Case No.IT-96-21
1 Monday, 3rd November 1997
2 (2.30 pm)
3 JUDGE KARIBI-WHYTE: Good afternoon, ladies and gentlemen.
4 I think we are still continuing with your examination,
5 is it not?
6 MR. NIEMANN: Yes, your Honour.
7 JUDGE KARIBI-WHYTE: Your submission. You may proceed.
8 MR. NIEMANN: Yes, your Honour.
9 JUDGE KARIBI-WHYTE: Appearances, please.
10 MR. NIEMANN: If your Honour pleases, my name is Grant
11 Niemann, I appear with my colleagues, Mr. Turone,
12 Ms McHenry and Mr. Khan for the Prosecution.
13 JUDGE KARIBI-WHYTE: Appearances for the Defence, please.
14 MS. RESIDOVIC: Good afternoon, your Honours, I am Edina
15 Residovic, appearing on behalf of Mr. Zejnil Delalic,
16 with my colleague, Eugene O'Sullivan, professor from
17 Canada.
18 MR. OLUJIC: Good afternoon, your Honours, my name is Zeljko
19 Olujic, appearing on behalf of Mr. Zdravko Mucic. I am
20 an attorney from Croatia. Appearing with me is my
21 colleague Michael Greaves, attorney from the
22 United Kingdom of Great Britain and Northern Ireland.
23 MR. KARABDIC: Good afternoon, your Honours, I am Salih
24 Karabdic, attorney from Sarajevo, appearing on behalf of
25 Mr. Hazim Delic, with Mr. Thomas Moran, attorney from
1 Houston, Texas.
2 MR. ACKERMAN: Good afternoon, your Honours, I am John
3 Ackerman, I appear here with Ms Cynthia McMurrey on
4 behalf of Mr. Esad Landzo. Thank you very much.
5 JUDGE KARIBI-WHYTE: Thank you very much. Sorry for the
6 short forgetfulness.
7 MR. NIEMANN: Might we have document 124 on the screen,
8 please.
9 Your Honours, prior to the adjournment on Friday
10 I had reached document 124, which is now on the screen.
11 Your Honours, I had started to go through this document
12 in order to make submissions about why it is that we
13 submit that it is a reliable document and ought to be
14 admitted into evidence.
15 Your Honours will recall, this is a report and it
16 was found on the premises of the --
17 MR. MORAN: Excuse me, your Honours, we seem to be having a
18 little problem with Mr. Karabdic's translation.
19 MR. KARABDIC: It is better now.
20 MR. MORAN: It has apparently been solved. Thank you very
21 much.
22 JUDGE KARIBI-WHYTE: It has improved his English.
23 MR. NIEMANN: Your Honours, the centre paragraph of that
24 document, which commences with the words, "in the course
25 of the day of 25th October 1992", there is a reference
1 there to the fact that there was a warning of an attempt
2 to assassinate and then, a little further down, there is
3 a mention of the time, 1800 hours, and, "the two sniper
4 bullets whizzed past my head and shoulders". I have
5 already taken your Honours to references to that.
6 Your Honours, into the next paragraph there is a
7 reference, in the next paragraph, starting, "of course
8 I knew", et cetera, in the last sentence there:
9 "It is unfortunate that position is too well known
10 to the HVO general staff. We believe that I am the only
11 remaining hurdle to the achievement of this goal."
12 Your Honours, in our submission this relates to
13 the continued and -- the continued state of animosity
14 that started to grow between the HVO and the BH army in
15 the Konjic area, and particularly in which the accused,
16 Mr. Delalic, was involved and has spoken of in other
17 parts of the evidence.
18 There are numerous references to this,
19 your Honours, in other documents, and your Honours have
20 also heard it in the evidence of General Pasalic.
21 One particular document where it is mentioned is
22 document 126, and if the first page of that document
23 could please be put on to the screen now. The very
24 bottom paragraph is the paragraph which I am referring
25 to. This is a memorandum addressed to the main staff of
1 the supreme command. It is dated 27th April 1993.
2 There is a reference to the HVO in paragraph 2 at the
3 bottom there, where the author says:
4 "The Konjic army command believes that the only
5 one HVO company from the villages of Trija and Birja
6 crossed over to the Chetnik side because they were no
7 longer there."
8 It goes on to make reference to the night the HVO
9 forces crossed the lake.
10 If we can go into the last page of that document,
11 page 6, at the very top of the page, under paragraph 4,
12 there is also a reference there in the second sentence
13 of the first paragraph:
14 "As for Pasalic and his staff (Ramic et cetera),
15 he and most of his staff have been pro-HVO for a long
16 time. We shall see whether this was under duress or
17 willingly."
18 Your Honours, going back now to document 124 on
19 the first page again, second to last paragraph on that
20 page, starting with, "I was also invited by a number of
21 Bosnian associations in Switzerland and Germany to speak
22 to their associations", there are other documents that
23 I will take your Honours to subsequently which will
24 relate to this question of speeches that would have been
25 undertaken by the accused, Mr. Delalic, but the part that
1 I wish to go to at the moment is the last sentence,
2 which says:
3 "I therefore explained all our mission and plans
4 to Edib Saric and the others."
5 Your Honours, in document 130, at page 9 of that
6 document -- the particular document, document 130, is a
7 document which on its face is said to be written by the
8 accused Mucic as former commander of the BH army camp,
9 Celebici, and it is addressed to the 4th Corps staff in
10 Mostar, and it is a report, a lengthy report. It is a
11 report which relates to, amongst other things, the
12 accused Zejnil Delalic, but the point that I wish to
13 just go to in relation to this, your Honours, is that in
14 the last sentence of that report, the very bottom of the
15 page, there is a reference there to Saric. It says:
16 "Under full moral, personal and military
17 responsibility, I state as irrefutable fact that except
18 in retrospect the TG commander Mr. Z Delalic had no
19 knowledge of these events and neither ordered nor
20 approved anything. On the contrary, he criticised me
21 severely, as can be attested by his deputy, Saric, who
22 was present when I talked about it."
23 Your Honours, the reference in our submission to
24 Saric in this document as the deputy to Zejnil Delalic
25 is reflected again in the reference to Saric in the
1 document 124.
2 JUDGE JAN: My memory may be faulty, but I have not heard of
3 Saric before in this case. My memory may be very
4 faulty.
5 MR. NIEMANN: I am not sure, your Honours, whether it has
6 been mentioned by other witnesses or in their testimony,
7 but there are a number of documents that we have here
8 that go to it; document 132, perhaps, as your Honour has
9 raised the matter, I might go to that. This is a letter
10 which appears to be written to the President, and it is
11 about the accused Zejnil Delalic. In this letter, on
12 the first page, he describes himself as Edib Saric in
13 the very first sentence. Then he goes on to write about
14 Zejnil Delalic, and sets out a biography there, and the
15 appointment of Zejnil Delalic, at the very bottom of the
16 page. It says in the centre of that page, page 1 of
17 document 132, it makes reference that he has his own
18 companies in Austria, Switzerland, Belgium and Germany.
19 JUDGE JAN: Does this letter speak of Delalic's connections
20 with Celebici camp?
21 MR. NIEMANN: This letter we are now looking at, your
22 Honour?
23 JUDGE JAN: Yes, this one.
24 MR. NIEMANN: I do not think it mentions the camp, not this
25 particular letter. There are other references, but this
1 particular document does not refer to that.
2 But the point I was just making there, your
3 Honour, is that this is, in my submission, a reference
4 to the deputy of the Tactical Group 1 commander.
5 The final paragraph, going back now if I may to
6 124, on the first page, in the final paragraph, the
7 final sentence makes reference to that expression that
8 we have seen a couple of times, "I have been in the war
9 24 hours a day since last March, having previously
10 abandoned all my businesses abroad."
11 In my submission, your Honours, it is the
12 similarity of language that is a factor which we would
13 suggest goes to -- is another factor which goes to the
14 reliability of this document, because the similarity in
15 the use of expressions is a factor we would submit that
16 your Honours should have regard to.
17 If I could quickly just demonstrate that, in
18 document 144 at page 6 in the centre of the page, if we
19 could possibly have that, please, the very centre
20 paragraph. Your Honours see there that there is a
21 reference to:
22 "March 1992, right up until 22nd November 1992,
23 2200 hours, I was constantly there in my responsibility,
24 without taking a day off, going anywhere or doing
25 anything else. I was available 24 hours a day, except
1 for a trip to Zagreb at the beginning of March, where
2 I was sent against my will at the request of the supreme
3 command. I was a guest on a television show", which
4 I referred to last time.
5 This was also, I will not take your Honours to it,
6 but I also made reference to similar type expressions in
7 Exhibit 117.
8 Then there is the next sentence:
9 "Except for five days on mission in Zagreb in May
10 1992."
