordered the execution there."
3 Can you tell us --
4 MR. LUKIC: We have to go to page 1. Please, to go back to
5 page 1.
6 Q. Is this date on this document - 23rd of June, 2003 - correct or
7 not? Is this document composed on this date or not?
8 A. I believe it to be correct, yes.
9 Q. In the first paragraph, under word or words "Information,"
10 entered twice, it was entered the following, and I quote:
11 "On the 28th, 29th and 30th of May 2003, I together with Senior
12 Trial Attorney, Peter McCloskey, interviewed Momir Nikolic in the United
13 Nations Detention Facility in The Hague."
14 Are those dates correctly entered in this document?
15 A. Your Honour, unfortunately, not. These were the incorrect dates.
16 It was actually the 28th and 29th of April and I believe the 1st of May.
17 Q. Okay. We'll come back to that.
18 MR. LUKIC: We have to go back to page 8 in both versions,
20 Q. So the second-last paragraph, I quote:
21 "Nikolic states that he was at the Kravica warehouse on the 13th
22 of July (later retracted this) and ordered the execution there. He said
23 that Borovcanin arrived whilst the executions were [sic] under way and
24 they spoke about what they should do about the bodies of those executed.
25 Borovcanin did nothing to stop the shooting while he was there. Nikolic
1 states that he had given the order to kill the prisoners after a prisoner
2 had killed one of the guards. Borovcanin was aware that Nikolic had
3 given the execution order. During this time, women and children were
4 passing by in buses."
5 In this part, Nikolic implied Borovcanin knew that Nikolic had
6 given the execution order. Have you taken with a grain of salt
7 allegations made by Momir Nikolic at the expense of others or did you
8 simply record them?
9 A. At the time of the interview, we just recorded it, until we could
10 either corroborate his version or refute it.
11 Q. So do you know, did he later retract this part of his testimony?
12 A. Yes, I'm aware that he retracted this part.
13 MR. LUKIC: Let's go back to the first page of this document.
14 Q. In this information report, it was said today that it was
15 composed -- in this report, actually, it was said that it was composed
16 based on the interviews you had with Mr. Momir Nikolic on the 28th, 29th
17 and 30th of May, 2003, and we do have recordings from those dates.
18 Today --
19 MS. HASAN: Just a -- Your Honour, just a correction, and I'm
20 sure this was inadvertent. The witness said 28th, 29th and 1st of May.
21 MR. LUKIC: I'm asking about the document.
22 JUDGE ORIE: The document says 30th of May, and that's what
23 Mr. Lukic is quoting and, therefore, there was no need to intervene.
24 Please proceed.
25 MR. LUKIC: Thank you, Your Honour.
1 And we have it uploaded, all those three days, and 12th of June,
2 2003, also interview with Mr. Nikolic, as 1D06082.
3 Q. Today you told us that, actually, there is a mistake in this
4 report and those dates were not correct but that you had conversations
5 with Mr. Nikolic on the 28th, 29th of April, and you believe 1st of May,
6 2003; is that correct?
7 A. That's correct, yes.
8 Q. Do we have recordings of those conversations?
9 A. No, those -- that conversation was not recorded.
10 Q. You visited Mr. Momir Nikolic in the UN Detention Unit; is that
12 A. That's correct, yes.
13 Q. Did you know at that time that Momir Nikolic was a suspect?
14 A. Yes, I did.
15 Q. Who decided --
16 JUDGE ORIE: Was he a suspect or was he an accused?
17 MR. LUKIC: At that time probably already accused.
18 JUDGE ORIE: I'm asking the witness because --
19 MR. LUKIC: Suspect because the Rule 43 talks about suspect.
20 JUDGE ORIE: I know that. But was he a suspect or an accused at
21 the time?
22 THE WITNESS: I believed he was an accused person. He had
23 already been arrested and detained, yes.
24 JUDGE ORIE: Yes.
25 Please proceed.
1 MR. LUKIC: I believe it was just before the trial has to
3 JUDGE ORIE: And then you need to be an accused.
4 MR. LUKIC: He was accused.
5 JUDGE ORIE: Yes, okay. Please proceed.
6 MR. LUKIC: Thank you.
7 Q. Mr. Bursik, before the break, I have -- we have time for one more
9 Can you tell us who decided that you were not going to record
10 your conversation with a suspect or at the time already accused Momir
12 A. It was a joint decision that was reached between myself and
13 Peter McCloskey.
14 MR. LUKIC: I think it's time for a break, Your Honours.
15 JUDGE ORIE: Yes, it is, indeed, time for a break.
16 Before we take that break, however, I would have one additional
18 Late April and the 1st of May, the interview was not recorded, if
19 I understand. Now, in this document, although giving the wrong dates, it
20 says that Defence counsel were present during that interview. Could you
21 tell us whether, on the -- the late April/1st of May interviews, were
22 counsel present?
23 THE WITNESS: Yes, Your Honour.
24 JUDGE ORIE: Both of them?
25 THE WITNESS: I recorded the names in the notes. I can't
1 remember if both his counsel were present, but on this particular
2 occasion in April, both Stephan Kirsh and Veselin Londrovic were present.
3 JUDGE ORIE: Thank you. I think Judge Moloto also has one more
4 question before the break.
5 JUDGE MOLOTO: Sir, a little earlier when you were first shown
6 this document, you agreed that these dates are incorrect, that they
7 should have been 28th, 29th of April and 1st of May. Now, as the
8 discussion goes on, it seems as if there are two separate recordings, the
9 recordings on this date -- these dates and the recordings of the 28th,
10 29th and 1st of May.
11 Am I right to say so or is this just one recording incorrectly
13 THE WITNESS: The document that we're looking at now which covers
14 the period the 28th, 29th and the 1st of -- 28th and 29th of April and
15 1st of May --
16 JUDGE MOLOTO: That's not the document you're looking at, the
17 28th, 29th and 30th May.
18 THE WITNESS: [Interpretation] Yes. Excuse me, Your Honour. Yes,
19 that's what it says on the document but I had made an error and put the
20 incorrect dates on this document. So, in fact, there's two interviews
21 that we are talking about. The first one took place more or less in the
22 same days in April and the second one also on the 28th and 29th of May,
23 so there was --
24 JUDGE MOLOTO: Two separate interviews.
25 THE WITNESS: -- two separate interviews. And therein lies the
1 confusion about why I put the incorrect dates on this document.
2 JUDGE MOLOTO: Now I know. I'm clear.
3 JUDGE ORIE: And the second one was recorded; the first one was
4 not recorded.
5 THE WITNESS: The first one was not recorded, Your Honour.
6 JUDGE ORIE: Thank you.
7 We take a break, but we first invite you to follow the usher.
8 THE WITNESS: Thank you.
9 [The witness stands down]
10 JUDGE ORIE: We take a break and we resume at five minutes to
12 --- Recess taken at 10.32 a.m.
13 --- On resuming at 10.58 a.m.
14 [The witness takes the stand]
15 JUDGE ORIE: Mr. Lukic, you may proceed.
16 MR. LUKIC: Thank you, Your Honour.
17 JUDGE MOLOTO: Mr. Lukic, may I please interrupt and just ask one
18 more clarification.
19 Mr. Bursik, you indicated before the break that the decision not
20 to record the interview or the conversation you had with Mr. Nikolic was
21 taken by you and Mr. McCloskey. Am I correct that Defence counsel was
22 present at that time in the discussion?
23 THE WITNESS: No. During the decision-making process as to
24 whether to record it or not, they were not present.
25 JUDGE MOLOTO: I see. And he didn't play any part at the time
1 when the proceedings of the interview began, to say -- to ask about the
3 THE WITNESS: No. The Defence never raised a recording during
4 the interview.
5 JUDGE MOLOTO: Thank you.
6 JUDGE ORIE: Please proceed, Mr. Lukic.
7 MR. LUKIC: Thank you, Your Honours, again.
8 Q. Mr. Bursik, Rule 43 again that deals with recording questioning
9 of suspects, in (vi), the last letter in that rule says:
10 "The tape shall be transcribed if the suspect becomes an
12 Today we established that Momir Nikolic was already accused at
13 that time. So was there any plan how to rectify this omission?
14 A. Well, we had an interview after the initial meetings with
15 Mr. Nikolic. If I can perhaps explain a little bit further, going into
16 this interview with Mr. Nikolic, it was going into the whole plea
17 bargaining process where we were going to reach a plea agreement, so it
18 was not the normal suspect interview or accused interview as what would
19 appear. But, in hindsight, looking at it now, I perhaps made an error of
20 judgement and I take full responsibility for that.
21 Q. You told us just now that you had an interview after these
22 initial meetings with Mr. Nikolic. And do you consider that the
23 subsequent interviews that were recorded actually rectify the omissions
24 for not recording the first conversations?
25 A. The second interview was not going to rectify the omission from
1 the first. It was just a subsequent interview to glean more information
2 and get a better understanding of what Mr. Nikolic knew or didn't know.
