1 Monday, 26 June 2006

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.35 p.m.

5 JUDGE PARKER: Good afternoon. Unfortunately Judge Thelin is not

6 here, so that Judge Van Den Wyngaert and I will sit. I'm glad that

7 Mr. Radic has been able to join us.

8 Mr. Moore.

9 MR. MOORE: Thank you very much. May I just deal with two

10 matters, which can cut down today's hearing, I hope, in time. There is a

11 schedule, I think, which the Court should have. The final document

12 relates to 65 ter number 977 in respect of what I will call a journalistic

13 interview with Mr. Sljivancanin. I just hold it up to assist the Court.

14 I've spoken to my learned friend, Mr. Lukic --

15 JUDGE PARKER: Sorry, you're referring to a schedule. What is it

16 that you're referring to?

17 [Trial Chamber and registrar confer]

18 JUDGE PARKER: We have a document of that nature.

19 MR. MOORE: Yes. And I hope, if Your Honour looks to the bottom,

20 there is the 65 ter 977.

21 JUDGE PARKER: Yes.

22 MR. MOORE: I just want to deal with that document. Ms. Regue

23 will deal with all the others.

24 I have had an opportunity of speaking to Mr. Lukic, and the

25 agreement between us is quite simply this: That should Mr. Sljivancanin

1 give evidence that we would not be estopped from cross-examining on this

2 document, that he has now notice of the document itself. And so

3 consequently there need not be any additional argument about that.

4 JUDGE PARKER: So you don't press its admission.

5 MR. MOORE: No, I do not.

6 JUDGE PARKER: Thank you.

7 MR. MOORE: So that should certainly clarify that matter.

8 JUDGE PARKER: Thank you.

9 MR. MOORE: The second matter relates to General Pringle's report.

10 It was footnote 4, from memory, which is Major-General Zorc's report. We

11 submitted that it should be admissible and should be adduced as evidence

12 of the truth of its content, which was adopted by General Pringle. I

13 would wish to make a very short application in relation to that, oral

14 application.

15 JUDGE PARKER: Yes.

16 MR. MOORE: Mr. Vasic seems concerned about something. But I will

17 do it just quickly, and it's this: That General Pringle is in a specific

18 position as an expert. He had an opportunity of assessing the document

19 itself. He gave evidence in relation to it by way of comparison and to

20 some extent authenticating it in the sense that he considered it was

21 comparable to the command and control doctrine that applies when -- in

22 other arguments.

23 My learned friend Mr. Vasic says they are disadvantaged because

24 they are unable to cross-examine. Apart from the fact that my learned

25 friend did cross-examine on one part of the document, we would submit that

1 firstly it is admissable, its weight is a matter for the Court, an

2 inability to cross-examine is not necessarily fatal, and in any event,

3 with the fact that Major Pringle or Major-General Pringle adopted the

4 report, the defence were therefore able to cross-examine Pringle on it in

5 relation to other matters and as such, it should be admitted and the Court

6 give it the appropriate weight as they -- as they see fit.

7 JUDGE PARKER: What is wrong with the proposition, Mr. Moore, that

8 insofar as the witness called adopted and relied upon the report, that has

9 been the subject of his specific evidence, both oral and his written

10 report, and has been in some respects at least the subject of

11 cross-examination. Beyond that, the report of General Zorc has not

12 featured in this trial. It's only insofar as it's been adopted and used

13 by General Pringle.

14 MR. MOORE: Your Honour has put it more eloquently than I. But

15 that was exactly --

16 JUDGE PARKER: But that would lead to the opposite result. It

17 would lead to the report of Zorc not being admitted.

18 MR. MOORE: No, not necessarily in my submission.

19 JUDGE PARKER: Well, I'm putting to you that proposition, you see.

20 MR. MOORE: Well, I would submit that that is not necessarily the

21 case. That for a court to consider Pringle's replies in relation to that

22 cross-examination, they should have the source material to assess the

23 credibility or otherwise of that reply and of that evidence.

24 JUDGE PARKER: But you have chosen not to call that witness --

25 MR. MOORE: No, we --

1 JUDGE PARKER: -- that would have provided that source.

2 MR. MOORE: Yes, it would.

3 JUDGE PARKER: You want it to go in just because General Pringle

4 has referred to one passage.

5 MR. MOORE: He certainly didn't merely rely on one passage, he

6 relied on the report, with regard to command and control, which is

7 probably the most important part of General Pringle's evidence. So it's

8 not a case of just one passage.

