1 Wednesday, 11th June 1997
2 (10.00 am)
3 (In open session)
4 JUDGE KARIBI WHYTE: Good morning, ladies and gentlemen.
5 MR. O'SULLIVAN: Your Honour, there's a problem with our
6 computer. It isn't working. The text isn't coming up
7 on our computer:
8 JUDGE KARIBI WHYTE: Can we have the appearances, please?
9 MS. McHENRY: Good morning, your Honour. The Prosecution
10 is here today with Mr. Grant Niemann, who is acting as
11 lead counsel in Mr. Eric's Ostberg's absence, Mr. Stefan
12 Waespi, Mr. Giovanni Turone. I am Ms. Teresa McHenry
13 and we have Ms. Ellis van Dusschoten, our case
14 manager. Thank you.
15 JUDGE KARIBI WHYTE: Can we have appearances on the side of
16 the defence.
17 MS. RESIDOVIC (in interpretation): Good morning, your
18 Honours. My name is Edina Residovic, defence counsel
19 for Mr. Zejnil Delalic. With me defending Mr. Delalic is
20 Mr. Eugene O'Sullivan, Professor from Canada.
21 MR. OLUJIC (in interpretation): Good morning, your
22 Honours. My name is Zeljko Olujic. With me in the
23 courtroom is Mr. Michael Greaves, attorney from London,
24 and we're defending Mr. Zdravko Mucic. Thank you.
25 MR. MORAN: Good morning, your Honour. I am Tom Moran and
1 I represent Hazim Delic. My lead counsel, Salih
2 Karabdic, is ill this morning and we sent him home.
3 MR. ACKERMAN: Good morning, your Honours. I'm John
4 Ackerman, appearing with Ms. Cynthia McMurrey on behalf
5 of Esad Landzo.
6 MR. GREAVES: Your Honour, I wonder if you would give me a
7 moment to raise a matter with you, please, before we
8 start today's proceedings. I've been asked on behalf
9 of myself and my learned leading counsel and other
10 defence counsel to address your Honours on a matter
11 which has come to our attention and which is of very
12 great concern to us all and which we anticipate will be
13 of grave concern to this Tribunal and to the
15 On 27th May 1997 a television programme was
16 broadcast by a Belgrade television station about an
17 organisation which has already been the subject of
18 complaint before this Tribunal. This programme has
19 very recently been brought to our attention. That
20 television programme raises a prima facie case that
21 there has been a substantial degree of interference with
22 witnesses in this case by that organisation, and when
23 taken with other material we intend to place forthwith
24 before your Honours, suggests that this process has been
25 going on for a long period of time. It may amount to a
1 very serious contempt of this Tribunal, for which reason
2 we draw this matter to the attention of the Tribunal.
3 We do not wish to address your Honours about this
4 matter until such time as you have had a proper
5 opportunity to read a transcript of the programme and to
6 read the other material concerning this matter. What
7 we propose to your Honours is that you should now rise
8 for about an hour to enable you to take the prepared
9 transcript and the other material in order to examine it
10 and to discuss it amongst yourselves before we address
11 you. Upon your return, we would then wish to play the
12 tape of the programme to you and to have it interpreted
13 by the interpretation unit as it is played. After that
14 we would wish to address your Honours on this grave
15 matter. There are copies of the relevant material for
16 both the Prosecution and for your Honours, and I hand
17 that in to you now. (Handed to Judges and to
19 JUDGE KARIBI WHYTE: The Trial Chamber will rise for just a
20 few minutes and then we will come back.
21 THE INTERPRETER: Microphone, please.
22 (10.15 am)
23 (Short break)
24 JUDGE KARIBI WHYTE: Thank you. Mr. Greaves, we tried to
25 go through it casually, not in full detail.
1 MR. GREAVES: That's why I asked your Honours that you might
2 need a little more time than you had initially thought
3 to absorb it.
4 JUDGE KARIBI WHYTE: We are not taking a decision on this
5 until I have heard what you say.
6 MR. GREAVES: I have invited you to hear the tape being
7 played with the interpretation unit being interpreted
8 for your Honours. I think you ought to do that so you
9 can both see the programme and have the transcript. If
10 it's not perfect, we apologise, because it was done in
11 some hurry yesterday. We would invite your Honours to
12 see that video. It's not terribly long. I can't
13 remember exactly how long it is, but it's not terribly
15 JUDGE KARIBI WHYTE: Yes. Let us hear it.
16 MR. ACKERMAN: Might I suggest we do that in closed session,
17 because there are protected witnesses involved in the
19 JUDGE KARIBI WHYTE: Okay. Please let's have a closed
21 (In closed session)
13 Pages 3878 to 3924 redacted in closed session
9 (11.50 am)
10 (Short break)
11 (In open session)
13 JUDGE KARIBI WHYTE: This is the Ruling of the Trial
14 Chamber on the Prosecution's application to tender
15 certain exhibits. The exhibits were sought to be
16 tendered through Mr. Moerbauer, a witness for the
17 Prosecution. The Prosecution sought to tender in
18 evidence an aide memoire compiled by the witness
19 consisting of the documents and analysis of certain
20 documents which were handed to him already in evidence
21 for the purposes of identification as exhibits 104.
22 Also sought to be tendered in evidence as exhibits are
23 the two passports of Mr. Mucic, identity cards and the
24 report of the police interview.
25 The principle on which this Trial Chamber applies
1 the Rules of Procedure and Evidence is to ensure a fair
2 trial. We have an overriding duty in every case to
3 secure a fair trial. It is true this Trial Chamber is
4 not bound by national rules of evidence but,
5 notwithstanding, we must observe internationally
6 recognised fundamental rights.
7 Accordingly, we avoid methods which cast
8 substantial doubts on the reliability of the evidence
9 received and the integrity of the proceedings. We
10 adhere to the age-old principle that the one general
11 rule of evidence is the best the nature of the case will
12 allow, and in this case the nature of the evidence which
13 was secured by the witness and the circumstances in
14 which the evidence was secured are our consideration in
15 determining whether they ought to be admitted into
17 The Prosecution is tendering an aide memoire and a
18 bundle of documents. The Defence has objected. We
19 are satisfied that the Prosecution is tendering the
20 bundle of documents accompanying the aide-memoire, which
21 is an analysis, an application of the documents merely
22 as documents handed over to the witness, and the
23 documents are matters explaining the index and analysis
24 of the aide-memoire. There is no pretence at tendering
25 the contents. The Prosecution has so emphasised and
1 submitted that to us. To that extent we agree.
2 The Trial Chamber will, therefore, admit into
3 evidence the aide-memoire, which is an analysis, an
4 index authored by the witness. Exhibit 104 is
5 admitted. The two passports of Mr. Mucic were being
6 tendered through Mr. Moerbauer. The Defence also has
7 objected on the grounds of non-compliance with the
8 procedural laws of Austria, thereby rendering it
9 inadmissible. We refer to the position adopted by this
10 Trial Chamber that we are not bound by the rules of
11 evidence. We consider evidence which is relevant and
12 probative of the evidence accompanying it. We are
13 satisfied that the passports and ID cards were recovered
14 by the witness. They are therefore relevant to the
15 trial and this witness is, therefore, in a position to
16 tender them. We therefore admit into evidence as
17 exhibits 105, 106, 107, 108.
18 However, if at any stage there is evidence to
19 satisfy the Trial Chamber that rules of international
20 recognised human rights have been violated, we reserve
21 the right to exercise our discretion to exclude them.
22 We shall, therefore, consider the police interviews
23 after the other Austrian police witnesses have given
25 The Trial Chamber, therefore, admit into evidence
1 exhibits 104 and the documents accompanying not its
2 content -- not their content -- exhibit 105, 106, 107
3 and 108, which are the two passports and the ID cards.
4 Thank you.
5 MR. O'SULLIVAN: Your Honours, in light of your decision,
6 may I make submissions and an oral application?
7 JUDGE KARIBI WHYTE: Yes. Let's hear your application.
8 MR. O'SULLIVAN: My submissions refer to the procedures we
9 use in this Tribunal for the presentation of evidence
10 and in particular with the searches and seizures which
11 were conducted in Austria.
12 As your Honours have pointed out during this
13 period of the prosecution attempting to adduce this
14 evidence from Vienna, the Prosecution has adopted a
15 somewhat fractured approach in putting the cart before
16 the horse, as it were. In my submission they are
17 laying improper foundation for the presentation of this
18 evidence. With such improper factual foundation any
19 legal argumentation on the issue is equally
20 unsatisfactory. In my submission, if current
21 procedures continue in this way, this Tribunal will be
22 precluded from having before it all the evidence before
23 deciding on the legality of the searches and seizures
24 and the admissibility of the objects seized.
25 My submission comes down to this, that I have
1 heard your Honours say that you will wait for the other
2 Viennese police officers to give their evidence before
3 deciding on other objects. My respectful submission is
4 that not only must the Viennese police officers give
5 testimony before this Chamber; there must also be the
6 individuals who were both witnesses to the searches and
7 seizures, as indicated in the Niederschriften, as well
8 as the individuals who were present at the premises
9 where the searches and seizures occurred. The
10 witnesses in the Niederschriften are (redacted), Elvir
11 Rizvanovic, and Zenila (sic) Delalic. The names of the
12 individuals who were present at the premises include
13 Sefika Rizvanovic --
14 JUDGE KARIBI WHYTE: I wish I really understood your
15 submission, that I know what it is.
16 MR. O'SULLIVAN: It is that this Trial Chamber should hear
17 evidence from more than just the Viennese police
18 officers. There are other relevant individuals who can
19 speak to what occurred during these searches and
20 seizures. We have heard already that there have been
21 considerable irregularities from the two police officers
22 that have already arrived. What I am asking for is a
23 procedure akin to a hearing or a voir dire where
24 everyone is brought before the Trial Chamber, who is
25 relevant either by the Prosecution or through court
1 order or by allowing the Defence to call witnesses so
2 these matters are cleared up in one neat package in one
4 JUDGE KARIBI WHYTE: I do not want to say anything about
5 applications on a voir dire. At least you know what
6 the principles are. So far I have not any of the
7 arguments which touch on those areas. On all of those
8 who has made submissions, none has actually touched on
9 the relevance of a voir dire. You have talked about
10 illegality. You have talked about contravention of
11 rules and procedure, but at least as a common law lawyer
12 you know those are not the basis for a voir dire
13 hearing. You should know that. You know what it is
14 when you have to have a trial within a trial. It's not
15 merely because regulations have been contravened. That
16 is not the reason. So this is why I have said if in
17 future you can get any arguments which will bring the
18 rules within internationally recognised human rights,
19 that may assist in determining whether rights have been
20 violated and therefore rendering it not admissible.
21 There are quite a few different views on common law
22 about admissibility of illegally obtained evidence when
23 the jurisdiction is different. So it depends on which
24 of them you follow.
25 MR. O'SULLIVAN: Thank you, your Honour.
1 JUDGE KARIBI WHYTE: Before we proceed, let me give
2 announcement. I hear we have to conduct the television
3 examination of the witnesses on 23rd June and I'm sure
4 the legal officer will be able to enlighten you more
5 about it. He has just given me the news that the
6 arrangement is complete and it will take place at that
8 MR. ACKERMAN: Your Honour, I have presented the Registrar
9 with an additional three copies of another article with
10 regard to this morning's submission that has now been
11 completely translated. I have given a copy to the
12 Prosecution. I have no argument about it. I just want
13 it to be considered along with the rest of the package
14 we presented to you this morning.