11 It then goes on, your Honours, in the very last
12 sentence on that page:
13 "I have not moved from the area along the Igman,
14 Pazaric, Konjic, Jablanica, Prozor and Gornji Vakuf
15 line."
16 Your Honours, Exhibit 127, if we could have that
17 one on the screen, please, is an order, signed under the
18 hand of the co-ordinator and for the Territorial Defence
19 and for the HVO commander. It is an order in 3rd June
20 1992, it is addressed to the BHZTP Railway Company,
21 Konjic main railway junction:
22 "It is ordered to open up railway traffic at the
23 Jablanica, Konjic, Hadzaric section."
24 It relates, in my submission, to -- it has a
25 relationship to the line that is mentioned in Exhibit
1 124 that I have just shown you.
2 Going over on to the second page of Exhibit 124,
3 if I may, and moving down to the paragraph starting, "at
4 about 1400 hours" on the second page, about a third of
5 the way down the page, it says:
6 "At about 1400 hours, I crossed the border into
7 Austria. Luckily I had a stamp in my passport dated
8 26th November 1992. On the next day, I had a call on
9 the mobile phone from Saric", Saric being the deputy
10 that I took your Honours to previously, "who used the
11 occasion to explain everything that remained to be
12 explained."
13 Your Honours, in Exhibit 131, at the bottom of
14 131, and may I have that on the screen, please, yes, the
15 first page, down, the very bottom paragraph there:
16 "Two days later, Mihad Tinic et cetera came to me
17 with a cellular phone, so I immediately tried to call
18 the numbers in Zagreb and Vienna that Zejnil had left me
19 with. I got through and from that day, all the way
20 until the turmoil and our arrests in early December,
21 I talked to him every day, even seven days a week."
22 If your Honour goes to the top of this document,
23 the person that would appear to be writing it describes
24 himself as:
25 "I was the deputy commander to the commander of
1 Tactical Group 1, Zejnil Delalic."
2 As I have made reference to earlier, it is our
3 submission that that person was Edib Saric, which is
4 consistent, when one sees the reference to the phone
5 call in Exhibit 131, and again the existence of the
6 mobile phone and the phone call in that paragraph in
7 Exhibit 124.
8 Going back again to Exhibit 124, in the centre of
9 the page, there is a -- the next paragraph immediately
10 following:
11 "Only a couple of days earlier, Arif Pasalic
12 suggested I should leave the area for a while and
13 recommended a way to do it."
14 Your Honours, in Exhibit 131 -- I am sorry to have
15 to go back again, but 131 -- there is a reference which
16 seems very similar to that in the middle paragraph of
17 131, in particular:
18 "A Pasalic knew of it and in my presence he warned
19 him of a potential ambush on the way through
20 Herzegovina."
21 There is a reference to providing him with papers:
22 "He personally told me that he was going to travel
23 that night and that Arif believed that he would only be
24 going a day or two later."
25 Your Honours, again going back to 124 in the
1 middle of the page, the next paragraph which has the
2 number 3 in front of it that starts:
3 "According to some Croatian newspapers, I had
4 flown in a helicopter from Kobiljaca, while other papers
5 said I had left for Kresevo."
6 There are, in our submission, a number of
7 references to these Croatian newspaper reports that
8 appear in Exhibit 126 that I had taken your Honours to
9 before. If we could just have the first page of 126,
10 the top paragraph. You have a reference there in the
11 sentence:
12 "Due to the fact that I knew them personally and
13 the fact that the Croatian media wrote and reported that
14 I had gone over to the Chetniks."
15 There is also a reference in document 130, on
16 page 6 of document 130, the third paragraph from the
17 bottom, if I could, please. Firstly there is a
18 reference to the discord:
19 "I am surprised that our leaders do not realise
20 that this discord is well planned within the BH army,
21 planned by both the Chetniks and the headquarters of the
22 Croatian Community. Judging by the media, it is obvious
23 that both the other sides respect Zejnil more than the
24 BH army and it is unfortunately that I, a Croat, must
25 say that."
1 This document, I would indicate, is a document
2 that is said to be written, or is written, by the
3 defendant Mucic.
4 Your Honours, further down, going back now to
5 document 124, if I may, towards the bottom of the page,
6 in the sentence that starts with "(a).", there is a
7 reference there to Arif Pasalic:
8 "Is Arif Pasalic conducting this investigation on
9 your orders or the orders of the Mostar HVO, or on his
10 own?"
11 I have shown your Honours reference to the fact
12 that it is suggested that Arif Pasalic may have been
13 sympathetic to the HVO. I took your Honours to that,
14 and --
15 JUDGE JAN: Mr. Niemann, there is one thing about these
16 documents, the documents you have shown to us so far,
17 show that he had left Konjic on 25th November at 8.00 pm
18 in the evening. There was a criminal charge against him
19 of desertion and it has been given the colour that he
20 had joined the other side and left in a helicopter; he
21 was merely trying to defend himself. How are these
22 documents relevant to the charges against him before
23 us?
24 MR. NIEMANN: Your Honours, it is not that aspect of it.
25 I am drawing your attention to these factors because, in
1 our submission, that shows that they are documents that
2 can be relied upon and should properly be admitted into
3 evidence.
4 JUDGE JAN: There is a criminal charge against him.
5 MR. NIEMANN: It is not for that reason. I am doing it to
6 show their indicia of liability.
7 JUDGE JAN: I just wanted to draw your attention -- go
8 ahead.
9 MR. NIEMANN: The relevance of them, your Honours, relates to
10 other issues. The relevance particularly of this
11 document relates to his position as Tactical Group 1 --
12 commander of Tactical Group 1, the fact his deputy was
13 Saric, and all I am doing in drawing your Honours'
14 attention to these matters is that it shows this indicia
15 of reliability.
16 Your Honours, some of the documents vary with
17 relevance, but some of the relevance of them is their
18 interdependence on other documents. There are other
19 documents which are, in our submission, much more
20 relevant, but without these documents they may not have
21 that mutual indicia of reliability, because it is the
22 interrelationship which exists between them which we
23 suggest makes them reliable and ought to be therefore
24 accepted into evidence, so true it is that you can pick
25 any one of these documents -- I withdraw that. True it
1 is that you can pick a number of these documents and
2 say, "standing on its own, what is the relevance of this
3 document? Why are you trying to put this into
4 evidence?" The reason is, of course, what we are saying
5 is that some of the things that are said in this
6 document do not appear relevant on their own, but they
7 go to show that there is a consistent pattern of events
8 described, of circumstances, of similar terminology
9 which appear -- which run as a thread through all the
10 documents and makes them, in our submission, reliable
11 and authentic because of this thread that runs through
12 them.
13 If someone says, "these are forgeries" or
14 whatever, or somebody planted them in the premises or
15 any such suggestion, it is curious then that they would
16 have this thread, because one would have to have gone to
17 extraordinary lengths to be able to achieve that
18 objective, particularly getting to the point where you
19 are creating similar phrases and expressions and
20 events. In our submission, all this goes to establish
21 that.
22 Your Honours, we have heard the evidence of Arif
23 Pasalic and he has -- already there have been some
24 documents tendered, the documents tendered from this set
25 of exhibits, which are now exhibits before you, so in
1 our submission that in itself is significant, that Arif
2 Pasalic comes along to testify in these proceedings, he
3 is shown Exhibit 1 37 -- if I could have that please --
4 which is documents recovered -- document 137 which will
5 appear on your screen momentarily, was a document found
6 at the premises of INDA-BAU. It was found at those
7 premises, so any suggestion that all of this is just a
8 set-up or a forgery or whatever, it is curious, if that
9 is so, that when this document is produced to General
10 Pasalic --
11 JUDGE JAN: Can it be made more legible?
12 MR. NIEMANN: Particularly the signature down the very
13 bottom, in fact the bottom part of the document is
14 perhaps the more interesting part, the very last
15 paragraph. When this document, which has been recovered
16 by the Austrian police, from the premises of INDA-BAU,
17 is shown to General Pasalic, he says "yes, that is my
18 document". It is then tendered and becomes an exhibit
19 in the proceedings, so in my submission that is
20 significant in terms of the argument advanced by the
21 Prosecution that these documents are reliable and is an
22 indicia of reliability of the other documents, because
23 the events described in this document, which was
24 recognised by General Pasalic as his document, which was
25 tendered in these proceedings, relates to these criminal
1 charges which he said he was responsible for
2 instigating --
3 JUDGE JAN: There is a charge sheet along with that showing
4 the exact charges against him. One was of desertion and
5 the other was of getting someone liquidated, a person
6 bearing a Muslim name.