9 If, however, Your Honour takes the view that the Prosecution

10 should have called General Zorc and therefore that is fatal to the report

11 itself, then of course that is the Court's prerogative. But we would

12 submit that for any expert or any expert's evidence to be evaluated, the

13 Court should always have an opportunity of assessing the source material.

14 And in this case the source material has been available to the Defence,

15 and they have been able to cross-examine Pringle on the part that he

16 adopted. So they have not been disadvantaged, in our submission.

17 JUDGE PARKER: But you somehow want to leap from that to tendering

18 the whole of the report.

19 MR. MOORE: I would seek to tender the report on relevant aspects.

20 For example, that report dealt with Dubrovnik. One would obviously not

21 deal with those areas. And I'm quite happy to put a pen through

22 paragraphs that we would not seek to rely upon. But where Pringle says in

23 relation to command and control that I see Zorc, his report on it, and I

24 consider it to be analogous to, as in his case, the British military

25 forces, then in our submission that is a matter that the Court are

1 entitled to look at and to evaluate as a question of, firstly, weight in

2 relation to Zorc, and Zorc's report, and, secondly, the credibility of

3 Pringle's evidence on that material. I wouldn't put the matter any higher

4 than that.

5 JUDGE PARKER: Thank you, Mr. Moore.

6 [Trial Chamber confers]

7 JUDGE PARKER: Ms. Regue.

8 MR. MOORE: Your Honour, might I just deal with the General Zorc

9 situation. I would like to leave court if it is as all possible. There

10 is one further administrative matter that I would wish to deal with. I

11 wonder if Your Honour could hear me on that.

12 JUDGE PARKER: Yes.

13 MR. MOORE: Thank you very much.

14 It's quite simply this: Clearly there are 98 bis arguments to

15 come. It would assist certainly the Prosecution if the Defence would be

16 able to either indicate the documents that they would seek to rely upon in

17 the 98 bis argument, and/or the counts to which they would make

18 suppressions. And if that could be done, that would be extremely helpful.

19 There's no obligation for them to do so, but it is not perhaps an

20 unreasonable request in relation to the case as a whole.

21 JUDGE PARKER: Well, can I say, Mr. Moore, that I have no doubt

22 that it would be of assistance to you, and I have no doubt that if your

23 learned friends on the opposite side are in a position to do so, that they

24 would, in the spirit that has been shown in this trial, let you have that

25 information, but I don't think that it's a case where this Chamber should

1 make a ruling to require that that be done at this point.

2 Bearing in mind the nature of 98 bis, at least as it's now been

3 clarified by the amended Rule, in your jurisdiction and mine you would be

4 rather used to, I would think, as you sat down having closed your case, to

5 the equivalent of 98 bis being moved on the spot orally and your response

6 orally on the spot, and a decision, if not on the spot, by the next

7 morning, orally.

8 MR. MOORE: In a case of perhaps one or two weeks, the answer

9 would be yes, but not a case of this size. Normally --

10 JUDGE PARKER: Not so?

11 MR. MOORE: No. Absolutely not.

12 JUDGE PARKER: Oh, dear.

13 MR. MOORE: Perhaps they're much more able in Australia than

14 mortals in Britain. But normally in a case of this size we would have a

15 general indication of what the submissions would be not extensively in any

16 way at all, but firstly to deal with the counts, and perhaps - dreadful

17 phrase - bullet points, so that the Chamber or the Court and all parties

18 would know exactly where they stand. So that would be the position in our

19 jurisdiction.

20 JUDGE PARKER: Well, it's interesting.

21 Is it possible for Defence counsel to indicate whether they will

22 be in the position to give advance notice to Mr. Moore of their 98 bis

23 submissions? Yes or no would do, Mr. Vasic.

24 MR. VASIC: [Interpretation] Yes, Your Honours, I'm afraid the

25 answer is no. We would be submitting such information to our learned

1 friend in case the Defence had a crystal clear, or rather clear-cut

2 position already that we were aware of, which seems not to be the case.

3 JUDGE PARKER: And you speak for all counsel, I take it? Very

4 well.

5 There's your answer, Mr. Moore.

6 Looking ahead to Wednesday, the Chamber had felt that it should

7 indicate a general timetable for the day for the submissions. We would

8 expect that the submissions of each accused might be dealt with in between

9 half and three-quarters of an hour. They may well be able to be put in a

10 shorter period than that, but we want to indicate the outside limit, so

11 that preparations can proceed on that basis. Which would mean at the

12 worst, for time, that Mr. Vasic would have from 9.30 to 10.15, Mr. Borovic

13 from 10.30 -- 10.15 to 11.00, and Mr. Lukic from 11.20 to 12.05.

14 We would think in deference to Mr. Moore's concerns that we should

15 not then proceed until the afternoon to hear his response. And as he's

16 dealing with all three cases, that he might have up to an hour to respond.