15 JUDGE KARIBI WHYTE: Thank you very much. We're
17 We can now continue with the next witness.
18 MS. McHENRY: Your Honour, the next witness would be Mr. Bart
19 d'Hooge. He was a previous witness whose
20 cross-examination was interrupted so that counsel could
21 get another copy of a video recording of Mr. d'Hooge's
22 meeting with Mr. Mucic. Defence counsel were given that
23 several days ago, the day we said it. So I believe
24 that we can now continue with his cross-examination. I
25 believe Mr. Moran and Mr. Ackerman had completed theirs.
1 If my memory is correct, Mr. Mucic's defence was
2 conducting the cross-examination and I do not believe
3 that Mr. Delalic's defence had yet started their
4 cross-examination, if my memory is correct about that.
5 (Witness enters court)
6 Mr. Bart d'Hooge (continued)
7 Cross-examined by Mr. Olujic (continued)
8 A. I solemnly declare that I will speak the truth, the
9 whole truth and nothing but the truth.
10 MR. OLUJIC (in interpretation): Am I allowed to continue,
11 your Honours?
12 JUDGE KARIBI WHYTE: Yes, you can.
13 MR. OLUJIC (in interpretation): Thank you. Good morning,
14 Mr. d'Hooge. I hope I said it correctly, Mr. d'Hooge.
15 Is it all right now?
16 A. It's all right.
17 Q. Good afternoon, sir. Let's continue, Mr. d'Hooge, we
18 had left off when the problem arose regarding 24th
19 August. I would like to go back to the question, to the
20 issue. You said that beside the police academy you
21 also studied criminology; is that correct?
22 A. Yes.
23 Q. Can you explain us a little bit -- in a little bit more
24 detail your current position in the Belgian police
1 A. For the moment I'm on leave, but my rank, if that is
2 what you mean, was First Inspector.
3 Q. Does that mean that your status of police officer is now
4 on hold while you are employed by the Tribunal, that is
5 by the OTP?
6 A. That's correct.
7 Q. Mr. d'Hooge, if you could answer me when you completed
8 your police academy training, did you also take an oath
9 before starting service?
10 A. Yes.
11 Q. In other words, you are still under that oath as of now?
12 A. I think so. I believe so.
13 Q. This oath is to protect the law and order of Belgium?
14 A. That is correct.
15 Q. Thank you. In your statement when you were questioned
16 in the examination-in-chief, and please correct me if
17 I'm wrong on this, you said that in the criminal code --
18 that you didn't know anything about the Austrian
19 criminal code procedures; is that correct?
20 A. That's correct.
21 Q. Do you know anything on the criminal code procedure of
22 the Republic of Croatia?
23 A. No.
24 Q. You know nothing about that either? Okay. Thank
25 you. Mr. d'Hooge, could you tell us how many times did
1 you ask Mr. Zdravko Mucic whether he agrees to
2 questioning without the presence of his attorney?
3 A. I think I asked him every day in the beginning of the
4 interview and after every lunch break, and also at the
5 end of the day if he wanted to continue the next day.
6 Q. Mr. d'Hooge, do you think that it was necessary to warn
7 Mr. Mucic every time that he had the right to an
9 A. I believe so.
10 Q. When you were informing Mr. Mucic of his rights, I
11 presume that you were following Rule 42 of the Rules of
12 Procedure and Evidence of this Tribunal; is that
14 A. Exactly.
15 Q. Could you describe in more detail? When you were
16 informing him of these rights, did you read it to him or
17 did you just give him the essence of those rules?
18 A. I think I read the rules from paper that I prepared in
20 MS. McHENRY: The Prosecution has no objection if defence
21 counsel wants to show the tape also.
22 MR. OLUJIC (in interpretation): Thank you.
23 JUDGE KARIBI WHYTE: Now, Mr. Olujic, I think let's go for
24 lunch, so you have a more extended cross-examination
25 when we resume. You have a more extended
1 cross-examination. So the Trial Chamber will now
3 (1.00 pm)
4 (Luncheon Adjournment)
2 JUDGE KARIBI WHYTE: Invite the witness back.
3 (Witness re-enters court)
4 JUDGE KARIBI WHYTE: Yes, Mr. Olujic, you can carry on.
5 MR. OLUJIC (in interpretation): Thank you, your Honours.
6 Mr. d'Hooge, I hope we will have more luck this time
7 around. This is the third time we are trying to have
8 this discussion. Mr. d'Hooge, when I asked you the last
9 question you said explicitly that when you stated
10 Mr. Mucic's rights that you had a piece of paper in front
11 of you; is that correct?
12 A. That is correct.
13 Q. On this piece of paper was the Rule 42 verbatim written
14 down or was it just sort of the essence of this Rule
15 that you conveyed to him?
16 A. I think it was just the essence, meaning I had every
17 part of the Rule but with some translations.
18 Q. Mr. d'Hooge, could you repeat here before us this essence
19 of the Rule 42 that you then conveyed to Mr. Mucic?
20 MS. McHENRY: Your Honour, given that this is all actually
21 recorded, I think it's unfair and unnecessary to have
22 the witness do it from memory. The tape recording is
23 available, the transcript is available, and so I would
24 object to this.
25 JUDGE KARIBI WHYTE: I'm not sure he wanted him to do it
1 from memory. If he said what he did was merely the
2 essence of the Rule, he can look at the rules and still
3 give the essence of it.
4 MS. McHENRY: Yes, but if the question is "exactly what did
5 you say", that was tape recorded and the transcript is
7 JUDGE KARIBI WHYTE: That is correct, but if all he wants
8 to know is what was conveyed to the suspect, he can do
10 MR. OLUJIC (in interpretation): Thank you, your Honour.
11 Can you restate this for us, please.
12 A. The suspect had the right to be assisted by counsel of
13 his choice and that he had the right to the free
14 assistance of an interpreter, the right to remain silent
15 and that any statement he makes might be used in
16 evidence, and that the interview will be audio and video
17 recorded, that a transcript will be made of the audio
18 and video recording and that he will receive a copy of
19 the transcript and video or audio tapes. I think
20 that's about it.
21 Q. Before I continue, your Honours, with your permission I
22 am again getting a comment of Mr. Mucic that he does not
23 understand the interpretation that he's receiving from
24 the interpreting services and Mr. Mucic insists on a
25 Croatian interpreter.
1 JUDGE KARIBI WHYTE: When did he stop understanding what
2 has been interpreted?
3 MR. OLUJIC (in interpretation): The last three days.
4 JUDGE KARIBI WHYTE: Is it the person interpreting or
5 because there has been a change because it is the same
6 witness who has been on all along.
7 MR. OLUJIC (in interpretation): It is the question of a
8 person who used to interpret correctly but now Mr. Mucic
9 claims that he does not understand the language in which
10 the interpretation is coming in this courtroom.
11 JUDGE KARIBI WHYTE: What I am saying is, is the language
12 now interpreted different from what he has been having
13 earlier than three days ago? It's the same language,
14 isn't it?
15 MR. OLUJIC (in interpretation): Your Honours, it is not a
16 similar language. These are two separate languages and
17 that is not an issue. What Mr. Mucic is -- I'm only
18 conveying what Mr. Mucic is saying. His wish -- he
19 requests that he be getting interpretation in Croatian
20 language. His fate is at stake and every articulation
22 JUDGE KARIBI WHYTE: I do not like that type of thing,
23 argument. If he does not understand what's now being
24 said but he has been understanding it for about two
25 months, something must be wrong. I want to investigate
1 what was actually wrong. Don't tell us his fate is at
2 stake. We know it is at stake and we know there is a
3 provision made for interpretation. Has he been having
4 interpretation all along? Now we'll carry on. The
5 arrangement will be made. Except you think because he
6 doesn't understand you don't want to go on, we'll carry
7 on. So you carry on.
8 MR. OLUJIC (in interpretation): Thank you. Mr. d'Hooge, do
9 you remember saying to Mr. Mucic that he had the right to
10 an attorney free of charge?
11 A. I don't know off the top of my head. I can check the
12 transcript. It would be better for me.
13 Q. Can you answer whether you recall that you said to
14 Mr. Mucic every time that he had the right to an
16 JUDGE JAN: He has already given the answer: "Please give
17 me the transcript and I will check up what I said".
18 MR. OLUJIC (in interpretation): Very well.
19 JUDGE KARIBI WHYTE: There is a transcript. Why do you
20 repeat it? Have you got the transcript yourself?
21 MR. OLUJIC (in interpretation): Yes, I do, your Honours.
22 JUDGE KARIBI WHYTE: If it is in the transcript, then be
23 satisfied with that.
24 JUDGE JAN: Not only the transcript, but also the
1 MR. OLUJIC (in interpretation): Mr. d'Hooge, on what date
2 did you arrive in Vienna?
3 A. I arrived on Sunday evening. That must have been 17th
5 Q. Who came along with you; in other words, who else took
6 the trip with you?
7 A. I was alone.
8 Q. And when did Mr. Abribat -- in other words, did
9 Mr. Abribat also join you there?
10 A. Mr. Abribat was already there. He had an earlier flight
11 in the afternoon.
12 Q. Could you please tell us, you said, among other things,
13 to Mr. Mucic that if he did not choose an attorney that
14 the court would assign him one; is that right?
15 MS. McHENRY: Asked and answered. The witness has
16 indicated if he wants exactly what was said, he would
17 like to look at the transcript. It's Prosecution
18 exhibit 101 is the transcript. 101A, I believe, is the
19 actual recording.
20 MR. OLUJIC (in interpretation): I apologise. I think that
21 is incontrovertible. I obviously have nothing against
22 the witness being shown the transcript. On the
23 contrary. Could the witness please be shown the
25 MS. McHENRY: Just so the record is clear, I believe it has
1 been stated already the interpretation -- the language
2 was in French and Serbo-Croatian. What we have here is
3 the English translation of the Serbo-Croatian. There
4 is not a French transcription, just so the record is
6 A. I think the sentence is on page 14:
7 "He is entitled to an attorney of his choice, and
8 if he cannot afford one, an attorney will be assigned to
10 if this is what you mean.
11 Q. Mr. d'Hooge, did you tell Mr. Mucic that he could also
12 call his attorney to his cell and not only while being
14 A. No.
15 Q. Do you know how many hours Mr. Mucic spent in total in
16 various questionings?
17 A. I've no idea. I can check on the transcripts.
18 Q. Approximately, if you could say. In other words, how
19 long did you question him and how long did Mr. Abribat
20 question him, provided Mr. Abribat told you that?
21 A. Well, you can see it in the transcript. Mr. Abribat
22 started at 15:30 and ended at 17:00. Then the second
23 day, March 20th, was 9.30 until 11.50. Then 15:20
24 until --
25 Q. Thank you. How long was he questioned by the Austrian
2 A. I've no idea.
3 Q. Do you know maybe how long is the -- how long does it
4 take to go from the cell, from the detention place where
5 Mr. Mucic was, to the room where you met with him and
6 questioned him?
