1 Wednesday, 4th June 1997

2 (10.00 am)

3 JUDGE KARIBI WHYTE: Good morning, ladies and gentlemen.

4 Can we have the appearances?

5 MR. OSTBERG: Good morning, your Honours. I am Eric

6 Ostberg, appearing today with Ms. Teresa McHenry,

7 Mr. Giuliano Turone, Mr. Stefan Waespi and our case

8 manager, Elles van Dusschoten. Thank you.

9 MS. RESIDOVIC (in interpretation): Good morning, your

10 Honours. My name is Edina Residovic, defence counsel

11 for Mr. Zejnil Delalic. My co-defendant (sic) is

12 Mr. Eugene O'Sullivan, Professor from Canada.

13 MR. OLUJIC (in interpretation): Good morning, your

14 Honours. I am Zeljko Olujic, defence counsel for

15 Mucic. With me in the court is Mr. Michael Greaves,

16 defence attorney from London.

17 MR. KARABDIC (in interpretation): Good morning, your

18 Honours. I am Salih Karabdic, attorney from Sarajevo,

19 defence counsel for Mr. Hazim Delic. With me in the

20 team is Mr. Tom Moran, attorney from Texas.

21 MR. ACKERMAN: Good morning, your Honours. I am John

22 Ackerman, appearing for Mr. Esad Landzo. Ms McMurrey is

23 due to return today. Probably she is between Schipol

24 Airport and here and may even appear in this very court

25 today.

1 JUDGE KARIBI WHYTE: Thank you very much. Is the defence

2 now satisfied with the exhibits they were to look at

3 yesterday? Yes, Mr. Olujic, are you now satisfied with

4 the exhibits?

5 MR. OLUJIC (in interpretation): Your Honours, we received

6 yesterday after our request the tapes which were viewed

7 this morning, but we have still not received the

8 transcript as the Prosecution has promise to supply.

9 MS. RESIDOVIC (in interpretation): Your Honours, the same

10 applies to us. We have received the video recordings,

11 which is about one to one and a half hours long. We

12 haven't received the transcript, which we consider to be

13 important for the cross-examination of the witness we

14 heard yesterday, so that we can continue the

15 cross-examination.

16 MR. KARABDIC (in interpretation): I should also like to

17 declare, like my colleagues, that I have received the

18 videotapes, but not the transcript, and I feel that it

19 is not possible to continue cross-examination without

20 the transcript.

21 JUDGE KARIBI WHYTE: Yes, Mr. Ostberg? What is the

22 position?

23 MR. OSTBERG: The Office of the Prosecutor is busily trying

24 to provide the defence with this transcript and it's in

25 progress and will be ready during this day.

1 JUDGE KARIBI WHYTE: Thank you very much. I think you are

2 satisfied with this assurance. We can continue. The

3 idea was to continue with the other witnesses until the

4 transcripts are supplied and then you can go on with

5 cross-examination. I know there are some reservations

6 about the possibility of the contents of the transcripts

7 being available and helpful, but I suppose these are

8 quite different witnesses and we can go on with them.

9 Can we have a witness?

10 MR. TURONE: Yes, your Honour. The next witness will be

11 Mr. Johannes Gschwendt.

12 (Witness enters court)

13 (Interpreter enters court)

14 JUDGE KARIBI WHYTE: Gentlemen, because of the difficulty

15 in spacing the booths, there is a German interpreter who

16 can interpret directly to this witness.

17 MR. JOHANNES GSCHEWENDT (sworn)

18 JUDGE KARIBI WHYTE: Please swear the interpreter.

19 MR. OLUJIC (in interpretation): I beg your pardon, your

20 Honours. Could the interpreter please introduce

21 herself, so that we know who she is?

22 JUDGE KARIBI WHYTE: Please swear the interpreter.

23 THE INTERPRETER: Good morning. Should I introduce myself

24 now?

25 JUDGE KARIBI WHYTE: Swear to the oath first. Swear.

1 (Interpreter sworn)

2 JUDGE KARIBI WHYTE: What is your name? Introduce

3 yourself.

4 THE INTERPRETER: My name is Gabriella Konig. I am here

5 as the interpreter from English into German for the

6 witness.

7 JUDGE KARIBI WHYTE: Thank you very much. Please I will

8 advise counsel to know how to organise themselves. It

9 is not right to behave the way Mr. Olujic has done. Now

10 I think it is safer to read in German Rule 76 for her.

11 You are not a witness. The oath you are swearing is

12 not a witness' oath.

13 JUDGE JAN: The interpreter should translate faithfully

14 whatever the witness states.

15 THE INTERPRETER: I swear that I will faithfully translate

16 everything the witness says.

17 JUDGE KARIBI WHYTE: Sit down. You can both sit down.

18 MR. TURONE: May I now proceed, your Honour?

19 JUDGE KARIBI WHYTE: Yes, you can.

20 Examined by Mr. Turone

21 MR. TURONE: Thank you. Can you please state your full

22 name?

23 A. My name is Johannes Gschwendt.

24 Q. When is your date of birth?

25 A. 9th September 1961.

1 Q. I think I have to be rather slow waiting for the

2 translation into Serbo-Croatian; is that correct? So,

3 Mr. Gschwendt, which is your citizenship?

4 A. I am an Austrian national.

5 Q. What is your profession?

6 A. I am a supervising police officer in Austria.

7 Q. Can you say exactly which position you have now inside

8 the Austrian police?

9 A. I am at present with the EDOC -- that's the unit -- to

10 fight against organised crime.

11 Q. Which degree?

12 A. I'm a captain.

13 Q. Did you have the same position in March 1996?

14 A. No, March 1996 I didn't have that title and I wasn't in

15 the same position at the time. I was working with the

16 Vienna Police Department.

17 Q. With which degree?

18 A. I was First Lieutenant.

19 Q. In which year did you get the position you had in March

20 1996?

21 A. 1st January 1993.

22 Q. Mr. Gschwendt, can you please describe briefly your

23 professional curriculum, starting from the type of

24 school you attended?

25 A. 1980 I went to police school, as it's called, for two

1 years, and for four years I was a police officer. Then

2 for one year I was in a course, followed a course for

3 detectives, and then for five years I was a detective.

4 Then for two years I followed an officer's course, as

5 it's called, and since 1st January 1993 I'm a senior

6 police officer.

7 Q. Thank you. Now, Mr. Gschwendt, coming back to your

8 position you had until last month, and you had in March

9 1996, where are the premises of the 1st Division

10 located?

11 A. The 1st District of Vienna, Schottenring, Schottenring

12 7-9, 3rd floor.

13 Q. In your official capacity you had in 1996, do you

14 usually carry on criminal investigations on particular

15 crimes?

16 A. Yes, especially state police matters, in other words,

17 terrorism, proliferation (sic), arms dealings, etc.

18 Q. Before this present occasion did you have other occasion

19 to testify in court as a result of your investigative

20 work?

21 A. Yes. I have testified in court several times, but not

22 in connection with international trials.

23 Q. Thank you. Now, Mr. Gschwendt, are you aware of a

24 request of cooperation signed by the Prosecutor of this

25 Tribunal and directed to the Austrian authorities for

1 the arrest of Mr. Zdravko Mucic and Mr. Zejnil Delalic?

2 A. Yes. 13th March 1996 was when I learned of that.

3 Q. Did that request also concern the fulfillment of how

4 searches or seizures related to the same proceedings of

5 this Tribunal?

6 A. Well, that was two days later that that happened.

7 Q. I mean, the request done by the Prosecutor of this

8 Tribunal, did that concern also the fulfillment of

9 seizures?

10 A. As far as I know, the Tribunal, asked for provisional

11 measures against Zejnil Delalic and Zdravko Mucic.

12 Q. Did you take part in the police operations concerning

13 all this and in which role, which function?

14 A. Well, I did participate, yes, and my role was the

15 operational measures, to take care of them.

16 Q. Could you say more precisely what were your duties as

17 Operational Manager and Operational Officer, as Chief

18 Operational Officer, I suppose?

19 A. Uh-huh. Well, it was my job to see to it that the

20 arrests were carried out and that the searches were

21 carried out.

22 Q. Do you mean you took charge of the general organisation

23 of the operations?

24 A. Yes.

25 Q. Did these police operations take place in cooperation

1 with Interpol?

2 A. Yes. There was cooperation with Interpol.

3 Q. Was there a time when you met with some Interpol officer

4 in order to prepare these police operations?

5 A. There was a discussion in the Federal Ministry of the

6 Interior and there was on-going telephone contact.

7 Q. Can you say approximately when these contacts happened?

8 A. Second week of March, in the course of that week.

9 Q. When were you informed, I mean informed in some detail,

10 about the charges raised by the Prosecutor of this

11 Tribunal against Mr. Delalic and Mr. Mucic?

12 A. On 13th March, I believe.

13 Q. How did you get this information?

14 A. In written form.

15 Q. In written form? You mean on which document?

16 A. Well, on a document -- in writing. This document

17 apparently had been sent to Interpol and Interpol passed

18 it on to us.

19 Q. You mean the request of the Prosecutor?

20 A. Yes.

21 Q. When did the Austrian judge issue the arrest warrants

22 and the search warrants concerning Mr. Delalic and

23 Mr. Mucic?

24 A. The arrests -- 14th March.

25 Q. Both arrest warrants and search warrants?

1 A. The search warrants on 15th March were adjusted, that is

2 to say two addresses were added to them.

3 Q. Can you say the name of the judge who issued these

4 warrants?

5 A. Investigating judge Dr Peter Seda.

6 Q. Can you say how many places were supposed to be searched

7 according to the warrant?

8 A. Altogether there were six search warrants.

9 Q. Can you say in particular which places were supposed to

10 be searched?

11 A. This was the apartment of Zdravko Mucic, Taubergasse 15,

12 Door 10. Then an apartment of the MAS company, which

13 we reckoned was Zejnil Delalic's. That is Taubergasse

14 15, Door 14. Then Taubergasse 15 on the ground floor

15 was where there's the BIH Bosnian Club and the office of

16 the MAS company. Then Taubergasse 28, that's the house

17 opposite, and that was where the MAS company had its

18 work rooms. Koppstrasse 14, 1, 5, 6 and 7, that is

19 INDA-BAU Company. At the time there was a sign up

20 saying that these rooms or facilities were also used by

21 the MAS company, and Hasnerstrasse 32, 27 and 29

22 there. That's the apartment of Djemal Delalic.

23 Q. Mr. Gschwendt, how were the plans with regard to the

24 arrest of Mr. Mucic?

25 A. The plans at the time were that Zdravko Mucic and Zejnil

1 Delalic would be arrested at the same time so that there

2 can't be any contacts between them and initially this

3 was scheduled for 19th March 1996. Mucic was in Vienna

4 and Delalic was in Germany and on the basis of what the

5 German colleagues told us the arrest took place on 18th

6 March.

7 Q. How was the arrest of Mr. Mucic carried on?

8 A. Mr. Mucic had been under observation and when we were

9 informed that the German colleagues were going to be

10 taking action, I said -- I gave the order, as it were,

11 that our people should also take action, and Mr. Mucic at

12 that point in time was in the street in Natagasse (sic)

13 and at 2.15 pm he was arrested by four officers.

14 Q. When did you personally learn about the completion of

15 the arrest of Mr. Mucic?

16 A. About a minute later at most by radio.

17 Q. From whom did you learn that?

18 A. From Panzer, who was there at the site of the arrest.

19 Q. Mr. Gschwendt, was there any investigator of this

20 Tribunal present at the arrest?

21 A. No.

22 Q. Had the Prosecuting Office of this Tribunal requested

23 that any of its investigators be present at the arrest?

24 A. Yes, but not to me.

25 Q. What do you mean, "not to me"?

1 A. Not personally to me, to the Interpol.

2 Q. Thank you. Approximately at what time did you see

3 Mr. Mucic the first time that day? We are talking about

4 March 18th.

5 A. About 5.00 pm.

6 Q. Where did you see him?

7 A. On the 3rd floor, Schottenring 7-9, in our headquarters.

8 Q. What do you mean Schottenring 7-9?

9 A. Schottenring. That's the address.

10 Q. Sorry. That's in the police premises. Can you say in

11 which room exactly in the police premises?

12 A. Well, there's two rooms that are side by side, 331 and

13 329.

14 Q. What was the room in which Mr. Mucic was?

15 A. 331?

16 Q. Who was with you, Mr. Gschwendt, when you first saw

17 Mr. Mucic in Room 331?

18 A. Mr. Moerbauer, Panzer, Mr. Borlak and Ms. Supput, the

19 interpreter.

20 Q. So did Mr. Borlak, Moerbauer, Panzer arrive together with

21 Mr. Mucic?

22 A. Yes.

23 Q. At that minute you were in Room 331 together with Ms.

24 Supput, the interpreter?

25 A. Yes.

1 Q. Did you say anything to Mr. Mucic at this point as soon

2 as he arrived with the help of the interpreter?

3 A. At that point in time, no.

4 Q. Did somebody else tell Mr. Mucic about his rights at that

5 time?

6 A. Mr. Mucic was informed of his rights several times and

7 when he was brought to the police premises he was

8 informed of his rights as well.

9 Q. Yes. Can you give us some details about this giving him

10 information about his right as soon as he arrived at the

11 police headquarters?

12 A. Well, we have some forms. One of them is the

13 information sheet for arrested persons and there the

14 information is spelled out. The second item is the

15 custody report and it's customary for us to inform

16 people of their rights such that they are told that they

17 need not incriminate themselves, that they need not

18 speak, that if they are foreigners, as was the case with

19 Mucic, they may notify their Embassy, and that they may

20 notify a lawyer or a person of their confidence.

21 Q. Who did personally explain all this to Mr. Mucic right

22 after his arrival at the police headquarters in your

23 presence?

24 A. Well, it was explained to him by Ms. Supput, the

25 interpreter.

1 Q. Did she explain the entire content of this information

2 sheet?

3 A. Yes. She translated that information sheet and read it

4 out to Mr. Mucic in his native tongue.

5 Q. Could you say more precisely what was said to him, to

6 Mr. Mucic, about his right to be assisted by a lawyer?

7 A. Well, he was told that he could contact a lawyer.

8 Q. Did Mr. Mucic say anything at this point?

9 A. Mr. Mucic was quite calm and at the outset he talked but

10 little.

11 Q. Did Mr. Mucic sign any document on receipt of this

12 informations?

13 A. Mr. Mucic signed the custody report and thereby he

14 confirmed that he was acquainted with the information

15 sheet.

16 Q. Did Mr. Mucic want, request, to contact a lawyer?

17 A. No, he did not, and at the end of the it was brought to

18 his attention that he would be questioned by the

19 investigating judge on the following day and with a view

20 to preparation he was once again asked whether he wanted

21 a lawyer and I believe that his last statement, in fact,

22 was that at that point in time he did not need a lawyer.

23 Q. Going back to the sheet of information on which Mr. Mucic

24 put his signature, does his answer concerning the

25 request to have a lawyer appear on this sheet,

1 information sheet?

2 A. On the custody report, yes.

3 Q. Did he sign anything about the possibility of calling a

4 defence lawyer immediately as soon as he arrived at the

5 police headquarters?