17 So that would be 2.15 -- no, it's the other time table, isn't it. 1345 to

18 1445. I think 1345 to 1445, Mr. Moore. And it will then be by then

19 possible for the Chamber to know whether it can give its decision on the

20 afternoon of Wednesday or whether it will be necessary to give a decision

21 on Friday, as we are all of Thursday, in a Plenary, and not able to sit on

22 Thursday. But it -- we'll decide once we've heard the submissions and

23 been able to consult with each other whether we can give a decision on

24 Wednesday or whether it will be Friday.

25 MR. MOORE: Thank you very much.

1 JUDGE PARKER: Thank you then, Mr. Moore.

2 Ms. Regue,

3 [Trial Chamber confers]

4 MS. REGUE: Good afternoon, Your Honours.

5 I will seek to tender only 10 documents from the bar table instead

6 of 11. And well, we will start with the first indictment from the

7 Belgrade prosecutor, number 3/03, dated the 4th of December, 2003. The

8 ERN number, both in English and in B/C/S, is 0345-2550-0345-2563.

9 JUDGE PARKER: Yes.

10 MS. REGUE: We will seek to tender these documents with regards to

11 the name of the accused.

12 JUDGE PARKER: Now, is there any difference of admissibility

13 between documents 1, 2 and ...

14 MS. REGUE: 1 and 2, probably.

15 JUDGE PARKER: Only 1 and 2, yes.

16 MS. REGUE: Yes, Your Honour, I was going to explain that.

17 Actually, there are two indictments. There was an initial

18 indictment, the 4th of December, 2003, where eight accused were indicted,

19 and then the trial started but investigations continued. And then a

20 second indictment was issued the 25th of May, 2004 against 11 accused.

21 With regard to the first indictment, one accused committed suicide for

22 your information. And we seek to tender both indictments because they

23 actually include all the accused which are in the judgement.

24 JUDGE PARKER: Very well. Are there any particular further

25 submissions you want to put?

1 MS. REGUE: Excuse me, Your Honour?

2 JUDGE PARKER: Are there any other particular submissions you want

3 to put as to why they should be received.

4 MS. REGUE: No, Your Honours. We seek to show actually that the

5 accused which are mentioned in this indictment were the physical

6 perpetrators in the Ovcara crime.

7 JUDGE PARKER: Thank you.

8 Is there in objection? Mr. Vasic.

9 MR. VASIC: [Interpretation] Your Honours, only in relation to what

10 my learned friend has just suggested; namely, that the Prosecutor is

11 tendering this document in order to prove that the people mentioned here

12 are the physical perpetrators of the crime at Ovcara. I don't think that

13 can be based on the indictment, because the indictment is not a document

14 which you can use to establish something like that. A final judgement

15 might be, but not the indictment.

16 JUDGE PARKER: Thank you.

17 Mr. Borovic, any submission?

18 MR. BOROVIC: [Interpretation] Your Honour, I've given my argument

19 in relation to the first-instance judgement. That is based on the

20 indictments. I think that proposal was sufficient, what the Chamber told

21 the OTP, that such a judgement can be tendered, but that the Chamber can

22 only realise what the nature of the judgement is, once it has been

23 announced as final by the relevant Trial Chamber. That still seems to be

24 my position.

25 JUDGE PARKER: Mr. Lukic.

1 MR. LUKIC: [Interpretation] I support what my learned friends have

2 said so far. Thank you.

3 JUDGE PARKER: Now, documents 3, 4, 5 and 6, Ms. Regue.

4 MS. REGUE: Yes, Your Honour. You don't wish me to actually read

5 out the ERN numbers of indictment number 2? It's not necessary?

6 [Trial Chamber and registrar confer]

7 JUDGE PARKER: There's no need to read them out.

8 MS. REGUE: Okay. Thanks, Your Honour.

9 Document number 3 is the B/C/S transcript of the audio recording

10 of the Ovcara judgement of the Belgrade war crimes court dated 12th

11 December, 2005.

12 As we actually expressed last week, Mr. Moore expressed in the

13 courtroom, we seek to tender the judgement only with regards to the

14 verdict or to the judgement. And for us the relevance of these documents

15 is to show that the accused or in this case the accused who were

16 pronounced guilty were indeed physical perpetrators in the Ovcara crime.

17 It has been put by some witness in this case.

18 And Your Honours, the document number 4, I won't read, as you

19 indicated the ERN number, is the English translation of the transcript, of

20 the audio recording.

21 Document number 5 is the judgement itself. Because in Belgrade

22 actually the written judgement doesn't become public until some time. So

23 what we obtained right away, it was only the audio recording, the

24 transcript of the audio recording, which was a summary of the December

25 public hearing. And we obtained very recently only the complete

1 judgement. And we will tender right now the judgement itself in B/C/S for

2 the same purposes as the hearing, as the transcript. And once we obtain

3 the English translation, we will seek to tender the English translation.