3 Q. Okay. Thank you. We'll come to that interview. I'll ask you
4 now in connection with the first one, this one you told us today was in
5 April. What did you consider the purpose of not recording the
6 conversation to be?
7 A. As I said in the particular approach made to Mr. Nikolic it was
8 with a view of exploring the possibility of a plea agreement. So the
9 decision was made that it would not be the normal suspect or accused
10 interview and it would more be a discussion into what he knew, what he
11 would admit to, what he would not admit to. But, at the same time, I
12 thought it would be important to record by way of notes what he was
13 saying at that time.
14 Q. How many times have you questioned a suspect or an accused
15 without recording the questioning?
16 A. For the Office of the Prosecutor, while I was here at the ICTY, I
17 think there was one or two occasions with similar circumstances, but I
18 cannot independently recall who the other person was. But I don't think
19 it was the only occasion.
20 Q. You just told us that you cannot recall. Can you inform us later
21 in which occasion you did not record the interview with the suspect or
22 the accused?
23 A. I don't think I'll be able to tell you later because I cannot
24 remember. But it probably would have been in a similar circumstance, for
25 example, into the initial discussions toward a plea agreement.
1 Q. To your best knowledge, would that be against the rules as well?
2 A. In hindsight, yes.
3 JUDGE ORIE: Against what rule exactly?
4 MR. LUKIC: Rule 43.
5 JUDGE ORIE: Which is about suspects.
6 MR. LUKIC: Which is about accused as well. I just read it.
7 JUDGE ORIE: No. It said that transcription should be made if a
8 person becomes an accused.
9 MR. LUKIC: I think that --
10 JUDGE ORIE: No.
11 MR. LUKIC: Should accused have less rights than a suspect? No,
12 I need --
13 JUDGE ORIE: No. You can ask questions of fact. You introduced
14 in your last question, leading, that it was against the rules, and I
15 asked you which rule you had on your mind. That's it. Whether or not
16 that rule also implicates that an accused interview should also be -- at
17 this moment the Chamber is just intervening in a question which states
18 something, and the Chamber would certainly not express itself on that
19 matter without having heard both parties. And, therefore, for your
20 examination of the witness at this moment, ask questions. This is a
21 witness of fact. Ask questions as you deem fit. I just sought a short
22 clarification of something you put as a legal opinion in your question.
23 MR. LUKIC: Give me one second.
24 [Trial Chamber confers]
25 MR. LUKIC: There is Rule 49 as well that talks about
1 interviewing and taping, although it says "may," of the witnesses.
2 JUDGE ORIE: Yes. But you are now continuing a legal debate,
3 Mr. Lukic, where I said that I thought it inappropriate at this moment.
4 I mean, if you apply rules on interviewing witnesses in a situation where
5 someone is a suspect or an accused, you would have other problems as
7 So the matter is too complex, and for a witness of fact, you
8 don't need this guidance. You may ask the witness what he feels about
9 it, but if you introduce in your question a legal opinion, then the only
10 thing I did is ask if you refer to a rule, what rule. That's the one and
11 only thing I did.
12 Please proceed.
13 MR. LUKIC: Thank you, Your Honour.
14 Q. Being an experienced investigator, Mr. Bursik, how do you
15 understood the police position of Mr. Nikolic? Would he have less rights
16 than a suspect or at least similar rights as a suspect?
17 A. I would say he had the same rights as a suspect.
18 Q. Thank you. How many times did you question Momir Nikolic without
19 recording the interview?
20 A. I can only recall on these three occasions. The other interviews
21 that we had afterwards were recorded. If I can perhaps clarify where I
22 was present.
23 Q. So maybe I will repeat the question but I don't think that I got
24 a clear answer.
25 What made you conduct these three interviews on the 28th, 29th of
1 April and 1st of May differently from how you would usually conduct them?
2 A. On this occasion, we were exploring what Mr. Nikolic would admit
3 to or what he would not admit to with a view to entering into a plea
4 agreement, so it was different, in my mind, to a normal suspect or an
5 accused interview. It was an interview, perhaps one could say, of
6 [Realtime transcript read in error "explosion"] exploration.
7 Q. Okay. We saw your report consists of 14 pages with some pictures
8 at the end after those 14 pages. During those three days, was anybody
9 else taking notes; do you know?
10 A. I believe Mr. Nikolic himself took a few notes, and as far as I
11 can recall, his legal counsel also took some notes.
12 Q. Okay. Thank you. Were you able to obtain those notes from
13 Mr. Nikolic and his counsel?
14 A. No, but I never asked for them either.
15 Q. Did you ask the same questions in your interviews of 28th, 29th
16 and 30th May, 2003 as you did in the earlier interviews from April and
17 1st of May?
18 A. There were some grounds of overlap between the two interviews,
19 but it would be incorrect to say that I asked the same questions because
20 we had already covered some of the ground in the first interview.
21 Q. I'll direct your attention now to that movement that was said
22 that Momir Nikolic explained that General Mladic made. You include that
23 in your report from 23rd of June, 2003. Would you consider it important?
24 A. Yes, I believe the hand motion made to him during the interview
25 was important and that's the reason why I recorded it in the information
1 report, yeah.
2 Q. Can I ask you, then, why didn't you ask him about it during
3 recorded conversation in order to have it on the record?
4 A. As I said earlier, we did have areas of overlap, but it never
5 came up in conversation again, as far as I'm aware, during the recorded
7 Q. And who asked you to prepare this information report?
8 A. It was a member of the trial team at the time, but I cannot
9 independently recall which member of the trial team asked me to type out
10 my notes that I'd made on that day.
11 Q. When you say "trial team," you mean trial team from the OTP?
12 A. Yes, that's correct. The trial team dealing with Mr. Nikolic.
13 Q. What did you understand the purpose of producing this document to
15 A. My understanding was that we could get what Mr. Nikolic had said
16 onto the evidential system so that it would not be lost in the lapse of
18 Q. Would you consider recorded statement by Mr. Nikolic to be more
19 reliable than these notes?
20 A. Yes, of course. Obviously a recording is extremely reliable
21 because it records every word, whereas notes are prone to human error as
22 can you see by my dates -- my incorrect dates in the first opening
24 Q. Then you produced the addendum to this; is that right?
25 A. That's correct.
1 Q. Would you agree with me that before your report it has never been
2 recorded that Momir Nikolic described his encounter with General Mladic
3 in Konjevic Polje on the 13th of July, 1995 in a way that he said that
4 Mladic turned and gestured with his hand with a flat wave and that he
5 understood it to mean that the prisoners were to be killed?
6 A. It's my recollection that was the first time I'd ever heard it,
8 MR. LUKIC: Just a second, please.
9 JUDGE ORIE: While you're preparing, Mr. Lukic, I just revisit
10 for one second our earlier discussion. When I asked you what rule, I
11 was, rather, thinking not in terms of Rule 43 or only indirect in
12 relation to Rule 43 but I was thinking -- I would not have been surprised
13 if would you have said Rule 63 which is about questioning of an accused,
14 and refers to Article 43.
15 MR. LUKIC: That's right. My questions were composed based on
16 believing that Mr. Nikolic was a suspect at that time, but I was
17 corrected today and --
18 JUDGE ORIE: Yes. And now perhaps I led you also to the
19 applicable rule which then again refers to Rule 43. But I wanted to have
20 matters perfectly clear in this respect, and I did not - and still do
21 not - start a debate at this moment. Just to assist you.
22 MR. LUKIC: Thank you, Your Honour.
23 JUDGE ORIE: Please proceed.
24 MR. LUKIC: Thank you.
25 If we can have D300 on our screens, please, again. We had it
1 before. It is supplementary statement by Momir Nikolic.
2 I will skip several questions since I think that I got the
3 answers already.
4 So I will call 65 ter 18558, please. This is your document that
5 contains both B/C/S and English versions, so we'll deal with English
6 version so that the witness can follow.
7 Q. During your conversations with Momir Nikolic, were you aware that
8 in 1987 criminal proceedings were instigated against Momir Nikolic in
9 former Yugoslavia?
10 A. I cannot independently recall whether this information was at my
11 disposal at that time, but the probability was that it was at my disposal
12 because we had an analyst team which worked on documentation to prepare
13 us for interviews. So it probably was in the information bundle that I
14 had, but I cannot independently recall having this information.
15 Q. In this document, it was recorded that the whole case file does
16 not exist in the police as it had disappeared at an unidentified point in
17 time, under unclear circumstances.
18 Do you have any knowledge whether Momir Nikolic had any dealings
19 with destruction of these documents?
20 A. I have no knowledge.
21 Q. Thank you.
22 JUDGE ORIE: Mr. Lukic, it refers to Article 167 of the Criminal
23 Code of the SFRY, the version of 1987. If you could ...
24 [Defence counsel confer]
25 JUDGE ORIE: I was about to ask you, Mr. Lukic, whether you
1 remember, because I do not, what Article 167, paragraph 1, stands; and if
2 you say so, then the Prosecution could consider whether they agree with
3 you, yes or no.