7 MR. NIEMANN: Yes. So in our submission, a document which
8 has been proved and admitted, we have here -- going back
9 to Exhibit 124 -- a reference to that very issue, the
10 very question of the investigation which General Pasalic
11 attested to, which we submit further enhances the
12 reliability of this particular document.
13 Going to the last page of document 124, the
14 paragraph commencing number 5, at the top of the page,
15 there is a reference in this document to the supreme
16 command general staff, and then the next to be slandered
17 is Sefer, and your Honours have heard and seen lots of
18 documents which have been issued by the chief of the
19 general staff, Sefer Halilovic, and again referred to
20 there and then the next line down, the reference to,
21 "finally Divjak, who is certain to be finished."
22 Again, your Honours have heard in evidence from
23 General Divjak and how General Divjak was with the
24 accused Zejnil Delalic in the latter part of 1992.
25 Your Honours have heard how General Pasalic speaks of
1 also having General Divjak arrested, but for his
2 protection.
3 Your Honours, then there is again a reference to
4 the HVO wanting to frustrate things, and then again one
5 of these similar threads that I spoke of appears, when
6 it says:
7 "I will offer a reward of 10,000 German Marks to
8 anybody who can prove that I have sold a single gun."
9 I refer your Honours to document 144, document 144
10 on page 3. It is the second to last paragraph, if
11 I may, starting:
12 "I bought 2,000 uniforms", which is another
13 indicia, I say, of this thread, but your Honours see
14 four lines down in the paragraph:
15 "I will give 10,000 German Marks to anyone who can
16 confirm or testify that I sold a single bullet, radio
17 transmitter, gun, shell or anything similar."
18 Not exactly the same words, but about the same
19 topic and expressed almost in the same way. In our
20 submission, that is very significant.
21 Finally, there is again that reference, if we may
22 go back to the final page of Exhibit 124, again that top
23 paragraph, there is a reference there to the 2,000
24 uniforms, you can see in the second to last line of the
25 first paragraph on the third page of that document.
1 Your Honours, finally, the signature is, in our
2 submission, significant. There is a reference there to
3 "fire", at the very bottom:
4 "Greetings to the homeland."
5 Then it says "fire" and a Bosnian word which I am
6 instructed means fire, and then immediately under is
7 signed, "Zejnil Delalic". Your Honours, this reference
8 to signing off under the name "fire" is, in our
9 submission, also a matter which we say fits into this
10 pattern.
11 JUDGE JAN: What does "fire" mean in Bosnian language? What
12 would that signify?
13 MR. NIEMANN: The word is "oganj".
14 JUDGE JAN: Has it any special significance in the Bosnian
15 language?
16 MR. NIEMANN: I submit, your Honours, that it is a code
17 name.
18 JUDGE JAN: I see. Then why sign, if that is using a code
19 name?
20 MR. NIEMANN: I do not know, your Honour. I cannot explain
21 that. All I know is that it is something that emerged
22 by other documents as well, and I can take your Honour
23 immediately to one document. There is a reference to
24 it, I believe, in the video, Exhibit 116. I am just
25 looking through the transcript quickly for that, but
1 there is a reference to it there. There is also --
2 I cannot see it now, but in Exhibit 126, page 6, at the
3 very bottom of the page, where this document is signed
4 off. On this occasion, we do not see the name Zejnil
5 Delalic simply signed, but the interpretation here is
6 "flame", which must be an interpretation of "fire", but
7 in my submission, your Honours, it is again a reference
8 to this pattern that appears.
9 So, your Honours, there are other factors that
10 I could take your Honours to, but in relation to this
11 document, where we would submit it points to a pattern
12 that runs through all the documents, but these are some
13 of the main examples of that, and in my submission,
14 having regard to all of the evidence your Honours have
15 heard, having regard to the other exhibits that were
16 located at the premises, having regard to the fact that
17 some of those exhibits have already been tendered in
18 evidence and are accepted as authentic documents, that
19 these are more than adequate indicia of reliability such
20 as to permit this document to be admitted into evidence
21 and relied upon and I move that it be tendered and
22 accepted in evidence.
23 JUDGE KARIBI-WHYTE: Any observations, please?
24 MR. O'SULLIVAN: Yes, your Honours. We object to the
25 admission of this document 124 for two main reasons.
1 First, the issue of reliability and second, the issue of
2 relevance. If I might expand briefly on those two
3 points, I begin by observing that my learned friend
4 speaks of "threads". Earlier, with the Austrian police,
5 we talked about "chains of custody" which fell apart,
6 and now the threads are dangling as well, and soon they
7 will be grasping at straws in this issue, your Honours.
8 My friend refers to document 124 and takes
9 your Honours through at least seven other documents. In
10 so doing, your Honours, he is asking you to compare and
11 juxtapose names, words, phrases, places and events in
12 document 124, which is not in evidence, in comparison
13 with seven other documents which are not in evidence.
14 This, in my submission, amounts to the Prosecutor coming
15 very close to giving evidence in this case. The proper
16 way to proceed is as he did with Exhibit 137, the one he
17 said he showed to General Pasalic, the one that General
18 Pasalic authenticated.
19 The outstanding issue before your Honours is not
20 only authenticity with regard to the provenance of these
21 documents but also authenticity as to the authorship.
22 When my learned friend says that he can interpret
23 code names, he can tell you who Mr. Saric is, last week
24 he compared two documents where in one we saw the name
25 Ramic for months, we know that reference to a family
1 name such as Kuljanin, Mrkajic, not to mention Delalic,
2 can refer to many different people, and for my friend to
3 suggest that he can tell us what a family name or a code
4 name means is beyond the pale.
5 My friend seems to be suggesting that by showing
6 one document to have been authenticated, Exhibit 137 by
7 General Pasalic, necessarily all the documents to which
8 he is referring are authenticated. This is completely
9 fallacious reasoning. It ignores the fact of the burden
10 on the Prosecution to prove all the elements of its
11 documents.
12 The more conventional way to proceed, and I urge
13 the Trial Chamber to insist the Prosecution to proceed
14 in this way, is to call witnesses who can authenticate,
15 who can verify the reliability of documents. To have my
16 friend stand up and take words, phrases and paragraphs
17 out of context, to weave together a thread which can
18 easily be criticised, cannot be relied upon, is not the
19 appropriate way to proceed. In June your Honours did
20 the same thing where the Prosecution opted not to call
21 the proper police officers from Austria; you clearly
22 indicated to them they were not proceeding in the proper
23 fashion.
24 In my submission this amounts to much the same
25 thing without viva voce evidence to verify the
1 reliability of these documents. We are getting nowhere,
2 we are wasting time and I urge your Honours to stop the
3 Prosecution from proceeding in this way.
4 Finally, on authenticity, I repeat there is no
5 proof as to authorship and provenance of documents, and
6 as far as relevancy goes, Exhibit 124 at least does not
7 tend to prove or disprove any issue related to the
8 indictment in this case.
9 MR. GREAVES: Your Honour, it is a pleasure coming to court
10 this afternoon to see a conjuror at work. Document
11 number 124 depends upon a number of other documents. It
12 is my submission to you that it is an illusion.
13 Document number 131 is written by a man allegedly called
14 Saric. I draw your Honours' attention to this: please
15 look at the title of the document, "The Adventurer".
16 Approach this document with care. Why is the author of
17 it heading it, "The Adventurer"? Does that suggest to
18 you, as I respectfully submit it should, that it is a
19 document of perhaps less than complete integrity and
20 truth?
21 Secondly, there is no evidence whatever that this
22 document has been produced by the man called Saric.
23 Indeed, there is no evidence at all, in my submission,
24 that this man Saric exists. The same may be said of
25 document 132. There is simply no evidence whatever that
1 this is produced by a man called Saric. It is a
2 document that might properly be described as flimsy.
3 Of course, the danger is that we are introducing
4 into evidence documents written by people who simply are
5 not witnesses in the case. That gives, at the very
6 best, this document and the other document allegedly
7 written by Saric, zero weight, in my respectful
8 submission.
9 Then we come to the railway document.
10 Your Honours may feel that the link between that
11 document and document 124 could, at its very highest, be
12 described as tenuous. Document 130, a document
13 alleged -- which the Prosecution asserts is written by
14 the defendant Mucic; there is no evidence, no evidence
15 at all, that this document was produced by Mucic. As
16 against him, at the very least, it is not relevant, it
17 is not probative, in the absence of any proof that it is
18 his document.