4 JUDGE PARKER: Yes.

5 MS. REGUE: May I continue, Your Honour?

6 JUDGE PARKER: Yes.

7 MS. REGUE: Document number 6 is the transcript of the audio

8 recording of another judgement pronounced against Milan Bulic.

9 If I may explain, Your Honour, in Belgrade there were three Ovcara

10 proceedings running at the same time. The main Ovcara case, which was --

11 the judgement was pronounce in December, there was another trial against

12 Milan Bulic, who was charged for the same crimes, but for illness he was

13 separated from the other perpetrators. And his judgement was actually

14 read out the 30th of January, and we just obtained very recently the

15 transcript of the hearing. So we seek to tender actually the transcript

16 of the hearing only read out the verdict.

17 There is still an ongoing trial proceeding against another accused

18 called Sasa Radak which was arrested at a later stage. So this proceeding

19 is still ongoing.

20 JUDGE PARKER: And if this were admitted, you would seek, in due

21 course, so supplement what is there with an English translation?

22 MS. REGUE: Yes, Your Honour, as soon as we obtain the English

23 translation.

24 JUDGE PARKER: Yes. Thank you.

25 Mr. Vasic.

1 MR. VASIC: [Interpretation] Thank you, Your Honour.

2 Again, I have the same concern as earlier on. We have this

3 judgement of the special court in Belgrade, I don't think this document

4 can be used as evidence to show that these people indeed committed the war

5 crime that they were convicted for. This is not a final judgement. All

6 we can say is that this non-final judgement, as it were, says they're

7 guilty. The weight of this particular piece of evidence very much depends

8 on what the Appeals Chamber decides to do. It depends on whether they

9 decide to amend the original document, whether they perhaps decide to

10 acquit or throw the entire case out and send them all back to square one,

11 depending, of course, on all the evidence placed before the Trial Chamber.

12 It is in this sense that I believe this document can be tendered, but its

13 weight as evidence is limited at best. There is a first-instance ruling

14 or judgement containing a guilty verdict, but we use remember that this is

15 not a final judgement.

16 As for the transcripts of the audio recordings, from the reading

17 of the judgement, they might be authentic, but under our laws they

18 represent to me a summary of the judgement, the reasons for the judgement

19 being stated in brief, and then this is followed by a more detailed

20 account of the reasoning behind the judgement. This document is limited

21 in its scope, and I hardly believe it could prove of any use, since you

22 have the judgement itself to read.

23 The same arguments apply to everything else that my learned friend

24 has been seeking to tender. Thank you.

25 MS. REGUE: Your Honour -- excuse me.

1 JUDGE PARKER: Mr. Borovic.

2 MR. BOROVIC: [Interpretation] Your Honours, I will be very brief.

3 As a matter of principle, disputing a non-final judgement is

4 perfectly justifiable. I believe our learned friends from the OTP

5 understand that, even bearing in mind the fact that all those indicted

6 denied their responsibility. Perhaps if someone takes a look at some of

7 those statements, I believe that might be helpful for my client, precisely

8 for the same legal qualifications that have been presented here in this

9 case. I would not like to go too far into that now though. As a matter

10 of principle, I leave it to the Chamber to rule whether this can be

11 accepted as evidence admitted into evidence or not.

12 Thank you.

13 JUDGE PARKER: Mr. Lukic.

14 MR. LUKIC: [Interpretation] I support what my learned friends have

15 said, but there is another objection that I wish to raise at this

16 juncture.

17 As for the written summary of the judgement, we were given a copy

18 today for the first time. This contains 137 pages in the B/C/S original.

19 I saw it today when I came to the courtroom for the very first time. We

20 need time to have a look and to see what our position is. What I'm trying

21 to say, in other words, is this document is entirely new to us, and we

22 have never seen it before. I have scan-read the document, and I have seen

23 numerous references to numerous statements in the document. Therefore, I

24 believe I need some more time to be able to give the Chamber a more

25 articulate or final position on this document.

1 JUDGE PARKER: But, Mr. Lukic, does that not ignore the nature of

2 this document? It's a judgement of a court. Whether it's an interim,

3 final or whatever type of judgement, it is an interim judgement.

4 Necessarily that will be dealing with the evidence that was presented to

5 the court, and the court's views about it. How will it affect the

6 admissibility of that document for you to want to explore for your own

7 purposes all the evidence that the court relied on?