4 MR. LUKIC: We'll check it. I'm consulting with my colleague,
5 Stojanovic. It could be that it was some forgery of a cheque.
6 JUDGE ORIE: Forgery. Thank you. The parties are invited to
7 read what it is, unless you further deal with it yourself.
8 Please proceed.
9 MR. LUKIC: Moving now from this to D01018. So if we can have
10 this one on our screens. We need 1D01018.
11 Q. This is supplemental information sheet from the 23rd of October,
12 2007. You were not in the Tribunal at that time anymore. But I'll
13 direct your attention, as I already did previously, to page 2 in English.
14 MR. LUKIC: We need bullet point 5 from the top, and page 3 in
15 B/C/S, point 3 from the top. It is -- now we don't see the top of the
16 page, but it is in English version the second bullet point from the
18 Q. And it says, I quote:
19 "The witness stated that although he did destroy documents,
20 including documents which were about the Srebrenica campaign, he did not
21 destroy any documents from the security organ ..."
22 During your --
23 JUDGE FLUEGGE: You should complete the sentence.
24 MR. LUKIC:
25 Q. "He did not destroy any documents from the security organ in
1 violation of any applicable regulations on retention of documents."
2 During your conversation with Mr. Nikolic, did you have any
3 knowledge, did you hear from him that he was destroying documents in
4 connection with Srebrenica?
5 A. I have no recollection of discussing the destruction of documents
6 with him during my discussions with him.
7 Q. Can you describe us how that whole process worked when you did
8 not record conversation with Mr. Nikolic? Was anybody leaving the room?
9 Was he sometimes alone with his lawyers or you were all the time
10 together? How would you describe it?
11 A. No, we took frequent breaks and we allowed him alone-time with
12 his lawyers. There were breaks for ablutions, breaks for smoking, for a
13 number of reasons. So, yeah, there were frequent breaks during that time
14 in which he was left alone with his counsel.
15 Q. Probably needless to say, but I would like to have it on the
16 record, did you record those break times in your notes?
17 A. No, I did not.
18 Q. Can we --
19 A. Sorry, if I can clarify. Are you referring to did I record the
20 content of what was said during the breaks or did I record that we
21 actually took breaks?
22 Q. Content. Content. You understood me correctly.
23 A. No, we didn't record content. No.
24 Q. Okay.
25 JUDGE ORIE: Just to fully understand, during the breaks you were
1 not with the accused?
2 THE WITNESS: No. We were -- as I said, we would either go down
3 the hall to take our ablutions or -- but he would either stay in the room
4 with his counsel or him and his counsel would leave the room and ...
5 JUDGE ORIE: Yes. You also did not record when you took a break
6 and how long that break lasted?
7 THE WITNESS: In my notes, my written notes, I would have
8 recorded it, yes.
9 JUDGE ORIE: Yes. Thank you.
10 Please proceed.
11 MR. LUKIC: Thank you.
12 Q. Last bullet point on this page, in the middle of the paragraph,
13 the sentence starts with -- it's fifth row from the beginning of this
14 bullet point. It says, and I will quote -- this was recorded by
15 Mr. Julian Nicholls, as I said, on 23rd October 2007.
16 "During a break when discussing Kravica his attorney Londrovic
17 came in to speak with him alone and told him that unless he admitted
18 responsibility for Kravica there would be no plea agreement. The witness
19 stated that his attorney said that unless he did this there would be no
20 possibility of ... plea agreement with Mr. McCloskey."
21 Would you consider that [B/C/S on English channel].
22 JUDGE ORIE: We receive B/C/S on English channel.
23 You can still understand it, Mr. Lukic.
24 MR. LUKIC: Yes.
25 JUDGE ORIE: That's the difference.
1 MR. LUKIC: Yes. Could I start from the beginning?
2 JUDGE ORIE: Yes. Could you please start your question again.
3 MR. LUKIC:
4 Q. Mr. Bursik, would you consider this as a truthful statement
5 uttered by Momir Nikolic or another lie?
6 A. I would not say it's a truthful statement. I did not overhear
7 any such conditions that were being attached to this agreement.
8 JUDGE ORIE: Mr. Lukic, may I remind that you're examining
10 MR. LUKIC: I know --
11 JUDGE ORIE: "Another lie" is at least somewhat leading, isn't
12 it? Would you please adhere to the rules where the subject matter of
13 your examination is about sticking to the rules, isn't it?
14 Please proceed.
15 MR. LUKIC:
16 Q. So maybe it's too late but I try to rectify. My mistake. How
17 would you understand this part of Momir Nikolic's statement to be?
18 A. I never ever heard his counsel say these words to him, so I can
19 neither corroborate it or refute it. But what I can say is that there
20 were no conditions. The only condition that we asked for was that he be
21 open and honest with us.
22 JUDGE MOLOTO: Can I just get clarity. Could we please look at
23 the first page of this.
24 MR. LUKIC: Yes, Your Honour.
25 Can we have the first page of this document, please.
1 JUDGE MOLOTO: Okay. Mr. Bursik, you're answering the question
2 as if you were present during this interview, but apparently you had left
3 the Tribunal at the time and Mr. Lukic did say so when he put up this
4 document on the screen.
5 Do you have any knowledge of the content of this document to be
6 able to answer these questions?
7 THE WITNESS: I have knowledge only because it was -- I read
8 through this document during my proofing session --
9 JUDGE MOLOTO: Sure. Reading the document, I understand. But
10 I'm getting the impression that you're trying to explain what happened
11 during breaks and what have you, but it doesn't seem like you were
12 present during this interview. So you can't tell, for instance, what
13 happened during breaks, can you?
14 THE WITNESS: Your Honour, I think the document, although it is
15 dated 2007, is referring to the interview which occurred in 2003. But
16 I'll stand corrected.
17 JUDGE MOLOTO: If that is the case, then I withdraw my questions.
18 MR. LUKIC: I maybe rushed too much, Your Honour. I will try to,
19 again, rectify something.
20 JUDGE MOLOTO: Thank you very much.
21 MR. LUKIC:
22 Q. First bullet point on our screen says that the witness complained
23 that the statement of facts filed as part of his guilty plea was not
24 accurate as follows. And Mr. Bursik was right. Actually, in this
25 document, it was his plea agreement discussed and he here complained in
1 2007 that his plea agreement was not correct, and there are some remarks
2 from his side.
3 JUDGE ORIE: Now, Mr. Bursik, one additional question.
4 You said there were no conditions; he just had to tell us the
5 truth. But if you believed that he was responsible for Kravica, then, of
6 course, if he wouldn't admit that, you would consider him not to be
7 truthful, and since that was a condition for the plea agreement, it's
8 rather ambiguous on whether there were no conditions. He only had to
9 tell the truth. If he would have told you that he was not responsible
10 for anything, you would say, then, okay, we make a plea agreement on
11 that; or if he would have said that he was guilty on minor points, you
12 would not have entered into a plea agreement, would you?
13 THE WITNESS: No. If there were minor points that he was being a
14 little bit evasive, we would still have carried on with the plea
15 agreement. But what I was trying to say is that we did not go into
16 specifics, and if you do not admit to X or Y or Z, we would not enter
17 into an agreement. But it was quite clear that he was being a little bit
18 evasive, and that's why we said to him and his counsel that we would
19 request them to be open and truthful.
20 JUDGE ORIE: But you needed, in order to be convinced that that
21 was the case, you needed a substantial admission of involvement and guilt
22 at certain events.
23 THE WITNESS: That's correct, Your Honour.
24 JUDGE ORIE: And you never said: "Without Kravica, no way."
25 Without ...
1 THE WITNESS: I never said it, and I never overheard it being
2 said, Your Honours, so --
3 JUDGE ORIE: And hinting at that? Sometimes you can hint at
4 something without making it a condition.
5 THE WITNESS: It may have -- it may have been hinted or so, but
6 to be honest, I can't recall that matter actually coming up in
8 JUDGE ORIE: Yes. Thank you.
9 Please proceed.
10 JUDGE MOLOTO: Just another follow-up on the same question.
11 According to this document, this suggestion that he must admit to Kravica
12 was made not by you but by his counsel during a break, according to this
14 THE WITNESS: That's correct, Your Honour.
15 JUDGE MOLOTO: And do you remember ever discussing whether this
16 must be a condition either before or after -- before the break?
17 THE WITNESS: No, Your Honour.
18 JUDGE MOLOTO: Thank you.
19 THE WITNESS: We were discussing the subject of Kravica during
20 the interview, I believe, but it never came up during a break as a
21 condition or anything.