6 A. Yes. That question is in the custody report.

7 Q. And he answered "no", you say?

8 A. Yes.

9 Q. Did Mr. Mucic remain in Room 331 after this initial

10 appearance in that room and after giving him this

11 information?

12 A. Well, whether he was there the whole time I can't say,

13 because I was dealing with other organisational matters,

14 but he was there originally and then at 1.30 in the

15 morning when he was handed over to a court that is where

16 he was taken from.

17 Q. Did Mr. Mucic ever remain alone in Room 331?

18 A. No. For security reasons that was out of the

19 question. There were always at least two to three

20 officers with him.

21 Q. Mr. Gschwendt, did you see in this same day of March 18th

22 any investigator or any officer of this Tribunal, the

23 prosecuting office of this Tribunal?

24 A. Yes. Subsequently I think there were three people from

25 the Tribunal who were present.

1 Q. Present where?

2 A. In the police headquarters.

3 Q. You mean in Room 331?

4 A. In Room 331 as well, yes.

5 Q. Approximately at what time did they arrive in Room 331?

6 A. I can't really say.

7 Q. I mean very approximately?

8 A. In the evening hours.

9 Q. Did you see any of them having any conversation with

10 Mr. Mucic? Did any of them ask you to talk to Mr. Mucic?

11 A. Yes.

12 Q. Then can you describe, as far as you can remember, and

13 in detail as far as you can remember, this event?

14 A. I cannot any more. I don't remember. I simply can't

15 reconstruct it.

16 Q. But was that one person or more than one person?

17 A. There were several people, two to three people.

18 Q. Do you remember that a conversation occurred in your

19 presence?

20 A. I can't say.

21 Q. But did this conversation take place?

22 A. It took place, but I can no longer describe it.

23 Q. Simply because you have forgotten it?

24 A. Maybe, yes.

25 Q. Can you say approximately how long did the ICTY officers

1 remain in the police headquarters that day?

2 A. I can't say with any provision, because they were there

3 several times. They were there the following day as

4 well, and no record was kept of that.

5 Q. Did you have any occasion to see the ICTY officers again

6 that day of March 18th or in the following days?

7 A. I saw them on the following day as well and on 17th as

8 well. That's the day before, when they arrived in

9 Vienna.

10 Q. What did on the 17th occur?

11 A. On 17th the people from the Tribunal arrived and I sent

12 two men to the airport to get in touch with the people

13 from the Tribunal and apparently that didn't quite work

14 out and late in the evening, around 11 o'clock, I got a

15 call on my mobile telephone and I went to see the

16 Tribunal people at their hotel to do what was necessary

17 in respect of the contacts for the coming days with

18 Interpol, etc.

19 Q. Let us go now to the police interview with Mr. Mucic

20 which took place in the evening of March 18th. Did the

21 interview take place in Room 331?

22 A. Uh-huh, yes.

23 Q. Did you take part in the interview?

24 A. In part I did. I couldn't participate throughout.

25 Q. Were you present when the interview started?

1 A. At the beginning, yes. Mr. Borlak informed Mr. Mucic of

2 his rights via the interpreter and asked him for his

3 personal particulars, and then we always begin this kind

4 of an interview with information about the individual,

5 just some bio data about the individual in question.

6 Q. At this very stage, I mean at the beginning of the

7 interview, which were the rights Mr. Mucic was informed

8 about?

9 A. He was informed firstly of his right to consult a lawyer

10 and that he did not -- there was no need for him to

11 incriminate himself.

12 Q. Mr. Gschwendt, at any time prior to the interview did

13 Mr. Mucic ever suggest that he might wish to consult an

14 attorney?

15 A. No, he did not. He did also not request a lawyer for

16 the following day, as you can see on the last page of

17 the interview.

18 Q. Sir, did you or anyone else ever suggest to Mr. Mucic any

19 reason for which he should not consult an attorney for

20 any reason?

21 A. No. This would not have made any sense for us to say

22 such a thing.

23 Q. Can you say what languages were used during the

24 interview, the police interview?

25 A. The officers spoke German and the interpreter spoke

1 German and Serbo-Croatian. The language is

2 Serbo-Croatian but I don't speak Serbo-Croatian

3 myself. Mr. Mucic spoke Serbo-Croatian.

4 Q. Was anything said to Mr. Mucic in an effort to induce him

5 to speak to the Austrian police?

6 A. Nein.

7 MR. TURONE: I didn't get the translation.

8 A. No.

9 JUDGE JAN: He said "nein".

10 MR. TURONE: Nein. Was anything promised to Mr. Mucic?

11 A. No, nothing was promised to Mr. Mucic. We were unable

12 to promise him anything, because we had no influence on

13 what would happen subsequently.

14 JUDGE JAN: Just a minute. I didn't say "nine". I said

15 "nein". That is what he said. He said "nein."

16 MR. TURONE: Nein in German, N-E-I-N, of course.

17 JUDGE JAN: It was "nein".

18 JUDGE KARIBI WHYTE: Was that the answer to the question?

19 MR. TURONE: The previous question the witness said --

20 JUDGE JAN: I am just pointing out the correction in the

21 transcript.

22 MR. TURONE: In the end no pressure was done on Mr. Mucic?

23 A. No, there was to pressure exerted on Mr. Mucic.

24 Q. Can you say who were the persons present in the room

25 during the police interview and who were the persons

1 taking part in the interview?

2 A. I was present partly, but not for the whole time.

3 Mr. Borlak began the questioning and Mr. Moerbauer

4 continued with it. Mr. Panzer and Bycek were present

5 the whole time.

6 Q. Only these two last people were present the whole time?

7 I mean, were all the other people except you present

8 throughout the interview?

9 A. I can't say, because I wasn't there myself the whole

10 time.

11 Q. Can you say approximately at what time was the interview

12 finished?

13 A. Some time after 1 o'clock in the morning.

14 Q. Was there any break during the interview?

15 A. There were several short breaks. Coffee and Coca-Cola

16 were drunk.

17 Q. Who were the persons who signed the interview record?

18 A. The officers who I named beforehand.

19 Q. Okay. I have just a couple of questions more.

20 Mr. Gschwendt, did at any time Mr. Mucic or any of his

21 legal representatives protest against any of the actions

22 or omissions of the Austrian authorities towards him?

23 A. No, there were no protests at all on the part of

24 Mr. Mucic.

25 Q. Did you have any occasion to see Mr. Mucic again in the

1 following days or weeks after the interview?

2 A. I saw him about 1.30 am, on 19th that is, and once he

3 was transferred to the court I did not see him again.

4 I'm seeing him for the first time again now.

5 Q. When you say 1.30 am, you mean really 1.30 am or 1.30

6 pm?

7 A. 1.30 am.

8 Q. In the night?

9 A. Yes. He was brought to our detention centre from our

10 headquarters so that he could be transferred to the

11 court because we don't have any premises where we can

12 detain people in our headquarters.

13 Q. So that --

14 A. We can't detain him overnight. We do have an arrest

15 cell, but it's not a cell -- it's a cell for short-term

16 arrests but it's not a place where we can detain people

17 for any length of time.

18 Q. Okay. So you are talking about something which

19 happened right after the end of the interview?

20 A. Yes, yes.

21 Q. Did you have any occasion to see any of the ICTY

22 officers in the following days after the interview?

23 A. Yes, on the next day they came to our office and they

24 made copies of certain things which they needed for the

25 trial.

1 Q. Okay. Going back to the times in which the ICTY

2 officers were in Room 331 on March 18th, was there any

3 possibility for them to speak to Mucic without the

4 presence of your personnel?

5 A. No. For security reasons this would not have been

6 possible.

7 Q. Mr. Gschwendt?

8 A. Yes.

9 Q. My last question is: if any of the prosecuting team of

10 this Tribunal?

11 A. Uh-huh.

12 Q. Had somehow threatened or oppressed Mr. Mucic or

13 otherwise acted improperly, would you have taken action?

14 A. Yes. That would have been my duty, but this did not

15 occur.

16 Q. Thank you, Mr. Gschwendt. This is the end of my

17 examination-in-chief, your Honours. Thank you.

18 JUDGE KARIBI WHYTE: Any cross-examination?

19 MR. O'SULLIVAN: Yes, there will be, your Honours.

20 Cross-examination will proceed in this order: first,

21 counsel for Mr. Mucic; second, counsel for Mr. Delic;

22 third, counsel for Mr. Delalic; and, finally, counsel for

23 Mr. Landzo. Thank you.

24 JUDGE KARIBI WHYTE: Mr. Olujic, you can commence your

25 cross-examination.

1 Cross-examination by Mr. Olujic

2 MR. OLUJIC (in interpretation): Thank you, your Honours.

3 Mr. Gschwendt, my name is Zeljko Olujic. I am defence

4 counsel for Mr. Zdravko Mucic. I have several questions

5 for you. Please be so kind as to make your answers as

6 concise as possible so as to avoid wasting time.

7 I take it that you are -- you believe in the justice of

8 the criminal code of Austria, because that is what

9 I believe too, and I think you could be of assistance in

10 the substance of this matter. Let us proceed.

11 Mr. Gschwendt, will you tell us when you received

12 the request of the International Tribunal and when

13 exactly were you informed that you had to carry out this

14 request?

15 A. We received this request on 13th March and on 14th March

16 we took the first measures in order to carry out this

17 request in order to prepare the whole of the procedure?

18 Q. Yes, I understand that. Mr. Gschwendt, does that mean

19 you received it on the 13th, but when did the actual

20 Republic of Austria receive this document? Is there

21 some kind of protocol? Could it be that the state of

22 Austria received it before the 13th, or was the request

23 made to the Republic of Austria on the 13th as well,

24 13th March 1996?

25 A. No, I told you that I have received this on 13th

1 March. It must have been in Austria beforehand,

2 because it has to find its way through the different

3 channels. This takes some time.

4 Q. Tell me, Mr. Gschwendt, roughly how much time is needed?

5 Is it a matter of three, four, five or more days, do you

6 think, that Austria received it?

7 A. It depends on the type of investigation. It sometimes

8 can take longer if it is sent through the normal

9 traditional channels, but if you use modern

10 telecommunications methods, then it is shorter.

11 Q. So that you do allow for the possibility that this may

12 have taken longer?

13 A. I can't say. I can't pass any judgment on this.

14 Q. Very well. Thank you. Let us go on. When you

15 received the request did you check who Zdravko Mucic was

16 and what his relationship was with the Republic of

17 Austria? What I mean is: was he a refugee working?

18 Was he a black marketeer? Does he have two or three

19 citizenships?

20 A. During the whole of the administrative proceedings we,

21 of course, checked out the situation, where he lives,

22 where he works, with the Austrian authorities, if he had

23 any contact with the Austrian authorities. Until then

24 we examined his background, of course.

25 Q. When did you actually learn of his address, where he

1 lives?

2 A. Some time between 13th and 16th of March 1996.

3 Q. Did you immediately learn his nationality and his native

4 tongue, that it was Croatian?

5 A. We only ascertained what language he spoke at the time

6 that he was arrested. He could have spoken German, for

7 example.

8 Q. In other words, if I understood you well, of course you

9 did not know at the time what his mother tongue was and

10 what was his citizenship?

11 A. That's not correct. Usually people from the former

12 Yugoslavia speak Serbo-Croatian but there are some areas

13 where other languages are spoken. There are also

14 Austrians who do not speak German. We had an

15 interpreter available before Mr. Mucic was brought to our

16 premises, because we assumed that he would speak

17 Serbo-Croatian.

18 Q. Precisely that way in those terms, Serbo-Croatian?

19 A. I'm not a linguist. I'm not in a position to

20 differentiate between Serbian and Croatian.

21 Q. Very considerable. In the state of Serbia Serbian is

22 spoken and in the Croatian state the official language

23 is Croatian, but let us go on. Mr. Gschwendt, since you

24 were in charge of the operational proceedings, how many

25 police officers were responsible for the actual arrest

1 and the security of the place where the arrest was

2 carried out?

3 A. Four people.

4 Q. Can you be rather more precise? Exactly four people or

5 more people?

6 A. I said four people.

7 Q. Thank you. Did you take an interpreter with you for

8 this operation, this arrest operation?

9 A. Not for the arrest. An arrest is a dangerous affair.

10 You can't take an interpreter with you.

11 Q. At the moment of arrest who was the interpreter for

12 Mr. Pavo Mucic? At the moment of arrest did you have an

13 interpreter?

14 A. After the arrest in his apartment his daughter

15 translated for him. I think she was about 16 or 17

16 years old at the time.

17 Q. Did she interpret well?

18 A. I don't know because I wasn't there. I was at the

19 police headquarters. I commanded this action.

20 Q. Was the daughter -- will you please answer why an

21 official judicial interpreter was not provided for the

22 actual arrest? What is the reason for this?

23 JUDGE KARIBI WHYTE: I thought he said it was a dangerous

24 exercise and he couldn't go with the interpreter. That

25 was what he said.

1 MR. OLUJIC (in interpretation): Thank you. I withdraw

2 that question. Mr. Gschwendt, according to the law on

3 criminal procedure of Austria, does the suspect have the

4 right to have a presence of a lawyer when his flat is

5 being searched?

6 A. Not necessarily.

7 Q. Was does that mean? Does that mean that there are

8 situations when that is necessary? When is it

9 necessary?

10 A. It's not necessary because the person concerned was

11 present. The person concerned was present, his

12 daughter was present, someone in whom he has confidence,

13 and there were four police officials present.

14 Q. Therefore, in that situation you allege that according

15 to the Austrian law on criminal procedure he is not

16 entitled to the presence of an attorney, if I have

17 understood you well. Yes?

18 A. Yes.

19 Q. Very well. Thank you. According to the Austrian law

20 on criminal procedure, does the suspect have the right

21 to the presence of an attorney upon his arrest?

22 THE INTERPRETER: Could we have the translation repeated,

23 please?

24 MR. OLUJIC (in interpretation): Does the suspect have such

25 a right to the presence of a defence attorney at the

1 moment of his arrest?

2 A. I may be able to answer this question, but this is not

3 -- doesn't make any sense from a technical point of

4 view, because when the police arrest someone, I do not

5 know of any case where the person's lawyer was

6 present. You do not usually arrest someone in the

7 presence of their lawyer.

8 Q. Very well. Tell me, according to Austrian law does the

9 Austrian police, upon searching the apartment, have to

10 look for witnesses for the search?

11 A. There was a witness present, a female witness, and the

12 person concerned with the arrest was also present.

13 This is sufficient for our legal procedure.

14 Q. If a foreigner is being arrested, does there necessarily

15 have to be an interpreter present?

16 A. No.

17 Q. How can you explain to him then what is being done in

18 his apartment?

19 A. Mr. Mucic received translation from his daughter and I

20 can say that my police officers speak perfect -- sorry

21 -- they told me that the daughter speaks perfect

22 German.

23 Q. Tell me, Mr. Gschwendt, when Mr. Mucic was transferred to

24 the police station, was he given over there the papers

25 on his arrest and his rights or were those papers, those

1 forms given to him before then? Were they given to him

2 in the police station or before that during the search

3 or rather the arrest?