19 In my respectful submission, that document in
20 particular should not be admitted. When you look at
21 those criticisms that I have, and I invite your Honours
22 to listen with care to what my learned friend
23 Mr. O'Sullivan has said, when you take those defects, it
24 can properly be described as an illusion that you are
25 invited to take on board, a great conjuring trick.
1 MR. ACKERMAN: Your Honours, I cannot help but be struck by
2 an almost Alice in Wonderland kind of contrast between
3 Friday morning and what we have been doing since then.
4 Friday morning a man was brought here, at great expense,
5 from the Bosnian government to authenticate documents
6 for you, which he was only able to do, he said, if he
7 could see the colour of the ink that stamped them and if
8 he could make himself familiar with the signatures that
9 were on them and otherwise independently verify that
10 those documents were authentic. That was seen as an
11 important process, both by the Office of the Prosecutor
12 and by this court, I believe.
13 Then after having had some lunch, all of a sudden
14 we seem to have entered a new world, where documents
15 with absolutely no indication of authenticity at all, no
16 custodian, no nothing, are just being floated around the
17 courtroom with the argument that there are threads
18 between them that somehow give them so authenticity.
19 Most of them are unsigned, most of them purport to be
20 addressed to someone, but none of those someones have
21 appeared here and said "yes, I received such a letter".
22 Many, many times in my own life, and I am sure
23 this is true of virtually everyone in the room, I have
24 sat in my office or in my home and I have written;
25 I have written letters that I have never sent, I have
1 written stories. I enjoy writing, and I would hate that
2 at some point, someone would take those musings of mine
3 and suggest that there is some authenticity to them with
4 regard to facts. Some of the letters that I have
5 written in anger and never sent, for instance, sometimes
6 were not as factual as they might have been.
7 JUDGE JAN: I hope they were not letters to the
8 judges.
9 MR. ACKERMAN: No letters to the judges, your Honour, along
10 that line. I have always, I think, had good enough
11 sense to tear them up before I sent them. It seems to
12 me that letters, orders, things of that nature, really
13 do not take on any kind of evidentiary quality unless
14 there is proof you actually sent them to someone,
15 because otherwise you might just be writing for your own
16 amusement.
17 That is what we are seeing here. We are seeing
18 documents without foundation, documents without
19 authenticity, documents that may or may not have meaning
20 and it is like gathering up someone's garbage from
21 outside their house and bringing it in here and saying,
22 "after we have brought someone to tell you about the
23 colour of seals on documents so you can be certain they
24 are important, we have this black bag of garbage that we
25 would also like you to consider". I just think it is
1 outrageous. This is not the way evidence should be
2 presented to a court. What is happening here is even if
3 somewhere down the road you agree that this is not the
4 way evidence should be presented to the court,
5 Mr. Niemann is doing a splendid job and I commend him for
6 standing here reading it all to you so that even if you
7 decide that it should not be before you, you will have
8 heard it, and you will know what is in it. I think this
9 needs to be stopped. I do not think it is proper.
10 MR. MORAN: Your Honour, on a slightly different tack,
11 limiting my remarks just to this particular exhibit --
12 MR. NIEMANN: Your Honours, could I just indicate that these
13 documents are not sought to be admitted against
14 Mr. Moran's client.
15 MR. MORAN: We are going to have some limited admissibility,
16 none of these documents are going to be admitted against
17 my client? Any of the documents, or just this
18 document?
19 MR. NIEMANN: Certainly this document is not admitted against
20 him.
21 MR. MORAN: Your Honour, I will not say that it does not
22 prove anything one way or the other as to anyone, as to
23 relevance.
24 MR. NIEMANN: Your Honours, if I may reply to a couple of
25 these points, firstly, it is very convenient for the
1 Defence to stand up and tell you how it is essential
2 that the only way these documents can ever be admitted
3 in these proceedings is to call the author, when they
4 know that the author is their clients and they know that
5 there is no way the Prosecution can ever call them, so
6 they are then proceeding to tell you, "this evidence
7 never gets before any courts anywhere in the world
8 because the Prosecution can never call the author of the
9 document if he is an accused person, so simply the court
10 is deprived of that evidence". That your Honour, in my
11 submission, is as much Alice in Wonderland as they would
12 ever suggest anything that I am doing here is.
13 Indeed, garbage in the garbage tin could be
14 extremely valuable evidence if it is relevant and
15 relevant to the issue in decision. Maybe hair samples,
16 there may be blood, there may be a knife, a bullet, a
17 gun, there may be anything in the garbage bin which may
18 well be relevant and would be admissible.
19 JUDGE JAN: Do not take him literally.
20 MR. NIEMANN: Your Honours, I am sure that they wish to be
21 taken literally. But, your Honours, these are not
22 documents that were found in the garbage bin. These are
23 documents that were filed on the premises and found on
24 the premises in an orderly fashion, as if they were not
25 intended to be thrown in the garbage bin.
1 Certainly we all may from time to time write
2 something which we do not intend, which perhaps is
3 inaccurate, that can be shown in my submission. The
4 matters that I am drawing your Honours' attention to is
5 the fact that these documents are consistent with the
6 balance of the evidence. They are consistent and
7 because they are consistent they are in our submission
8 reliable. These are factors which are the indicia of
9 reliability and make them properly admissible.
10 So, your Honours, in our submission it does not
11 assist, if that is what Mr. Ackerman is doing, because it
12 has not been asserted again that Exhibit 124 was
13 admitted against his client, to say that these may be
14 just musings that have been written down. One often
15 sees in cases diaries admitted against accused persons
16 which are often generated in a similar way, where the
17 contents of the diaries can be extremely relevant and
18 admissible. In my submission, it does not assist to
19 relate these to that sort of writing. These documents
20 can be seen from their face to relate to the topic at
21 hand, they relate to the issue at hand. They are a
22 variety of documents, some of them are at a more formal
23 stage than others, others may only be drafts, but
24 your Honours, in my submission they are not garbage in
25 the garbage can, they are in fact relevant, admissible
1 and it is entirely proper for me to make submissions to
2 you about a thread of consistency that runs through them
3 in order to demonstrate their authenticity.
4 In my submission, your Honours, this document,
5 Exhibit 124 should be admitted into evidence.
6 MS. RESIDOVIC: Your Honours, though my learned colleague
7 has already explained our general objections, may I add
8 a few specific objections, since my learned colleague
9 Mr. Niemann has commented on them already?
10 MR. NIEMANN: Your Honours, I do object to this. Are we
11 going to have both sides of the Defence get up and make
12 submissions about these things? If that is going to be
13 the case, I think the idea of the Prosecution closing
14 its case before the end of the year is a very faint
15 possibility. Every time I make a submission, I do not
16 have my colleagues here all hop up and give us their
17 views on it, which I am sure they could do and they
18 would be very helpful. We constrain ourselves, and
19 I would ask that the Defence be constrained in a similar
20 fashion.
21 MS. RESIDOVIC: Your Honours, I respect your decision that
22 two of us should never comment on the same point, but
23 I wished to make a few remarks in connection with the
24 new points raised by the Prosecution, and if I may be
25 allowed, I will do that. If not, I will refer to other
1 documents, but I will not be repeating the things that
2 my learned friend Mr. O'Sullivan said.
3 JUDGE KARIBI-WHYTE: I have always said, the rules of debate
4 do not allow a ding-dong practice. I think there is a
5 limit, so I think maybe your submissions are over. That
6 was the reply. If you think, after that reply, you also
7 should be entitled to speak, that is not right. One
8 counsel is on his or her feet; you must put the
9 arguments the way you think you could do it.
10 MS. RESIDOVIC: Thank you. My colleague O'Sullivan has
11 said everything that was necessary in connection with
12 this document.
13 JUDGE KARIBI-WHYTE: I do not think you have go on with a
14 criticism, because I think it is enough to challenge
15 every aspect of the Prosecution's presentation. That is
16 all for the time being? We will reserve our ruling
17 until later.
18 MR. MORAN: Your Honour, can the record be clear that there
19 was no offer of this document against Mr. Delic?
20 JUDGE KARIBI-WHYTE: How many times will that be said?
21 MR. MORAN: Your Honour, sometimes I get a little nervous
22 about those things. I apologise if I am beating a dead
23 horse.
24 JUDGE KARIBI-WHYTE: I suppose so. It might not arise
25 again. All right, I think it has been said
1 sufficiently.