7 A. I think maximum of a few minutes.
8 Q. Do you know what order -- that the order and the
9 schedule is in the Detention Unit where Mr. Mucic was
11 A. No idea.
12 Q. Can you tell us -- from your report it seems to infer
13 that the Croatian Embassy was only notified of the
14 arrest two days after it was carried out; is that
16 A. It's certainly not in our transcript. That I'm sure.
17 Q. Do you know when the Croatian Embassy was notified and
18 was it notified?
19 A. I don't know. That was not in our line of duty, so ...
20 Q. Could you tell us, please, whether you know whether
21 anybody else was sharing the cell with Mr. Mucic before
22 he was questioned and after he was detained, or was he
23 there by himself?
24 A. I don't know. I never visited his cell. I don't know
25 where it was, so ...
1 Q. Could he have been mistreated there?
2 A. I don't think so. I think if something happened like
3 that Mr. Mucic would have informed us, I think.
4 Q. Did you yourself ask him this?
5 A. No.
6 Q. Can you tell us, please -- you stated that you did not
7 see Zdravko Mucic on the day of his arrest, that means
8 18th March 1996, but that you also were not familiar
9 with the conditions of his detention in prison; is that
11 A. That's correct.
12 Q. In other words, you do not know whether he had a rest --
13 whether he had any rest and how much rest he had while
14 he was there?
15 A. No, except for the days when we interviewed him. Then,
16 for example, the first day he had a rest from 11:50
17 until 15:20, I think, and the second day apparently the
19 Q. Please say after you arrived and after the arrest of
20 Mr. Mucic did you talk to the Austrian officers about the
21 manner in which he was arrested?
22 A. I think we were informed by the Austrian police
23 officers, and if my memory is okay, I think they told us
24 that Mr. Mucic was arrested in front of his house, but
25 I can't guarantee that.
1 Q. Did they tell you anything else about it, about the
2 technical -- technically how it was carried out?
3 A. No.
4 Q. Mr. d'Hooge, you told the learned Prosecutor, when asked,
5 that you did not inform Mr. Mucic in detail what he was
6 charged with; is that correct?
7 A. Can you please repeat the question?
8 Q. When you testified, and this is in the transcript, to
9 the learned colleague on the Prosecution, you did not
10 tell him precisely for what -- what charges were being
11 brought against him. This is what is coming out of
12 your statement. My question to you is: is this
14 A. I think Mr. Mucic was arrested on the basis of Article 40
15 of the Tribunal provisional measures.
16 JUDGE KARIBI WHYTE: That is not the question. The
17 question is that you did not tell him for what purpose
18 he was being arrested?
19 A. That is possible, yes. Okay.
20 MR. OLUJIC (in interpretation): Does this mean, Mr. d'Hooge,
21 that nobody told him why he was being prosecuted or
22 maybe that only the Austrians told him that, or maybe
23 that they did not tell him the correct charges. Do you
24 allow for that?
25 A. No. I'm pretty sure that the Austrian authorities
1 informed Mr. Mucic of that and I'm also sure that I
2 mentioned them, because I see here on page 52 of the
3 transcript, 21st March, I repeated at the beginning of
4 the interview, 9.30 -- I think I spoke of the charges.
5 Q. When did the Austrian authorities say this and who was
6 it in the Austrian authorities who told him this?
7 A. I only assume that I told him. If you are arresting
8 him you have to inform him of the reasons for the
9 arrest. That seems logical to me.
10 Q. That is correct, yes, but this is your assumption. My
11 question to you is: do you have any direct knowledge of
12 this, that he was told this, because there are different
13 ways in which this could be done? In other words, one
14 could be told these things in an incorrect way or
15 something that is a half truth. In other words, what
16 is it that you know, only the things that you know,
18 A. I was not present during the proceedings of the Austrian
19 police, so I have no direct knowledge. That's only an
21 Q. Very well. Thank you. On page 3312 and 3313, when
22 asked by the learned Prosecutor when at any time during
23 or before the questioning Zdravko Mucic asked for an
24 attorney, you answered that he did not?
25 A. That is correct.
1 Q. If this is so and if you confirm this today, how come
2 that an attorney appeared?
3 A. Because I believe according to the Austrian law that an
4 attorney is appointed to a suspect, that the courts
5 appoint automatically an attorney.
6 Q. Is this your opinion or was it by -- was this done by
7 intervention of Judge Seda, or do you assume again?
8 A. I have no idea. That is what Dr. Manfred, the lawyer,
9 told us, that he was appointed by the courts.
10 Q. Very well. Now that the attorney appeared, did you
11 take Mr. Mucic out to take a meeting with this attorney,
12 so that he could consult with him?
13 A. I did not take Mr. Mucic out. The attorney consulted
14 with Mr. Mucic in the room where we were. We were at a
15 distance but they consulted.
16 Q. Did you not find it necessary to put them in touch
17 together so that they would talk?
18 A. Well, they talked for five minutes at least.
19 Q. But in your presence; right?
20 A. Yes. Well, we weren't -- we were at least five or six
21 metres away from them, so ...
22 Q. On page 3375 of the transcript you said that the
23 investigating magistrate, Dr. Seda, told you that
24 Mr. Mucic is asking for an attorney. Is that correct?
25 A. That is correct.
1 Q. You also said that Mr. Mucic requested an attorney in the
2 extradition procedure and this is in answer to a
3 question posed by the Prosecution; is that correct?
4 A. That is correct. Mr. Mucic asked for an attorney for
5 his extradition procedure.
6 Q. However, Mr. d'Hooge, you never stated this before your
7 testimony; in other words, you never mention it anywhere
8 in your reports. You mention it for the first time
9 during these proceedings in front of this honourable
10 Trial Chamber; is that correct?
11 A. That is correct. I'm not involved in the Austrian
12 proceedings, so it's up to them to state it in their
14 Q. Don't you think that it is unusual that somebody is not
15 asking for an attorney for the essence of the matter and
16 only asks for one for the extradition procedure,
17 especially in the light of the fact that Mr. Mucic asked
18 to be brought to The Hague?
19 A. That is a question that only Mr. Mucic can answer, why he
20 asked for an attorney for the extradition procedure and
21 not for our interview.
22 Q. It seems to come out very unequivocably that you said
23 that Mr. Mucic had the right to an attorney, but if he
24 could not find one, that you -- in other words that he
25 will be assigned one and, further, does Mr. Mucic agree
1 to this kind of questioning without the presence of an
2 attorney. Is this correct?
3 A. That is correct. It's mentioned a few times in the
5 Q. In other words, you told him that if he did not choose
6 an attorney, in any event one will be appointed to him?
7 A. I told Mr. Mucic that he's entitled to an attorney of his
8 own choice, and if he cannot find one, an attorney will
9 be assigned to him, but on the other hand Mr. Mucic
10 agreed to be interviewed without an attorney, which is
11 Rule 42(B), I think. So he voluntarily waived his
12 right to counsel.
13 Q. Yes, but you never told him that if he waives the right
14 to his attorney or an attorney appointed by the court
15 that he was not entitled to an attorney at all. That
16 is what emerges from the transcript?
17 A. I think this is an interpretation.
18 Q. Let me repeat the statement in the transcript. You
19 said it was correct. Therefore you never told him that
20 if he renounces his own attorney or an attorney assigned
21 to him by the court that he was waving his right to an
22 attorney altogether according to Rule 42(B). Is that
24 A. Before we started the interview, we explained to
25 Mr. Mucic what the rules of the Tribunal were, so we
1 explained to him that he was entitled to an attorney,
2 but he could also waive the right, 42(B). So I think
3 we did everything according to the rules.
4 Q. But that is not what is stated in the transcript,
5 Mr. d'Hooge, or, rather, it may be possible that you had
6 a conversation beyond what was recorded, but this is
7 what is stated in the transcript, and you yourself have
8 confirmed that statement from the transcript.
9 Therefore what is in the transcript and on the
11 A. It is on page 16789 the end of the first paragraph
12 Mr. Mucic the first question is:
13 "Do you agree to answer questions without the
14 presence of an attorney in accordance with our previous
16 That was exactly what happened.
17 Q. Mr. d'Hooge, there were several conversations. There
18 was one on the 19th. Mr. Abribat has the same
19 conversation as you, but Mr. Abribat also said the same
20 thing that I'm referring to and that can be found in the
21 transcript, but not to waste time, I think we can
23 On 20th March at 9.30 you questioned Mr. Zdravko
24 Mucic. At the time you repeated his rights, the same
25 ones from the previous day, but you also told him that
1 he was entitled to an interpreter free of charge; is
2 that correct?
3 A. That is correct.
4 Q. Is it correct that Mr. Mucic told you that he didn't want
5 his attorney, nor did he want his own interpreter?
6 A. That is correct.
7 Q. I'm asking you now how come that Zdravko Mucic, who did
8 not ask for an attorney or an interpreter, suddenly an
9 interpreter appears in the room, who interprets, but in
10 the room there are some other people, among others
11 Mr. Nicholson. I'm saying this to remind you; is that
13 A. That is correct.
14 Q. How can Mr. Mucic know that an attorney may not be in the
15 room, when he didn't ask for an interpreter, yet an
16 interpreter was there, and there were some other people
17 in the room? Do you allow for the possibility that
18 perhaps he thought that an attorney was in the room,
20 A. No.
21 Q. What do you mean you don't think so? On the basis of
22 what? How did the conversation then continue between
23 you and the other people?
24 A. I think that in the beginning of the interview that we
25 identified ourselves. So it's obvious that even if you
1 read the transcript, that there is no attorney
2 present. If Mr. Mucic expressed his desire that at that
3 time he wanted an attorney, we would have stopped the
4 interview and provided him with an attorney, but he
5 didn't express his desire to have an attorney, so ...
6 Q. But, Mr. d'Hooge, it is not stated in the transcript that
7 the people introduced themselves. Perhaps this was
8 done before that, but when the recording started there
9 were no introductions?
10 MS. McHENRY: Your Honour, I object, because that is an
11 incorrect statement of the record. On page 1 of the
12 transcript it clearly reflects that Mr. Abribat says:
13 "During the interview the following persons are
14 present: Mr. Mucic, the interpreter for the Tribunal,
15 Mr. Bart d'Hooge, Peter Nicholson, and I, Regis
16 Abribat. The three of us are members of the
17 Prosecutor's Office of the International Tribunal".
18 So I think that is a misstatement of the record
19 and I object on those grounds.
20 MR. OLUJIC (in interpretation): I beg your pardon, but it
21 was not stated who Mr. Nicholson was. It just says
22 "Mr. Nicholson". So we can rightly assume that there
23 may be a counsel called Nicholson. Why not? It was
24 not stated that he was a representative of the technical
25 services. Therefore you interrupted me without cause,
1 my learned colleague. So would the witness please
2 answer my question. I only have a few more left
3 anyway. I would just like to clear up this point?
4 A. On page 1, line Number 7:
5 "Mr. Bart d'Hooge, Mr. Peter Nicholson, and Regis
6 Abribat, the three of us are members of the Prosecutor's
8 I think that is clear.
9 JUDGE KARIBI WHYTE: You told the suspect that that is the
10 position. This is what he wants to know, in what
11 capacity were they introduced?