4 A. The arrest warrant and the search warrant were given to

5 him outside. The other forms were only given to him,

6 were only able to be given to him at the police station.

7 Q. Were those forms translated into the Croatian language?

8 A. By Ms. Supput, by the interpreter. The interpreter was

9 already there when Mr. Mucic arrived in our office.

10 Q. Thank you. Tell me, please, Mr. Gschwendt, before this

11 operation did you have any special instructions

12 regarding cooperation with representatives of the

13 International Tribunal in The Hague who had come? Did

14 your department or your service give you any special

15 instructions?

16 A. My department, no, but the investigating magistrate,

17 yes.

18 Q. Were the representatives of the International Tribunal

19 informed by you or your officials regarding the Austrian

20 law on procedure with reference to arrest, the search of

21 apartment and all other things related to this

22 operation?

23 A. Not from me personally, but I assume that they were

24 informed.

25 Q. So they knew what the procedure was in the Republic of

1 Austria, or rather the law on criminal procedure, so you

2 assume they must have been familiar with it?

3 A. It would be better if you ask these people when they are

4 in the witness box, but I assume that they did know

5 this.

6 Q. Thank you. Mr. Gschwendt, you were acting, if I may say

7 so, in a rather non-routine operation, that is you were

8 arresting a person for war crimes. You were aware of

9 that, were you not?

10 A. Yes.

11 Q. Did you know exactly which crime he was being charged

12 with?

13 A. I was aware that this concerned war crimes in Celebici,

14 but I did not require precise knowledge, because I had

15 an Austrian arrest warrant, which was issued by the

16 judge.

17 Q. Are you aware perhaps of the conventions regulating

18 these matters, the international covenants and

19 conventions?

20 A. Well, at the time it was quite difficult, because this

21 was the first case of this kind in Vienna, but the

22 international arrest warrant was turned into, as it

23 were, an Austrian arrest warrant by the investigating

24 judge. So I was working on the basis of an Austrian

25 arrest warrant.

1 Q. And what did that document say? What was -- according

2 to that warrant, what was he being charged with?

3 A. As far as I know, paragraph 321 of the Austrian Criminal

4 Code.

5 Q. I'm not familiar with it, so please be kind enough and

6 describe it to us in your own words?

7 A. I'm no lawyer. I don't need to describe it. I have a

8 valid Austrian arrest warrant.

9 Q. But you don't know what is written in the paragraph 321,

10 what is the substance of that criminal offence?

11 A. I do know.

12 MR. TURONE: Objection, your Honour. He said: "I'm no

13 lawyer".

14 MR. OLUJIC (in interpretation): Yes, but the witness knows

15 what it says, so I asked him to be kind enough to tell

16 us in his own free words what that paragraph states, as

17 he just said he did know.

18 JUDGE KARIBI WHYTE: Yes. Be nice enough to tell us what

19 you know about that paragraph.

20 A. Genocide, war crimes and so on.

21 JUDGE KARIBI WHYTE: Does that satisfy you?

22 MR. OLUJIC (in interpretation): Thank you. Thank you.

23 Will you tell me, Mr. Gschwendt, please, for how long was

24 Mr. Mucic interrogated by the police in terms of hours?

25 How many hours, if you know?

1 A. About five hours.

2 Q. Are you aware of the rules prevailing in the prison

3 where Mr. Mucic was detained?

4 A. No. I don't even know which prison held him. After he

5 was questioned at 1.30 in the morning he was transferred

6 to the Police Detention Centre. As to what prison he

7 was taken to, I don't even know.

8 Q. But the cell that Mr. Zdravko Mucic was held in, was he

9 alone? Was it solitary detention, or were there other

10 people there?

11 A. I do not know. I wasn't there. Our knowledge of

12 Mucic ended at 1.30 in the morning on 19th March, when

13 he was transferred to the Police Detention Centre.

14 Q. From the moment he was transferred to the police centre

15 you know nothing about him, whether he was in a solitary

16 confinement, whether he was detained with other

17 prisoners, whether he complained of the treatment given

18 to him, you know nothing more about it; is that so?

19 A. No, and there's no reason I should.

20 Q. Thank you very much, Mr. Gschwendt. I have no further

21 questions. Thank you, your Honours.

22 JUDGE KARIBI WHYTE: Thank you very much, Mr. Olujic.

23 I think we had better start our 30 minutes' break here

24 and come back at 12 for further cross-examination.

25 (11.25 am).

1 (Short break)

2 (12.05 pm)

3 JUDGE KARIBI WHYTE: Can we invite the witness so that we

4 can continue with the cross-examination?

5 (Witness re-entered court)

6 (Interpreter re-entered court)

7 JUDGE KARIBI WHYTE: Please remind him that he is on his

8 oath.

9 THE REGISTRAR: I should like to remind you that you are

10 still testifying under oath.

11 JUDGE KARIBI WHYTE: You can carry on.

12 May it please the court. Good afternoon, sir.

13 My name is Tom Moran, and I am sure you have noticed I

14 am one of the defence lawyers here. I am going to ask

15 you a few questions and go through your direct

16 examination this morning. It appeared to me from

17 watching your direct examination that you speak some

18 English; is that right?

19 A. Yes.

20 Q. Because of the interpretations here, what I say to you

21 in English is going to be translated to you in German

22 and at the same time it is going to be translated to

23 other folks in French and Serbo-Croatian. Needless to

24 say, this takes some time, so I know I have a habit of

25 wanting to talk a little fast, and we're going to have

1 to slow down for this. We are both going to have to

2 make a conscious attempt to slow down. So will you do

3 that with me?

4 A. Sure.

5 Q. It's going to be as hard for me as it is for you. The

6 other thing is if you don't understand a question I ask,

7 will you stop me and tell me you don't understand?

8 One other thing. You just nodded. There's a

9 lady sitting up there named Melanie. She's the court

10 reporter, and she's got to write down everything we

11 say. She cannot write down a nod. So if we can say

12 "yes" or "no", that kind of thing?

13 A. Yes, I understand you very well.

14 Q. Thank you very much, sir. First, back in March of 1996

15 you were part of the criminal police; right?

16 A. Yes.

17 Q. KRIPO for short?

18 A. Yes.

19 Q. By the way, I noticed you were testifying from some

20 notes. In fact, you have them in front of you right

21 now?

22 A. Yes.

23 Q. May I see them, please?

24 JUDGE KARIBI WHYTE: You want to examine his notes?

25 MR. MORAN: Yes, your Honour. I would like to be able to

1 know what he is testifying from.

2 JUDGE KARIBI WHYTE: I don't know the reason for that.

3 MR. MORAN: That's fine, your Honour. We will continue on

4 then. I want to go over a few things with you.

5 First, at the time Mr. Mucic was arrested it was, what,

6 18th March 1996; right?

7 A. 18th March 1996, yes, about 2.15pm.

8 Q. And at the time you arrested him, you handed him a

9 document known as information sheet for arrested

10 persons, didn't you, or someone did, not you personally,

11 but he was provided with that?

12 A. I can't testify to that. I was not there.

13 Q. Okay. At some point -- I believe you testified during

14 your direct that at some point during his incarceration

15 with the Austrian criminal police that he was provided

16 with a document known as information sheet for arrested

17 persons?

18 A. Yes. That was in the office.

19 Q. That's a document that's prepared by the Austrian

20 police?

21 A. Yes.

22 Q. And it reflects a person's rights under Austrian law?

23 A. Yes.

24 Q. And, in fact, it's probably been checked over by your

25 Justice Ministry to make sure that it truly and

1 correctly --

2 A. I can't comment on that, but I would assume so.

3 Q. Okay. You are familiar with that form, aren't you?

4 A. Yes. It's a one page document.

5 Q. And that form, to the best of your knowledge, truly and

6 accurately reflects a suspect's rights while he is in

7 custody under Austrian law?

8 A. Not just that, but there's also the custody report.

9 Q. And that has a lot of the same information, doesn't it?

10 A. Yes. For instance, whether one wants to consult a

11 lawyer; whether one needs a doctor.

12 Q. In fact, on your direct examination you were asked by

13 Mr. Turone if anything was said to Mr. Mucic in an effort

14 to induce him to speak to the Austrian police, were you

15 not? You were asked that question?

16 A. Yes, he was asked whether he wanted to testify and that

17 he didn't have to testify if he would be incriminating

18 himself thereby.

19 Q. But, sir, the question that I asked and according to my

20 notes you were asked:

21 "Was anything said to Mr. Mucic in an effort to

22 induce him to speak to the Austrian police?"

23 Your answer was "no." Is that correct.

24 JUDGE KARIBI WHYTE: I hope he understands the question,

25 that the question asked him during direct examination

1 was whether anyone asked Mucic a question to induce him

2 to make any statement, is what was asked.

3 A. There was a bit of misunderstanding there on my part.

4 Nobody wanted to induce Mucic to make a statement.

5 MR. MORAN: And you were also asked if anything was promised

6 to him to get him to make a statement?

7 A. Yes, and I said that we couldn't promise him anything,

8 because we had carried out the judge's arrest warrant

9 and we had no influence on the further proceedings. So

10 there weren't any promises we might have made.

11 Q. And, in fact, your answers included the phrase: "No,

12 nothing was promised to Mr. Mucic", didn't it? Didn't

13 your answer include that?

14 A. "Nothing was promised" -- nothing was promised to

15 Mr. Mucic. That's quite right.

16 Q. With the help of the usher I would like to send a

17 document over to the witness, and the document is styled

18 "Prosecution Response to Mucic Defence Motion to

19 Exclude Evidence". I believe it is already in the

20 court's file. I am going to ask him to refer to

21 certain annexes to that. Sir, I am sure that you have

22 probably never seen this document before?

23 A. No, I've never seen the document.

24 Q. Now attached to the back of the documents there are

25 several documents which purport to be English

1 translations of certain documents from the Austrian

2 police, and I would direct your attention to annex

3 number 3, way in the back. If it will help you, sir,

4 up in the top in English it says "information sheet for

5 arrested persons." It's there some place. You have

6 found it? Take some time and if you need to talk to the

7 interpreter sitting next to you, that's fine, go over

8 that and see if that is a fair English translation of

9 the document that's the standard document used by the

10 Austrian police for an information sheet to arrested

11 persons?

12 A. With regard to the quality of what's written here, it's

13 rather poor. I'm talking about the contents -- I am

14 talking about the writing itself, rather. It's hard to

15 read.

16 Q. You mean it is a bad copy?

17 MR. TURONE: Your Honours, the defence lawyers were provided

18 with the original German of this document. We made

19 available the documents requested by Mr. Greaves on

20 behalf of Mr. Mucic to all the defence lawyers with a

21 letter dated, I believe, May -- I think 13th May -- 13th

22 May -- 22nd May. So I don't think it's quite fair to

23 invite the witness to be an interpreter in this room

24 since his language is German.

25 JUDGE JAN: What he is saying is it is a poor translation.

1 JUDGE KARIBI WHYTE: It has nothing to do with whether you

2 sent the original to them. This is their own

3 translation. Whether it is a good translation of the

4 original German --

5 MR. MORAN: Your Honour, it is a translation prepared by the

6 Office of the Prosecutor. It's not my translation.

7 JUDGE KARIBI WHYTE: Whoever did it, it is a translation.

8 MR. TURONE: It is the Registrar's office which prepares

9 translations anyway, not the Prosecution.

10 JUDGE JAN: It's not a reflection on you but what he says

11 is it's a poor translation.

12 MR. MORAN: I don't have the original German. If the

13 Prosecution has it there, I would be happy if they gave

14 it to him. I am more interested in the content, not

15 the translation.

16 JUDGE JAN: He said he has already given the original.

17 MR. MORAN: You say it is a bad translation or it is a bad

18 copy?

19 A. It is a bad copy.

20 Q. Okay.

21 THE INTERPRETER: The witness did not say it was a bad

22 translation; he said it was a bad copy.

23 MR. MORAN: Now we've got that cleared up -- I thought that

24 was correct -- is it readable, though? Can you read it

25 and understand it?

1 A. What would your question about this be?

2 Q. I'm going to direct your attention to two paragraphs in

3 that translation, specifically -- actually three,

4 specifically 4, 5 and 7; okay? I'm going to read those

5 out in English and I want to know if that is, in fact,

6 the information, the advice given by the Austrian police

7 to Mr. Mucic while he was in custody. Fair enough? If

8 it was not the advice, let me know; okay? Paragraph

9 number 4 starts off "presence of legal counsel"; right?

10 A. Yes.

11 Q. It says:

12 "If you want your legal counsel to come and see

13 you, as soon as possible make it known".

14 It continues on:

15 "You may not have legal counsel present when you

16 are questioned for a criminal offence".

17 Isn't that what it says?

18 A. Yes.

19 Q. It continues on:

20 "In that case, therefore, you will have an

21 opportunity to see and speak to your lawyer only after

22 you have been questioned, but even then only if it has

23 been determined that you will be transferred to the

24 court prison and there is sufficient time remaining

25 until then"?

1 A. Yes.

2 Q. It further goes on:

3 "Such consultation with your lawyer will,

4 moreover, only be considered if there is no risk of

5 prejudicing the course of justice".

6 That's what it says, doesn't it?

7 A. Yes.

8 Q. What does that mean?

9 A. It means -- this whole article means that the person has

10 the right to consult a lawyer, but that the lawyer

11 cannot be present during the questioning and there's

12 also the matter of the time availability, and that

13 consultation with a lawyer may only take place if there

14 is no possibility of that impeding the procedure, as it

15 were.

16 Q. What does it mean by -- who decides whether a

17 consultation between a person charged with a criminal

18 offence and his attorney has a risk of prejudicing the

19 course of justice? Do you decide that as a KRIPO?

20 A. In this case we would have a legal expert, an officer

21 who's got a legal background there, and it would be he

22 who would take that kind of decision, but in this case

23 it was not required, because Mr. Mucic did not want a

24 lawyer, which he confirmed several times.

25 Q. But the decision of whether or not this person is going

1 to be allowed to consult with an attorney, any person

2 that's arrested, me, you, anyone who's arrested, the

3 decision of whether or not he's going to be allowed to

4 consult with counsel prior to questioning is a

5 determination made by the criminal police; is that

6 correct?

7 A. No, that's not right. I thought I had said that

8 there's an officer who is a legal expert and he would

9 take that decision.

10 Q. Is he part of the police?

11 A. He's part of the police, yes.

12 Q. So the police make the decision on whether or not a

13 suspect in custody, me, for instance, has the right to

14 consult with a lawyer prior to any questioning; is that

15 correct?

16 A. In this instance, in this specific instance --

17 Q. Excuse me, sir.

18 A. Well, I'd like to refer to this case. I don't want to

19 give you general legal information.

20 Q. Well, sir, I'm going over this information sheet that

21 was given to Mr. Mucic by a representative of the

22 Austrian criminal police and help me -- if I could ask

23 the questions, if the Prosecution thinks there's some

24 confusion they have the right to come back and ask you

25 more questions. I'm simply asking you about the

1 information that was given to Mr. Mucic, not about this

2 case. I'm asking about information; okay? Can we do

3 that?