2 What next do you have for us?
3 MR. NIEMANN: I have more of the documents, your Honour.
4 I have many more of these documents, your Honour. I do
5 not know of any other way to reduce the amount of time
6 it takes to deal with them. These are documents that
7 were found on the premises and we seek to tender them.
8 JUDGE KARIBI-WHYTE: You can go ahead. It is your case.
9 MR. NIEMANN: Thank you, your Honour. Might I move on to the
10 next document, Exhibit 124. Might that be displayed --
11 sorry, 125. Might that be displayed?
12 MR. ACKERMAN: Your Honour, before this is displayed, I want
13 to rise to object to its even being displayed. This
14 document deals with a matter that Mr. Niemann --
15 I understand that is what it deals with, that Mr. Niemann
16 had agreed as late as last week was not material to this
17 case, and did not have any business coming before this
18 court. I do not know if I am confused about the
19 document or not. Let me just look at it. (Pause).
20 I have reason to believe that this refers to the Bubalo
21 matter which we had basically agreed not to get into and
22 it was not appropriate to come before the court. That
23 is why I am objecting.
24 MR. NIEMANN: Your Honours, the position is, and has been,
25 and has not changed, is that we are not seeking to rely
1 on the document for any other purpose than the fact that
2 it relates to or goes to prove the reference to the
3 position held by the accused Delalic and Mucic. We are
4 not seeking to rely on it or to introduce into these
5 proceedings any other aspect of the matter. We would
6 ask your Honours to disregard any other reference to it,
7 but it has not been the case at all that there was an
8 agreement that it would not be tendered into evidence.
9 It was agreed, and Mr. Moran particularly is aware
10 of this, it was agreed to be tendered into evidence on
11 the limited basis that we argue that the persons in
12 authority who went to create these documents, including
13 General Pasalic, who already discussed a document which
14 is now an exhibit, ought to have known the rank and
15 position held by the persons, by the accused persons
16 Delalic and Mucic, and that therefore it has that
17 indicia of reliability.
18 This particular document is --
19 MR. ACKERMAN: Your Honour, I do not know if you are finished
20 responding to my argument.
21 MR. NIEMANN: I have not.
22 MR. ACKERMAN: Please let him finish responding, but I have
23 an additional something to say.
24 MR. NIEMANN: With this particular document, your Honours, we
25 say it is relevant for the very limited purpose that it
1 goes to show the thread of documents in relation to this
2 point. It is merely a link in that chain, a link in
3 that thread of documents which we say in combination
4 establish the reliability of the documents in toto. In
5 other words, it is merely a small part of that mosaic.
6 MR. ACKERMAN: Your Honour, I would have no objection, other
7 things being established, that is reliability,
8 authenticity and relevance, to an offer for the purpose
9 which Mr. Niemann has suggested that it be offered for.
10 The way I have seen that handled and the best way
11 I think to handle it is to take a permanent black marker
12 and redact from the document all those things that the
13 Prosecution does not intend it to be offered for,
14 because there are judicial officers beyond this Trial
15 Chamber who might be studying these documents for
16 whatever purpose they might be studying them, with
17 relation to my client Mr. Landzo in the future.
18 I have no question, but what this particular Trial
19 Chamber, this particular panel of three judges would
20 clearly be able to separate in their own minds what the
21 document is being offered for from the other things
22 contained therein. I cannot say the same about future
23 judges who might be making decisions with regard to
24 documents in this case, so the safe way to deal with it
25 is for the Prosecutor to take a permanent black marker
1 and on the copy going into evidence redact everything
2 they do not mean to be offering it for.
3 MR. NIEMANN: I find, your Honour, this is an extraordinary
4 submission having regard to the document, bearing in
5 mind in particular that Exhibit 137 has been admitted in
6 unredacted form into evidence. It relates to the very
7 question -- this particular document is a decision of
8 the public prosecutor that all charges against the
9 accused Zejnil Delalic and Zdravko Mucic are dropped, so
10 why my friend would now stand up and say that some judge
11 may be misled by it is an extraordinary submission in my
12 view, your Honours. I would have thought that if
13 anything else, they would have demanded that this
14 document be admitted into evidence.
15 But as I say, your Honour, we are not seeking to
16 put it into evidence in order that it be evidence to the
17 fact that the charges against Mucic and Delalic are
18 dropped. We say whether they were dropped is
19 irrelevant, because, your Honours, we are not tendering
20 any of these documents so that your Honours would have
21 regard whatsoever to the criminal charges, but,
22 your Honours, if Mr. Ackerman is now telling you that he
23 is concerned about other judges reading it and thinking
24 that these gentlemen may have been accused of some
25 charges and that that for some reason or another may be
1 a bad thing. I find it extraordinary that he would
2 stand up and object to the tender of this document,
3 which achieves the very objective that he is concerned
4 about.
5 MR. ACKERMAN: Mr. Niemann may be right, it may be
6 extraordinary, but it also is consistent. When Exhibit
7 137 was offered, I believe that I objected very
8 strenuously to those portions of it which I felt were
9 irrelevant and I believe that I suggested at that time
10 that they should be redacted, and trying to be
11 consistent, I think I am right and I think with regard
12 to 137, that language should also be redacted from it.
13 JUDGE KARIBI-WHYTE: Any other arguments?
14 MR. NIEMANN: Your Honours, whether or not it is redacted,
15 I do believe that your Honours are perfectly capable of
16 ignoring the references in there to the charges as such,
17 and accepting this document on the very limited basis
18 that we submit it should be accepted into evidence
19 under, and that is it goes to the mosaic of documents
20 that are relevant in order to establish their position
21 that I have referred to earlier.
22 JUDGE KARIBI-WHYTE: We have listened to your arguments.
23 This is not a reply to what Mr. Ackerman said.
24 MR. NIEMANN: I will then proceed, your Honour, to examine
25 the document, if your Honour pleases. Perhaps it could
1 be put on the screen.
2 MR. ACKERMAN: Your Honour, just for the record, I take it
3 that my objection and my suggestion on redaction is
4 overruled?
5 JUDGE KARIBI-WHYTE: It is on record. We will examine it.
6 It depends on what we do with the exhibit itself. You
7 have suggested it should be redacted.
8 MR. ACKERMAN: My suggestion was it should be redacted before
9 it was displayed to your Honours, so only the portions
10 that the Prosecution is offering would be displayed to
11 your Honours, since you sit as finders of fact, and with
12 regard to future judicial bodies who may be considering
13 this evidence. I just want the record to show whether
14 or not my objection in that regard has been sustained or
15 overruled.
16 JUDGE KARIBI-WHYTE: Actually, I do not think it is really
17 necessary for the purposes of this case. If the
18 argument is for other cases or for other readers such
19 redaction is necessary, I suppose it might be, but for
20 our own purposes, I do not think it is necessary.
21 MR. ACKERMAN: I am talking about perhaps the Appellate
22 Chamber, your Honour, or perhaps a future judicial body
23 that might be --
24 JUDGE KARIBI-WHYTE: Are you sure your objection will not be
25 on record?
1 MR. ACKERMAN: I think it probably is on record and I think
2 now your Honours' view of that objection is on record,
3 so I have probably made my record, I can sit down and be
4 quiet.
5 JUDGE KARIBI-WHYTE: If it is not redacted.
6 MR. NIEMANN: Your Honours, in relation to document 125 that
7 appears on the screen, on the original Bosnian version
8 of that document, it is a typewritten document, it bears
9 a seal on the bottom of the document, and it appears to
10 be signed. In our submission, your Honour, it has all
11 the appearance of a formal document of the type that
12 your Honours have seen. It is a document that was found
13 on the premises of INDA-BAU --
14 JUDGE KARIBI-WHYTE: Let me interrupt you. It was a mistake
15 to have actually asked you to continue, because I think
16 we should be going for a short break. But before we go,
17 I think when we return at 4.30, we might like to take on
18 the arguments on the motion for leave to call Witness
19 V. I do not know whether the Defence is aware of that
20 motion, the motion for protective measures. I think in
21 addition the motion to call Witness J. I do not think
22 it will take too long. We will go for a short break.
23 (4.00 pm)
24 (A short break)
25 (4.30 pm)
1 JUDGE KARIBI-WHYTE: Mr. Niemann, can we hear you on your
2 motions? Who is presenting it?