22 JUDGE MOLOTO: I'm sorry, Mr. Lukic.
23 MR. LUKIC: Thank you, Your Honour.
24 Q. We yesterday discussed some objections Momir Nikolic had
25 regarding his plea agreement, so can we have 1D --
1 JUDGE ORIE: You mean today -- oh, you discussed in proofing.
2 Yes, okay. We're not privy of what you discussed in proofing.
3 MR. LUKIC: So we need 1D01005 on our screens again. We talked
4 today already about this document. Now we need page 11 in English, last
5 paragraph, and page 12, third paragraph, in B/C/S.
6 Q. In this document, it was recorded, I will read and I quote:
7 "With regard to the activities in Potocari on the 12th of July,
8 Nikolic states that he was not in charge of the units deployed there, but
9 co-ordinated them. He states that these units had already been
10 instructed what to do by their commanders."
11 So let's focus on this "co-ordinate." Who chose the terminology
12 used to describe the role of Momir Nikolic in his plea agreement?
13 A. Well, the terminology would come from Nikolic himself, obviously
14 through an interpreter, but also in my report, I would then also go from
15 my notes. So it's -- although Nikolic may have said that word himself,
16 it would have been interpreted from B/C/S into English and then I would
17 have recorded it down into how that sentence would read properly in my
19 JUDGE ORIE: Could I ask you one thing: Veselin Londrovic, is he
20 a native B/C/S-speaking person?
21 THE WITNESS: Yes, I believe he is.
22 JUDGE ORIE: Does he speak any English?
23 THE WITNESS: Yes, he does.
24 JUDGE ORIE: Thank you.
25 Please proceed.
1 [Defence counsel confer]
2 MR. LUKIC: Maybe Mr. Kirsh speaks English, but I don't think
3 that Mr. Londrovic speaks any English.
4 JUDGE ORIE: You are not supposed to give testimony. But if
5 that's the case, then, of course, I do understand that you would further
6 explore it in the proper way.
7 Please proceed.
8 MR. LUKIC:
9 Q. Mr. Bursik, did you have the opportunity to speak in English with
10 Mr. Londrovic?
11 A. Perhaps this will clarify Your Honour's question as well. He
12 speaks very broken English. We used mostly the interpreter with him, but
13 we were able to get by in very broken language.
14 Q. I suppose mine is the same, so ...
15 JUDGE ORIE: Here the Chamber has to disagree, Mr. Lukic.
16 Please proceed.
17 MR. LUKIC: Can we shortly now have D00300, please. This is
18 supplementary statement from Mr. Nikolic. It's from 2009. And in his
19 supplementary statement, on page 2 in English -- so we need page 2 in
20 English, and there are comments with paragraph 4. It's second
21 paragraph on this page. And, in B/C/S, it's page 3 in the middle of the
22 page, also comments with paragraph 4. Yes.
23 Q. Momir Nikolic wrote the following. Paragraph 4 of the statement,
24 lines 11 to 12, paragraph 4, in brackets:
25 "When I talked to the Office of the Prosecutor and until my trial
1 ended, I paid no heed to formulations of this kind and I did not even
2 know what military co-ordination actually and precisely meant."
3 And the same, we have on other places in this document, like on
4 English page 3, in comments with paragraph 6, we do not have to switch
5 the page, just for the record.
6 My question for you, Mr. Bursik, is: What was your impression?
7 Did Mr. Momir Nikolic knew -- did he know the meaning of the terms he was
9 A. My interpretation of it is that he did, indeed, know what he was
10 talking about and that he knew what the words were. He continually, not
11 often but he did make corrections which led me also to believe that he --
12 if there was fault, he was finding it.
13 Q. I would like to compare the information we have in D301, which is
14 statement of facts and acceptance of responsibility, and your information
15 report, which is marked as 1D01005. Do you agree that there is a
16 difference in between those recorded statements of Momir Nikolic, that in
17 the plea agreement there was nothing about flat wave of General Mladic,
18 unlike in your report?
19 A. To the first part of your question, I agree there are
20 discrepancies and changes were made.
21 And I agree with your second question, that he made no reference
22 to that in his statement of facts, about the motion of his hand.
23 MR. LUKIC: Can we have now 1D06082 on our screens, please.
24 JUDGE ORIE: I can hear the voice of Mr. Mladic who is supposed
25 to speak at non-audible volume.
1 [Defence counsel confer]
2 MR. LUKIC:
3 Q. Mr. Bursik, you were recorded here as having conversation with
4 Momir Nikolic on this page on 28th of May, 2003. Is this recording of
5 your -- do you remember? Did you have a chance to check it? Is this a
6 recording of your conversations with Mr. Momir Nikolic in May?
7 A. Yes, this is a transcript of the tape recordings.
8 MR. LUKIC: Can we have page 61 from this document, please. Just
9 for the record, it is recorded that this part took place on the 29th of
10 May, 2003.
11 Q. In his -- here, it was discussed, Mr. Momir Nikolic's statement
12 of facts and acceptance of responsibility, and it was discussed about
13 paragraph 9, as we can see, and in that paragraph, you already concluded
14 that there was no flat wave made as a gesture by General Mladic. And you
15 asked Mr. Nikolic, and I will quote from line 1:
16 "Okay. Now, paragraph 9 talks a lot about what you did
17 travelling along the road."
18 Momir Nikolic: "Yes."
19 JUDGE MOLOTO: Can I just ask a question. Do the initials "PM"
20 refer to you, sir?
21 THE WITNESS: No, Your Honour.
22 JUDGE MOLOTO: I hear you saying "You asked."
23 MR. LUKIC:
24 Q. To whom actually does "PM" correspond?
25 A. The initials PM, Your Honour, refer to Peter McCloskey.
1 Q. So sorry for guiding you wrongly.
2 MR. LUKIC: Thank you, Your Honour, for helping me.
3 Q. Again it was recorded that Mr. McCloskey asked:
4 "Going to Konjevic Polje, picking up the prisoners, is that all
5 correct? Do you want to add or delete anything from that paragraph 9?"
6 Momir Nikolic: "This is all correct."
7 Was this correctly recorded?
8 A. Yes, this is a direct transcript of the taped recording. Yeah.
9 Q. As you told us today, you had conversation with Momir Nikolic on
10 the 28th, 29th, and 1st -- 28th, 29th April and 1st of May, 2003, and it
11 was your information report composed on the 23rd of June, 2003. Then we
12 had the plea agreement reached on the 6th of May, 2003. And after that
13 plea agreement, Mr. Nikolic was asked during this interview at the end of
14 May 2003 if he wanted to correct anything in his plea agreement,
15 paragraph 9, and he said everything was correct.
16 Would you agree -- actually, I cannot lead you. This report,
17 this recorded statement and plea agreement is different from your report;
18 is that correct?
19 A. There are errors of inconsistency, yes.
20 Q. Both plea agreement and this interview took part after your
21 conversation with Momir Nikolic; is that correct?
22 A. Yes, it took -- the plea agreement and conversation took place
23 after the three initial days of meeting.
24 MR. LUKIC: It's the break time, Your Honour.
25 JUDGE ORIE: It, indeed, is.
1 Mr. Bursik, we'll take a break of 20 minutes. We'd like to see
2 you back after the break. You may follow the usher.
3 [The witness stands down]
4 JUDGE ORIE: We resume at a quarter past 12.00.
5 --- Recess taken at 11.54 a.m.
6 --- On resuming at 12.15 p.m.
7 [Trial Chamber confers]
8 [The witness takes the stand]
9 JUDGE ORIE: Mr. Lukic, you may proceed.
10 MR. LUKIC: Thank you.
11 Q. Mr. Bursik, you are aware of the sentencing judgement in Momir
12 Nikolic case, are you?
13 A. Yes, but it's been many years since I've read it so ...
14 Q. But do you know that the Trial Chamber, in paragraph 156 of that
15 judgement, found about Momir Nikolic the same as you did; that in
16 numerous instances the testimony of Momir Nikolic was evasive and the
17 Chamber found this to be an indication that his willingness to co-operate
18 does not translate into being fully forthcoming in relation to all the
19 events given in his position and knowledge.
20 Will you agree with this finding of the Trial Chamber?
21 A. Yes, I agree. I'm aware of the Trial Chamber's finding, although
22 I cannot remember the specific paragraph but that's the gist of it, yes.
23 JUDGE ORIE: It's not only leading [Realtime transcript read in
24 error "misleading"], Mr. Lukic. It's also asking for an opinion, whether
25 the witness agrees or does not agree with what a Trial Chamber says, not
1 knowing what the deliberations are at the basis of that, are pretty
2 useless. I mean, your point is perfectly clear. Let me be -- I mean,
3 the point you make is clear. The way in which you do it is not the
4 proper way.
5 But please proceed.
6 MR. LUKIC: Thank you, Your Honour. I thought we had established
7 already that Mr. Bursik spent a lot of time talking to Mr. Nikolic.
8 JUDGE ORIE: Yes. But his opinions and his impressions -- and
9 you didn't ask him -- and I didn't intervene at that point in time, you
10 asked whether the witness agrees with what apparently is the outcome of
11 the deliberations of that Chamber, not knowing what the basis of it is,
12 and whether he agrees or disagrees is not of that much importance.