4 A. Yes.

5 Q. Okay. Thank you very much?.

6 A. We can do that.

7 JUDGE KARIBI WHYTE: Now let's get what you really want as

8 a matter of general practice, is it, or, as he is

9 inferring, in this particular case.

10 MR. MORAN: Your Honour, I'm going into the information and

11 advice that was given.

12 JUDGE KARIBI WHYTE: That is general information for every

13 case which comes before the investigation.

14 MR. MORAN: Yes, your Honour.

15 JUDGE KARIBI WHYTE: So that is what you are asking.

16 MR. MORAN: Yes, just what is on the sheet and what it

17 means.

18 JUDGE KARIBI WHYTE: Yes.

19 MR. MORAN: Now the second thing is if I am a suspect in

20 custody or anyone is a suspect in custody, they do not

21 have the right to have their lawyer sitting next to them

22 while they are being questioned by the police, do they?

23 A. The suspect has no right to have the lawyer with him.

24 Q. And that's because if I were sitting next to a client

25 who was being questioned by you, I might tell him to

1 stop answering your questions; isn't that right?

2 A. It's Austrian law.

3 Q. Okay. So let's see if I can sum up what Austrian law

4 is as it applies to the presence of legal counsel during

5 questioning by the police, and tell me if this is a fair

6 assessment of both Austrian law and the advice that was

7 given to Mr. Mucic; okay? If I'm wrong, stop me. That

8 a suspect in custody, be it Pavo Mucic or Tom Moran or

9 anyone else, has the right to call a lawyer?

10 A. Yes.

11 Q. But the Austrian police, someone in the police makes the

12 decision about whether or not that person can talk to a

13 lawyer prior to questioning?

14 A. Yes.

15 Q. And that even if that suspect who is in custody is

16 allowed to talk to a lawyer, if the Austrian police

17 allow them to, they have to be questioned alone without

18 the help of their lawyer there; isn't that right?

19 A. Right, but I would like to stress again in this case it

20 wasn't relevant, because Mr. Mucic said several times

21 that he did not want a lawyer, and he also signed.

22 Q. And he did all of that after you handed him an

23 information sheet that said: "You can't talk to the

24 lawyer unless we say it's okay, and even if you talk to

25 the lawyer, he can't be with you while we're questioning

1 you"; isn't that right?

2 A. That's Austrian law. You can't blame me for that.

3 JUDGE KARIBI WHYTE: What counsel is saying is he signed

4 whatever he did after reading the instructions which you

5 handed over to him that he could not have his counsel by

6 him during questioning?

7 A. Yes.

8 MR. MORAN: Okay. Let's go on to paragraph 5; okay? It

9 says:

10 "Counsel or representation.

11 If you are a foreigner you have a right to request

12 that the counsel representative of your home country be

13 informed of your arrest"?

14 A. Yes, and Mr. Mucic did that.

15 Q. No question about it, and the question I'm going to ask

16 you, and you may not know the answer, is: do you know

17 what law requires that warning?

18 A. No, I do not know the specific law.

19 Q. So if I told you that it were required by the Vienna

20 Convention on Counsellor Relations of 1962, you wouldn't

21 quarrel with me, would you?

22 A. No, I wouldn't.

23 Q. Fair enough. Let's go on to paragraph Number 7. Take

24 some time if you want to read it and then we'll go over

25 it the same way we did paragraph 4.

1 A. I have read it.

2 Q. Okay. Fine. Let's go to the first paragraph -- the

3 first sentence. It says:

4 "You will have the opportunity to speak about the

5 accusations against you".

6 The next sentence says:

7 "If you do not use it and remain silent instead,

8 you are depriving yourself of the possibility to give an

9 account of things from your perspective and to defend

10 yourself".

11 Isn't that what it says?

12 A. Yes.

13 Q. What does that mean? What does that mean to you, sir?

14 A. It means that the individual has the possibility to

15 speak about the accusations from his or her point of

16 view, and if the person decides to remain silent, that

17 the person is depriving him or herself of that

18 possibility.

19 Q. Well, if I choose to remain silent during an interview

20 where I'm a suspect in custody, how am I deprived of the

21 opportunity to defend myself? Does that mean that my

22 right to present evidence of my side of the story is

23 gone?

24 A. It doesn't mean that you've lost your right, rather if,

25 for instance, you have a valid alibi and you remain

1 silent, then the police can't check ought that alibi and

2 that alibi could mean that you would released

3 immediately.

4 Q. That's the next sentence, is it not? It says:

5 "Your statements may also help clear up a

6 mistake".

7 That's the next sentence in that paragraph, isn't

8 it?

9 A. Yes.

10 Q. Then it continues:

11 "You need not speak about the case. However, in

12 the event of a sentence, if you confess or otherwise

13 contribute through your statement to" -- what is that --

14 "deciding the truth, indicating the truth"?

15 A. "Elucidating".

16 Q. "Elucidating the truth, it will be taken into

17 consideration as grounds for mitigation".

18 Isn't that what it says?

19 A. Just a second. Could you repeat that last word?

20 Q. Sure. I will repeat the whole sentence for you, are

21 you ready?

22 A. Yes.

23 Q. Okay:

24 "You need not speak about the case. However, in

25 the event of a sentence, if you confess or otherwise

1 contribute through your statement to elucidating the

2 truth, it will be taken into consideration as grounds

3 for mitigation".

4 MR. TURONE: I'm sorry. Maybe it would be more fair for

5 the witness to have anyway the German original in his

6 hands, if he prefers.

7 MR. MORAN: Fine with me. If you have a copy of it, let

8 him have it?

9 A. If there were a German copy, that would be nice.

10 (Handed). Thank you. I've read it now.

11 Q. Okay. What I said in English is a fair translation of

12 what is in the document that was given to Pavo Mucic?

13 A. Yes.

14 Q. And other -- every other suspect who's arrested by the

15 Austrian police?

16 A. Everyone gets this, question.

17 Q. You said there was no threats or promises that were made

18 to him to get him to talk; right?

19 A. That's right.

20 Q. So you don't consider telling a person: "If you don't

21 talk now you're going to lose the right to defend

22 yourself, but if you do talk and you get sentenced you

23 are going to get a lighter sentence" not to be an

24 inducement to talk?

25 A. That's not the way it's stated here, the way you've put

1 it.

2 Q. Well, we've just been over it, and that's exactly what

3 it says?

4 A. I don't share that point of view.

5 Q. So it doesn't say that if you're found guilty and you

6 confess, it will be taken into account as grounds for

7 mitigation? It doesn't say that?

8 MR. TURONE: Objection, your Honour. This is arguing

9 between defence lawyer and the witness.

10 JUDGE KARIBI WHYTE: I think they are trying to elucidate

11 that portion of the instruction. It doesn't make any

12 difference. It's not arguing with him. It's merely

13 telling him what that portion means more.

14 MR. MORAN: Let me try it this way. What does the word

15 "mitigation" mean to you?

16 THE INTERPRETER: If the interpreter might make one comment,

17 the German word is "Milderungsgrund".

18 A. In the Code of Criminal Procedure it says that a

19 confession is grounds for mitigation.

20 Q. So this accurately reflects Austrian law?

21 A. That's right.

22 Q. Now let's try again. The word mitigation or what the

23 interpreter said is the German word, what does that mean

24 as a practical matter? Does it mean that the judge,

25 when he sentences you, will say: "Well, I'm going to

1 give you life in prison but I sure feel bad about it and

2 I wish you the best of luck" or does it mean the judge

3 says: "Rather than giving you life in the penitentiary,

4 I am going to give you five years in mitigation"? Which

5 is it?

6 A. A confession is in general terms a grounds for

7 mitigation, just as there are other grounds for

8 mitigation. If somebody has done something under

9 coercion, for instance.

10 Q. So as a ground for mitigation if you give a confession

11 when the police ask you for one, the hope is there and,

12 in fact, the law provides that that should be something

13 to reduce your punishment; isn't that right?

14 A. That's what's provided for under the law, yes.

15 Q. And you wouldn't call that an inducement to talk?

16 A. No, I wouldn't see it that way. It's drawing his

17 attention to some legal provisions.

18 Q. No question about it. I'm not telling you it's not the

19 provision of your law?

20 A. It's not a promise. It's not a promise that's being

21 made by the police. This is a statement of the

22 Austrian legal situation.

23 Q. And it was a statement of the Austrian legal situation

24 that was given to Pavo Mucic before Pavo made a

25 statement to the KRIPOS; is that right?

1 A. Yes. It's part of his rights.

2 Q. And he understood what you told him, didn't he?

3 A. Ms. Supput, the interpreter, translated it to him and

4 I assume he understood it. I wouldn't sign anything

5 that I hadn't understood.

6 Q. So we can all agree when Pavo Mucic agreed to talk to

7 you, he was well aware of the import to giving a

8 statement to the police; right?

9 A. Yes, I share that view.

10 Q. In fact, he was taken before a magistrate, Dr Seda,

11 wasn't he?

12 A. That was the following day.

13 Q. Would Dr Seda have given Mr. Mucic the same advice that

14 is contained in this advice sheet we have been talking

15 about, the information sheet?

16 A. I do not know. There are no police officers present

17 before the investigating magistrate. As I already

18 said, on the 19th at 1.30 in the morning the police

19 dealings with Mr. Mucic came to an end.

20 Q. Okay. During your questioning of -- not yours but of

21 the Austrian police officers' questioning of Mr. Mucic,

22 there was some considerable detail in the questions

23 about what Mr. Mucic was charged with, wasn't there?

24 A. Yes. There was the charge, the accusations that were

25 clear.

1 Q. In fact, you'd been briefed by members of the Office of

2 the Prosecutor from this Tribunal on the kinds of

3 questions to ask, weren't you?

4 A. I can't answer that question. I do not remember.

5 Q. Okay. You met with some investigators from the Office

6 of the Prosecutor?

7 A. Yes, the day before.

8 Q. And you had a long discussion with them?

9 A. Not very long. It was already midnight.

10 Q. Okay, and they talked to you about the case, didn't

11 they?

12 A. As best as I recall, we talked merely about the further

13 proceedings, their contacts with the Ministry of Justice

14 and their contacts with Interpol, but as regards to the

15 details, I can't remember them.

16 Q. Okay, but clearly -- did they ask you to take a

17 statement from Mr. Mucic?

18 A. I can't say, but when someone is arrested, when someone

19 is taken into custody, the procedure is that you have

20 this questioning.

21 Q. Even when he's not charged with anything under Austrian

22 law?

23 A. There was an Austrian arrest warrant.

24 Q. And the Austrian arrest warrant was a warrant -- well,

25 that package of papers in front of you, turn to annex

1 1. If it will help you, it is the page right behind

2 all the signatures?

3 A. I have it.

4 Q. Okay. I don't think you have it. Keep going. It's

5 behind all of the signatures. It's annex 1. It's a

6 copy of the arrest warrant is what it is: the first

7 words on the top of the page in all capital letters are

8 "warrant of arrest"?

9 A. Yes.

10 Q. Okay. That warrant of arrest, take a look at it, says

11 that he was arrested to secure his extradition to the

12 Republic of Bosnia-Herzegovina, isn't that right. It

13 doesn't say anything about him being charged with any

14 offence against Austrian law, does it?

15 A. No, it doesn't.

16 Q. Okay. Now let's try it again. Is it the policy and

17 the habit of the Austrian Police Department -- let me

18 give you a hypothetical example. Suppose that I were

19 indicted by a Federal Grand Jury in the United States

20 for an offence -- pick an offence -- obstructing justice

21 -- and I were found in Vienna, and the Federal Bureau

22 of Investigation through Interpol asked you to arrest me

23 and put me on an aeroplane and send me back to the

24 United States to answer these charges, you would get a

25 warrant for my arrest from an Austrian magistrate,

1 wouldn't you?

2 A. That's a question which really is too legal for me.

3 I'm in charge of executing things, not for judgments of

4 that kind.

5 Q. Okay. At some point if you knew where I was and the

6 Federal Bureau of Investigation asked you to arrest me,

7 you would send some of your officers out to arrest me,

8 wouldn't you, following whatever procedures are used by

9 the criminal police in Austria to arrest people for

10 extradition?

11 A. Could you state that question in different terms?

12 Q. Sure. Let's again presume that I'm indicted by a

13 United States Federal Grand Jury for a crime and I'm in

14 Vienna, and the Federal Bureau of Investigation through

15 Interpol and the United States State Department through

16 your Foreign Ministry ask you to arrest me. They

17 follow whatever procedures are required by the

18 Austrian-United States extradition treaty to get me

19 arrested. At some point you are going to go --

20 A. But a legal person has to give me an assignment. It's

21 not for me to be judging how -- what these international

22 relations are. When I'm given an assignment, I carry

23 it out.

24 Q. Sure. Nobody's saying that, but at some point you're

25 going to get paperwork from somebody that's going to

1 say: "Go arrest Moran"?

2 A. Yes. In this case it was the investigating magistrate.

3 Q. At that point you or some of the people working for you

4 are going to go out, put handcuffs on me and drag me

5 down the police station; is that right?

6 A. That's right.

7 Q. Now would it be the policy of your government or your

8 police agency -- not your government but your police

9 officers to question me about the offence for which

10 I was charged in the United States even though it had

11 absolutely nothing to do with Austria?

12 A. After the suspect is arrested, normally there is

13 questioning.

14 Q. And you would have enough information to ask me fairly

15 detailed questions about the offence with which I was

16 charged 10,000 miles away?

17 A. Celebici, I think, is some 400 miles away.

18 Q. Okay. Go to the next page on that package of

19 documents. It's called "Search Warrant." Take a good

20 look at it. I direct your attention to the last

21 paragraph that says "Grounds"; okay?

22 A. I'm reading it.

23 Q. Take your time, sir.

24 A. I'm familiar with it.

25 Q. You are familiar with it? I'll bet you are. This is a

1 warrant that authorises the search of several premises;

2 right?

3 A. Six different premises, yes.

4 Q. In fact, this is the search warrant you were talking

5 about on direct examination, wasn't it?

6 A. Yes, that is it of 15th March, right.

7 Q. Now down at the bottom it talks about people being

8 suspected of things; right?

9 A. Yes.

10 Q. And there is a suspicion that there's evidence in these

11 places; right?

12 A. Yes.

13 Q. Did you ever give, you or anyone acting for you or under

14 you, ever give the investigating magistrate any facts to

15 support these suspicions, or did you just say: "We think

16 there might be evidence there"?

17 A. These are six different addresses which were believed to

18 be in connection with Delalic and Mucic and we had done

19 some prior investigation and we'd come up with these six

20 addresses.

21 Q. Yes, sir, but did you give the investigating magistrate

22 any facts by which he could determine that the evidence

23 that you were seeking was there at these locations?

24 A. Well, this is where the people were staying and that's

25 why we thought it was quite logical that that's where

1 the evidence would be found.

2 Q. But you had no facts to indicate that the evidence would

3 be found there other than these people were staying

4 there?

5 A. The fact of the matter is that these people were accused

6 of very serious crimes and that they were spending time

7 at these addresses, and that's why the suspicion was

8 that one might find evidence at those addresses.