12 A. As members of the Office of the Prosecutor.
13 MR. OLUJIC (in interpretation): Thank you, your Honours.
14 I have no further questions.
15 JUDGE KARIBI WHYTE: In what language did you conduct the
17 A. In French.
18 JUDGE JAN: What language was the accused speaking at that
20 THE INTERPRETER: Microphone, please.
21 JUDGE JAN: What language was the accused speaking at that
22 time in the interview?
23 A. I believe he was speaking Serbo-Croatian.
24 JUDGE KARIBI WHYTE: You had an interpreter for that?
25 A. Yes.
1 JUDGE JAN: It was not Croat only?
2 A. I beg your pardon?
3 JUDGE JAN: It was not Croat only, the language?
4 A. (Witness shrugged).
5 JUDGE KARIBI WHYTE: Any further cross-examination?
6 Cross-examination by Mr. O'Sullivan.
7 MR. O'SULLIVAN: Good afternoon, your Honours. May I
9 JUDGE KARIBI WHYTE: Yes, you can.
10 MR. O'SULLIVAN: Good afternoon, sir?
11 A. Good afternoon.
12 Q. I have a few questions for you regarding your role as an
13 investigator in this case. I would like to begin with
14 your interview of Mr. Mucic on 19th August 1996. That
15 interview lasted approximately an hour and 20 minutes,
16 didn't it?
17 A. That's correct, yes.
18 Q. And aside from Mr. Mucic and you, Teresa McHenry, the
19 Prosecutor, was present, wasn't she?
20 A. I don't think so. Sorry, you are talking about 19th
21 March --
22 Q. No, August 19th?
23 A. Yes, Ms McHenry.
24 Q. Was there. There was an interpreter there as well?
25 A. That's correct.
1 Q. Was anyone else present?
2 A. Mr. Tapuskovic, the Defence counsel, and Mr. McLeod was in
3 the adjoining room.
4 Q. You conducted yourself in strict accordance with the
5 rules of this Tribunal regarding questioning, didn't
7 A. That's correct.
8 Q. By strict compliance, you followed Rules 42 and 43?
9 A. That's correct.
10 Q. You informed Mr. Mucic that the interview would be
12 A. That's correct.
13 Q. That we get a copy of that recording?
14 A. (Witness nodded.)
15 Q. Yes or no?
16 A. Yes.
17 Q. That he had a right to counsel?
18 A. That's correct.
19 Q. That counsel would be provided to him if he could not
20 afford counsel?
21 A. (Witness nodded.)
22 Q. That he was satisfied with Mr. Tapuskovic. He told you
24 A. Yes.
25 Q. You told him he had the right to an interpreter?
1 A. That's correct.
2 Q. That he could remain silent?
3 A. Correct.
4 Q. That what he said may be used in evidence?
5 A. That's correct.
6 Q. And that you would stop whenever he asked to stop?
7 A. That's correct.
8 Q. And you also said at the end of the interview --
9 in fact, you asked Mr. Mucic if he had anything else to
11 A. I believe so, yes.
12 Q. By asking Mr. Mucic whether he wanted to say anything
13 else, you were attempting to comply with Rule 43; is
14 that right?
15 A. That's correct.
16 Q. Which says that a person --
17 A. At the end of the questioning the suspect should have
18 the possibility to add or clarify.
19 Q. So you did not strictly comply with that Rule. You did
20 not use the words "add or clarify"; is that correct?
21 A. Correct.
22 Q. But that was your intention?
23 A. That was my intention.
24 Q. Let's look at Rule 43 for a second, the part where you
25 ask the person if he would like to add or clarify
1 things. I'm thinking now of the March 16th, 1996
2 interview in Vienna, the first one you were at. At the
3 end of that interview you did not ask Mr. Mucic if he had
4 anything to add or clarify; is that correct?
5 A. I don't think so.
6 Q. I believe it's exhibit 101?
7 A. It's page 61. "Mr. Mucic, do you have anything to add".
8 Q. I am looking at March 19th interview. I believe it's
9 page 14: are you with me?
10 A. Yes.
11 Q. You did not comply with Rule 43 there. You did not ask
12 him if he had anything to add or clarify?
13 A. That part of the interview was under Mr. Abribat.
14 Q. But Rule 43 was not complied with; is that correct?
15 JUDGE JAN: Do I understand Mr. Abribat left. It was on
16 the 20th that the interview was concluded. It is only
17 at the end of the statement you ask if the suspect wants
18 to add or clarify.
19 MR. O'SULLIVAN: They broke off for the day on 19th January
20 but it is the end of the interview you ask, not during
21 the interview. If we go to page 61 as you have
22 indicated, sir, at that point Mr. Mucic is not given the
23 opportunity to add or clarify, is he?
24 A. It's on page 61:
25 "It is 11.30 now, Mr. Mucic. Do you have anything
1 to add?"
2 Q. But he's not given the opportunity to clarify, is he?
3 A. Yes, he did.
4 Q. A strict reading of 43 says "add or clarify" is that
6 MS. McHENRY: Objection. Arguing with the witness. The
7 facts are clear. He has already answered the question.
8 MR. O'SULLIVAN: I asked if he could read the transcript and
9 it said "add"; is that correct.
10 JUDGE KARIBI WHYTE: It did not include "or clarify".
11 MR. O'SULLIVAN: Right. Is that correct, sir?
12 A. That is correct.
13 Q. Going back to August 19th now, right? August 1996?
14 THE INTERPRETER: Could counsel speak a bit more slowly so
15 that it could be followed.
16 JUDGE KARIBI WHYTE: That's a warning to you. That's a
17 warning to speak slowly so that they can pick you up.
18 MR. O'SULLIVAN: Sorry. Going back to August 19th, 1996,
19 before the interview began, after you read these rights
20 to Mr. Mucic, you asked him if he understood his rights;
21 is that correct?
22 A. Could I be provided with a copy of the transcript?
23 MS. McHENRY: The Prosecution has an extra one that, in
24 fact, is Mr. d'Hooge's copy. The Prosecution also has
25 -- since it's going to be shown to him, we ask that it
1 be marked and we have three additional copies for the
2 court also. I believe the witness has asked for it so
3 we would ask -- I don't care if it is a Prosecution or
4 Defence Exhibit. Since it is going to be shown to the
5 witness, we believe it should be marked and
7 MR. O'SULLIVAN: Your Honours, I am only asking that this
8 document be marked for identification.
9 JUDGE KARIBI WHYTE: Kindly mark the document for
10 identification, please.
11 A. Could I have mine, please?
12 JUDGE KARIBI WHYTE: Is there one for the witness?
13 MR. O'SULLIVAN: I believe he has one. Sir, my question for
14 you is whether you asked Mr. Mucic whether he understood
15 his rights before beginning the interview. I believe
16 on page 8 you say that, line 1.
17 A. Page?
18 Q. 8.
19 A. Yes.
20 Q. Then you ask him whether the interview can begin; is
21 that right?
22 A. That's correct.
23 Q. Now during the interview with Mr. Mucic on 19th August
24 1996 he said that -- he said to you that the Prosecutor
25 should not have a partial picture of things, that they
1 should have a global picture of the area of Konjic and
2 what happened there. Do you recall that?
3 A. Yes.
4 Q. At one point during questioning Mr. Mucic speaks to you
8 MS. McHENRY: I know there are no protective orders in
9 place, but since we do not know what witnesses may or
10 may not in the future be requesting protective orders,
11 we request that names of witnesses not be said in open
13 JUDGE KARIBI WHYTE: I think we should understand, because
14 at this stage when this interview was made none of the
15 witnesses was known. So it's possible names which
16 might now arise might have been mentioned.
17 MR. O'SULLIVAN: But this person has not sought any
18 protection, your Honour.
19 JUDGE KARIBI WHYTE: In case it infringes any of those
21 MR. O'SULLIVAN: How would your Honour like me to refer to
22 this person?
23 JUDGE KARIBI WHYTE: I suppose if you could avoid names and
24 perhaps refer to the particular line and page, perhaps
25 you might be able to pick it up, since we all have
2 JUDGE JAN: Is he on your list of witnesses?
3 MS. McHENRY: Your Honour, I would prefer not to state in
4 open court who is and who is not on our list of
5 witnesses. I amy happy if we go into private session
6 to answer all questions of your Honour.
7 MR. GREAVES: Well, your Honour, this goes back to the point
8 that I raised yesterday. It's really getting very
9 difficult to know who we can mention and who we can't
10 unless the Prosecution produces a proper list for us to
11 work from. It really is becoming very difficult.
12 MS. McHENRY: In all cases whether or not the Prosecution is
13 asking that names of potential witnesses not be
15 JUDGE KARIBI WHYTE: I suppose to be on the safe side you
16 had better get into private session for this period.
17 MR. O'SULLIVAN: Right:
18 (In private session)
10 (In open session)
11 MS. McHENRY: We would be asking for a redaction of any
12 names of potential witnesses that have been stated
13 previously. Thank you.
14 JUDGE KARIBI WHYTE: Is the line clear now? Can we
15 proceed? You can. You can carry on.
16 MR. O'SULLIVAN: Thank you, your Honour. We will refer to
17 this person as Mr. 1; all right? In his statement
18 Mr. Mucic tells you that Mr. 1 held a very high position
19 in the HVO, didn't he?
20 A. That's correct.
21 Q. Pardon me?
22 A. That is correct.
23 THE INTERPRETER: Microphone, please.
24 A. That is correct.
25 MR. O'SULLIVAN: That is correct. You know that the HVO is
1 the military and civilian organisation of Croats who
2 were involved in the organisation of the Celebici camp?
3 A. Of Bosnian Croats.
4 Q. Who were involved in the organisation of Celebici camp;
5 is that correct?
6 A. That's correct.
13 MS. McHENRY: Your Honour, may I ask that we go into private
15 JUDGE KARIBI WHYTE: Do you have any strong reasons for
17 MS. McHENRY: Yes, your Honour, but I prefer to state my
18 reasons in private session.
19 JUDGE KARIBI WHYTE: I think let's be free and go into
20 private session instead of picking our way through.
21 Instead of picking our way through, let's go into it.
22 JUDGE JAN: It will be to your advantage if you go into
23 private session. You can ask --
24 JUDGE KARIBI WHYTE: You will be freer in that.
25 MR. O'SULLIVAN: If there's good reason to go into private
1 session. We haven't heard one yet. That's all. I
2 think the presumption is it should be in open court, not
3 in private session.
4 JUDGE JAN: I think Ms McHenry has given you the reason.
5 They don't want the witness to be identified.
6 JUDGE KARIBI WHYTE: Even now, the moment you talk about
7 the positions, I think that can be inferred.
8 MR. O'SULLIVAN: It just becomes very difficult to conduct a
9 cross-examination in open court. These are things that
10 should be known.
11 JUDGE KARIBI WHYTE: What I mean is if we are in open
12 session and you even indicate the title or political
13 office, one can easily fail, or you have a failing to,
14 or if it is in a closed or private session, nobody will
15 hear about that.