8 MR. LUKIC: [Interpretation] One thing that just occurred to me, it

9 is possible that our own clients' statements are quoted in this document,

10 because their statements were read at trial. Are these statements fit to

11 become evidence? They might as well be tendered through a document like

12 that. I just want to go through this judgement to see whether anything is

13 quoted in the judgement that we believe to be unfit to be admitted into

14 evidence. The weight of the judgement is something else. That is up to

15 the Chamber to decide.

16 The reason I'm objecting, and the reason I am proposing that this

17 merely be marked for identification, is I believe it is my duty to go

18 through this document thoroughly to see what's in it, or rather if there

19 might be something in it that we deem to be inadmissible.

20 That's my position right now, Your Honours. Thank you.

21 JUDGE PARKER: Ms. Regue.

22 MS. REGUE: Yeah, Your Honours.

23 Just concerning this last point, Mr. Lukic. We actually disclosed

24 the judgement, I have with me here the receipt, June 16. So actually the

25 Defence had with them the judgement since June 16, so they had -- we

1 didn't give to them the document today, we disclosed to them the document,

2 if I'm correct, like one week and a half ago. So we disclosed that

3 document earlier on. It's not like today that they gave the document.

4 JUDGE PARKER: It was a rather busy week.

5 MS. REGUE: Yeah, but it's not today we gave the document, Your

6 Honour.

7 And also, Your Honour, just to clarify what we already stated last

8 week, we don't seek to tender all the judgement. We seek to tender only

9 the document concerning the name -- the indictment concerning the names of

10 the accused and also the verdict. So not the full judgement itself, only

11 the verdict.

12 JUDGE PARKER: I'm sorry. Do we misunderstand you then? I

13 thought you were seeking to tender the full judgement. That's what's

14 described here.

15 MS. REGUE: Yeah, we seek to tender the full judgement, but only

16 concerning the verdict. Meaning the accused. The people who are -- who

17 are actually declared accused.

18 JUDGE PARKER: See, Mr. Lukic is worried about what might lie

19 within all these pages.

20 MS. REGUE: Okay. So maybe he will be --

21 JUDGE PARKER: Whereas if you were simply saying we want to go to

22 the verdict at the end, the conclusion and only that, that's quite

23 different from the whole judgement.

24 MS. REGUE: So I think that, Your Honour, what we were put in

25 front of the Trial Chamber last week, that's what Mr. Moore actually was

1 putting to the Trial Chamber last week.

2 JUDGE PARKER: Will the whole of the transcript and the English

3 translation of the pronouncement of judgement --

4 MS. REGUE: Exactly.

5 JUDGE PARKER: I don't know what would be in that without looking

6 at it. And then the whole of the written judgement. I assume that

7 included the full reasons for decision. Am I wrong?

8 MS. REGUE: Sorry, Your Honour. Can you repeat, please?

9 JUDGE PARKER: The procedure may be a little different in Serbia.

10 But, for example, here, if we should ever come to give a decision at the

11 end of this trial on the guilt or innocence of the accused, there might be

12 a document of 50 or 100 or more pages in which we set out the issues, the

13 legal points, the essential facts, our findings based on those facts, and

14 then we come to say, has each accused been proved guilty of each of the

15 offences. And in the end we then say, in our verdict, we find accused X

16 guilty of counts this or that, and not guilty of some others.

17 MS. REGUE: Mm-hmm.

18 JUDGE PARKER: The whole of the decision is our judgement.

19 MS. REGUE: Mm-hmm.

20 JUDGE PARKER: But the verdict is only a very small part of it

21 where we say guilty or not guilty.

22 MS. REGUE: But Your Honours --

23 JUDGE PARKER: Now, is that differentiation what we're dealing

24 with here or not?

25 MS. REGUE: I'm afraid it is, Your Honours. We were actually

1 seeking to tender only this portion of the documents.

2 JUDGE PARKER: Thank you.

3 [Trial Chamber confers]

4 JUDGE PARKER: Mr. Borovic.

5 MR. BOROVIC: [Interpretation] Your Honours, I just wanted to help

6 my learned friend a little bit. I think that she has proposed a good

7 thing, just to tender the verdict. In that case, the position of the

8 Defence would be different. Thank you.

9 JUDGE PARKER: Because Judge Thelin is not here today, and because

10 this is a decision which we would want to discuss with all three Judges,

11 we will not give a decision today. We would hope to give a decision on

12 this matter on Wednesday, when we assemble for the 98 bis arguments.

13 Could I suggest, Ms. Regue, that you discuss with Defence counsel,

14 when we adjourn today, just what parts of the judgements and the

15 transcripts you want to tender, if it is that you can then agree, as

16 Mr. Borovic has hinted, that certain parts only, being what I might call

17 the verdict, are to be tendered, it may be that they can be tendered with

18 the agreement of Defence counsel, and if that is the position, that could

19 be indicated to the Chamber by a short memorandum, and we will then be in

20 the position to admit it on Wednesday.