13 Please proceed.
14 MR. LUKIC: Thank you.
15 Can we have 1D01018, please.
16 JUDGE ORIE: And where the transcript reads "it's not only
17 misleading," I didn't say "misleading." "It's not only leading," I said.
18 MR. LUKIC:
19 Q. Mr. Bursik, we already saw this document today in this courtroom
20 and I would just like you to focus, although you were not present when
21 this document was composed, and this part, I think, talks about 2007.
22 The part I want to ask you is the last part of paragraph 2, fifth row
23 from the bottom of that paragraph, and the sentence starts:
24 "At the 27th September meeting, the witness pointed to a large
25 number of handwritten notes and stated that these were private notes he
1 had written in preparation for his Defence in his own trial. The witness
2 has refused to allow the Prosecution to review these notes and will not
3 provide the Prosecution with a copy of the notes."
4 During your tenure and during your conversations with
5 Mr. Nikolic, was he willing to share his notes with you?
6 A. His willingness to share the notes never came into question
7 because we never ever asked him for the notes because I regarded those to
8 be confidential between him and his counsel.
9 Q. Okay. Thank you.
10 JUDGE ORIE: Just in order to avoid whatever confusion, here,
11 specific notes are referred to which he didn't want to give, made in
12 preparation of his -- did you ever come across any notes he used or
13 displayed although did not give access to? Was there any issue of notes
14 being on the table when you interviewed him?
15 THE WITNESS: Yes. Every time I interviewed Mr. Nikolic he had
16 his own notes with him.
17 JUDGE ORIE: Okay.
18 THE WITNESS: And he would make notes under his own hand. But at
19 no stage did we ever ask him for a copy of those notes.
20 JUDGE ORIE: Thank you.
21 Please proceed.
22 MR. LUKIC:
23 Q. Apart from your notes composed on the 23rd of June, 2003, do you
24 know when actually Mr. Nikolic mentioned this flat wave made by General
25 Mladic for the first time?
1 A. It was -- in my recollection, it was during those first three
2 days of interview, although I cannot recall on which day he mentioned it.
3 Q. Those three days that were not recorded?
4 A. That's correct.
5 Q. My question was after those three days, do you remember when he
6 said that for the first time and that was recorded?
7 A. I can't recall when he said that, sir, subsequently to our
9 Q. Okay. Would you accept that it was in the Blagojevic/Jokic trial
10 in 2003?
11 A. I'm sure it's a matter of being in the record. But, as I said, I
12 can't recall it independently, him saying it during trial.
13 MR. LUKIC: Can we have now 1D06096, please.
14 JUDGE ORIE: Microphone, please.
15 MR. LUKIC: Yes, thank you.
16 Q. This is transcript from B and H State Court trial against
17 Mitrovic, Petar, regarding Kravica, and it was testimony of Momir Nikolic
18 via videolink on 6th of February, 2008. This means after plea agreement,
19 after your notes, after the recorded testimony, after Blagojevic/Jokic
20 trial. And we need page 22 from this transcript to see how here
21 Mr. Nikolic explained the same situation.
22 I can see it's highlighted from the line 14 to line 20.
23 JUDGE FLUEGGE: Who did the highlighting, Mr. Lukic?
24 MR. LUKIC: I did, obviously, and somehow it was uploaded that
1 JUDGE FLUEGGE: Thank you.
2 MR. LUKIC:
3 Q. It was recorded that OJ, and on the bottom of the page, we could
4 see that it means Ozrenka Jaksic, asked, I quote:
5 "How long did you stay in Konjevic Polje and why did you stay
6 there? What was the reason for your departure to Konjevic Polje?"
7 Momir Nikolic responded:
8 "On that day General Mladic was supposed to pass through that
9 route and my intention was to check if that road was operative, passable
10 and secure. And I stayed there for, until General Mladic passed."
11 "And did you then return in the direction of Bratunac?"
12 Momir Nikolic: "Yes."
13 I understand that you did not follow this trial, but have you
14 ever checked or cross-checked other witness statements given to the OTP?
15 Have you ever checked whether Momir Nikolic actually was at
16 Konjevic Polje on the 13th of July, 1995? And I will direct you, for
17 example, there is an interview conducted --
18 JUDGE ORIE: Mr. Lukic, leading is one thing but then already to
19 read --
20 MR. LUKIC: I didn't want to read. Just to mention the name, if
21 the gentleman checked.
22 JUDGE ORIE: Let's refrain also from that.
23 MR. LUKIC: Okay. I apologise.
24 Q. Can you answer my question, or should I repeat it?
25 A. You're asking me if we cross-checked whether he was in Konjevic
1 Polje. All the aspects that Momir told us we tried to corroborate, but I
2 cannot independently recall whether we actually found someone who put him
3 in Konjevic Polje on the 13th. There may have been, but I, to be honest,
4 can't remember.
5 JUDGE ORIE: And did you then ever find someone who contradicted
6 or gave evidence contrary to that he would have been in Konjevic Polje on
7 the 13th?
8 THE WITNESS: I cannot recall anyone giving any evidence to show
9 that he wasn't in Konjevic Polje either.
10 JUDGE ORIE: Yes, thank you.
11 MR. LUKIC:
12 Q. Just for the record, the Prosecution conducted an interview with
13 Mr. Andric, Pero, on the 20th of February, 2002, and there were some
14 other witnesses but you responded already to my question.
15 JUDGE ORIE: If that would refresh the memory of the witness,
16 there's nothing wrong with asking him where he said he has no
17 recollection, whether this refreshes his memory.
18 Are you aware of an interview Mr. Pero Andric, February 2002?
19 THE WITNESS: The name sounds familiar to me, Your Honour, but
20 this was about 13 years ago and so I cannot remember interviewing him or
21 reading his interview.
22 JUDGE ORIE: Okay.
23 Please proceed.
24 MR. LUKIC: This was my last question. I would just like to
25 thank Mr. Bursik for answering our questions, and I would offer the
1 documents I was using today, although probably we would upload shorter
2 versions of the transcripts. There is no need for the whole transcript
3 to be uploaded. And if the Prosecution deems it necessary, they can add
4 any page they want.
5 And I would just read now 65 ter numbers.
6 JUDGE ORIE: Yes. But, first of all, is there any objection to
7 any of those documents that were shown to the witness and were brought to
8 our screens, any objection against admission?
9 MS. HASAN: Well, some of the documents were interviews of Momir
10 Nikolic and I think portions of those were read. I'm not entirely in
11 agreement that the entire transcript needs to go in.
12 JUDGE ORIE: Okay. But that's what Mr. Lukic, I think, says,
13 that he wants to make a further selection. Because what I'm seeking to
14 have happen is that Mr. Lukic now has apparently prepared or is still
15 prepares excerpts of the documents relevant for what he used and read to
16 the witness, to the extent necessary. Then if the Prosecution would like
17 to deal with the same documents - I don't know whether you intend to
18 refer to any of those documents, Ms. Hasan - that you'd come to a
19 joint -- do a joint submission, more or less, of what gives sufficient
20 context. And if the parties could agree that if it's a very small
21 portion where it is only read into the transcript so that there's no
22 need -- if it is accurately read into the transcript, that there is no
23 need at all to tender it, to try to condense everything and get
24 everything well organised.
25 MR. LUKIC: Your Honour, thank you. I have three documents
1 that -- documents, not transcripts. I could offer them immediately.
2 JUDGE ORIE: And we need them in their entirety?
3 MR. LUKIC: I think so. It's short documents --
4 JUDGE ORIE: Short documents.
5 MR. LUKIC: -- composed by Mr. Bursik.
6 JUDGE ORIE: Okay. Let's then -- but there is no basic objection
7 against the use of those documents, Ms. Hasan.
8 MS. HASAN: Can we just know which three Mr. Lukic --
9 JUDGE ORIE: No, no, no. We'll deal with those. But with any
10 other ones, transcripts --
11 MS. HASAN: We'll work on it with Mr. Lukic once he gets the
12 excerpts together.
13 JUDGE ORIE: Yes. That's appreciated. Then the three short
14 documents, Mr. Lukic.
15 MR. LUKIC: Yes. They are 1D01005.
16 JUDGE ORIE: And could you say what it is?
17 MR. LUKIC: Yes. It's information report composed by Mr. Bursik
18 on 23rd June, 2003.
19 MS. HASAN: No objection.
20 JUDGE ORIE: Madam Registrar.
21 THE REGISTRAR: Document 1D01005 receives Exhibit D1228,
22 Your Honours.
23 JUDGE ORIE: Admitted into evidence.
24 Next one.
25 MR. LUKIC: Next one is 65 ter 18558.
1 JUDGE ORIE: And that is?
2 MR. LUKIC: Information regarding destruction of criminal file
3 against Momir Nikolic.