9 Q. But you had no facts that there was evidence there,

10 except the fact that these were addresses somehow

11 connected with these two people; isn't that right?

12 A. Yes, but these addresses weren't connected just any old

13 way with these people. There were some concrete

14 relations. Taubergasse 15, Door 10, was the apartment

15 of Mr. Mucic.

16 Q. Judge, may I have just a second? Your Honour, I pass

17 the witness.

18 JUDGE KARIBI WHYTE: We are almost always getting close to

19 the time we should rise again a second time. I think

20 we had better take advantage of that and rise so that

21 when we come back at 2.30 we will continue with the

22 cross-examination.

23 (12.55 pm)

24 (Luncheon Adjournment)

25

1 (2.30 pm)

2 JUDGE KARIBI WHYTE: Invite the witness. I see,

3 Mr. Ackerman, you are standing.

4 MR. ACKERMAN: Yes, your Honour. In as much as what we are

5 apparently going to be doing for the balance of this

6 week, and that is dealing with the Mucic statement, my

7 client, Mr. Landzo, has asked me to ask leave of the

8 court to not be here tomorrow. He would like to remain

9 at the prison facility and work on what we believe will

10 be next week's tasks, which will concern him. So he is

11 willing, with the court's indulgence, to waive his

12 appearance here tomorrow. I, of course, will be here

13 representing his interests, but he would prefer to try

14 to get some work done for preparation for next week. I

15 don't know if there's any precedent for that request or

16 not, but I can only make it and leave it up to the

17 court.

18 JUDGE JAN: But our rules say the trial has to be in the

19 presence of the accused. Can we dispense with him?

20 MR. ACKERMAN: I know we did that the other day when we were

21 discussing -- not taking testimony and discussing

22 matters. I think the accused can waive his appearance

23 at least for a day where there is no evidence that has

24 anything to do with his case. I think that's the case

25 for the rest of the week.

1 JUDGE KARIBI WHYTE: I think it is a right he can waive if

2 counsel is there representing him. His mere presence

3 can be waived. It is his personal right.

4 MR. ACKERMAN: Thank you very much. You agree with this,

5 don't you, Mr. Landzo?

6 DEFENDANT LANDZO: Yes.

7 MR. MORAN: One totally unrelated thing. I have been told

8 by the Registry that the witness has been using some

9 documents I provided for him. Those documents have

10 been marked. They have not been admitted into evidence

11 but they are part of the record as Delic exhibits

12 whatever the next numbers are, Judge. The Registrar

13 made copies of them and included them just as documents.

14 JUDGE KARIBI WHYTE: Actually it was documents attached to

15 an application.

16 MR. MORAN: Well, your Honour, there was one document that

17 was not. It was the original German of a document, but

18 all of those documents -- I think we used four

19 documents. All of them have been photocopied by the

20 Registry and are in those books over there at some place

21 or other.

22 JUDGE KARIBI WHYTE: What you mean is that the already

23 existing documents are exhibits.

24 MR. MORAN: Yes. I have not moved to introduce them as

25 evidence but they are part of the record.

1 JUDGE KARIBI WHYTE: I did not think there was any need for

2 introducing something. You were merely using them to

3 elucidate certain things.

4 MR. MORAN: That was done by the Registry under their

5 procedures. I just wanted the court to know that.

6 THE REGISTRAR: By your leave, your Honour, I would just

7 like to draw the attention of the parties to the fact

8 that the documents and exhibits, these are not

9 exhibits. The documents that were presented to the

10 witness and the copy of the translation in German that

11 I'm putting in with the documents provided by Mr. Moran,

12 they are simply numbered. It is otherwise an act of

13 procedure in the courts. This is a document, not an

14 exhibit. It is a document that does have a number.

15 It is number D4/3.

16 JUDGE KARIBI WHYTE: It does no harm to the presentation of

17 the case. Carry on. It has no significance

18 whatsoever.

19 (Witness re-enters court)

20 (Interpreter re-enters court)

21 JUDGE KARIBI WHYTE: Mr. Moran, do you really want to tender

22 the German original without the translation?

23 MR. MORAN: Your Honour, it is absolutely immaterial to

24 me. Whatever makes the Tribunal happy makes me

25 happy. Whatever makes the staff of the Tribunal happy

1 makes me happy. I think it was pretty clear from the

2 record as it exists what occurred. I take no position

3 on it at all.

4 JUDGE KARIBI WHYTE: Thank you very much. Ms Residovic,

5 you can carry on with the cross-examination.

6 Cross-examination by Ms Residovic

7 MS. RESIDOVIC (in interpretation): Thank you, your

8 Honours. Good afternoon, Mr. Gschwendt?

9 A. Good afternoon.

10 Q. My name is Edina Residovic. I am defence counsel for

11 Mr. Zejnil Delalic. Allow me to address to you a few

12 questions having to do with your testimony today and

13 regarding your role in the course of the activities in

14 Vienna at the request of the International Tribunal.

15 I hope you will answer my questions. Thank you.

16 A. Yes.

17 Q. You stated before this Trial Chamber that you were a

18 professional police officer; is that so?

19 A. My profession is police officer, yes.

20 Q. You also stated, Mr. Gschwendt, that you have some

21 considerable training in the area of policing; is that

22 correct?

23 A. Yes, that's right, five years altogether.

24 Q. You also stated, Mr. Gschwendt, that lately in Austria

25 you were involved in important activities to combat

1 organised crime; is that so?

2 A. Yes, but just since a few days ago I changed

3 departments.

4 Q. Thank you. I will be more interested in what you were

5 doing at the time of the arrest, or rather the search

6 and confiscation of objects in the Celebici case.

7 Allow me to ask you whether within the framework of your

8 responsibilities you were faced on several occasions

9 with similar operations of this kind, that is arrest,

10 search and seizure?

11 A. Several cases of arrest and searches I have been

12 involved, yes, I have.

13 Q. And you always acted in accordance with the law on

14 criminal procedure of the Republic of Austria?

15 A. That's right, yes.

16 Q. In this case, too, you acted in accordance with the law

17 on criminal procedure of Austria; is that correct?

18 A. Yes, that's right.

19 Q. At the time, Mr. Gschwendt, you had no knowledge of the

20 rules of the International Tribunal; is that correct?

21 A. That's right.

22 Q. You stated in the Trial Chamber that upon the request of

23 the Prosecutor of the International Tribunal you learned

24 a day after the Prosecutor had requested the assistance

25 of the Austrian authorities; is that correct?

1 A. Could you please repeat that?

2 Q. Let me change the wording of this question; you know

3 that the Prosecutor of the International Tribunal asked

4 for the assistance of the Austrian authorities in this

5 particular case?

6 A. That's right, yes.

7 Q. You said that this occurred on 13th March 1996; is that

8 correct?

9 A. That is when I saw the document in question for the

10 first time.

11 Q. However, it is also correct, is it not, that you were

12 involved in dealing with this case somewhat before that?

13 A. That's right as well, yes. The first request that was

14 addressed, I believe it was received one week earlier,

15 but it was just addressed against a Zdravko Mucic and

16 only the year of birth was indicated.

17 Q. Mr. Gschwendt, are you aware that the International

18 Tribunal requested certain information about Mr. Mucic

19 and Mr. Delalic before this request?

20 A. As best as I can remember, as said, one week prior to

21 13th approximately I heard about that and, as said, we

22 really didn't know who this Mucic was. All we had was

23 the name and the year of birth.

24 Q. Is it true, Mr. Gschwendt, that you stated in the

25 courtroom today that you had obtained certain

1 information on the residence of Mr. Mucic and Mr. Delalic

2 to the investigating magistrate in Vienna?

3 A. That's right, yes.

4 Q. Did you collect that information before receiving the

5 request for provisional measures from the International

6 Tribunal?

7 A. I don't know when that information was gathered

8 specifically.

9 Q. However, you briefed the investigating judge, Mr. Seda,

10 of that information?

11 A. I never talked to him directly. He received the papers

12 from us.

13 Q. And on the basis of those papers, as you said, he issued

14 warrants for the search of the apartment in which

15 Mr. Delalic occasionally stayed?

16 A. That's right. On the base of our knowledge the search

17 warrants were issued.

18 Q. Mr. Gschwendt, a moment ago you looked at the warrant

19 issued by the investigating magistrate in Vienna; is

20 that correct?

21 A. What do you mean a minute ago?

22 Q. Which relates to six addresses which needed to be

23 searched?

24 A. Yes, before the recess, yes.

25 Q. On that warrant it is said that it was issued on March

1 14th; is that correct?

2 A. There's two different times for these search warrants.

3 The first search warrants were issued on 14th March.

4 When we received them, we saw that they didn't cover

5 everything and that's why a search warrant was issued

6 covering all six addresses, and that search warrant was

7 issued on 15th March.

8 Q. I apologise for going back for a moment to the previous

9 question. You said that you always acted in accordance

10 with the law; is that correct?

11 A. That's right, yes.

12 Q. You are also aware that you are making this testimony

13 under oath; that is correct, is it not?

14 A. I'm aware of that, yes.

15 Q. Can you tell me if you received and learned of the

16 request of the International Tribunal on 14th March and

17 the warrant of the court is also dated 14th, when did

18 you manage to gather information which you offered to

19 Mr. Seda?

20 A. What you've said is not quite in line with the facts.

21 What I said was that the initial information relating to

22 Mucic was entered on the 6th and even then we began with

23 gathering information about Mucic and where he might be

24 found, and that the request from the International

25 Tribunal came in on the 13th, not on the 14th. I have

1 only referred to the 13th, as far as I know.

2 Q. Mr. Gschwendt, I'm asking you specifically for

3 Mr. Delalic. When did you first learn that it was

4 necessary to gather information about Mr. Delalic?

5 A. I don't know. I can't answer that question.

6 Q. Did you also provide the information about Mr. Delalic to

7 the investigating magistrate?

8 A. From the 13th on, these matters were no longer separate,

9 because the cases of Mucic and Delalic were a single

10 case, as it were, from that point on, and via the

11 companies and via the club they were linked to one

12 another.

13 Q. Will you please tell me whether you had information

14 about Mr. Delalic?

15 A. Yes, we did. For instance, we had the apartment here,

16 the company, Taubergasse 14. The MAS company used to

17 own that and we assumed that's where Zejnil Delalic

18 would be found.

19 Q. Therefore, you were aware of these things on the 13th,

20 when you received the request from the International

21 Tribunal; is that correct?

22 A. I can't say.

23 Q. Are you aware that the Austrian police gave information

24 about Mr. Delalic earlier on, much earlier than this,

25 when you received the request for search and arrest?

1 A. I don't know who's supposed to have provided that

2 information.

3 Q. Mr. Gschwendt, if you're not aware of that information

4 and you don't know whether you knew anything about

5 Zejnil Delalic on the 13th, which information then did

6 you forward to the investigating magistrate?

7 A. I think there was a bit of a mix-up there. On the 13th

8 we did know, but the question was whether we knew before

9 the 13th, and that question I cannot answer. On the

10 13th we received the request to take provisional

11 measures against these two individuals, and on that

12 basis then the arrest warrants were issued, but

13 I thought you wanted to know if we knew something prior

14 to the said date, and that question I couldn't answer.

15 Q. Therefore you allege that you received information about

16 Mr. Delalic from the International Tribunal, and it was

17 not you that had that information?

18 A. Well, the information, as far as I know, came from the

19 International Tribunal via Interpol Vienna to us. On

20 the 13th we had that information and then we received

21 the search and arrest warrants.

22 Q. Mr. Gschwendt, is it true that you knew on the basis of

23 that information that Mr. Delalic occasionally stayed at

24 the town Taubergasse 15 in the apartment belonging to

25 the firm MAS?

1 A. What date did you mention?

2 Q. Taubergasse 15?

3 A. I mean the date. What date are you referring to?

4 Q. On that date, on 13th when you received this

5 information, were you aware that Mr. Zejnil Delalic

6 occasionally stayed in the apartment in Taubergasse 15?

7 A. We knew that and on the 15th we received information

8 from Munich that Delalic was alleged to be in Vienna.

9 Q. Did you know at the time that Mr. Delalic was regularly a

10 resident in Munich?

11 A. On the 15th after we had been in touch with the German

12 authorities, we did know that.

13 Q. Did you also know, Mr. Gschwendt, that at this address,

14 Taubergasse 15, Mr. Delalic's sister was living together

15 with her family?

16 A. The sister of Mr. Delalic, do you -- the sister of

17 Mr. Delalic, Ms. Hajna Delalic, is that whom you are

18 referring to?

19 Q. That is the sister-in-law. Did you know that she was

20 living at that address?

21 A. Yes, we knew that she was living at that address.

22 Q. And Stevka Rizvanovic, his sister, did you know that?

23 A. We knew that and Ms. Rizvanovic was at the

24 Koppstrasse. She was there at the search.

25 Q. Thank you very much. Did you know that several other

1 families were living at that address?

2 A. Which address?

3 Q. Taubergasse number 15?

4 A. Taubergasse 15, there's three different objects at that

5 address. There's Door 10, the apartment there, where

6 Mr. Mucic was residing; Door 14, that apartment there,

7 and it was assumed that Djemal Delalic may be staying

8 there; and there's the ground floor. There's the

9 Bosnian Club there as well as the company premises of

10 the MAS company.

11 Q. You see, Mr. Gschwendt, that Mr. Delalic was a member of

12 the Bosnia-Herzegovina Society, which had its premises

13 at that address?

14 A. On the ground floor, yes.

15 Q. You also knew that Mr. Delalic was a member of the Muslim

16 Bosnian Cultural Circle, an association which was acting

17 at that address?

18 A. We learned that he was to be there occasionally as well,

19 but whether he was a member or not, I did not know

20 specifically.

21 Q. Mr. Gschwendt, you also had information that Mr. Zejnil

22 Delalic was never tried in Austria, never condemned in

23 Austria?

24 A. That's right.

25 Q. You also knew that at that time there were no criminal

1 proceedings being conducted against Mr. Zejnil Delalic?

2 A. I do not know.

3 Q. You can also confirm, Mr. Gschwendt, that the Austrian

4 authorities had no request or criminal complaint of

5 other states against Mr. Zejnil Delalic at the time when

6 you received the request from the International

7 Tribunal?

8 A. I cannot say whether other police units may have had

9 some other information. I can't say, but we didn't

10 have any.

11 Q. Mr. Gschwendt, you collected all this information on 13th

12 March?

13 A. From 13th-17th or 18th.

14 Q. You provided all this information on 13th to Judge Seda?

15 A. On the 14th.

16 Q. And on the basis of that information Mr. Seda issued the

17 arrest and search warrants for the apartment of

18 Mr. Zejnil Delalic; is that correct?

19 A. Yes. The investigating judge, Dr Seda, on the basis of

20 our information issued the search and arrest warrants --

21 in fact, only the search warrants, because the arrest

22 warrants were issued on the basis of the request from

23 the International Tribunal.

24 Q. Mr. Gschwendt, you had no knowledge regarding the things

25 contained in the apartment in which Mr. Zejnil Delalic

1 stayed occasionally and in the business premises that he

2 visited?

3 A. No, we didn't know anything about the contents of the

4 said objects prior to the search.