21 If you are not able to reach agreement, we will proceed on the

22 basis that what is being proposed to be tendered is the full transcript of

23 the proceedings when the judgement was delivered and the full judgement as

24 it's been published.

25 If you want something else, you'd better notify us in writing

1 before Wednesday. Is that clear enough?

2 MS. REGUE: Yeah, it's clear enough.

3 JUDGE PARKER: Thank you. Document 7.

4 MS. REGUE: Yes, Your Honour. This is a Human Rights Watch

5 report, name war crimes in the former Yugoslavia, 65 ter document 198.

6 And for the Prosecution the relevance of this document is that it goes to

7 the wide-spread and systematic element in larger parts of Croatia,

8 including the municipality of Vukovar.

9 JUDGE PARKER: Thank you.

10 Is there any objection? No objection.

11 It will be received.

12 THE REGISTRAR: Your Honours, that will be Exhibit 602.

13 JUDGE PARKER: Thank you.

14 MS. REGUE: The following document is the report on the battle for

15 Vukovar from Mr. Cherif Bassiouni and others. It's 65 ter document 285

16 dated 14th October 1993. The relevance of this document also goes to the

17 wide-spread and systematic element in Mr. -- in Slavonia, including the

18 municipality of Vukovar.

19 JUDGE PARKER: Is there any objection?

20 That will be received.

21 THE REGISTRAR: Your Honours, that will be Exhibit 603.

22 JUDGE PARKER: Document number 9.

23 MS. REGUE: Yes, Your Honour. The other document has the ERN

24 number 0007-2605. It's part of the 65 ter document 288. It's the -- a

25 letter from the British Medical Association to the General Kadijevic. And

1 for the Prosecution this document goes for notice of the crimes committed

2 in Vukovar. It's dated 9th of December, 1991.

3 JUDGE PARKER: Any objection?

4 It will be received.

5 THE REGISTRAR: That will be Exhibit 604.

6 MS. REGUE: And the last document is also part of the 65 ter

7 document 288. And the B/C/S -- excuse me, the ERN in English is

8 0007-2602-0007-2604. And it's a letter from Amnesty International to the

9 government of Croatia. And the relevance of this document, it also

10 actually goes for notice concerning the crimes committed in Vukovar, and

11 it's dated 27th of November, 1991.

12 JUDGE PARKER: Any objection?

13 It will be received.

14 THE REGISTRAR: That will be Exhibit 605, Your Honours.

15 MS. REGUE: And finally, Your Honour, Mr. Weiner has one document

16 to offer.

17 JUDGE PARKER: Thank you very much, Ms. Regue.

18 MR. WEINER: Good afternoon, Your Honours.

19 JUDGE PARKER: Yes, Mr. Weiner.

20 MR. WEINER: Document number MFI 345, which is the blue folder,

21 it's been marked for identification since April 4th of this year. It is a

22 list of persons who received treatment at the Vukovar Hospital and were

23 later killed at Ovcara and raises an inference that they were patients on

24 November 18th through 20th. There's been testimony about the document

25 through Dr. Bosanac, Dr. Kostovic, as well as the 89(F) statement of

1 Dr. Kostovic discusses the accuracy and the contents of the document.

2 Now, out of the 3500 or so notations in there, last week counsel

3 indicated through their cross-examination that there were a handful of

4 errors. But if we look at that, out of 35 or so hundred, five errors is

5 much less than one per cent. In fact, in the Tuta Stela case, the

6 Prosecutor against Naletilic and Martinovic, the decision on the admission

7 of exhibits tendered through Witness Mladen Ancic, which is 4 October

8 2002, they note that the fact that a document is accepted into evidence

9 does not mean that it is fully accurate. And that's on page 3 where the

10 Court says: "Considering furthermore that the mere admission of a

11 document does not necessarily mean that the document gives an accurate

12 portrayal of the facts."

13 There can be some errors in there, and in this case we would argue

14 that it is a very small amount of errors. But based on the Tuta Stela

15 case, which cites other matters, that -- the fact of a few errors is not

16 determinative on the issue of admissibility.

17 Now, the documents which this blue folder is based on were

18 admitted through Dr. Kostovic. All those statistics and documents from

19 the Vukovar Hospital that were sent to Zagreb in Exhibits 596, 597

20 and 598. Now, those documents can be used to corroborate the so-called

21 blue folder, which is document 345, or can be used as a comparison to

22 ensure accuracy. So based on the other documents that have been admitted,

23 the testimony and the 89(F) exhibit of Dr. Kostovic, we would ask that the

24 blue folder, which has been mentioned many times in this case, be

25 admitted.