4 JUDGE ORIE: Short message from the Republika Srpska.
5 MR. LUKIC: Yes.
6 MS. HASAN: No objection.
7 JUDGE ORIE: Madam Registrar.
8 THE REGISTRAR: Document 18558 receives Exhibit D1229,
9 Your Honours.
10 JUDGE ORIE: Admitted into evidence.
11 MR. LUKIC: And the next one is supplemental information sheet,
12 composed by Julian Nicholls. As I understand it, it's a three-page
13 document and bears the number 1D01018.
14 [Prosecution counsel confer]
15 JUDGE ORIE: Ms. Hasan, I hear of no objections.
16 Therefore, Madam Registrar.
17 THE REGISTRAR: Document 1D01018 receives Exhibit D1230,
18 Your Honours.
19 JUDGE ORIE: Admitted into evidence. And the parties will
20 further consider what excerpts --
21 MR. LUKIC: Maybe it would be wise to tell the Prosecution which
22 are the remaining three so they can work on them as well.
23 JUDGE ORIE: Yes.
24 MR. LUKIC: The first one is 1D06082. That is a conversation
25 between Mr. Bursik and Momir Nikolic on 28th of May, 29th of May, 30th of
1 May, and 12th of June, 2003.
2 JUDGE ORIE: That's the recorded interview. Yes.
3 MR. LUKIC: The next one is 1D06096. It's a transcript from
4 Bosnian court, so testimony, in 2008.
5 JUDGE ORIE: Yes. That's the 67-page document. At this moment
6 you will find excerpts.
7 MR. LUKIC: Yes. And the last one is 65 ter number 25934 which
8 is an interview conducted between Mr. Ruez and Momir Nikolic on the 15th
9 of December, 1999, so that predates what Mr. Bursik was part of.
10 JUDGE ORIE: So the Chamber expects to be informed about what
11 excerpts finally are tendered.
12 Mr. Lukic, thank you for that.
13 MR. LUKIC: Thank you.
14 JUDGE ORIE: Ms. Hasan, are you ready to cross-examine the
16 MS. HASAN: Your Honour, I am.
17 JUDGE ORIE: Please proceed.
18 Cross-examination by Ms. Hasan:
19 Q. Good afternoon, Mr. Bursik.
20 A. Good afternoon.
21 Q. Just to introduce myself, my name is Abir Hasan and I'll ask you
22 questions on behalf of the Prosecution.
23 Now, just as a point of clarification, if we could take a look at
24 D -- what is now D1228 and that's your information report from -- dated
25 the 23rd of June, 2003.
1 Now, you were asked by Defence counsel a question comparing the
2 statement of facts with your info report. This is at transcript page 40.
3 So you'll understand this clearly, if you look at paragraph 2 of that
4 information report, you write:
5 "This information report sets forth the content of the interview
6 not included in the statement of facts as signed by Momir Nikolic as part
7 of the plea agreement. It should thus be read together with the
8 statement of facts for a comprehensive overview of the interview in its
10 A. That's correct.
11 Q. And the interview you are referring to here, am I correct, that
12 that's the plea discussion interviews which took place on the 28th and
13 29th of April, and the 1st of May?
14 A. That's correct, yes.
15 Q. And that correction to the date you made a few days after you
16 prepared this information report. This is at 1D06097. If we could just
17 very briefly look at this. We see it's dated the 26th of June, 2003, and
18 just at the top of the second paragraph, you make a correction to the
19 dates as recorded in your 23 June information report.
20 A. That's correct. It was brought to my attention a few days later
21 that I had made the error in dates and therefore I submitted this
22 addendum to clarify those dates.
23 MS. HASAN: Your Honour, I'd offer this addendum into evidence.
24 JUDGE ORIE: Madam Registrar.
25 THE REGISTRAR: Document 1D06097 receives Exhibit P7542,
1 Your Honours.
2 JUDGE ORIE: Admitted into evidence.
3 MS. HASAN:
4 Q. Now, moving on, you were asked some questions about the audio or
5 the lack of an audio or video recording of the interviews that took place
6 on the 28th, 29th of April and 1st of May. And I know it was a long time
7 ago and you were shown some documents by the Defence in preparation for
8 your testimony here, but do you recall that this matter was litigated in
9 2003 during the course of the Blagojevic and Jokic trial?
10 A. I cannot recall that, no.
11 MS. HASAN: Could we just briefly look at 65 ter 33123.
12 Q. What will come up here on the screen is the 13 June 2003 decision
13 of the Trial Chamber in that case, and it's a decision on
14 Vidoje Blagojevic's expedited motion to compel the Prosecution to
15 disclose its notes from plea discussions with the accused Nikolic and
16 request for an expedited open session hearing.
17 Now, in this decision -- sorry. In this litigation, counsel for
18 Mr. Blagojevic had raised this very issue of the lack of an audio
19 recording of these particular discussions. And if we turn to page 3.
20 Okay, if we can just flip one more page. And I'm just trying to see if
21 this is going to help to refresh your recollection. I'm sorry, one more
22 page. Okay. So we just see here in the middle of the page:
23 "Considering that the protections set forth in Rules 43 and 63(B)
24 are provided for the suspects and accused being questioned, not third
25 persons .."
1 And they go on to find that Mr. Vidoje Blagojevic is not an
2 interested party who could raise --
3 JUDGE ORIE: Ms. Hasan, I intentionally stopped Mr. Lukic when he
4 wanted to ask the witness all kinds of questions about the merits or
5 whether there was a violation or not. It seems to me that you're
6 doing -- at least you're moving in a similar direction. If you think
7 that this is important for the Chamber to know, during legal argument
8 later you can point at whatever discussion you consider relevant. So
9 where I stopped Mr. Lukic, would you please keep in mind that, as I said
10 twice, I'm not seeking a legal debate on that matter in the presence of a
11 witness where the witness doesn't add anything to that. So would you
12 please focus on what a witness can tell us.
13 MS. HASAN: Your Honour --
14 JUDGE ORIE: And whether he agrees or not with a decision by
15 another Trial Chamber, I earlier said to Mr. Lukic, whether he agrees or
16 not, that that is not of much interest for us.
17 MS. HASAN: The witness did take responsibility for not having
18 recorded -- made a recording of these discussions, and there was clearly
19 an implied suggestion that there was something improper about not
20 recording it. So --
21 JUDGE ORIE: Yes. That's all a matter of opinion and judgement.
22 Whether the witness feels guilty on having done something, yes or no, is
23 not for us -- I mean, to give relief to the witness that he shouldn't
24 feel guilty anymore because the Trial Chamber said it was okay is not the
25 kind of testimony we are -- or is not the kind of questions we would like
1 to have here.
2 But let me just consult with my colleagues for a second.
3 [Trial Chamber confers]
4 JUDGE ORIE: Ms. Hasan, in cross-examination, it is equally not
5 done to ask for legal opinions as it is in-chief. I stopped Mr. Lukic,
6 and you should keep that in mind when asking questions from this witness
7 who has been presented as a witness of fact, although Mr. Lukic did not
8 always strictly adhere to that. But that's also where we stopped him.
9 Please proceed.
10 MS. HASAN: Your Honour, what I was trying to get is his
11 recollection of this. I am not seeking -- wasn't seeking his legal
12 opinion on any of these matters. I'm happy to let this go. If it's of
13 interest to the Chamber, we can argue about this once the witness has
14 left the courtroom.
15 JUDGE ORIE: Ms. Hasan, whether the witness remembers after this
16 if no further questions are put to him, I mean, it's fine for the witness
17 but it doesn't assist the Chamber in any way that he remembers something
18 if no further questions are asked.
19 Second, this is public jurisprudence in a case which has
20 similarity with the present situation. It's part of legal argument to
21 say, well, there's a decision of this Trial Chamber in a similar, even
22 exactly the same situation, dealing with this and that. That's legal
23 argument which finds its place in these proceedings but not during an
24 examination of a witness.
25 Please proceed.
1 MS. HASAN: Your Honour, I have no further questions.
2 JUDGE ORIE: Yes. I wasn't aware of such a dramatic consequence,
3 but you said you had no further questions for the witness on this matter
4 anyhow, so that's --
5 Mr. Lukic, any questions in re-examination?
6 MR. LUKIC: I would just want -- I think it was not clarified if
7 we can see 1D06097 on our screens again.
8 JUDGE FLUEGGE: Which is now P7542.
9 MR. LUKIC: P7542, yes, Your Honour, thank you.
10 [Trial Chamber confers]
11 [Trial Chamber and Registrar confer]
12 JUDGE ORIE: Please.
13 Re-examination by Mr. Lukic:
14 Q. [No interpretation].
15 MR. LUKIC: Sorry, I was conducting this questioning in English.
16 Q. We can see here, Mr. Bursik, in the first paragraph, it says:
17 "This addendum is submitted in order to rectify spelling and
18 other mistakes and clear up ambiguous statements in the information
19 report I submitted on the 23rd of July, 2003."