16 MR. ACKERMAN: Your Honour, the new position, and I'm sure
17 it's a new position, of the Office of the Prosecutor
18 creates an almost intolerable situation for all of us,
19 because, first of all, they say they have no idea who
20 the witnesses are going to be from now on because of the
21 problems they're having and, second of all, they say we
22 should not mention everybody who is a potential
23 witness. That makes everybody who ever lived in the
24 former Yugoslavia, I suppose, a potential witness. We
25 can't mention any names. I can't imagine what kind of
1 game we are going to play with codes from this point of
3 JUDGE KARIBI WHYTE: Not in the circumstances.
4 JUDGE JAN: That is why I said you will have greater
5 freedom in private session. It will be to your
6 advantage really.
7 MS. McHENRY: May I also ask that the record be redacted to
8 take away the identifying information potentially.
9 JUDGE JAN: Not redacted. The judicial record will remain
10 as it is but this information will not be released to
11 the public.
12 MS. McHENRY: Yes, your Honour.
13 MR. O'SULLIVAN: May I proceed?
14 JUDGE KARIBI WHYTE: Yes, you may.
15 (In private session)
14 Pages 3965 to 3969 redacted in closed session
4 (In open session)
5 JUDGE KARIBI WHYTE: You can go.
6 MR. O'SULLIVAN: Thank you. Sir, I was asking you about
7 your being in Vienna, Austria in March 18th, 1996. You
8 arrived at the headquarters of the Austrian police in
9 the late afternoon that day?
10 A. No. I went from -- directly from the airport to my
12 Q. You arrived in police headquarters on the 19th?
13 A. Yes.
14 Q. You were in police headquarters for about two hours that
15 afternoon between 5.00 pm and 7.30 pm?
16 A. No, not 7.00, 7.30. I think between 5 and 6.
17 MS. McHENRY: I am not objecting. I am just wondering is
18 this the 18th or the 19th we are talking about. I am a
19 little confused.
20 MR. O'SULLIVAN: This was on 18th March 1996 that you were
21 in police headquarters from approximately 5.00 pm to
22 approximately 7.30 pm?
23 A. The 19th. 18th was a Sunday. I'm getting confused.
25 JUDGE JAN: 18th was the Monday.
1 A. The Monday afternoon we were in headquarters from around
2 5.00-6.00 some time.
3 MR. O'SULLIVAN: That was March 18th?
4 A. Yes.
5 Q. Along with you was Mr. Regis Abribat, who is the head of
6 investigation, your superior?
7 A. That's correct.
8 Q. There was also Mr. Dutoit from the OTP?
9 A. Correct.
10 Q. What was Mr. Dutoit's position with the OTP?
11 A. He's a legal adviser.
12 Q. He is a lawyer?
13 A. Yes.
14 Q. There was also an interpreter from the OTP with you?
15 A. That is correct.
16 Q. Do you know the name. Interpreter?
17 A. Miss Alexandra Pal.
18 Q. So there were four representatives of the OTP in Vienna
19 police station on March 18th?
20 A. And Mr. Nicholson.
21 Q. You met on the third floor in Room 331, do you recall
23 A. That is possible. I don't remember.
24 Q. You would agree with me, though, if I suggested to you
25 that your meeting took place between 5.00 and 7.30 in
1 Room 331?
2 A. Yes.
3 Q. And you were in that room, Room 331, after the searches
4 and seizures had been completed that day in relation to
5 the Celebici case?
6 A. Actually I don't know which room you are referring to
7 because we were in two rooms.
8 Q. Well, the room I'm referring to is the one where you met
9 with police officers from Austria?
10 A. It was in both rooms, so ...
11 Q. Well, at one point were you in the room where -- first
12 of all, by that time the searches and seizures had been
13 completed in Vienna regarding the Celebici case?
14 A. I believe so, yes.
15 Q. Okay. At one point you were in a room with certain
16 people and the objects seized?
17 A. Yes, that's correct.
18 Q. That's the room I'm referring to; okay? The objects had
19 been seized from three locations that day in Vienna; is
20 that correct?
21 A. That is possible, yes.
22 Q. Do you know for sure?
23 A. I can't exactly recall where the documents and videos
24 and objects were seized, but it should be -- I believe
1 Q. Perhaps I can help you. One premises where objects
2 were seized was Mr. Mucic's apartment, Taubergasse 15,
3 Door 10. Does that sound familiar?
4 A. Yes.
5 Q. A second location was an apartment used by Mr. Zejnil
6 Delalic, Taubergasse 15, Door 14. Does that sound
8 A. Yes.
9 Q. A third location was offices of Inda-Bau company,
10 Koppstrasse 14, is that correct?
11 A. That is correct.
12 Q. In this room you met with Austrian police officers; is
13 that correct?
14 A. That's correct.
15 Q. Do you know their names? Would the names be Moerbauer,
16 Panzer and Bycek?
17 A. I certainly remember the name of Panzer.
18 Q. But the three of them were in that room with you at
19 certain times?
20 A. Yes.
21 Q. And these three police officers were in and out of that
22 room but they weren't constantly there between 5.00 and
24 MS. McHENRY: May I just ask for clarification, and I guess
25 I object without this clarification, does this witness
1 know who Mr. Moerbauer and Mr. Bycek are or even Mr. Panzer
2 as opposed to just recognising their name.
3 MR. O'SULLIVAN: Okay. Did you know who these three
4 gentlemen were?
5 A. I know for certain Mr. Panzer.
6 Q. Who is he?
7 A. He's one of the police officers from Vienna.
8 Q. Okay. There were two other of his colleagues, Austrian
9 police officers, in this room with you at times?
10 A. Yes.
11 Q. Were they there the full time between 5.00 and 7.30?
12 A. Yes.
13 Q. They never left the room?
14 A. There were even other police officers, I think.
15 Q. Pardon me?
16 A. There were other police officers who came in and out.
17 Q. Was Lieutenant Gschwendt of the Viennese police present
18 in that room?
19 A. Yes.
20 Q. Is it fair to say that that room was a pretty busy place
21 that evening?
22 A. Yes.
23 Q. There was lots of activity in that room, wasn't there?
24 A. There was activity. That is correct, but ...
25 Q. Mr. Mucic was in that room as well, wasn't he?
1 A. No.
2 Q. Mr. Mucic was never in Room 331 while you were there?
3 A. No.
4 Q. Was there a German interpreter in that room while you
5 were there?
6 A. Yes.
7 Q. We have already established that the objects seized that
8 day by the Austrian police were in that room?
9 A. That's correct.
10 Q. Was there a large black bag containing objects? Do you
11 remember that? Seized objects?
12 A. Yes.
13 Q. Was there a plastic bag or several plastic bags
14 containing seized objects?
15 A. I believe so, yes.
16 Q. Was there a box, perhaps a cardboard box, with a lid
17 folded containing seized objects?
18 A. I remember a box with videotapes in it.
19 Q. None of these things, the bag, the plastic bags, the
20 boxes, were sealed in any secure manner, were they?
21 A. I don't think so, no.
22 Q. What were the dimensions of that room -- 331 we're
23 talking about -- approximately?
24 A. I think about 8 metres by 5 metres.
25 Q. Okay. Where were the seized objects placed or located
1 in that room?
2 A. The seized objects were placed on different tables,
4 Q. Part of the seized objects were documents; is that
6 A. That's correct, yes.
7 Q. And you had a look at some of the seized documents while
8 you were at the police station at that day; is that
10 A. That's correct.
11 Q. It's also correct that your interpreter flipped through
12 some of the folders of seized documents?
13 A. I believe so, yes.
14 Q. And your interpreter asked to have certain documents
16 A. I asked to have certain documents photocopied.
17 Q. Okay. Certain seized documents were, in fact,
18 photocopied by the Austrian police that day?
19 A. That's correct.
20 Q. Do you recall exactly how many copies were made for you
21 that day?
22 A. I believe I selected about 30 documents.
23 Q. But it may have been more; it may have been less?
24 A. Not much.
25 Q. It's possible?
1 A. I didn't count them. That's for sure.
2 Q. You really have no idea which pages were photocopied, do
4 A. The documents that were photocopied were selected by me.
5 Q. Yes, but you don't know which documents they were?
6 A. If you mean did I understand the contents of the
7 documents ...
8 Q. Did you understand the contents of the documents?
9 A. Not -- no.
10 Q. And you would not be able to recognise which of those
11 documents were selected for photocopying?
12 A. I believe so, yes.
13 Q. But it's fair to say that you do not know whether the
14 pages you asked for photocopying were, in fact, the ones
15 that were given back to you?
16 A. I think I got exactly what I asked for.
17 Q. But you're not sure, are you?
18 A. I'm sure.
19 Q. How are you sure?
20 A. Because the documents that I received afterwards were
21 exactly the documents I asked for.
22 Q. Did you make a record of that?
23 A. No.
24 Q. Did you take some documents away with you from the
25 police headquarters that day when you left?
1 A. We received, I think, one day or two days later we
2 received the photocopies from I believe Mr. Moerbauer or
3 Mr. Panzer. I can't remember.
4 Q. Did you verify whether the ones you received were the
5 same ones you chose for photocopying?
6 A. Yes.
7 Q. How did you do that?
8 A. I went through the documents.
9 Q. But you just told us you hadn't written down what the
10 documents were in the first place?
11 A. No, but I know what documents I was looking for.
12 Q. In a language you did not understand?
13 A. That's why we have an interpreter with us.
14 Q. Was the interpreter there the day after you have
15 received them?
16 A. Yes.
17 Q. While you were at the police headquarters in Vienna you
18 also looked at some videotapes, didn't you, again
19 between 5.00 and 7.30 on 18th March?
20 A. No, not on that day.
21 Q. No one from the OTP watched videotapes that day?
22 A. I believe Mr. Dutoit watched some videotapes. I
23 selected -- apart from the documents, I selected four
24 videotapes coming from a box, from the box you were
25 referring to.
1 Q. What happened then?
2 A. We asked for -- we asked the Austrian -- the Vienna
3 police to make a copy, but the same as for the
4 documents, they needed authorisation from the
5 investigative judge, Dr. Seda.
6 Q. And there was no such authorisation?
7 A. Yes.
8 Q. There was?
9 A. There was.
10 Q. Did they make copies for you ever?
11 A. They asked Dr. Seda, I think, the next day if they could
12 take the photocopies and the copies of the videotapes,
13 and I believe the authorisation was given the next
14 day. That's why we didn't get the documents
16 Q. Is it possible that one of your colleagues from the OTP
17 left the police headquarters that day with a videotape?
18 A. The same day? No.
19 Q. But you don't know for sure, do you?
20 A. I'm pretty sure.
21 Q. I believe you said you speak German; is that correct?
22 A. I can order a meal.
23 Q. How well do you speak German?
24 A. I can order a meal and ask for the bill.
25 Q. Do you understand German better than you speak it?
1 A. Sometimes. If it's real German, it's close to my
2 native language, but Austrian is a bit difficult.
3 Q. But you did understand the German spoken at the police
4 station that night?
5 A. A few words.
6 Q. Were you not communicating with the police officers in
7 German at times that evening?
8 A. No.
9 Q. March 19th, the next day?
10 A. Uh-huh.
11 Q. You know that Mr. Mucic had a meeting with the Junior
12 Investigating Magistrate Ordnar about 11.00 am on the
13 19th; is that correct?
14 A. I can't remember.
15 Q. Do you know whether he met someone in the morning?
16 A. No.
17 Q. Do you know Mr. Mucic met Dr. Seda, the investigating
18 magistrate from 14:20 until 15:10 that day?