5 Q. Mr. Gschwendt, I understood you to have said this

6 morning, and if I am wrong, please correct me, that

7 throughout the operation you were in the police

8 administration building, and that you were not on the

9 spot; is that correct?

10 A. That's right, yes.

11 Q. Tell me, please, did you designate the person to carry

12 out the steps required by the Tribunal?

13 A. Well, once Mr. Mucic had been arrested teams were put

14 together by me and they went ahead with the searches at

15 the various addresses.

16 Q. Can you please tell me who was in the team which carried

17 out the search of the apartment in Taubergasse number

18 15, which was used by Mr. Zejnil Delalic?

19 A. That was Messrs Unger and Winkelmann.

20 Q. They are also police officers of the Austrian police,

21 are they not?

22 A. Yes, they are.

23 Q. Will you please tell me the team for INDA-BAU?

24 A. You mean at the address in Kopp Street?

25 Q. Yes.

1 A. That was Captain Navarat, and two officers from the 16th

2 District, Mr. Knauder and Mr. Klauser.

3 Q. Thank you. Will you please tell me in addition to

4 Mr. Unger and Mr. Winkelmann in Taubergasse were other

5 persons present during the search, people that you had

6 designated?

7 A. Well, Taubergasse there were two further objects.

8 There were ten. Then there was the ground floor, the

9 club and the MAS company and there were other officers

10 in Taubergasse as well, that's right.

11 Q. Will you please tell me who was in the apartment used by

12 Mr. Delalic in addition to Mr. Unger and Mr. Winkelmann?

13 Was anyone else present appointed by you?

14 A. Well, what I can tell you on the basis of the papers is

15 that in addition to those two officers the daughter of

16 Mr. Mucic was present.

17 Q. Mr. Gschwendt, you were the person who was in command of

18 these officers; is that correct?

19 A. That's right, yes.

20 Q. And you cautioned these officers that they had to act in

21 accordance with the law when carrying out the search?

22 A. That's right, yes.

23 Q. Later on you received the notes on the search?

24 A. That's right, yes.

25 Q. And you did not later on check whether your police

1 officers had carried out the search as required by law?

2 A. Well, you'll have to explain that to me a bit more.

3 Q. After receiving the report from your police officers,

4 did you check whether the apartment or the business

5 premises of INDA-BAU were carried out lawfully --

6 whether the search was carried out lawfully?

7 A. Well, the basis for a lawful search was there, and as

8 far as I could tell everything was fine.

9 Q. But you didn't check everything, did you; is that

10 correct?

11 A. You'll have to explain that to me a bit more again,

12 because when the men go out and carry out a search, and

13 on the basis of the reports everything's gone ahead

14 fine, then I do consider that I checked -- I had a look

15 at those reports.

16 Q. Well, thank you. You didn't doubt that something

17 unlawful could have occurred regarding the search or any

18 unlawful seizure. Is that what you mean?

19 A. Nothing could be done unlawfully, because there was a

20 search warrant issued by the court, and at each of the

21 addresses there was at least one concerned person or one

22 person of their confidence present.

23 Q. You confirmed a moment ago, sir, Mr. Gschwendt, that you

24 were acting in accordance with the criminal procedural

25 law of Austria; is that so?

1 A. Yes, that's right.

2 Q. And in view of your training and practical experience

3 you are familiar with the criminal code of Austria; is

4 that correct?

5 A. Yes, it is.

6 Q. And you always insist on the lawfulness of proceedings,

7 because otherwise the operation that you carry out can

8 be annulled by the court; is that so?

9 A. If a search is carried out unlawfully, without a

10 warrant, for instance, then it can be ruled out as

11 evidence. You couldn't use it. That's why there's no

12 point doing something like that.

13 Q. Yes, and that is why you always cautioned the need for

14 respecting the law; is that so?

15 A. The law has been respected.

16 Q. Very well. Thank you. You said that for the search

17 of the apartment in Taubergasse number 15, the apartment

18 in which Mr. Zejnil Delalic stayed, that you had a search

19 warrant from the court. I have a copy of that warrant

20 in German. Could it please be shown to the witness?

21 (Handed to witness).

22 A. If you look exactly at the search warrant, you will see

23 that this is perfectly consistent with what I said. On

24 14th March there were four different addresses that were

25 to be searched. On 15th March there's a search warrant

1 where the six addresses are referred to, the six

2 addresses I mentioned to you. Now this is the search

3 warrant for the BIH Club. So this is one of the search

4 warrants that was issued the previous day, but on 15th

5 March there's a search warrant and in that search

6 warrant you will find all six addresses. You should

7 have that warrant as well.

8 Q. Yes, I have that warrant, but I gave up the warrant

9 relating to Mr. Delalic's apartment at that same

10 address. In addition to the joint warrant, the court

11 also issued individual warrants for each of those

12 searches; is that correct?

13 A. No, it is not correct. This is a search warrant that

14 was initially issued and precisely because there was

15 information that was constantly being updated, on 15th

16 March a search warrant was issued in respect of the six

17 addresses I've mentioned to you.

18 Q. Very well. We looked at that warrant before the break,

19 and I am not requesting its correctness, but please look

20 at this warrant as well as the warrant containing all

21 the addresses. Will you please tell me, first, whether

22 you gave that search warrant to Mr. Delalic?

23 A. I could not give that search warrant to Mr. Delalic,

24 because he was not there. Mr. Delalic at that time was

25 in Munich.

1 Q. Did you convey that warrant to him in the next 24 hours?

2 A. Well, I certainly didn't, but that wouldn't have been my

3 job anyway. As you may know, Mr. Delalic was arrested

4 in Munich at the same time.

5 Q. Yes, but the judge gave you the search warrant; is that

6 correct?

7 A. Yes, but I couldn't give it to Mr. Delalic, because he

8 wasn't there. Not I personally; the officers who were

9 there on the spot couldn't serve the warrant to

10 Mr. Delalic in so far as he was not there.

11 Q. You never forwarded that warrant to him to this day; is

12 that correct?

13 A. I personally certainly not, but that would not have been

14 my job. As far as this search goes, Sanda Mucic was

15 present, and two metres further on --

16 Q. Mr. Gschwendt, I'm not asking you about the persons

17 present. I'm asking you about the handing over of the

18 warrant. Does the court say in the warrant that this

19 warrant has to be handed to the person who is being

20 searched immediately or 24 hours later at the latest?

21 Is that written in the warrant?

22 A. Yes, it's correct. It's in the second paragraph.

23 Q. Do you recognise this book, please?

24 A. It's the Austrian law on legal procedure.

25 Q. Can I ask you to look at it while I'm putting these

1 questions to you, please? May I ask the usher to give

2 this book to the witness? (Handed to witness). Will

3 you please look at Article 140, paragraph 3, of your

4 criminal code?

5 A. I know this paragraph.

6 Q. You know that paragraph? Does this paragraph also state

7 that it is an obligation to serve the search warrant

8 immediately or at the latest within 24 hours, without

9 any exception; is that correct?

10 A. Yes, it's stipulated there.

11 Q. Nevertheless to this day you have not served that

12 warrant on Mr. Delalic; is that correct?

13 A. I was not present personally but, as is customary, as is

14 always the case, the various people concerned or the

15 witnesses were given this.

16 Q. Mr. Gschwendt, are you also familiar with the provisions

17 of Article 134 of the Code of Criminal Procedure -- 139?

18 A. 139 concerns --

19 Q. Is it true that paragraph 1 says that the search can be

20 carried out if there is knowledge that there are things

21 in the apartment which are of importance for certain

22 criminal proceedings? Is that correct?

23 A. Yes, that is correct.

24 Q. Yes. Is it correct that you stated in this courtroom

25 that you did not know what kind of things were contained

1 in Mr. Delalic's apartment and in the business premises

2 of INDA-BAU?

3 A. In the search you never know what you're going to find

4 there. You are looking for certain things. If you

5 knew beforehand what was there, then you wouldn't need

6 to carry out a search.

7 Q. Mr. Gschwendt, I'm not asking you about your practice.

8 You said that you acted in accordance with the law.

9 What I'm asking is whether this is stated in the

10 Austrian law, and in the course of the request for

11 issuing a warrant as well as during the search, as you

12 said in this courtroom, you did not know whether in

13 Mr. Delalic's apartment or in the premises of INDA-BAU

14 there were things that would be important for this case;

15 is that correct?

16 A. For Dr Seda, the investigating magistrate, there was

17 evidence for incriminating Mr. Mucic and Mr. Delalic would

18 be found here, and this suspicion was obviously so great

19 that the search warrant was issued. The searches were

20 not carried out without a warrant.

21 Q. Mr. Gschwendt, is it true that Article 140 of the

22 Austrian law says that the search can be carried out

23 after previous questioning of the suspect?

24 A. Yes, that is correct. If you look at Article 2, then

25 you can see that after the questioning the persons

1 concerned, that is here in this case the persons accused

2 of war crimes, can be questioned -- sorry, need not be

3 questioned.

4 Q. There are only two conditions in that Article. If that

5 apartment was empty, and this could apply to Mr. Delalic

6 and not to Mr. Mucic --

7 A. You're not right. I'll read this article out:

8 "With this questioning the person suspected ... if

9 there can be a search carried out".

10 Q. I'm not an expert in Austrian law, but I interpreted it

11 differently from you now. So let us proceed,

12 Mr. Gschwendt. At the time of the search, as you said,

13 you knew that Mr. Delalic was in Munich and that he had

14 been arrested; is that correct?

15 A. That's right, yes.

16 Q. Is it your duty, Mr. Gschwendt, to act strictly in

17 accordance with the court warrant?

18 A. Yes, that is correct.

19 Q. Is it your duty to find in the apartment and seize only

20 those things indicated in the court warrant?

21 A. Yes, that is correct.

22 Q. Is it true that in the court warrant it was stated that

23 you should find and seize those documents which refer to

24 war crimes in Bosnia-Herzegovina and especially

25 videotapes on the torture of prisoners?

1 A. It's correct it's stated in the search warrant.

2 Q. Did you give the same instructions to your policemen?

3 A. That is also correct. They had this search warrant with

4 them.

5 Q. Mr. Gschwendt, is it true that during the search of the

6 apartment Sanda Mucic was present, a 16 year old girl?

7 A. That is correct.

8 Q. Is it true, Mr. Gschwendt, that according to the Code of

9 Criminal Procedure it is clearly specified who needs to

10 be present during the search of an apartment?

11 A. Not only Sanda Mucic was at this address, but, as far as

12 I know, according to the information I had Ms. Delalic

13 was also there, who also had the keys to this

14 apartment. The door was not broken down, but Ms.

15 Delalic provided the key here.

16 Q. Mr. Gschwendt, I am not talking about entering the

17 apartment but the search of the apartment and the

18 seizure of things found inside. I'm asking you whether

19 the persons found during the search and who participated

20 in the seizure have to sign the report on the search of

21 the apartment?

22 A. The witness who is there must -- should provide a report

23 of course, yes. That was not necessarily signed.

24 Q. Mr. Gschwendt, will you tell me whether you sent with the

25 two police officers somebody to make the report?

1 A. The report is usually written up by the officer who is

2 present at the time. It may be that apart from these

3 two officers I think there were another number of

4 officers who were also present and who worked on this

5 case, and maybe some of these other officers was also

6 present in this case. This is possible.

7 Q. I asked you, so will you please answer: did you send

8 with the police officers somebody who was supposed to

9 draft the report?

10 A. No.

11 Q. No. Did you send within the team for the search and for

12 the seizure two court witnesses?

13 A. The officers have -- use witnesses who are available at

14 the time on the scene. This was in Taubergasse.

15 Mr. Mucic was there at the time, Sanda Mucic and Ms.

16 Hajna Delalic.

17 Q. Mr. Gschwendt, will you please look at the provisions of

18 Article 142 of your code? Is it correct to say that a

19 search has to be attended in the first place by the

20 owner of the premises and of the things they contain?

21 A. That is correct.

22 Q. Is it correct that if he is not there the search should

23 be attended by an adult member of his family?

24 A. That's also correct.

25 Q. Is it also correct, Mr. Gschwendt, that if no adult

1 members of the family are there, the search may be

2 attended by a neighbour or a friend, who is also of age?

3 A. That is also correct.

4 Q. Is it correct in paragraph 3 of that Article it is

5 stated that always a search has to be attended by two

6 court witnesses and a record keeper?

7 A. Yes. One of the officers also is a record keeper at the

8 same time. The record keeper is always one of the

9 officers who carries out this house search.

10 Q. And which of the policemen acts as two court witnesses?

11 A. You don't need to have two court witnesses, because in

12 Taubergasse the following were present: Mucic, Sanda

13 Mucic, who is only 16 and who is able to work but is not

14 considered as a major and Ms. Delalic, Hajna Delalic.

15 Q. Is there any provision in the law of Austria which says

16 that a search may be attended by a minor?

17 A. It is not stated. You are right.

18 Q. Therefore, the presence of a minor is against the law?

19 A. It is not contained or not stipulated -- what is not

20 stipulated as being forbidden in the law is not out of

21 the law.

22 Q. So that is not in the Code of Criminal Procedure. That

23 is not there. We must smile at that. Mr. Gschwendt,

24 what you just told me about Ms. Hajna Delalic, you heard

25 that from your police officers?

1 A. Correct and Ms. Hajna Delalic was the person who held

2 the keys for this apartment, as far as I know, and is

3 the person from whom these keys were obtained.

4 Q. Did your policemen tell you that? If they did, will you

5 tell me which of those policemen?

6 A. I don't know. I'm afraid. I can't tell you any more.

7 Q. Did the policemen tell you that they did not allow Hajna

8 Delalic to enter the apartment?

9 A. I'm afraid I'm unable to say anything about this.

10 Q. Did the policemen tell you that they pushed away from

11 the door the sister of Mr. Delalic, Ms. Shevka

12 Rizvanovic?

13 A. Are there any indications from the police concerning

14 this?

15 Q. I'm asking you. Do you have any indications, because

16 those were people living there, and they were not

17 present at the search. Did they tell you that they did

18 not allow Shevka Rizvanovic, the sister of Mr. Delalic,

19 to enter the apartment that was being searched?

20 A. Not that I'm aware of.

21 Q. Did your policemen also tell you that Ms. Raza Medovic,

22 a major who was visiting one of the neighbouring

23 apartments, offered to be a witness and this was not

24 allowed?

25 A. I'm not aware of this, no.

1 Q. I would like to ask you, Mr. Gschwendt, to look at the

2 reports of the search on the apartment in which

3 Mr. Delalic stayed in INDA-BAU. I apologise for putting

4 some notes of translation into Bosnian. Please ignore

5 those words. Just read the report in German. Would

6 the usher please give this text to the witness? (Handed

7 to witness).

8 MR. TURONE: May the Prosecution see also this document,

9 please?

10 MS. RESIDOVIC (in interpretation): Why not?

11 MR. TURONE: I think we are entitled to that.

12 MS. RESIDOVIC (in interpretation): Yes. Yes. Of course.

13 That's what I said, that the Prosecution could see the

14 document. (Handed to Prosecution).