3 MR. NIEMANN: Ms McHenry will be arguing it for the
4 Prosecution.
5 JUDGE KARIBI-WHYTE: Let us hear it.
6 MS. McHENRY: Good afternoon, your Honours.
7 JUDGE KARIBI-WHYTE: Good afternoon.
8 MS. McHENRY: I will not be long, your Honours. I believe
9 the bases for our motions have been set out in our
10 written pleadings, which were filed on Friday and given
11 to the Defence Friday afternoon. Our first two motions
12 concern Witness V, a security officer in the Tribunal.
13 We first seek leave to call Witness V, his name was not
14 on the initial witness list because we had not planned
15 on calling Witness V at the time we filed our witness
16 list. In the middle of October, there were some issues
17 that came to Witness V's attention which we think is
18 admissible and relevance for the case in chief. It may
19 also be separately grounds for contempt that
20 your Honours may also hear at the same time, but the
21 present motion is with respect to its relevance as to
22 the case in chief.
23 With respect to Witness V we have also filed a
24 motion seeking that his identity be kept secret from the
25 public and media because this security officer has
1 worked in Bosnia and wishes to do so in the near
2 future. I believe he has some prospects in that regard
3 and he believes if his identity were known it could
4 affect his ability to obtain and perform his job. Thus
5 he has indicated that he will only testify if his
6 identity can be protected from the public and media.
7 We have also a motion for protective measures for
8 Witness J. He is a witness who has already testified,
9 who heard certain remarks made by the accused which we
10 think again is relevant evidence at trial. The witness,
11 who was already a vulnerable witness, is traumatised and
12 has indicated that he does not wish to be in the same
13 room with the accused again. Thus he seeks permission
14 to testify using the remote witness room. There would
15 be no restrictions on the rights of the accused or
16 Defence counsel to view the witness. That is not what
17 he seeks protection from.
18 Your Honour, I believe the testimony of both
19 witnesses will be very short, but nonetheless, we are
20 requesting it as relevant evidence for the reasons
21 stated in our motions. Unless your Honours have any
22 questions, that concludes my submission.
23 JUDGE JAN: Have we given you permission to recall
24 Witness J?
25 MS. McHENRY: No, your Honour, I believe Mr. Niemann spoke
1 to that on Friday.
2 JUDGE JAN: You must seek permission to recall Witness J,
3 then the other thing will arise.
4 JUDGE KARIBI-WHYTE: He has been discharged.
5 MS. McHENRY: In that case, your Honour, may I amend our
6 motion to make also an oral motion to recall Witness J.
7 I am sorry, I thought Mr. Niemann mentioned this, that we
8 did not need to do so, but I would seek leave to orally
9 request leave to call Witness J with respect to the
10 matters that I believe everyone knows.
11 JUDGE JAN: Why do you want to recall Witness J?
12 MS. McHENRY: Because we believe the evidence concerning
13 the alleged threat made to Witness J is direct evidence
14 of consciousness of guilt and therefore that it is
15 admissible evidence. It is the case in many systems
16 that threats to a witness, as well as flight of an
17 accused, are both, in addition to potentially being
18 criminal offences in their own right, are evidence of
19 consciousness of guilt. In particular, we believe that
20 the reason that the accused have threatened the
21 witnesses is because they do not want these witnesses to
22 testify, because they realise that their truthful
23 testimony will convict them, so we believe it is
24 relevant.
25 JUDGE JAN: The accused gave the threat while the witness
1 was appearing in the witness box or before that? Before
2 he appeared in the court?
3 MS. McHENRY: Your Honour, the threat was during the
4 witness's testimony, and we believe --
5 JUDGE JAN: The witness had already come, so issuing a
6 threat, how would that prove his guilt?
7 MS. McHENRY: Your Honour, it could certainly intimidate
8 the witness, it could upset the witness, it could
9 prevent him from coming back into the courtroom, all
10 those things.
11 JUDGE JAN: That is intimidating a witness; that is a
12 contempt. Those are separate proceedings, contempt
13 proceedings. How is it relevant to the Celebici case?
14 MS. McHENRY: It is the contention of the Prosecution,
15 your Honours, and in many legal systems, that
16 threatening a witness, including while he is giving
17 evidence, is evidence of consciousness of guilt. Had it
18 occurred after the witness had finished, then it may be
19 that there would be less evidence, but certainly it can
20 be inferred that the accused were trying to intimidate
21 the witness from either being so upset that he was
22 unable to present a credible appearance, or such that he
23 would refuse to come into the courtroom again, or
24 upsetting him so that he would be too afraid to answer
25 truthfully the additional questions that were being put
1 to him.
2 JUDGE JAN: Was his examination-in-chief over, or was it
3 before that he issued the threat?
4 MS. McHENRY: Examination in chief was over, your Honour.
5 JUDGE JAN: So he had testified what he wanted to say. How
6 would a subsequent threat --
7 MS. McHENRY: Your Honour, I certainly believe
8 cross-examination counts as evidence too, and so the
9 fact that it was during cross-examination the
10 Prosecution does not believe is of any legal
11 significance to whether or not the evidence is
12 consciousness of guilt or not.
13 JUDGE KARIBI-WHYTE: I think you will be able to call him if
14 you want to.
15 MS. McHENRY: Thank you, your Honours.
16 MR. GREAVES: I was rather hoping your Honours might invite
17 some comments from the Defence on the motion before
18 deciding it.
19 JUDGE KARIBI-WHYTE: Yes, you could. I am just putting you
20 on notice.
21 MR. GREAVES: Your Honour, it is a favourite trick of
22 prosecuting counsel, and I sometimes act in that
23 capacity myself, that when you do not have terribly
24 much, you pick up a piece of mud and throw it. Your
25 Honours, this is a peripheral irrelevant issue which is
1 not probative of any fact or issue. This consciousness
2 of guilt thing is preposterous and I would invite
3 your Honours to reject this application.
4 MR. MORAN: Your Honour, just limited to Witness V, I find it
5 most incredible that an employee of the United Nations
6 will sit there and tell a court that is an arm of the
7 Security Council of the United Nations that the only way
8 he is going to testify is if he is granted some kind of
9 anonymity. Your Honour, this guy -- protection of
10 witnesses' identities I think has been overdone, and the
11 court knows my feelings on that, but to take someone who
12 is presumably an armed security guard for the
13 United Nations in The Hague and to say that maybe
14 because he will go back to Bosnia some day we are going
15 to let him testify anonymously, and have him say to the
16 court through the Prosecutor essentially that he will
17 not appear unless he can testify anonymously --
18 anonymously to the world, not as to the court or
19 participants -- to me is absolutely incredible.
20 I think the Blaskic Appellate Decision was handed
21 down last week and Judge Karibi-Whyte, you can correct
22 me on this, if I am overstating or understating what the
23 Appellate Chamber held, but basically you held this
24 Tribunal is an arm of the Security Council. To me it is
25 incredible that if the Security Council summoned
1 Koffi-Anan to a meeting and said, "We want to hear what
2 you have to say about this", if Koffi-Anan refused, he
3 would have substantial problems remaining the Secretary
4 General of the United Nations. To have an employee of
5 the Tribunal itself put some kind of conditions like
6 this on his testimony is just absolutely mind-boggling.
7 If there is anybody that should be testifying, should
8 not have any real fear of testifying, it is a security
9 guard for the United Nations.
10 We have had citizens of Bosnia-Herzegovina
11 testifying here for the Prosecution with their names and
12 their faces spread all over television and all over the
13 newspapers.
14 JUDGE KARIBI-WHYTE: I do not think this is really strange.
15 When the Rules were being established, not only the
16 Rules but the Articles of the Tribunal themselves were
17 being established, they were conscious of the
18 possibility of a witness being afraid of the security.
19 If you look at the provisions, they are very clear,
20 Article 20 is very clear about that. They did not even
21 select whether you are an United Nations official or you
22 are a private person. Everybody who feels genuinely and
23 justifiably frightened of his security could be accorded
24 such privileges.
25 JUDGE JAN: We have already done that in the Dokmanovic
1 case, his arrest has been challenged by the Defence and
2 we gave protection to one of the witnesses.
3 MR. MORAN: Your Honour, I would just -- again, the Tribunal
4 is well aware of my feelings about public testimony,
5 just to me this is -- Judge Karibi-Whyte, you said
6 "justifiable fears". What we have to be careful about
7 is we do not let a witness -- I can think of one witness
8 off the top of my head who said that he had real fears
9 and was terrified if he testified publicly he would face
10 some kind of problems and the next thing you know we
11 were watching him on television. I am not saying that
12 this person will do that, but we have to look at the
13 justifiableness of the case.
14 JUDGE KARIBI-WHYTE: We do not want to exaggerate the nature
15 of the persons being tried. Nobody wants to play down
16 or exaggerate their capabilities, so when somebody says
17 he is afraid, and especially for things said to his
18 hearing, you do not take it as if it is a joke.