20 Which is this report from 23rd of July, 2003?
21 A. Your Honour, I made that -- that's a typo, a typing error. It
22 should have read "23rd of June, 2003," and refers to the same information
23 report that we've been discussing this morning regarding the 28th, 29th
24 of April and 1st of May interview.
25 JUDGE ORIE: And you didn't issue another addendum saying that
1 the mistake was made here as well.
2 THE WITNESS: Unfortunately, not, Your Honour. It was only
3 brought to my attention during a proofing session, so ...
4 JUDGE ORIE: Yes.
5 Mr. Lukic. And I think it's defined by its ERN number which may
6 assist in ...
7 MR. LUKIC: Okay. Then if we can have 1D01005. My learned
8 friend noticed something I obviously did not.
9 JUDGE FLUEGGE: And this is now D1228.
10 MR. LUKIC: It's D1228, yes, Your Honour. Thank you.
11 Q. It was read to you today, Mr. Bursik, from the second paragraph,
12 the following:
13 "This information report sets forth the content of the interview
14 not included in the statement of facts as signed by Momir Nikolic as part
15 of his plea agreement. It should thus be read together with the
16 statement of facts for a comprehensive overview of the interview in its
18 I suppose that this is for facts that you cannot find in plea
19 agreement, but if can you find something in plea agreement that is in
20 direct opposition to what you can find in this, your report, which
21 document has priority? What do you think?
22 A. If I can just perhaps set a platform in that this information
23 report was to include all the facts that were not included in the plea
24 agreement. In my opinion, the definitive document here would be the
25 signed plea agreement.
1 Q. Thank you, Mr. Bursik. Thank you very much.
2 JUDGE ORIE: Thank you, Mr. Lukic.
3 [Trial Chamber confers]
4 JUDGE ORIE: No further questions by my colleagues.
5 Ms. Hasan, the very few questions have not triggered any need for
6 further questions.
7 MS. HASAN: No, Your Honour. Thank you.
8 JUDGE ORIE: Thank you.
9 Mr. Bursik, this then concludes your testimony in this court.
10 I'd like to thank you very much for coming to The Hague. I wish you a
11 safe return home again and I thank you for having answered all the
12 questions that were put to you.
13 THE WITNESS: Thank you, Your Honour.
14 JUDGE ORIE: Yes.
15 THE WITNESS: May I just make one comment? It's just a small
16 issue, but I caught the LiveNote when I said the initial interview was
17 one of exploration, I see it was recorded as "explosion". So if I can
18 perhaps just call your attention to that. I don't --
19 JUDGE FLUEGGE: I noted that.
20 THE WITNESS: -- want it to be read later on that we had an
21 aggressive approach towards an explosive approach. It was an explorative
23 JUDGE ORIE: Yes. As you are familiar, usually the transcript
24 will be reviewed overnight, and this is not already the final one. And
25 at the same time, it's worth mentioning those few mistakes because I
1 would say the great majority -- the mistakes are the exception and the
2 accurate transcript is the rule. And that's what we are so happy with
3 with our transcribers and interpreters, by the way.
4 You may follow the usher. Thank you for the observation.
5 THE WITNESS: Thank you, sir.
6 [The witness withdrew]
7 JUDGE ORIE: First of all --
8 JUDGE FLUEGGE: Now I think the "explosion" issue was repeated on
9 page 59, line 16. He said, "I said the initial interview was one of
10 exploration," but now it appears again as "explosion".
11 JUDGE ORIE: I'm fully confident that this will all be dealt with
12 when reviewing the transcript overnight.
13 Ms. Hasan, my apologies for not introducing you. As you may have
14 noticed, I usually tell the witness who is the cross-examiner. At the
15 same time, I took it from the fact that you introduced yourself that you
16 were not employed by the OTP when this witness was employed by it. If
17 you could confirm that, that would be --
18 MS. HASAN: No, I was not.
19 JUDGE ORIE: Yes. And there's no dispute about that, I take it.
20 Then I have a few matters, but very few on my agenda. Is the
21 Defence ready to call its next witness after I have dealt with those?
22 MR. LUKIC: Your Honour, the cross-examination this week was
23 shortened by three and a half hours and that was the time we envisaged
24 tomorrow, So we made a plan according to cross-examinations that were
25 sent to us. I mean --
1 JUDGE ORIE: Yes, and you extended your time, so --
2 MR. LUKIC: Yes.
3 JUDGE ORIE: -- therefore, on the one hand, there was more time
4 needed; on the other hand, time was shortened. And I can't say that the
5 Chamber was totally without influence on the duration of the
6 cross-examination. I think we may have influenced that. That's at least
7 what I understand.
8 So, therefore, then I'll deal with one procedural item.
9 [Trial Chamber confers]
10 JUDGE ORIE: Well, in order to accommodate you, I have two agenda
11 items, Mr. Lukic, which takes a bit more time.
12 For the first one, we go into private session.
13 [Private session]
11 Page 38917 redacted. Private session.
19 [Open session]
20 THE REGISTRAR: We're in open session, Your Honours.
21 JUDGE ORIE: Thank you, Madam Registrar.
22 The next item on my agenda is a decision on the admission of
24 The Chamber will deliver its decision on the admission of
25 document P6925, which is an article entitled: "A Job Fit for the
1 Tigers," by Dejan Anastasijevic, tendered and marked for identification
2 during the testimony of Dusko Corokalo on the 18th of November, 2014.
3 The Defence objected to the admission, stating, inter alia, that
4 the witness had no knowledge about the document. This to be found on
5 transcript pages 28478 to -481.
6 The Prosecution subsequently tendered this document during the
7 testimony of Drasko Vujic on the 4th of May, 2015. The Defence objected
8 again to admission, stating that Witness Vujic had no knowledge of the
9 document and that the content of the document is not linked to his
11 The Chamber recalls that the applicable law for the admission of
12 evidence is set out in Rule 89(C) of the Rules which allows a chamber to
13 admit any relevant evidence which it deems to have probative value. With
14 regard to the Defence's objection that the witnesses had no knowledge
15 about the document, the Chamber recalls its prior practice that a
16 document's probative value can also be established if its content is
17 sufficiently linked to the content of the witness's statement.
18 The Chamber considers the relevance of the article and finds that
19 it relates to the charges in the municipalities' component of the case.
20 The Chamber further considers that Witness Corokalo had no
21 knowledge of the document and finds that as he also did not testify about
22 the content of the article, the content of the document is insufficiently
23 linked to his testimony.
24 Witness Vujic testified in general terms that many non-Serbs left
25 Prijedor but that he had no knowledge of the circumstances under which
1 they left. He testified in detail about non-Serbs leaving Puharska in
2 1992/1993. The article, however, deals with the alleged expulsion of
3 about 5.000 non-Serbs from the Prijedor area in 1995, and the Chamber
4 therefore finds that the content of the article is insufficiently linked
5 to his testimony and therefore denies the admission of P6925.
6 And this concludes the Chamber's decision.
7 Mr. Lukic, did I understand your previous observation well, that
8 you also had calculated that the testimony of Mr. Bursik would take the
9 whole of tomorrow?
10 MR. LUKIC: No, Your Honour. But all our three witnesses from
11 this week were -- their cross-examination was shortened by -- in total,
12 it was three and a half hours.
13 JUDGE ORIE: Yes.
14 MR. LUKIC: That's why we couldn't rectify it for today or
16 JUDGE ORIE: Yes. You do not have further witnesses for --
17 MR. LUKIC: We do not have further witnesses for this week.
18 JUDGE ORIE: For this week. That is, for tomorrow.
19 MR. LUKIC: Yes.
20 JUDGE ORIE: Ms. Hasan.
21 MS. HASAN: If I may, Your Honour, with respect to this
22 particular witness and our cross-examination time, it would have helped
23 us to know something about what was expected to be covered during the
24 direct of his testimony. As you know, the 65 ter summary was two lines
25 and the proofing note we got yesterday gave us very little information.
1 So it's very difficult for us to give the Defence a good estimate for
2 cross-examination when we don't know the subject matter of the testimony.
3 So, in the future, if those obligations are met, then we would be better
4 placed, as far as scheduling is concerned, to give more accurate
6 JUDGE ORIE: Mr. Lukic, I interpret this as an invitation to
7 provide more detailed 65 ter summaries.
8 MR. LUKIC: It's one witness, Your Honour. We had three. And
9 this witness was seen by our team members only yesterday for the first
10 time, so it was not a possibility to give them more detailed information
11 report on what would be spoken to him.
12 JUDGE ORIE: But you have not interviewed him at any other point
13 in time?
14 MR. LUKIC: No. This gentleman appeared here two days ago and
15 for the first time he was seen yesterday.
16 JUDGE ORIE: Did you seek to interview him at an earlier stage?
17 MR. LUKIC: He was working in the Seychelles, and my colleague
18 Ivetic was -- [Realtime transcript read in error "conducted"] contacted
19 him through various organs and he just arranged his arrival but we never
20 interviewed him.