15 Mr. Gschwendt, I can give you another copy.

16 A. I have read it.

17 Q. Let us look now at this report of the search on the

18 apartment in Taubergasse 15 through 14. Is it correct

19 that the names of the policemen are indicated as you had

20 stated, of the policemen present?

21 A. Yes, that is correct.

22 Q. Is it correct that as witnesses we have Mucic Sanda, who

23 is a minor?

24 A. Only Mucic Sanda is mentioned.

25 Q. Is it correct that we do not see any other name of a

1 witness present?

2 A. Yes, that is correct.

3 Q. Will you please look at the other report on INDA-BAU?

4 Is it correct, Mr. Gschwendt, that in this report on the

5 search of the premises where the names of those present

6 should be indicated we have three numbers with four

7 digits?

8 A. Can I see the document? (Handed to witness). Yes,

9 there are three service numbers.

10 Q. Is it correct that on neither of these reports is there

11 any indication of a record keeper and two court

12 witnesses?

13 A. It's not correct what you've said. For example, if you

14 are talking about the report with the three service

15 numbers on it, there are two witnesses and there is not

16 only this report, there is also a report on the search

17 which was carried out, which should also be in your

18 files. This is just what is conveyed on the scene at

19 the time. For every search there is a written report,

20 which tells you what time, from when to where exactly

21 the search was carried out, and in this report there are

22 most certainly signatures. This is not a record of the

23 search itself. This is just the report on which the

24 persons involved must sign in order to ensure that it

25 was carried out, but this is not the report of the

1 search as such.

2 Q. Mr. Gschwendt, if I have understood you well, the second

3 report is prepared by the policemen only when they

4 return to the police station; is that correct?

5 A. No. The report is drawn up at the police station.

6 It's a nice typewritten sheet. It has the information

7 about the search. Often this is filled out pretty

8 basically, because this is filled out on the spot, but

9 there must also be a report as far as this house search

10 is concerned.

11 Q. Yes, but this paper is left to the people present in the

12 apartment; isn't that so?

13 A. Yes. The person concerned receives that. This is the

14 paper listing the seized objects and that is why it's

15 left with the person concerned or one of the witnesses,

16 and the report is then drafted subsequently in the

17 office.

18 Q. Yes, and Sanda Mucic is not in the office when that

19 report is being drafted; is that correct?

20 A. That's right.

21 Q. Can you agree with me then that in the report on the

22 search of the apartment in Taubergasse number 15 in

23 which Mr. Delalic occasionally stayed, you have as a

24 witness only Mucic Sanda, a child of 16, and that the

25 name of Hajna Delalic has not been entered into that

1 report, nor of any other witness who could be a witness

2 pursuant to the provisions of your criminal code. That

3 can be an adult member of the family, a neighbour or a

4 friend; is that correct?

5 A. No, I don't have that report before me, so I can't

6 really comment.

7 Q. I showed it to you just now?

8 A. Once again, this is not the report of the search. This

9 is a confirmation, as it were, as far as the seized

10 objects go.

11 Q. Mr. Gschwendt, as none of us are experts on Austrian

12 procedural law, I just read to you a provision which

13 says how a search is carried out and how seizures are

14 made, and you agreed with me. So let me repeat again:

15 it is carried out when there are suspicions that there

16 are things in the apartment linked to a particular

17 criminal offence. Furthermore, the search has to be in

18 the presence of the owner, if possible. If not, then

19 the search is attended by an adult member of his

20 family. If that is not possible, then an adult

21 neighbour or friend has to attend. I'm asking you:

22 did any one of these people prescribed by law as having

23 to be present when a lawful search and seizure is

24 carried out go with you to your offices to draw up a

25 third report together with the police officers?

1 A. What do you mean third report? The report that's drawn

2 up at the office is the protocol referred to by law.

3 Q. Will you please show me this other report with reference

4 to Taubergasse 15, the report that you drafted? Will

5 you please show it to me?

6 A. I don't have any papers along from the file.

7 Q. But you have come here to testify on the search and

8 seizure that you were in charge of; is that correct?

9 A. I came here to testify, that's right, but I did not come

10 here to introduce documents.

11 Q. But you carried out that search in your official

12 capacity?

13 A. Yes. I take it that you have all the files. You

14 probably have the search report as well.

15 MR. TURONE: I'm sorry for interrupting. I would make

16 clear for the record that -- ask the record to reflect

17 that the entire file was previously made available to

18 the defence counsel.

19 JUDGE KARIBI WHYTE: What is the meaning of that? She's

20 asking for a particular report. Perhaps that report

21 was not in that file.

22 MS. RESIDOVIC (in interpretation): May I continue, your

23 Honours?

24 A. Whenever there's a search, there's a report that's drawn

25 up, and it's not a form we are talking about. We're

1 talking about a typewritten report. It says "Regarding

2 Search in Taubergasse 15 Report".

3 Q. Let us clarify things. This report you are referring

4 to now is drawn up by the team upon returning from the

5 search and seizure; is that correct?

6 A. A member of the team, yes.

7 Q. And they do it -- and that member of the team does it in

8 the police premises; is that correct?

9 A. That's right.

10 Q. And then witnesses prescribed by the law, the provisions

11 of the law that we read out twice, are not present; is

12 that correct?

13 A. No. They don't need to be present when the report is

14 drafted. They need be present only at the search.

15 Q. And then they need not sign that report drafted by a

16 member of the team?

17 A. No.

18 Q. Therefore, the only report that is in line with the law

19 is the report with the signatures of the witnesses

20 present; is that correct?

21 A. But it's not a report. It's not called a report.

22 It's called "Niederschrift". It's a record. It's to

23 indicate the reasons, for instance, why the search is

24 taking place, and you have this also in your own

25 language, who has ordered the search and which objects

1 have been seized.

2 Q. Very well. Thank you. You have cleared up what this

3 record means and who was present on the spot.

4 Therefore, on the spot the persons envisaged by the law

5 on criminal procedure of Austria were not present.

6 Please, sir, can you tell me whether the people carrying

7 out the search are duty bound to list the objects found

8 and temporarily seized?

9 A. That's right. You can see them there.

10 Q. Does that record have to be compiled in such a way that

11 one can always clearly see what was seized in a

12 particular apartment?

13 A. For each address the objects seized are listed, yes.

14 Q. You told me a moment ago that it is your duty to seize

15 the objects that are specifically indicated in the court

16 warrant. The court warrant says that the objects need

17 to be seized which relate to war crimes in

18 Bosnia-Herzegovina and especially videotapes on the

19 torture of witnesses. Will you tell me, please,

20 whether your policemen informed you that they had found

21 such material?

22 A. Well, this concerned six locations and there were more

23 than 100 videos that were seized, and they had to be

24 viewed in the office first and analysed to see whether

25 they were relevant.

1 Q. Tell me please if you are unable to establish on the

2 spot and immediately whether you have the objects

3 indicated by the court warrant and you assume that they

4 may be objects of interest regarding a criminal offence

5 or a suspect, is there an obligation according to the

6 Austrian law to draw up a special report of those

7 objects?

8 JUDGE KARIBI WHYTE: Excuse me. I think we might break now

9 for 30 minutes, because if you continue with this

10 question, you will get into the recess we intend

11 having. So we will come back at 4.30 and you will

12 continue your cross-examination then.

13 (4.00 pm)

14 (Short break)

15 (4.35 pm)

16 (Witness re-enters court)

17 (Interpreter re-enters court)

18 JUDGE KARIBI WHYTE: Please remind the witness he is on his

19 oath.

20 THE REGISTRAR: I should like to remind you that you are

21 still testifying under oath.

22 A. Yes, I understand.

23 JUDGE KARIBI WHYTE: Ms Residovic, you can carry on.

24 MS. RESIDOVIC (in interpretation): Thank you, your

25 Honours. I would like to ask to facilitate things for

1 us and the Trial Chamber let us clarify a few points.

2 I wish to tell you that I'm questioning you because the

3 Trial Chamber will be offered some of the objects as

4 evidence found in the apartment in which Mr. Delalic

5 stayed, and when I am asking you questions I wish to

6 know whether the search was lawful, whether the things

7 were confiscated according to the law, whether they were

8 listed and whether that list reached the Prosecutor.

9 Therefore, there are no traps here. I just wish to

10 make things clear so that we can follow, and I would

11 like to ask you to give me clear answers, if possible.

12 I hope we understand one another.

13 A. Yes.

14 Q. Also --

15 MR. TURONE: May I please object now to this general line of

16 question -- to this continuing line of detailed

17 questioning regarding Austrian law, because we have to

18 know that the accused did not challenge the search

19 either in Austria or under Rule 73, and the Chamber has

20 indicated that if evidence was obtained in violation of

21 international human rights an accused may nonetheless

22 challenge its admission, but this, however, does not go

23 into this. The defence lawyer is not talking here

24 about international human rights. The defence lawyer

25 is talking about minor formalities of Austrian law,

1 which is not controlling in this case. So this line of

2 questions on these formalities of Austrian law is not

3 relevant in the submission of the prosecution.

4 Furthermore, I would like to emphasise that this

5 specific witness was called today in order to clarify

6 the oppression issue, and this is the reason why

7 probably Mr. Gschwendt didn't bring with himself all the

8 file concerning the searches, for instance. So this is

9 the reason why I object to this continuing line of

10 questions on the Austrian law. We believe that

11 Austrian law was complied with, but to go on on this

12 line of questions would be, in our opinion, not relevant

13 to this trial. Thank you, your Honour.

14 JUDGE KARIBI WHYTE: I'm sorry, Mr. Turone. I wouldn't

15 agree with you. I have been listening patiently to it

16 and to the line of cross-examination, which is fairly

17 clear. Counsel is trying to show the basis on which

18 certain things were confiscated or were taken from those

19 arrested at the time and in respect of the searches and

20 whether there was anybody supporting the search and

21 their detention of those properties, and I think whether

22 in future it will be accepted or not is a different

23 matter. Counsel is entitled to pursue the line of

24 cross-examination. You can reply when you have the

25 opportunity of doing so in your address, if you like,

1 but counsel is entitled to seriously pursue that line of

2 cross-examination.

3 MR. TURONE: Right, your Honour. Thank you.

4 MS. RESIDOVIC (in interpretation): Thank you, your

5 Honours. In the break I have been asked by the

6 interpreters to speak more slowly and to wait for the

7 answers, because the interpretation is going into

8 several languages. So please answer my questions when

9 you hear the full translation, and I will also wait to

10 hear the interpretation before posing my next

11 question.

12 I have also noticed, since I have no command of

13 German, there has been some imprecision in the

14 translation of the document I've shown you. So please

15 let us establish now that the record that is drawn up on

16 the spot in the presence of the witnesses stipulated by

17 law is the only record which is compiled on the spot,

18 and which those witnesses have to sign. This record

19 indicates the objects that were confiscating (sic)

20 during the search. The exact name of that record in

21 German is Niederschrift?

22 A. Niederschrift, yes.

23 Q. And it is the basis on which police workers later -- on

24 the basis of this document police workers prepared the

25 Bericht, the official report on the house search.

1 Therefore I think we now understand one another. On

2 the spot a Niederschrift or a record is drawn up, which

3 is left to the witnesses, and in the apartment, and it

4 is prescribed by law, and later your officers on the

5 basis of that Niederschrift prepare a report. Have

6 I interpreted correctly your words now?

7 A. That's right. That's just what I said. This report

8 is not based on the record because there's also further

9 information. For instance, in the report it says, if

10 necessary, where in an apartment, for example, at what

11 specific spot a given object was seized. So the report

12 is more specific, goes into more detail than the record,

13 the Niederschrift.

14 Q. Thank you. Now we have cleared that up, will you

15 please tell me whether it's correct that the Austrian

16 law obliges the body carrying out the search, if things

17 are not specified in the court warrant, to draw up a

18 separate report on those objects? Will you please look

19 at Article 144?

20 A. That's right.

21 Q. Is it also correct that those objects and that report

22 has to be conveyed to the Public Prosecutor of Austria?

23 He has to be informed about it?

24 A. That's right, yes.

25 Q. Is it correct that you did not compile on the spot any

1 separate minutes of things which are not relevant to war

2 crimes in Bosnia-Herzegovina and the torture of

3 prisoners?

4 A. Which objects are you referring to?

5 Q. Let's go back. You confirmed that in the court warrant

6 it is stated that separate documents have to be gathered

7 relating to war crimes in Bosnia-Herzegovina and

8 videotapes on the torture of prisoners. That is the

9 express instructions of the court; is that correct?

10 A. That is correct, yes.

11 Q. According to the provision that we agreed on a moment

12 ago, all other things needed to be listed separately in

13 a report, and this report forwarded to the Public

14 Prosecutor. My question is: did you make such a list

15 of these other objects and did you forward that list to

16 the Prosecutor?

17 A. Apparently we seized only objects which were consistent

18 with what is in the warrant. In the warrant it says

19 documents about war crimes in Bosnia-Herzegovina and

20 those are the kinds of objects we seized.

21 Q. Very well. Thank you. We'll come back to that again

22 later. Tell me, please, is it correct that according

23 to the Austrian law the provisions of Article 145, it is

24 the obligation of the person carrying out the research

25 (sic) to list with precision all the documents during

1 the research (sic) and confiscating (sic) during the

2 research (sic)?

3 A. That's what happened. That was done. Now, if you

4 look at the analysis, the analysis in respect of the

5 whole case, each piece of paper was described, was

6 analysed and described, and there are objects which were

7 described as not being relevant, but you have to see

8 what the police's possibilities are on the spot. It

9 couldn't be done then and there. You can't have a look

10 at 100 videos on the spot or if you seize a computer

11 with a 3 gigabyte memory, what are you going to do on

12 the spot with that?

13 Q. Please, sir, will you tell me with precision your

14 officers on the spot, did they take note of each

15 videotape separately and each document separately?

16 A. Not at the spot, not at the scene, but later on in the

17 office the objects were reviewed and analysed. A video

18 lasts 240 minutes. If you happen to have 80 of them,

19 if you've received 80 videos, just imagine how long your

20 search would last if you were to view them on the

21 spot.

22 Q. That is correct, Mr. Gschwendt, but is it correct that

23 the Austrian law is familiar with such a situation when

24 officers on the spot are unable to list all documents

25 and view all videotapes, is it true that Article 145 of

1 the Austrian law says that in that case all those

2 documents have to be packed, sealed, signed by the

3 persons present and kept until they are analysed under

4 court supervision? Is that correct?

5 A. That is correct, but as far as I know there was an order

6 from the investigating judge to analyse all of the

7 objects.

8 Q. Mr. Gschwendt, we are not talking about the court

9 warrant. We are talking about the method of

10 confiscating goods. The law says clearly everything

11 should be listed in detail, and if that is not possible

12 that objects and documents be sealed, taken to the

13 police station or placed under court supervision; is

14 that correct?

15 A. I believe that the investigating judge's order is

16 sufficient and that that would not apply.

17 Q. I'm asking you -- please answer if you can, because you

18 said that you were familiar with the Austrian law, and

19 you have the law before you -- am I quoting correctly

20 Article 145 of the Austrian law which regulates the way

21 in which things should be confiscated, which cannot be

22 listed on the spot? Have I correctly interpreted that

23 provision of the Austrian Code of Criminal Procedure?