19 MR. MORAN: Your Honour, I have no problem and I am not
20 objecting to Witness J testifying however he wants to
21 testify. My comments are limited solely to Witness V,
22 and the reasonableness of any perceived fears he may
23 have.
24 JUDGE KARIBI-WHYTE: I suppose so. He is also a frightened
25 man.
1 MR. MORAN: Your Honour, you may know more about that than
2 I do.
3 JUDGE KARIBI-WHYTE: I am only relying on what was put
4 here. I know nothing outside what is in the motions.
5 I have no particular personal knowledge of it.
6 MR. MORAN: Yes, your Honour. Like I said, my feeling is
7 that the Trial Chamber should make an individualised
8 determination of the reasonableness of these kinds of
9 fears.
10 JUDGE KARIBI-WHYTE: I agree, especially when threats come
11 from inside, from an accused person directly. I think
12 one should take it seriously.
13 MR. MORAN: Your Honour, I do not know if there is any
14 evidence that this security guard was threatened by
15 anyone.
16 JUDGE KARIBI-WHYTE: I suppose they are fears associated by
17 what had been threatened to someone else.
18 MR. MORAN: Of course this remains a fact issue for the Trial
19 Chamber to decide and I am just suggesting that it is a
20 fact issue that the Trial Chamber should face and should
21 look at the reasonableness --
22 JUDGE KARIBI-WHYTE: That is true.
23 MR. MORAN: -- of the fears as it applies, especially to this
24 one individual person.
25 JUDGE KARIBI-WHYTE: Thank you very much.
1 MR. O'SULLIVAN: Your Honour, very briefly on behalf of
2 Mr. Delalic, we take the position that this matter is not
3 connected to the indictment and we oppose any further
4 delays in these proceedings.
5 MR. ACKERMAN: Your Honours, the issue with regard to
6 Witness V is directly relevant to my client Mr. Landzo
7 and no one else, and so I think it is probably
8 appropriate that I say something about this motion.
9 It appears that we are having a very hard time
10 getting to the end of this case, and one of the reasons
11 are collateral matters like this that seem to side-track
12 us now and then. I think this is clearly a collateral
13 matter, has no business being brought before this Trial
14 Chamber at this point in time. The basic question that
15 the Trial Chamber must ask with regard to Witness V and
16 the testimony he proposes to give is whether or not he
17 is here to give evidence that is relevant to any part of
18 the indictment in this case. Relevant evidence is most
19 often defined as evidence likely to make an issue of
20 consequence to the determination of the issues before
21 the Tribunal, of consequence to answering the questions
22 that are contained in the indictment.
23 The Office of the Prosecutor suggest to you, both
24 in writing and orally, that the relevance of this
25 evidence, in other words what it is about this evidence
1 that makes it relevant, is that it is evidence of
2 consciousness of guilt. I find that preposterous. I do
3 not know of a jurisdiction where this kind of evidence
4 would be viewed as evidence of consciousness of guilt.
5 Flight evidence in my country is admitted for that
6 purpose. That is where a defendant tries to flee from
7 an impending arrest, a defendant knows that he has been
8 indicted and tries to flee that indictment. I agree,
9 that can be evidence of consciousness of guilt.
10 This is an incredible stretch, to suggest to you
11 that whether or not -- that this alleged evidence,
12 whether or not it is true, is evidence of consciousness
13 of guilt. It can be equally evidence of consciousness
14 of innocence. It has exactly the same quality on either
15 side, and that is why it has no chance whatsoever of
16 making any issue before this Tribunal more or less
17 probable. It is just a waste of your time, it is just a
18 way to keep this case from finally coming to a
19 conclusion by spending a day or two dealing with this
20 collateral matter. We had previously filed a motion
21 asking for a hearing on it, because we thought that that
22 hearing should be held out of fear that you would
23 consider the memorandum that came to you from the
24 Registry as evidence. We have now realised that that
25 was in error, that you clearly would not consider it as
1 evidence unless someone took the next step to formally
2 bring it before you, and that would largely have to be
3 done by your Honours, based upon whether you felt that
4 was necessary or not.
5 So I think at this point the effort to further
6 delay the conclusion of this proceeding by bringing in a
7 matter collateral, on the dubious suggestion that it is
8 evidence of consciousness of guilt, is improper and
9 I think you should reject it and we should get on with
10 Mr. Niemann's presentation of documents, and then on to
11 the balance of the witnesses that are scheduled to
12 appear before you in this case. Thank you very much for
13 your attention.
14 JUDGE KARIBI-WHYTE: Thank you very much. I am not too sure
15 whether I am speaking for more than myself here. What
16 we have before us now are applications for motion to
17 call Witness V, and then another one, protection for
18 Witness V, and then another application to call
19 Witness J. I agree perhaps after that the Prosecution
20 might consider giving us why they now want to call these
21 witnesses. There is nothing like any particular offence
22 before us, there is nothing like that, and much of what
23 you have recounted perhaps might be what the Prosecution
24 has in mind, but we are not too sure whether that is
25 what will result from all this exercise. So at this
1 stage, we are only concerned with the application before
2 us; that is whether these witnesses should be called,
3 and the protection we should give to them.
4 MR. ACKERMAN: Your Honour, I think the Prosecution has made
5 it quite clear why they want to call these two
6 witnesses. It has to do with statements allegedly made
7 by Mr. Landzo and Mr. Mucic which have been set out in a
8 memorandum that came to you from the Registrar. They
9 have not indicated they have any other purpose in
10 calling these witnesses, and I have therefore directed
11 my remarks regarding the irrelevancy of this evidence to
12 the contents of the memorandum that you received from
13 Madam de Sampayo, regarding the report of a security
14 guard as to what Mr. Landzo said on a certain date during
15 the testimony or during a break. I do not think the
16 Prosecution intends to call them for any other purpose,
17 so I think it is rather clear what that purpose is and
18 I think the Prosecutor would agree with me that is what
19 that purpose is. That is not a secret. Rather than go
20 through the exercise of saying, "okay, we are going to
21 grant the motion" and then later hear an argument as to
22 why the witness should not be heard and say, "you are
23 right, we are not going to hear the witness", seems to
24 take up even more of this Tribunal's time.
25 I was hoping all of those issues could be dealt
1 with right now, get it over with, and we would know
2 whether or not we are going to be facing these witnesses
3 tomorrow. I do not think we should be, I do not think
4 it is proper, I do not think it is relevant, I think it
5 is collateral.
6 MS. McHENRY: Your Honour, Mr. Ackerman has correctly stated
7 the reasons the Prosecution is calling these witnesses.
8 It is to provide evidence as is accurately recounted in
9 the Registrar's memorandum. The Prosecution does
10 believe this is relevant evidence for this trial in that
11 it is evidence of consciousness of guilt and I will not
12 repeat my arguments here, but that is why the
13 Prosecution is seeking to call them, and to the extent
14 that at least one witness is coming from a long
15 distance, we do not disagree with Mr. Ackerman that it is
16 acceptable for your Honours to decide it now, whether or
17 not this is -- if in fact the witnesses come and testify
18 consistent with the memorandum, whether or not that is
19 relevant evidence. We do not object to that, and
20 Mr. Ackerman has correctly stated why the Prosecution is
21 calling them, and I will not repeat the Prosecution's
22 argument as to why this is relevant evidence for the
23 trial, but the Prosecution does believe it is relevant
24 evidence for this trial, and as everyone agrees, it may
25 also be supplementary evidence of contempt. But the
1 issue now is with respect to the trial, so we would be
2 seeking to call them as evidence in its case in chief
3 for the charges against these accused.
4 JUDGE KARIBI-WHYTE: We will rise for a few minutes.
5 (4.55 pm)
6 (A short break)
7 (5.10 pm)
8 JUDGE KARIBI-WHYTE: The Trial Chamber has, as quickly as we
9 could, gone into the issue. We find that there is no
10 juridical basis for calling these witnesses. If the
11 other arguments which we think might even be more
12 contentious for calling these witnesses have been
13 considered, the proper procedure for doing so can be
14 undertaken. We are not too satisfied that merely
15 calling witnesses at this stage to give evidence of
16 consciousness of guilt for what was said is not the
17 ideal way to proceed against matters of this nature. So
18 we do not think we can grant the applications which are
19 before us.