1 Thank you.

2 JUDGE PARKER: Thank you.

3 Mr. Vasic.

4 It looks as though you've been volunteered, Ms. Tapuskovic.

5 MS. TAPUSKOVIC: [Interpretation] Yes, Your Honours. Good

6 afternoon. Since I already spoke on the subject of the admissibility of

7 Exhibit 345, in its status of MFI, I wanted to now respond to the

8 suggestion of my learned friend.

9 At the beginning, he mentioned that this was a document which was

10 actually a list of patients of the Vukovar Hospital who were killed at

11 Ovcara later. The document itself states, and this was established

12 through other evidence, that from number -- from the number of persons

13 cited in the annex to the indictment we have 14 persons who were exhumed

14 in some other location, so that it cannot, with certainty, be asserted

15 that those persons were also killed at Ovcara.

16 The blue folder is something that has been discussed a lot on

17 several occasions. That piece of evidence was used in the examination of

18 several witnesses. I would just like to remind the Trial Chamber that

19 when the document was presented for the first time this was in April of

20 this year, shortly before the second appearance of Dr. Vesna Bosanac

21 before this Trial Chamber, when Mr. Moore from the Prosecution also

22 discussed this at your request. And your instruction then, Your Honours,

23 was, and I will read it out. It's on page 7276 of the

24 transcript. "[Previous translation continues] ... [In English] If they

25 are available, those source documents, in respect of the persons in the

1 indictment ..." [B/C/S spoken] "[In English] ... should be made available

2 to the Defence."

3 In the cross-examination, and even during re-examination of

4 Dr. Vesna Bosanac, we saw that she said that the document 345 was drafted

5 on the basis of information stored in Zagreb. Even though your

6 instruction was to make these documents available to the Defence, we did

7 not receive the documents on which this particular exhibit is based.

8 If we also look at the examination-in-chief by Mr. Moore of

9 Dr. Vesna Bosanac, we also can see that the blue folder was printed on the

10 basis of a table provided to the Prosecution on a compact disc by

11 Dr. Vesna Bosanac, and as far as I can recall, the Defence received this

12 exhibit in December during the Christmas recess. That's the document, if

13 you recall, which is quite large. It's a very big table, with 32 vertical

14 columns, and obviously the blue folder was made by breaking up this large

15 table made by the ministry, the sector for information, and it was made by

16 the Prosecution then and offered here as an exhibit as a document which is

17 practically being offered by Dr. Vesna Bosanac for reasons cited during

18 the cross-examination of Dr. Kostovic, where basically it was confirmed in

19 the view of the Defence, all three Defence teams, it was confirmed that

20 the documents or the names of the accused from the basic list, which is

21 actually the main, or the basic, the source document of the ministry, the

22 sector for information based on which Dr. Bosanac's analysis and documents

23 were derived, we see that the facts do not quite tally, and for those

24 reasons this document is not acceptable, because we were not given access

25 to the source information based on which the whole database was made, were

1 not also informed about the methodology in which the -- the database of

2 the blue folder was drafted.

3 So for these reasons, this folder is not -- this exhibit is not

4 acceptable.

5 JUDGE PARKER: Mr. Vasic.

6 MR. VASIC: [Interpretation] Thank you, Your Honours.

7 I accept what my colleague has stated. We all recall these

8 particulars that she talked about.

9 I would just like to touch upon one thing that my learned friend,

10 Mr. Weiner, stated in his request to have this document admitted. He said

11 that the Prosecution, on the basis of this document, wishes to prove that

12 these persons were being treated at the hospital from the 18th to the 20th

13 of November, 1991, and that after that they were killed at Ovcara. I

14 believe that this document is inappropriate to establish something like

15 this.

16 Your Honours, you will recall that from the statements of

17 Mrs. Bosanac and Mr. Kostovic, and even Mr. Strinovic, we learned that the

18 entire documentation, based on which this list was drafted, at least

19 according to what they said, there was no record of the discharge of

20 patients from the Vukovar Hospital. So it cannot be established on the

21 basis of this document how long each patient spent at the hospital, what

22 sort of medical treatment they received, and when each of them was

23 discharged.

24 Perhaps this could be a document of people who had passed through

25 the hospital in one way or another, but we don't know when they were

1 admitted, when they were discharged. And for us it is of key interest to

2 establish whether a patient was at the hospital in the period from

3 the 18th to the 20th, were they being provided with treatment at that

4 time, and then were they released after treatment or not -- discharged

5 after treatment or not.