24 A. It's a question of time really. They were to be listed

25 and they subsequently were listed. You would have to

1 enter into a legal procedure about the definition of

2 warrants --

3 Q. My question --

4 A. It does not stipulate here, as far as I know, that it

5 necessarily has to be at the scene of the search.

6 JUDGE KARIBI WHYTE: Please, counsel, is this matter not

7 clearly one of practicality of what you are doing,

8 because if, as the questioning has been going, you have

9 a lot of things that cannot easily be determined on the

10 spot, but they still have to be taken away.

11 MS. RESIDOVIC (in interpretation): Yes, your Honours. I'm

12 just asking the witness whether they packed and sealed

13 the things that they could not list?

14 A. We listed all things -- so I said we listed everything,

15 but it took a little bit of time. Each video cassette

16 was given a number, each document was given a number,

17 but 240 minutes times 80 --

18 Q. Mr. Gschwendt, did you in the apartment or in the

19 premises of INDA-BAU pack or seal these documents in

20 order to review them later when you have time? Did you

21 seal the things that you could not list?

22 A. After the search we already began listing these items.

23 Why should they have been sealed if you're already

24 beginning to process them?

25 Q. Because that is what the Austrian law says. Please

1 when listing these objects in the police station did you

2 invite, as prescribed by Article 145, Mr. Delalic or his

3 representative to be present upon the identification of

4 the confiscated objects?

5 A. Well, in this case it wasn't required, because they

6 weren't sealed upon a court order, because he only has

7 to be there if you seal them and then they are

8 subsequently opened.

9 Q. Mr. Gschwendt, will you look once again at the reports on

10 the search which I gave you or showed you before the

11 break?

12 A. You mean the record, the Niederschrift?

13 Q. Yes, the Niederschrift. Do you have a copy before you?

14 A. I have this copy before me, yes.

15 Q. Is it true, Mr. Gschwendt, that in the record on the

16 search of the apartment in Taubergasse 15, where the

17 witness was, the minor, Mucic Sanda, stated 30 video

18 tapes were found, various photographs, notes, documents,

19 2 berets, military trousers, military vest and a black

20 sports bag; is that correct?

21 A. That is correct, yes.

22 Q. Please, is it correct in the record on the search of the

23 premises of INDA-BAU in Koppstrasse that it says that 51

24 videotapes were taken, newspapers, two registers

25 connected to Mucic, two registers connected to Delalic;

1 is that correct?

2 A. That is right.

3 Q. Is it true that you compiled the report later on?

4 A. Now with regard to the seized objects subsequently in

5 the office a report was drafted and subsequently there

6 was a second report that was drafted, and there's

7 details there about each and every one of those

8 videotapes, and they are each and every one of them

9 described.

10 Q. When confiscating these objects, did you place any signs

11 on them which would guarantee that the objects that you

12 later listed were objects that were actually found in

13 the apartment or premises searched?

14 A. That isn't done at the scene of the search. Usually

15 these things are put in a big box, and once you get to

16 the office a sticker is put on them to identify them,

17 and then they are processed. These objects are under

18 our constant supervision. When there's nobody in the

19 office, then you lock them up under file and key to see

20 to it that nobody has access to them.

21 Q. Therefore, they were given to the Austrian police in

22 full confidence?

23 A. I hope that people can have full confidence in the

24 Austrian police.

25 Q. Mr. Gschwendt, did you personally see those enormous

1 boxes with the confiscated materials?

2 A. I did see the objects, but I didn't count them myself,

3 if that's what you mean.

4 Q. You know that in INDA-BAU thousands of various papers

5 were confiscated; is that correct?

6 A. I don't think thousands would be right, but there were a

7 lot of them, yes.

8 Q. And most of those papers, about 95 per cent, were in the

9 Bosnian or Serbo-Croatian language?

10 A. That's right, yes.

11 Q. And you didn't place any indication in INDA-BAU premises

12 themselves so that you would know what the papers were

13 -- where the papers were from?

14 A. That should be in the report that we've referred to

15 several times, but that should be in there.

16 Q. Are you aware, Mr. Gschwendt, that some differences

17 occurred between what was found in the records on the

18 spot and what you later analysed?

19 A. As far as I know there was one case I think with regard

20 to the video cassettes. There'd been an error made in

21 the counting by three and on that score a special report

22 was drafted to set the record straight.

23 Q. The report was compiled by the police?

24 A. Yes. Right.

25 Q. Will you please, Mr. Gschwendt, look at this report and

1 compare it with the record made on the spot in

2 INDA-BAU?

3 MR. TURONE: Again, may the Prosecution see the document?

4 (Handed to Prosecution) (Handed to witness)?

5 A. Yes, that's the report I referred to. There was this

6 mistake made. Three units and here it's stated that

7 there weren't 51 but rather 54 of them, and then there's

8 a description there as to how they were identified.

9 There was a mistake, yes. Somebody miscounted by three

10 tapes.

11 Q. Mr. Gschwendt, will you tell me is it correct that in

12 this record we find the figure of 51 videotapes?

13 A. I thought I told you, yes.

14 Q. In your report it says 54?

15 A. That's right, and that mistake in the counting was set

16 right. Somebody at the scene of the search miscounted

17 by three. Nobody's perfect.

18 Q. Is it correct that that report on the counting was

19 compiled on 22nd April?

20 A. If that's the date on there, if that's when they were

21 analysed, yes.

22 Q. And the search was conducted on 19th March?

23 A. 18th.

24 Q. Can you tell us which three videotapes had not been

25 counted during the search on the spot?

1 A. No, I certainly can't.

2 Q. Can you tell me whether from March 19th to April 22nd,

3 1996 a change may have occurred in the number of tapes

4 which are not described in any other way except by their

5 numbers?

6 A. Well, listen, I've already said once, apparently a

7 counting mistake had been made and it was set right.

8 Q. The police corrected the number; is that so?

9 MR. TURONE: Objection, your Honour. Asked and answered.

10 A. The police corrected that mistake. These items were

11 processed by the police and that's how the mistake came

12 out. It was discovered by the police.

13 MS. RESIDOVIC (in interpretation): Did you specifically

14 indicate which three videotapes had not been counted on

15 19th March?

16 MR. TURONE: Objection, your Honour. Asked and answered

17 already.

18 MS. RESIDOVIC (in interpretation): Thank you. Can you,

19 Mr. Gschwendt, look at the second report of yours, which

20 refers to the search of the apartment in which

21 Mr. Delalic stayed in Taubergasse number 15? A copy for

22 the Prosecution too, please. (Handed to Prosecution)

23 (Handed to witness). Mr. Gschwendt, this report was also

24 compiled on 22nd April.

25 JUDGE JAN: What does "Niederschrift" mean?

1 A. Writing down.

2 THE INTERPRETER: "Niederschrift" means record.

3 MS. RESIDOVIC (in interpretation): On the spot. This

4 report was also written by you in the police on 22nd

5 April 1996; is that correct?

6 A. The date's on there, yes.

7 Q. Is it stated in this report that in Mr. Delalic's

8 apartment 28 videotapes were found?

9 A. Yes.

10 Q. Look at the record made on the spot dated 19th March

11 1996. Is it stated in this record that 30 videotapes

12 were found?

13 A. That's right, yes.

14 Q. In this record there is no statement regarding the

15 error. Is that not so?

16 A. That's right too, yes.

17 Q. Noting -- when the error was noted, the witnesses who

18 were on the spot were not present; is that correct?

19 A. Now the things we are comparing here aren't the same.

20 The report here refers to Taubergasse 15, Door 14. No,

21 no, it's right. There's a difference of two units, but

22 it might also be due to the fact that there were some

23 blank video cassettes, but I would rather not comment on

24 that. I simply don't know.

25 Q. Mr. Gschwendt, is it correct that neither you nor the

1 officers working under you can describe the tapes with

2 precision, the tapes that were missing from Mr. Delalic's

3 apartment, nor the tapes that appeared subsequently from

4 the INDA-BAU premises?

5 A. All of the videotapes were described individually and on

6 the basis of that description one should be able to

7 clear up that mistake.

8 Q. A mistake regarding the tapes that were not counted on

9 the 19th March?

10 A. I don't know. I wasn't there and I didn't count these

11 things, so I'm the wrong person to put that question to.

12 Q. Didn't you just tell me -- did you just confirm that

13 nobody had put any markers on the things that were

14 brought to the police?

15 A. What I said was each individual item was identified, but

16 -- each in turn. There were a lot of things there.

17 Q. So it may have occurred tomorrow, in a week, in a month,

18 since there were a lot of objects; isn't that so?

19 A. You can see this on the basis of the dates on the

20 reports.

21 Q. Thank you. Tell me: is it correct that the objects

22 taken from the premises of Mr. Delalic were served on the

23 Hague Tribunal only after you had analysed those

24 documents?

25 A. Some things were copied with the approval of the

1 investigating magistrate and these were transmitted to

2 members of the Tribunal. That is also contained in the

3 report which things this concerned exactly.

4 Q. Can you confirm that if there is no report or copies

5 sent to the International Tribunal, then the remaining

6 objects were not transmitted before they were fully

7 analysed and identified?

8 A. This should be contained in the report.

9 Q. If I tell you that on the basis of the documents that

10 defence counsel has received there is a report that you

11 photocopied the videotapes found with Mr. Zdravko Mucic

12 and that they were transmitted to the Tribunal, is it

13 then correct to say that the things you found with

14 Mr. Delalic, about which there is no report on their

15 transmission to the Tribunal, that they were, in fact,

16 transmitted according to the report dated end of April

17 1996?

18 A. These objects which were transmitted to the Tribunal,

19 they were also described but I can't say exactly whether

20 they concern Mucic or Delalic.

21 Q. Therefore, if there is a report, then things are as is

22 stated in the report; is that correct?

23 A. Yes, that should be the case.

24 Q. Mr. Gschwendt, we have seen now what errors occurred with

25 regard to the videotapes. You confirmed that in

1 Mr. Delalic's apartment and in INDA-BAU a large quantity

2 of material was found?

3 A. That is correct.

4 Q. Was most of that material understandable to you when you

5 received it?

6 A. Well, this question you're asking me, I am not the right

7 person to ask. I was not the person who viewed and

8 analysed all these things. I distributed the work on

9 this.

10 Q. I appreciate that. Will you please tell me who is the

11 right person to address and who can confirm this?

12 A. You can see this on the analysis reports, the people who

13 -- person who has written about a specific thing is the

14 person who dealt with this, but I can't just tell you

15 which officer was responsible for every individual video

16 cassette, just off the cuff, but this is described and

17 the person who made the report is the person who worked

18 on these objects.

19 Q. But you told me a moment ago that you saw a large

20 quantity of documents?

21 A. I saw them indeed, but, I mean, I saw them but I didn't

22 work on them myself.

23 Q. And they, too, were not marked in any way when they were

24 brought to the police station?

25 A. You are starting with the same problem every time.

1 They were carried out according to capacity, dealt with

2 according to the capacity we had.

3 Q. I should like to ask you to take a look at these

4 documents and to see whether that belongs to that pile

5 of material that you saw?

6 A. You don't need to show them to me, because I can't

7 recognise a document from 25 different binders, one

8 single document. I did not carry out this analysis

9 personally.

10 Q. Particularly not if they were not marked. Will you

11 tell me whether Mr. -- I'm sorry, the witness coming

12 after you -- Moerbauer?

13 A. Mr. Moerbauer.

14 Q. Moerbauer, could he answer these questions? Is that so,

15 and Mr. Panzer?

16 A. Mr. Moerbauer will certainly be able to answer part of

17 these questions, because he dealt with, processed part

18 of this material.

19 Q. In connection with these objects I would like to ask for

20 the following: when you served them on the

21 International Tribunal the things that you allegedly

22 confiscated in the apartment and the business premises

23 in which Mr. Delalic stayed, did you make a receipt on

24 the handing over of that material?

25 A. As far as I know these things were not given to the

1 International Tribunal by us, but by the court. Upon

2 the conclusion of this, all of the material, along with

3 the analysis, was handed over to the court.

4 Q. When serving this on the court or, rather, the

5 International Tribunal, did you inform Mr. Delalic

6 accordingly?

7 A. That was not my duty. If the items are with the court,

8 they're outside the sphere of influence of the police.

9 Q. Thank you. As far as I have understood you, you said

10 that Mr. Moerbauer could confirm a part of those

11 things. Will you tell me who can confirm the rest of

12 these things?

13 A. You'll have to look at the signatures of the officers

14 who processed that.

15 Q. And who can confirm the objects that are insignificant,

16 as you said a moment ago, and which are not a part of

17 your analysis?

18 A. What do you mean? Which objects are you referring to?

19 Q. I have read your reports. A part of the documents was

20 processed. Others are said to be not interesting.

21 I would like to know who can confirm that at

22 Mr. Delalic's things were confiscated that were not

23 analysed by anybody in their report and which were also

24 transferred to the International Tribunal?

25 A. Well, those items that were significant in connection

1 with the search warrant issued by the court, they were

2 translated, viewed and then they were -- rather than

3 translated shall we say interpreted, and these items are

4 listed. For instance -- well, take a newspaper article

5 that was not in any way connected to the case. It was

6 not given any reference, because it served no purpose as

7 evidence.

8 Q. Mr. Gschwendt, this part of the questioning relating to

9 the confiscation of objects I think I have more or less

10 rounded off, and since you have the Code on Criminal

11 Procedure of Austria before you, would you agree with me

12 if I say that during the search confiscation, listing,

13 sealing, unsealing and transmission of objects your

14 bodies acted contrary to the provisions of Articles 139,

15 140, 141, 142, 143, 144 and 145 of the Code on Criminal

16 Procedure and outside the mandate issued by the court?

17 A. I can't agree with that at all. There were a few

18 mistakes that were made. For instance, there was a

19 miscount of three videotapes. There's an age

20 difference of two years, but those are the only mistakes

21 that were made and those are in there. They've been

22 documented. Nobody would try to hide any of this.

23 Mistakes happen.

24 Q. Allow me to put to you a few questions about the topic

25 you testified to this morning. You were shown a form

1 -- I don't have very much?

2 JUDGE KARIBI WHYTE: Well, I really don't mind. If you

3 still have anything to put to him, if you have any

4 questions which are worth pursuing now, you can do

5 this. Because it doesn't appear everyone is done with

6 this witness, you may still continue tomorrow morning.

7 MS. RESIDOVIC (in interpretation): Thank you.

8 JUDGE KARIBI WHYTE: Except if you have no major things to

9 ask tomorrow morning, but we can continue tomorrow

10 morning.

11 MS. RESIDOVIC (in interpretation): Your Honours, I have a

12 set of questions which will not take long. Whether I

13 do that now or tomorrow morning, it will not take more

14 than half an hour, maybe less.

15 JUDGE KARIBI WHYTE: Half an hour is suitable for tomorrow

16 morning. The Trial Chamber will rise now and continue

17 tomorrow morning.

18 (5.30 pm)

19 (Hearing adjourned until 10.00 tomorrow morning)

20 --ooOoo--

21

22

23

24

25