19 A. That's correct.
20 Q. Then he was interviewed by you, the OTP, from 15:30
21 until 17:00 that day?
22 A. That's correct.
23 Q. When Mr. Mucic met with Dr. Seda at 14:20 to 15:10, aside
24 from Dr. Seda and Mr. Mucic, there was an Austrian clerk
25 in the room?
1 A. That's correct, yes.
2 Q. And there was an Austrian court interpreter?
3 A. Yes.
4 Q. And the people from the OTP were there as well?
5 A. Yes.
6 Q. That's you?
7 A. There's me, Mr. Abribat, Mr. Nicholson, Miss Pal and
8 Mr. Dutoit.
9 Q. Did you hear what Dr. Seda said to Mr. Mucic that day?
10 A. I heard him talking to Mr. Mucic, yes.
11 Q. Did you understand what he said to Mr. Mucic?
12 A. I understood a few words.
13 Q. So you were able to understand some of the things that
14 Mr. Seda was saying to --
15 A. We also had an interpreter with us, so she understood
16 the Croat language.
17 Q. So you understood -- you yourself were able to
18 understand what Dr. Seda was saying to Mr. Mucic?
19 A. I understood a few words.
20 Q. By a combination of your knowledge of German and the OTP
21 interpreter you were able to understand what Dr. Seda was
22 saying to Mr. Mucic; is that correct?
23 A. As I explained in my first testimony, I understood
24 partly what had been said.
25 Q. Okay.
1 Q. Sir, I am holding a document here entitled "Prosecution
2 Response to Mucic Defence Motion to Exclude Evidence".
3 This document was recently prepared by the Prosecution
4 in regards to the evidence obtained in Vienna. Have
5 you ever seen this document?
6 A. I might have seen it. It's possible.
7 Q. In this document at page 4 it purports to say what Dr.
8 Seda said to Mr. Mucic during the interview that took
9 place on 19th March 1996 between 14:20 and 15:10. Now,
10 to be fair to you, I would like to read what this
11 document says Dr. Seda said to Mr. Mucic and perhaps you
12 can tell us whether or not you heard this said to
13 Mr. Mucic by Dr. Seda; okay?
14 THE INTERPRETER: If counsel could only speak slowly when he
15 reads. Thanks.
16 MR. O'SULLIVAN: Dr. Seda said this to Mr. Mucic and I quote:
17 "Any statement you may contribute to your defence
18 may also be used as evidence against you. In the event
19 of a conviction a confession constitutes important
20 grounds for mitigation. Therefore, please answer all
21 questions clearly, accurately and truthfully. In the
22 event of total or partial refusal to testify, your
23 behaviour will not impede the investigation. It may,
24 however, deprive you of your rights to defence".
25 Do you recall Dr. Seda said that to Mr. Mucic?
1 A. No, certainly not.
2 Q. Do you mean to say because of your knowledge of German
3 you didn't understand this?
4 A. (Witness nodded.). Yes.
5 Q. But your interpreter was interpreting what was said to
6 you, was she not?
7 MS. McHENRY: Objection. Asked and answered. He said he
8 understood some of what was going on. I believe this
9 has been asked and answered several times, both on
10 direct and cross-examination for the others and just
12 JUDGE JAN: And these questions don't relate to his meal.
13 He can only order a meal in German.
14 THE INTERPRETER: Microphone please.
15 JUDGE JAN: He can only order a meal in German and these
16 words didn't relate to a meal.
17 MR. O'SULLIVAN: But the words were said to him, your
18 Honour, in the room where he was present.
19 JUDGE KARIBI WHYTE: So what? It doesn't really go to any
21 MR. O'SULLIVAN: The witness has said the interpreter
22 interpreted what was said to the members of the OTP?
23 A. Not everything. This doesn't relate to the work of the
24 Tribunal or what -- or it is not interesting for us. I
25 think this is a part of the proceedings of Dr. Seda.
1 Q. Then what was translated to you by the interpreter
2 during that meeting with Dr. Seda.
3 A. What I already explained. We heard from Dr. Seda
4 himself that Mr. Mucic asked for an attorney for his
5 extradition procedure. That's about the only thing,
6 and that he agreed to be interviewed by us. That was
7 our main concern, so ...
8 Q. So you were told by the interpreter that Mr. Mucic did
9 want to have a lawyer?
10 A. That was by Dr. Seda.
11 Q. How did you understand what Dr. Seda said? Through
12 understanding his German or through the interpreter?
13 A. Through the interpreter.
14 Q. Okay. There was a break between the meeting with Dr.
15 Seda and the OTP interview, wasn't there?
16 A. Yes.
17 Q. At the conclusion of the meeting with Dr. Seda Mr. Mucic
18 asked for a 30 minute break, didn't he?
19 A. I believe so, yes.
20 Q. And that break would have run from 15:10 to 15:40; is
21 that correct?
22 A. If it was asked at 15:10; yes.
23 Q. It was asked at 15.10, wasn't it?
24 A. Probably. I don't know.
25 Q. Isn't that the time the interview concluded with Dr.
2 A. It is possible. I don't know. I can't remember the
3 exact time.
4 Q. And the OTP interview began at 15:30; is that right?
5 A. That's correct, yes.
6 Q. So Mr. Mucic was not given a 30 minute break, was he?
7 A. Mr. Mucic was given a break. He went away. I think he
8 went to his cell or to the toilet and came back himself
9 after 20 minutes.
10 Q. Mr. Mucic was allowed to move around by himself?
11 A. No, he was accompanied by guards.
12 Q. Tell us what happened during that 20 minute period
13 between Dr. Seda's interview terminating and the OTP
14 interview beginning?
15 A. I think after the interview of Dr. Seda we moved to
16 another room. It was a very small room. We set up
17 the video equipment and the audio equipment and we had
18 problems finding the correct angle for the video camera
19 that I remember.
20 Q. Did anyone from the OTP speak with Mr. Mucic during that
22 A. No.
23 Q. Before March 18th had you briefed the Austrian police
24 about the Celebici case?
25 A. Me personally, you mean?
1 Q. Yes.
2 A. No.
3 Q. Had the OTP briefed the Austrian police, to your
5 A. I think there was an exchange of documents.
6 Q. What was said to the best of your recollection to the
7 Austrian police about the Celebici case by the OTP?
8 A. I think we gave them a brief summary of what happened.
9 Q. When you arrived in Vienna, I assume then as well there
10 was conversation with the Austrian police about
12 A. We had a few contacts with the Austrian police about the
13 arrest. That's all.
14 Q. What else was discussed with the Austrian police after
15 you arrived on 18th? You arrived on the 17th actually,
16 didn't you?
17 A. I arrived on Sunday, 17th.
18 Q. What was discussed between 17th and 18th with the
19 Austrian police about this case?
20 A. Nothing about the case. Nothing about the facts.
21 Q. But you told them why you were there, didn't you?
22 A. Of course.
23 Q. What did you tell them?
24 A. I think -- I believe that they knew that we were coming
25 and what we were coming for.
1 Q. In fact, you were in Vienna to arrange for the
2 extradition of Mr. Mucic back to The Hague, were you not?
3 A. No.
4 Q. What was the purpose of your trip to Vienna then?
5 A. To interview Mr. Mucic.
6 Q. You were aware of the Rule 40 request by the Prosecutor
7 of this Tribunal for provisional arrest.
8 JUDGE KARIBI WHYTE: Mr. O'Sullivan, do you mind if we have
9 a break? We will resume at 4.30.
10 (4.00 pm)
11 (Short break)
13 (Witness re-enters court)
14 JUDGE KARIBI WHYTE: Kindly tell him he is on his oath.
15 THE REGISTRAR: I'm reminding you that you are still
16 testifying under oath.
17 JUDGE KARIBI WHYTE: Professor O'Sullivan, you can carry
19 MR. O'SULLIVAN: Thank you, your Honours. Sir, I only have
20 a few more questions for you. Before the break we were
21 talking about the reason why you were in Vienna in March
22 of 1996. I suggest to you that you were there to
23 arrange for the extradition of Mr. Mucic; is that
25 A. That's what you said, yes.
1 Q. Is that correct?
2 A. No.
3 Q. Then I ask why you were there, therefore, in Vienna, if
4 it was not to arrange for the extradition of Mr. Mucic?
5 A. I was there to interview Mr. Mucic.
6 Q. But obviously you were there to interview him with a
7 view to bringing him back to The Hague, were you not?
8 A. Well, extradition is something that happens according to
9 the Austrian law. It has nothing to do with the
10 members of -- it's not the duty of the members of the
12 Q. But that brings us back to the briefings and the
13 conversations you had with the Austrian authorities,
14 doesn't it? You were working with them to arrange the
15 extradition of Mr. Mucic?
16 A. I am an investigator, not a legal adviser. I think
17 that is something for the Legal Department of the OTP.
18 Q. During your talks with the Austrian authorities you did
19 mention the extradition of Mr. Mucic back to The Hague,
20 did you not?
21 A. The only time I heard about extradition was when Dr. Seda
22 informed us that Mr. Mucic asked for a lawyer for his
23 extradition procedure.
24 Q. Right.
25 Q. The day before Mr. Mucic's interview with you on 19th
1 March was he given any forms by the OTP?
2 A. No.
3 Q. In that 20 minutes between the meeting with Dr. Seda and
4 your interview with Mr. Mucic on March 19th you say no
5 one from the OTP spoke with Mr. Mucic?
6 A. Mr. Abribat spoke to him before the start of the
8 Q. But between that period between the end of Mr. Seda's
9 meeting and the beginning of your meeting, did anyone
10 from the OTP speak with Mr. Mucic?
11 A. I don't think so. Mr. Mucic was not there. He was in
12 his cell.
13 Q. So Mr. Abribat did not speak to him either then?
14 A. When Mr. Mucic returned from his cell and entered the
15 room, then Mr. Abribat spoke to him.
16 Q. Prior to returning to the room for the interview?
17 A. No, I don't think so.
18 Q. On June 2nd before this Tribunal in regards to that 20
19 minute period between Mr. Mucic's meetings with Dr. Seda
20 and the OTP Mr. Abribat sat where you are sitting and
21 said, and I quote:
22 "This is the equipment we're going to use in order
23 to record this hearing. I'm also going to show you the
24 video recorder, saying this is the other piece of
25 equipment that I'm going to use and we'll respect the
1 forms that I gave you yesterday".
2 So if Mr. Abribat said that here under oath on June
3 2nd, does that mean that he's not telling the truth?
4 MS. McHENRY: Objection, your Honour. I think he can ask
5 him if this is a correct statement, but I don't think
6 that he's entitled or should be asked to vouch for
7 anyone's credibility. I think defence counsel asked
8 about at the time what forms meant and it's clear it
9 wasn't paper forms.
10 MR. O'SULLIVAN: If Mr. Abribat said that, is it a correct
12 A. That is possible. I'm pretty sure that Mr. Mucic was
13 not given any forms. That I'm sure.