6 During the examination of Mr. Kostovic, we found out that only at

7 the beginning of the armed conflict and during the reports sent from

8 Vukovar, records were maintained about the day patients, and only in this

9 initial phase was it indicated who was admitted as a day patient or who

10 wasn't. This documentation was not maintained later. So based on this

11 list, we cannot see who was actually admitted and who was treated as a day

12 patient.

13 And finally we cannot see from this list whether a person was

14 readmitted to the hospital several times, because we don't know when they

15 were discharged. In only one instance is their data about a person being

16 admitted twice. That was actually the duty of input of those who

17 maintained these records. Just like my colleague Ms. Tapuskovic said, the

18 Prosecution was not able to verify the incomplete data on the basis of

19 which the report was drafted, according to what Mr. Kostovic says. And we

20 believe that this document is not an appropriate document to prove the

21 assertions that the Prosecution wishes to prove.

22 JUDGE PARKER: Thank you.

23 Mr. Lukic.

24 MR. LUKIC: [Interpretation] Just one thing. I agree with

25 everything my colleagues have said, and I would like to add one small

1 argument to decide on the suitability of this document.

2 As I recall during the cross-examination of Mr. -- Ms. Tapuskovic

3 of Mr. Kostovic, he said that the accuracy was something that he was not

4 able to verify and was not something that he did that. So he used, or he

5 drafted his reports without verifying the authenticity of the sources.

6 And also on top of that we were not able to see these source documents,

7 which leads us to the conclusion that the report, the way it is, is not

8 suitable to be admitted as an exhibit.

9 We're not talking about the weight of the document or its

10 probative value, but we believe that a document drafted in this way is

11 something that is not suitable to prove the assertions that are -- that it

12 is the intention of the Prosecution to prove through this document.

13 JUDGE PARKER: Mr. Weiner.

14 MR. WEINER: Just very briefly, Your Honour.

15 Two points. One, with regard to the source of the information, if

16 the Court looks to April 3rd, page 7053, and a few pages before that and

17 after that, the information here comes from a CD. The CD was provided by

18 Dr. Bosanac. She received the information from the Ministry of Health,

19 meaning Dr. Kostovic. Dr. Kostovic has testified. He has provided the

20 information to her in 1997.

21 Number two, as a further source of information we provided through

22 Dr. Kostovic at least three different exhibits where he gives -- shows the

23 copies of information that was received from Vukovar, that he received

24 from Vukovar, be it from the MUP or the hospital. So we have provided the

25 source of this information. And with regard to the CD, the initial

1 provision of the CD was as early as December of 2005.

2 And just finally, we are offering this document to establish an

3 inference, not a presumption, but an inference with regard to those

4 particular patients. And we'd suggest that the evidence is sufficient to

5 establish that inference and to have the document admitted.

6 Thank you.

7 JUDGE PARKER: Yes, Ms. --

8 MS. TAPUSKOVIC: [Interpretation] If I may speak, Your Honours.

9 Thank you.

10 My colleague from the Prosecution only confirmed what we stressed,

11 and that is that the CD with the data was received in December. But this

12 is a document that does not contain a single name of a single patient for

13 reasons that were noted by Vesna Bosanac and our colleague, Mr. Moore,

14 that had to do with the privacy or confidentiality of witnesses who were

15 being given treatment, medical treatment. So the document being tendered

16 has some names, but not all the names of the persons that are mentioned in

17 the annex to the indictment. We cannot establish, with absolute certainty

18 the correlation between document 345 and the document that was disclosed

19 to us on the compact disc. As my colleague, Mr. Lukic [realtime

20 transcript read in error "Vasic"] said, Witness Kostovic affirmed or

21 confirmed that the accuracy of the data received from the hospital could

22 not have been verified, but this data was entered. By saying this to

23 Witness Kostovic, we saw that the information from the MUP dispatches is

24 different from the data entered in the blue folder.

25 Thank you.

1 JUDGE PARKER: Thank you.

2 MR. VASIC: [Interpretation] Your Honours, just one technical

3 matter. On page 25, line 23, my learned friend spoke about what Mr. Lukic

4 said, whereas the transcript says Vasic. So there's a slight error there.

5 Thank you.

6 JUDGE PARKER: You want to disown it do you, Mr. Vasic.

7 [Trial Chamber confers]

8 JUDGE PARKER: This will be the subject of our decision on

9 Wednesday as well.

10 Any other matter to be raised by any counsel? Very well.

11 Can we thank you for your assistance today. And we will resume

12 sitting at 9.30 on Wednesday morning.

13 We now adjourn.

14 --- Whereupon the hearing adjourned at 3.36 p.m.,

15 to be reconvened on Tuesday, the 28th day of June,

16 2006, at 9.30 a.m.

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