21 JUDGE ORIE: Yes. I may have missed that. Oh, in the -- now I
22 see that exotic place where he was. It's now clear in the transcript. I
23 had difficulties in understanding it well, but it has become clear.
24 I earlier urged the importance of having always a reserve witness
25 and someone on standby.
1 MR. LUKIC: One small maybe not necessary --
2 [Defence counsel confer]
3 MR. LUKIC: It is written that -- maybe it was my English, that
4 Mr. Ivetic "conducted" this witness. He "contacted" this witness. We
5 don't want to conduct our witnesses.
6 JUDGE ORIE: Yes, yes, yes.
7 MR. LUKIC: And --
8 JUDGE ORIE: And you certainly do not abduct them.
9 MR. LUKIC: One more thing. We cannot keep our witnesses longer
10 here. We usually bring them here one or at the most two days before
11 their testimony. It's the guidelines from VWS, so we couldn't have had
12 him before.
13 JUDGE ORIE: I see your point. At the same time I will observe
14 that it went wrong more frequently than it did before, and I invite the
15 parties to assist each other in trying to avoid this to happen again.
16 [Trial Chamber confers]
17 JUDGE ORIE: Now, Mr. Lukic, earlier, I asked about the schedule
18 of this week. You said it was okay; there was no problem. And then it
19 turned out, well, there were quite some problems. But you said next week
20 there could be some problems.
21 MR. LUKIC: Could be some problems. We are trying to solve it.
22 We just received information that one of our witnesses cannot come next
23 week. I received it in the previous break.
24 [Defence counsel confer]
25 MR. LUKIC: I think for the rest, Mr. Ivetic has more
2 JUDGE ORIE: Mr. Ivetic.
3 MR. IVETIC: Yes, Your Honours, since I've been communicating
4 here as we speak. The first witness for Monday is confirmed. A
5 gentleman will be travelling this weekend -- I apologise.
6 The first witness for Tuesday, since we do not sit on Monday, is
7 confirmed and will be travelling and we will be ready to proceed with
9 I'm still working on the second witness, who is GRM-037. I don't
10 have information yet as to whether that is confirmed, but there is still
11 the possibility that they will be able to make it for the second part --
12 to be the second witness.
13 The third witness for the week was the larger witness for the
14 week that Mr. Lukic spoke about who is unable to attend. We just found
15 out via telephone, as Mr. Lukic indicated, at the break. So we have a
16 problem after the -- potential problem after the first but a definite
17 problem after the second witness for next week.
18 And unfortunately the other witnesses that we have lined up are
19 fixed for the following week. There is, I believe, the one videolink and
20 another witness who I'm not sure who that is. But we will try, we will
21 definitely try to see if we have any other witness who are available on
22 short notice to arrive from where they are. The problem is many of the
23 remaining witnesses we have are either Rule 70 or coming from far away
24 and thus it complicates the ability to have someone come on short notice
25 to fill any gaps. But we will try everything within our abilities to do
1 so and we can have a better view of that, perhaps, at the beginning of
2 the week.
3 JUDGE ORIE: Yes. To the extent -- you say at the beginning of
4 the week. I take it that your efforts these days may result in further
5 information already this week, and the Chamber would be like to be
6 updated in detail if there's any news.
7 MR. IVETIC: Of course, Your Honours. I forgot that today was
8 only Wednesday. I thought it was already the end of the week.
9 JUDGE ORIE: Yes. Because we are not sitting Monday, the 14th of
10 September, it being an UN holiday.
11 [Trial Chamber confers]
12 [Trial Chamber and Registrar confer]
13 JUDGE ORIE: Oh, it's not because of an UN holiday, I hear. But
14 we're certainly not sitting on the 15th of -- 14th of September.
15 Therefore, we adjourn until Tuesday, the 15th September, 2015
16 MR. TIEGER: Mr. President.
17 JUDGE ORIE: Yes, Mr. Tieger.
18 MR. TIEGER: I was trying to balance not rising while you were
19 speaking, not anticipating that you were about to adjourn, but I have one
20 additional matter I wish to raise before we do adjourn.
21 JUDGE ORIE: Now, we would be at the time of a break, but if it
22 is a short matter, I think we should deal with it right away and not
23 after a break. Yes.
24 MR. TIEGER: Thank you, Mr. President.
25 This is a follow-up to a matter I raised earlier in connection
1 with a pending motion and it arises from the Prosecution's 13 May 2015
2 motion for exclusion of significant portions of the ballistics experts
3 reports involving rather voluminous technical material regarding
4 witnesses and events that were not part of the trial record. And as the
5 court may recall, on the 13th of August, I raised the issue as something
6 that had a potentially significant impact on scheduling, on preparation
7 time for the attorneys involved, and on the estimated time of
8 examinations for both sides.
9 We received on Monday a scheduling notice from the Defence that
10 one of those witnesses may be scheduled to testify on the week of
11 September 21st, and although we've requested that that witness be delayed
12 by a week, this already implicates some of the preparation concerns I
13 alluded to earlier and can only become worse as time goes on. So I
14 wanted to raise that concern again with the Court in the hope that it
15 might be resolved expeditiously.
16 JUDGE ORIE: Mr. Lukic.
17 MR. LUKIC: First, scheduling-wise, for the Defence it is almost
18 impossible now to move around our witnesses since we have only a few
19 left. Probably 20. Not more than 20. So it's very hard -- and most of
20 them internationals and experts.
21 Regarding the -- I informed our experts, ballistic experts, about
22 the request made by the Prosecution that some parts of their expertise
23 should be, according to the Prosecution, excluded and they say that they
24 deem it necessary to have the whole picture and they think that
25 everything they wrote should stay there. So maybe it's a good way to go,
1 to see with the experts and after their testimony, which is usually how
2 it is done, whether something should be excluded from their expertise or
3 not. They should be asked.
4 JUDGE ORIE: Mr. Tieger.
5 MR. TIEGER: Number one, it was not a request to the Defence to
6 consider voluntarily excluding or deleting that material. As I
7 indicated, it was a motion made to the Court. That's what's on the
8 table. So Mr. Lukic's communication with his experts doesn't move the
9 ball forward in any way.
10 Secondly, I didn't expect to be arguing this matter at this
11 moment. I was simply asking for the quickest possible resolution of our
12 pending motion which deals with matters that are, as we've submitted,
13 beyond the scope of the normal process by which portions of expert
14 reports may be considered for exclusion after cross-examination.
15 This is a relatively unique and special matter dealing with
16 issues, as I've noted earlier, that were not part of the trial record,
17 that necessitate extensive preparation and considerable time, and our
18 motion for a preliminary determination was grounded, at least in part, on
19 that basis. And for the interests of both parties in terms of the time
20 expended and in the interest of the most efficient use of court time, we
21 consider the motion very well grounded and a resolution very much in
23 JUDGE ORIE: We'll consider the matter.
24 MR. LUKIC: Only one short answer.
25 I know that -- I think that Vase Miskina was asked to be excluded
1 since it's not in our indictment. But if you remember correctly, the
2 whole documentation in relation of Vase Miskina became a part of our
3 case. So although some things --
4 MR. TIEGER: May I interrupt Mr. Lukic for a moment. I'm very
5 sorry, but this is formally submitted on pleadings. This is not an
6 appropriate opportunity to re-argue the motion, and if it is, we should
7 take it up again after a break in a more formal fashion and we'll raise
8 arguments and counter-arguments on the record in that manner. But I
9 simply asked -- I simply raised a matter that had been pled and had not
10 been further addressed by the Defence and needed to be resolved as
11 quickly as possible.
12 JUDGE ORIE: Okay. As I said before, we'll consider the matter.
13 Mr. Lukic, on the basis of the submissions by the parties --
14 MR. LUKIC: We would not like to have exceptions at the end of
15 our case.
16 Mr. Tieger mentioned it's exceptional and should be decided
17 before the testimony of the experts.
18 JUDGE ORIE: Mr. Lukic, Mr. Tieger explained that the type of
19 situation was exceptional and that was the reason why he considered that
20 the usual solution of that, that is, to wait until after
21 cross-examination, was not the appropriate one. He didn't say, "I want
22 to make you an exception in similar circumstances." That's at least how
23 I understood you, Mr. Tieger.
24 MR. TIEGER: That's correct. And I would say, if nobody wants
25 any exceptions, then the motion is extremely well grounded.
1 JUDGE ORIE: Well, as I said before, we'll consider it, and we'll
2 try to do that as quickly as we can.
3 We adjourn and will resume on Tuesday, the 15th of September,
4 2015, 9.30 in the morning, in this very same Courtroom I.
5 --- Whereupon the hearing adjourned at 1.26 p.m.,
6 to be reconvened on Tuesday, the 15th day of
7 September, 2015, at 9.30 a.m.