14 Q. So in that regard Mr. Abribat is not telling the truth?
15 A. I think that Mr. Abribat was talking about the form
16 meaning the way in which the interview will be
18 MS. McHENRY: Objection.
19 MR. O'SULLIVAN: It is "forms" with an S.
20 MS. McHENRY: Objection, your Honour. This witness has not
21 here when Mr. Abribat testified. He has already given
22 his answer. I don't think I can give evidence whether
23 it was "forms" with an S or what Mr. Abribat meant. I
24 believe defence counsel asked Mr. Abribat himself.
25 JUDGE KARIBI WHYTE: Don't you think it is not fair to ask
1 this witness what Mr. Abribat said? It's not even right
2 to do that. He is not answerable to what Mr. Abribat
4 MR. O'SULLIVAN: From the end of the meeting with Dr. Seda up
5 to the beginning of your meeting with Mr. Mucic?
6 A. Uh-huh.
7 Q. Were you with Mr. Abribat the whole time?
8 A. No.
9 Q. I have no further questions, your Honours.
10 JUDGE KARIBI WHYTE: Thank you very much.
11 A. Can I just --
12 JUDGE KARIBI WHYTE: You have no question to answer.
13 Re-examination by Ms McHenry
14 MS. McHENRY: Briefly in re-examination, Mr. d'Hooge, do you
15 have anything you want to add to your last answer to
16 clarify or give a more complete answer?
17 MR. GREAVES: That's not a proper question to ask in
19 JUDGE KARIBI WHYTE: Actually it is not re-examination, is
20 it? That is not in re-examination.
21 MS. McHENRY: Your Honour, I believe that this witness and
22 all witnesses should be allowed to give a complete
23 answer, and if counsel doesn't let them finish what they
24 need to give to provide a fair answer, I think I'm
25 entitled to ask.
1 JUDGE KARIBI WHYTE: No, Ms McHenry, you are not being fair
2 to the procedure. All that happened was Professor
3 Sullivan finished his questions and the witness wasn't
4 satisfied with his answer, but he wasn't asking him any
5 further questions. So there is no point making any
7 MS. McHENRY: All right, your Honour.
8 JUDGE KARIBI WHYTE: So you can in re-examination know how
9 to put it so that you can get answers if the questions
10 were not properly answered.
11 MS. McHENRY: Thank you, your Honour. Sir, do you know
12 whether or not during this break whether or not
13 Mr. Abribat had the opportunity to speak with Mr. Mucic
15 JUDGE JAN: He has already answered that question and in
16 any case he says he was not all the time with
17 Mr. Abribat. How can he say anything?
18 MS. McHENRY: For instance, if he knew something about
19 Mr. Mucic and who was in charge of his custody he might
20 be able to answer that.
21 JUDGE JAN: Your question is whether Mr. Abribat met them
22 during those 20 minutes. That was not the question.
23 MS. McHENRY: That's fine, your Honour. Sir, going back to
24 some questions asked to you, I believe, by Mr. Landzo's
25 defence counsel on interpretation issues, does the
1 recording of the interview of Mr. Esad Landzo contain
2 both the Serbo-Croatian words spoken to and by Mr. Landzo
3 as well as the English words spoken by during the
5 A. I believe so.
6 Q. Do you know whether or not interpreters can interpret
7 every single word literally?
8 A. I'm pretty sure that they can't.
9 Q. Okay. When you've talked about interpreters, do you
10 know whether or not interpreters that you've worked
11 with, either with Mr. Landzo's interview or any other
12 interpreters, do you know whether or not they work for
13 the Office of the Prosecutor or the Registry of the
15 A. I believe they work for the Office of the Prosecutor.
16 Q. With respect to Mr. Landzo's interview, did the
17 interpreter inform you that she could and that she did
18 fairly interpret what you said and what Mr. Landzo said?
19 MR. ACKERMAN: Your Honour, I object to anything that the
20 interpreter might have told him. That's a totally
21 unreliable thing. If the interpreter is going to give
22 testimony here, then I want her here so that I can
23 cross-examine that testimony.
24 JUDGE KARIBI WHYTE: These are conversations between him
25 and the interpreter. It has nothing to do with this
2 MS. McHENRY: Okay. Sir, can I ask if you're aware of
3 whether or not the translation section of the Tribunal
4 compared the English and Serbo-Croatian version of the
5 transcript and the video to ensure that the translation
6 and transcription were fair and accurate?
7 A. Yes.
8 Q. Sir, now in response to questions asked by Mr. Moran on
9 behalf of Mr. Delic, I believe you have testified that
10 you had a copy of the indictment when you were in
11 Vienna. Can you indicate when you received this
12 indictment, if you know?
13 A. I'm not sure I said we had a copy of the indictment. I
14 think Dr. Manfred, the attorney, asked for a copy of the
16 Q. Okay. When you were in Vienna do you know if you had a
17 copy of an indictment that had been signed by the
18 Prosecutor and confirmed by a judge of the Tribunal?
19 A. I don't think we had one.
20 Q. Okay. Thank you.
21 Q. Sir, going to 18th March 1996 in Vienna, when you were
22 at the Vienna police station did you or anyone else from
23 the Tribunal have free access to any of the seized
24 material, or were there always Austrian police officers
1 A. There were always Austrian police officers present.
2 Q. Okay. Sir, you stated that after you had selected
3 certain items that you wished photocopied subsequently
4 in the next day or two -- I don't remember exactly what
5 you said -- you received photocopies of the material you
6 had requested. At that time that you received the
7 material, did you receive anything other than the
8 photocopies you had requested?
9 A. Yes, I noticed back in The Hague that instead of
10 receiving only copies, we also received four documents
11 that according to me were original documents.
12 Q. Okay. I would ask that the witness be shown what has
13 been marked for identification purposes as Prosecution
14 Exhibit 147?
15 MR. GREAVES: Was this shown to the witness during the
16 course of cross-examination? If it wasn't, it's not a
17 proper question in re-examination.
18 MS. McHENRY: Your Honour, I believe the issue was raised in
19 cross-examination. I believe that the issue was raised
20 in cross-examination, and therefore we're entitled to go
21 through it. So that's what I believe. If your
22 Honours --
23 MR. GREAVES: Your Honour, this document --
24 JUDGE JAN: What was the question asked?
25 MS. McHENRY: In cross-examination? Mr. O'Sullivan asked
1 this witness some questions relating to the material he
2 received from the Viennese police officers when he asked
3 for photocopies.
4 JUDGE JAN: I think the question probably was when did he
5 receive --
6 THE INTERPRETER: Microphone please, your Honour.
7 JUDGE JAN: The question asked was when did he receive
8 those copies, not that he received any other thing apart
9 from those copies.
10 MS. McHENRY: Your Honour, I believe he didn't -- defence
11 counsel did not specifically get into the details of
12 every single thing he received, but given that he raised
13 the general issue of what this witness received from the
14 Viennese police officers after he had requested
15 photocopies, I believe it's fair re-examination. I
16 will tell your Honours that, if necessary, we can recall
17 this witness later on to specifically talk about this,
18 but given that defence counsel has raised it, we believe
19 it's fair re-examination and that it would just speed
20 things along. Because this witness works in The Hague,
21 if your Honours disagree, I am not objecting too
22 strenuously, but we do believe it is fair
23 re-examination, given that defence counsel has raised
24 the issue. We believe the issue had not been raised in
25 direct, but defence counsel chose to get into it in
1 cross, and then as part of the re-examination the
2 Prosecution is entitled to explore the issue raised by
3 the Defence counsel.
4 JUDGE KARIBI WHYTE: I think you can -- if there is any
5 need arising, we will give them an opportunity to
6 examine on those.
7 MS. McHENRY: Okay. Thank you, your Honour.
8 JUDGE JAN: When did you receive these documents?
9 A. I believe we received the documents around 20th March.
10 JUDGE JAN: They are not part of the index which we
11 admitted this morning.
12 MS. McHENRY: Your Honour, I believe Mr. Moerbauer explained
13 that they are not, in fact, part of the index because in
14 making photocopies it appeared -- Mr. Moerbauer stated
15 that the original was given to the Prosecution such that
16 Mr. Moerbauer was able to say by going back to the copies
17 he had made and kept for his own records that these
18 documents, 147 -- that he did have the photocopies of
19 them but that he did not have the originals and they
20 were not part of his index. I believe he explained
21 that. Is it 147A, B and C? Sir, I ask you to look at
22 those documents and tell me if you recognise them and,
23 if so, what they are?
24 A. These are the documents I was talking about.
25 Q. Okay.
1 JUDGE KARIBI WHYTE: Show them to the Defence.
2 MS. McHENRY: Yes, your Honour. They have previously been
3 provided to the Defence.
4 JUDGE KARIBI WHYTE: The originals?
5 MS. McHENRY: The originals. They have been given copies
6 of everything and allowed to inspect whatever they
7 wished. Certainly I'm happy if any of them want to
8 look at any of these documents again, to do so.
9 A. I believe there is another document.
10 MS. McHENRY: Okay. So in other words there was -- I'm
11 sorry, Mr. d'Hooge. Are you stating there was an
12 additional document with those but that is also -- those
13 documents were given to you at the time you received the
14 photocopies as well as one additional document?
15 A. I believe so. The four documents were stapled
17 Q. Okay.
18 A. I believe I only have three documents here.
19 Q. Okay. For the use of defence counsel, there was a
20 fourth document which we do not believe is relevant.
21 If defence counsel wishes to inspect that, we are happy
22 to get it and provide it for you. I have no further
24 JUDGE KARIBI WHYTE: Any cross-examination arising from
25 this questioning?
1 MR. ACKERMAN: Your Honour, I just want to accept the offer
2 to get that and let us inspect it, the document that
3 they've decided is not relevant.
4 JUDGE KARIBI WHYTE: I suppose since the form has been
5 spoken about the fourth one should be available for
7 MS. McHENRY: I have the originial right now and I also have
8 copies. I don't know which defence counsel would like
9 to --
10 JUDGE KARIBI WHYTE: Of the fourth one?
11 MS. McHENRY: Yes, your Honour. We had selected the
12 documents that we thought were relevant and this was not
13 one of them, but I'm happy to show it to defence
14 counsel, and if they wish, they can show it to the
15 witness. We have extra copies for defence counsel, if
16 that would also assist.
17 MS. RESIDOVIC (in interpretation): Can I please look at the
18 other documents as well?
19 MR. GREAVES: Would your Honours think it very rude of me if
20 I went and peered over Mr. Ackerman's shoulder?
21 MR. ACKERMAN: You can't read it.
22 MS. RESIDOVIC (in interpretation): May I put a question to
23 the witness in connection with this?
24 JUDGE KARIBI WHYTE: Yes, you can. You are free to.
25 MS. RESIDOVIC (in interpretation): Mr. d'Hooge, can you tell
1 me whether you speak Bosnian?
2 A. I do not.
3 Q. Can you tell me when you were in Room 331 did you take
4 these documents out of the cardboard box in which you
5 said that the videotapes were?
6 A. No, I believe I selected the document out of a folder.
7 I didn't take them out.
8 Q. Mr. d'Hooge, the folder was not in the cardboard box; is
9 that right?
10 A. I believe the folder was on a table.
11 Q. Mr. d'Hooge, the papers that you took out of the folder,
12 did they have any recognisable indication for you, who
13 does not speak Bosnian?
14 A. First of all, I didn't take the documents out of the
15 folder. I selected them and repositioned them so it
16 was easy for the Vienna police to make a copy to see
17 what documents we wanted, and if I can see the documents
18 I can indicate why I wanted a copy of that document to
19 be taken.
20 Q. I'm asking you, Mr. d'Hooge, whether in repositioning
21 those documents you marked those documents with a sign
22 that you can always recognise, since you do not speak
24 A. I didn't mark the documents. I only repositioned them.
25 Q. And such unmarked documents were given by you to one of
1 the policemen of the Austrian police for photocopying;
2 is that correct?
3 A. I repeat that I did not take out the documents. I
4 repositioned them in the folder.
5 Q. Did you ask that those documents be copied?
6 A. Yes.
7 Q. Were they photocopied while you were still in Room 331?
8 A. No.
9 Q. In Room 331 there was no photocopying machine; is that
11 A. That is not the reason why they were not copied while we
12 were there. The members of the Vienna police wanted to
13 have authorisation of Dr. Seda, if they could, for the
14 copy of the documents.
15 Q. Therefore, while you were there between 5.00 and 7.30 pm
16 on that day no documents were photocopied, because there
17 was no authorisation from Dr. Seda; is that correct?
18 A. That's correct.
19 Q. Mr. d'Hooge, did you give these documents for experts to
20 see and analyse the handwriting?
21 A. No.
22 Q. Do you know at all when these documents were
24 A. I believe that they were photocopied the moment that the
25 Vienna police had authorisation from Dr. Seda, and I
1 believe also that they couldn't get the authorisation
2 the same day because it was after working hours and
3 probably Dr. Seda was not in his office any more.
4 Q. Are you sure, Mr. d'Hooge, that when you repositioned the
5 documents, you didn't mark them with any recognisable
6 number or mark?
7 A. I'm sure.
8 Q. You have seen just now, sir, some marks on these papers
9 beginning with "00". Did these numbers exist when you
10 allegedly saw these papers in the Austrian police?
11 A. Could you show me the documents? I don't know what the
12 mark ...
13 JUDGE KARIBI WHYTE: If you will oblige him, he might
14 indicate to you how he chose him and how he recognised
16 MS. RESIDOVIC (in interpretation): Will you please be so
17 kind as to tell us whether when you were repositioning
18 those documents you saw the numbers that are now to be
19 found on this paper?
20 A. The number was not on the document at that time. This
21 is an internal from the Tribunal.
22 JUDGE KARIBI WHYTE: What were the marks, identification
23 signs used in repositioning them?
24 A. I will explain, your Honour. Let's say this is a
25 folder in which the document was. The document was
1 like that. Since I found that this document was
2 interesting, I put it like that in the same folder. I
3 just repositioned it, which was clear for the Austrian
4 police that this was a document that I wanted to be
6 MS. RESIDOVIC (in interpretation): Would you please be so
7 kind as to confirm something once again that I think
8 you've said. These folders were on one of the tables
9 in Room 331; Mr. d'Hooge, therefore you just said that
10 those documents, as far as you can remember, or rather
11 according to your knowledge were in a folder that was on
12 one of the tables in Room 331 of the police building in
14 A. I believe that the folders were on a table and I can be
15 even more precise; when you enter the room, on the right
16 side on a table.
17 Q. And you, Mr. d'Hooge, have no idea where they were --
18 they came from before they reached that table?
19 A. If my memory is okay, I believe that we were told that
20 they came from the premises of Inda-Bau.
21 Q. But at that point in time, Mr. d'Hooge, no folders or
22 files had any marks that were recognisable by you; is
23 that correct?
24 A. That is correct, yes.
25 Q. The moment you received these papers in The Hague
1 several days later, they did not have the mark that you
2 can now see on this paper; is that correct?
3 A. That is correct.
4 Q. Actually, they had no marking; is that correct?
5 A. That is correct.
6 Q. This mark was placed later, after the paper reached the
7 premises of the prosecution; is that correct?
8 A. This is clearly an internal number from the OTP.
9 Q. Thank you very much. I have no additional questions.
10 MR. MORAN: Your Honour, I have one or two. I may be going
11 outside of the scope of re-examination, but if I do,
12 would the court stop me?
13 JUDGE KARIBI WHYTE: Yes, we will stop you.
14 MR. MORAN: I am volunteering to be stopped. Mr. d'Hooge,
15 do you recall on June 3rd I showed you this document,
16 the indictment?
17 A. Yes.
18 Q. And on re-examination Ms McHenry asked you if you had a
19 copy of this with you in Vienna and you responded no?
20 A. That is correct.
21 Q. I never asked you if you had a copy of it, did I?
22 A. I can't remember. It's possible, yes.
23 Q. If I told you the transcript said I never asked you if
24 you had a copy with you, would you take that as
1 A. Yes.
2 Q. Would you take it on faith that the only question I
3 asked you about it was whether or not the date on it was
4 March 19th?
5 A. I believe so.
6 Q. Is the date on it still March 19th if it was on June
8 A. Could you repeat the question, please?
9 Q. If the date that Richard Goldstone -- it shows Richard
10 Goldstone signed it, when you looked at it on June 3rd,
11 was March 19th, 1996, it would still be that date?
12 A. That's correct.
13 Q. Okay. Fine. Thank you.
14 JUDGE KARIBI WHYTE: I think this is all for this
15 witness. So he can be discharged.
16 MS. McHENRY: Yes.
17 JUDGE KARIBI WHYTE: Any other witness?
18 MS. McHENRY: Your Honour, at this time the Prosecution
19 would move into evidence the statement taken by the
20 Office of the Prosecutor of Mr. Mucic as well as the
21 statement taken by the Office of the Prosecutor of
22 Mr. Delic and Mr. Landzo, and in just one minute I'll give
23 you those numbers. The Prosecution would tender into
24 evidence what has been marked for identification
25 purposes as Prosecution Exhibit 101, which is Mr. Mucic's
1 interview by the Office of the Prosecutor, and the video
2 recording; Mr. Landzo's interview and the recording,
3 which is 102; and Mr. Delic's interviews and the
4 recordings, which are 103.
5 JUDGE KARIBI WHYTE: That is not by this witness.
6 MS. McHENRY: Yes, your Honour. I know it has been a
7 while, but on direct examination this witness discussed
8 at length the fact that he was the person who took both
9 -- all of them, all of these three interviews and he
10 identified them and was cross-examined about the
11 circumstances by all them.
12 JUDGE KARIBI WHYTE: Actually that will not be the end of
13 his evidence. This re-examination should not have been
14 the end of his evidence.
15 MS. McHENRY: I'm sorry. I am confused. On direct
16 examination this witness testified and identified the
17 interviews of Mr. Mucic taken by the Office of the
18 Prosecutor, the interviews of Mr. Landzo and the
19 interviews of Mr. Delic. He was cross-examined by the
20 Defence attorneys, Mr. Mucic, Mr. Landzo and Mr. Delic
21 about the circumstances of those statements, and we are
22 now tendering them into evidence. It did not really
23 come up today, because the -- it came up in direct
24 examination. The cross-examinations of Mr. Landzo and
25 Mr. Delic's counsel was last week, but this witness did
1 testify about all of those issues, identified all those
2 exhibits and was cross-examined about his testimony
3 surrounding the giving and the taking of those
5 JUDGE KARIBI WHYTE: The proper challenges about the
6 admissibility comes at the time you are tendering them.
7 MS. McHENRY: Your Honour, I believe that we tendered them
8 and defence counsel indicated and your Honours indicated
9 that they preferred to wait until cross-examination for
10 your Honours to actually rule on the issue: so now that
11 cross-examination is completed, I am now re-tendering
13 MR. GREAVES: Your Honour, if the matter is to be the
14 subject of argument, I would rather do that tomorrow,
15 please, when I have had an opportunity to review all the
16 evidence that has been given concerning the
17 admissibility of these interviews rather than do it this
18 evening, please.
19 JUDGE JAN: It is an admitted position that these
20 interviews were held and the individual they were video
21 recorded and he is the gentleman who recorded these
23 MR. GREAVES: Yes, to all of those, but --
24 JUDGE JAN: They can be tendered now in evidence.
25 THE INTERPRETER: Microphone, please.
1 JUDGE JAN: They can now be tendered in evidence and
2 whatever the probative value is can be seen later.
3 MR. GREAVES: I understand what your Honour is saying but
4 there is a substantive motion before the Tribunal
5 concerning admissibility. One would like to know when
6 that matter is going to be argued.
7 JUDGE KARIBI WHYTE: I think this is the stage when
8 actually you should argue it.
9 MR. GREAVES: Well, I anticipated that is what was being
10 said. I hope that your Honour will be so kind as to
11 give me overnight to review the evidence before
12 addressing you on the motion.
13 JUDGE KARIBI WHYTE: I think that is the proper thing. We
14 will have to come back tomorrow morning.
15 MS. McHENRY: No objection.
16 MR. GREAVES: I am grateful to my learned friend.
17 MR. GREAVES: Your Honour, there is one matter I would like
18 to raise before you rise this evening. Earlier today
19 transcripts pages 6, lines 14-14 and page 8, lines 1-3
20 my learned friend Mr. Niemann, leading counsel for the
21 Prosecution, made a sweeping allegation against all
22 defence counsel in this case. Taking two matters into
23 consideration, one that last week my learned friend
24 Mr. Ackerman's graciously offered apologies were equally
25 graciously accepted by my learned friend Ms McHenry and,
1 two, that he has had a whole day to reflect on the words
2 he spoke, all of my friends are wondering when
3 Mr. Niemann has anything to say to your Honours.
4 MR. NIEMANN: No, your Honour, I'm not prepared to withdraw
5 what I said. The comment I made was in relation to the
6 failure of the Defence to give the opportunity to the
7 Prosecution to review the videotape, which was in their
8 possession and they could easily have done so. In my
9 submission fair failure to do that was deliberate. In
10 my submission that does not help the progress of these
11 proceedings. So I'm not prepared to withdraw the
13 JUDGE KARIBI WHYTE: Is it your position that the
14 allegation was intentionally made and that you did not
15 regret it?
16 MR. NIEMANN: Your Honours, what I said was that in my
17 submission the Defence were trying to take over the
18 proceedings by this approach. It was highly
19 inappropriate. They know better and they could have
20 made this material available. It would have assisted
21 the proceedings. It would have assisted the
22 Prosecution, and they deliberately chose not to do it.
23 JUDGE KARIBI WHYTE: So you also deliberately made
24 allegations. Now my position is that these are matters
25 which might have happened in the heat of the moment and
1 would have been regretted immediately after and there
2 could be mutual apologies from either end. I don't
3 think there is any point sticking to a position which
4 could easily be solved.
5 MR. NIEMANN: If your Honour pleases, I take your Honour's
6 guidance on that.
7 JUDGE KARIBI WHYTE: Yes. I suppose you will sleep over it
8 and we will come tomorrow morning.
9 MR. NIEMANN: If your Honour pleases.
10 JUDGE KARIBI WHYTE: Thank you very much, Mr. Greaves.
11 MR. GREAVES: I am grateful to your Honour.
12 JUDGE KARIBI WHYTE: Thank you. The Trial Chamber will now
14 (5.10 pm)
15 (Hearing adjourned until 10 o'clock tomorrow morning)