20 Have you anything to say about the applications?
21 MS. McHENRY: No, your Honour. We thank you for making
22 such a quick ruling on this so we did not have to bring
23 the witnesses as evidence in our case in chief. We will
24 anticipate bringing these witnesses at another time as
25 evidence of contempt, but there is no reason to do it at
1 the present time, so we will just defer that and talk to
2 the witnesses about their schedules and everything else
3 and then bring it separately. Thank you, your Honour.
4 JUDGE KARIBI-WHYTE: Yes, we thought about that, and we felt
5 perhaps there are procedures for bringing the real
6 offence which was committed.
7 MR. NIEMANN: I just should indicate, your Honours, that we
8 may not either. We may decide not to take the matter
9 any further.
10 JUDGE KARIBI-WHYTE: Perhaps it might even be better if you
11 did not. We refuse your applications. Now we will hear
12 you on your applications.
13 MR. NIEMANN: As your Honours please. Your Honours, the last
14 document we were looking at was Exhibit 125, and perhaps
15 if that can be displayed on the screen. Your Honours,
16 when this particular document was shown to Mr. Moerbauer
17 in his evidence at page 3653, lines 11 and 12, Officer
18 Moerbauer said:
19 "This document was in the binder I5. It was
20 handed to me by my colleague, Navrat, at the police
21 headquarters, Vienna."
22 It was also a document that was shown to the
23 witness Pasalic in the course of his evidence.
24 Your Honours, the Prosecution's application to tender
25 this document is merely on the limited basis that it is
1 part of the series of documents which deal with this
2 particular issue, and it is not sought to be tendered as
3 truth of the contents of any aspect of it that relates
4 to whether or not the accused, Delalic and Mucic, were
5 in any way guilty of the offences that are alleged
6 therein. Indeed, in our submission, your Honour, the
7 reference to the offences as such is not a matter which
8 is relied on by the Prosecution, so it is tendered --
9 sought to be tendered on a very limited basis.
10 It does have a relationship, as I say,
11 your Honours, to the whole range of other documents.
12 I will not take your Honour to every one of them, but
13 I am able to list them, where it is our submission that
14 there is a relationship to them in the mosaic of
15 documents that are tendered. Firstly Exhibit 117 which
16 your Honours have already looked at, but further in
17 Exhibit 145, which is a document which was again found
18 on the premises, and simply is a reference to -- makes
19 reference to the article of desertion under the Criminal
20 Code, Article 217, relating to desertion. Your Honours
21 can see that, there is the article as set out there in
22 part.
23 If your Honours look at the exhibit I am referring
24 to, Exhibit 125, there is a reference there in that
25 article, so the Prosecution seek to tender -- second
1 line, top of the page, there is reference to Article
2 217. The Prosecution seek to tender it as it is part of
3 a series of documents, others which are far more
4 relevant than this document, and as I say, it has
5 indicia of reliability because of the fact that it fits
6 into this pattern. But we go further and say it is a
7 more formal looking document than others I have referred
8 to, because it has a reference there to -- it has a
9 stamp there, which we have seen from other evidence
10 tends to be characteristic of a lot of the documents
11 which we have examined. I move that that document be
12 accepted into evidence. As your Honours please.
13 MS. RESIDOVIC: Your Honours, the Defence of Mr. Delalic
14 objects to this document being admitted into evidence
15 for the reasons already given, but since my learned
16 colleague Mr. Niemann has given me the opportunity to go
17 back to some of those arguments, allow me to present
18 them.
19 First of all, I should like to remind you,
20 your Honours, that discussing the exhibits allegedly
21 seized in INDA-BAU on 9th June already, my learned
22 friend Mr. Turone, in response to a comment on your part,
23 said that for the Prosecutor to prove that a certain
24 document comes from a certain premise, that he would
25 call Mr. Navrat and Mr. Unger. In line with that,
1 your Honours, Judge Karibi-Whyte clearly stated that if
2 the Prosecutor fails to prove each of these elements
3 then not a single of those exhibits would be admitted
4 into evidence. You stated this on 9th June, on
5 page 3647 of the transcript.
6 Later, in your ruling of 25th September, in
7 response to our submission that the value of some
8 documents was being prejudged, you clearly said that the
9 Prosecutor has to prove each of the elements of the
10 case, which means that this Trial Chamber never ruled on
11 the authenticity of these documents. Therefore there
12 are no exhibits that have been proven to have come from
13 the INDA-BAU premises. The Prosecutor has not still
14 proven that any of the offered documents came from the
15 INDA-BAU premises. Witness Navrat, called by the
16 Prosecution, could not recognise a single one of those
17 documents, nor did he mark any of those documents.
18 Therefore, it would be essential for the
19 Prosecutor, when tendering a document into evidence in
20 this court, he should prove where the document comes
21 from, who was its author, and only then to discuss its
22 possible relevance and probative value. However, with
23 respect to document 125, we encounter another problem,
24 whereby the Prosecutor is trying to show you all these
25 documents were in one place, that they are authentic and
1 that they are linked to one another, as he has tried to
2 say with respect to document 124, claiming that there
3 was a thread that testifies to its reliability.
4 This document, on the dropping of charges against
5 Zejnil Delalic and Zdravko Mucic, is a public document
6 and it can be admitted anywhere. As Judge Jan has
7 already noted, many phrases from the other documents
8 tell the story on criminal proceedings against my client
9 and Mr. Mucic. Therefore, to link to a public document
10 several pieces of paper, unauthenticated papers out of
11 the 2,700 bits of paper found in several places,
12 allegedly, in Vienna and Munich, is not a way to prove
13 the reliability of these documents, nor to prove that
14 these documents come from the premises where they are
15 said to have come from. Therefore the authenticity of
16 these documents remains contested, and I think to rely
17 on the thread indicated by the Prosecutor will not lead
18 this court to ignore Rule 89 and Rule 95, according to
19 which a fair trial would be in jeopardy if these
20 documents, documents of this kind, were to be admitted.
21 The next point I wish to make is something that my
22 colleagues have already referred to, and that is that an
23 unauthenticated and unreliable document is being proven
24 with the help of other unauthenticated and unreliable
25 documents, and not with documents as a whole, but with
1 sentences taken out of context. In the story as
2 presented before this court, they are intended to show
3 consistency and to lead us to the conclusion that all
4 these documents are reliable and relevant.
5 Let me, your Honours, draw attention to a
6 technical point. Each time an exhibit is shown to you
7 it is put on the monitor and you see the English
8 translation of that document. I should like to ask my
9 colleagues to put the next documents in the original,
10 and then you will see that these are not documents,
11 these are notes scribbled by various persons whose
12 handwriting was never proven, and which can come from
13 various sources.
14 I would like to refer to the testimony of a
15 witness here when we were talking about the
16 possibilities as to which document was in which folder.
17 The arguments I have already presented that were
18 confirmed by the Prosecutor, and that is the appointment
19 of the 11th, which was allegedly from Vienna, and that
20 it was shown to my client. This is quite incorrect,
21 because what my client was shown was another document
22 with a fax number and this can easily be verified. It
23 is number 1290 and if we review this method of
24 presentation of all documents, including a public
25 document which can be found with the Defence counsel or
1 various people who may have tried to participate in the
2 propaganda or counter-propaganda against my client, and
3 if it is not found to have come from a premises
4 belonging to my client, then the reliability of that
5 document, as well as the reliability of the assertion
6 that it comes from that premises, can also be contested.
7 The risk of linking these documents with other
8 unreliable documents is obvious. If we just go back to
9 the previous document, when the name Saric was discussed
10 and later the name Edib Saric, instead of the Prosecutor
11 relying on the evidence presented in this Trial Chamber
12 and which clearly showed the unreliability of document
13 124, we are being offered elements of unidentified,
14 unauthenticated and highly problematic other documents.
15 Namely, we are coming to the end of the case in
16 chief, we have heard a great deal of testimony. When
17 General Pasalic saw document 124, he immediately noted
18 and said clearly that on 8th December, Tactical Group no
19 longer existed. This same witness confirmed the report
20 he sent to the supreme command and which indicated the
21 position of Edib Saric, of whom we do not know whether
22 he exists and what he is doing. When shown other
23 documents, the witness confirmed as valid those
24 documents. That same witness, General Pasalic,
25 established that Edib Saric was appointed deputy
1 commander of Tactical Group 2, and this has nothing to
2 do with Mr. Delalic or with Tactical Group 1.
3 Also, another document has been admitted into
4 evidence which clearly shows that Edib Saric, if all the
5 Prosecutor wanted to refer to him in support of this
6 thin thread of consistency, we see from that document
7 that Edib Saric is a liaison officer in a temporary
8 command of the group JUG. Therefore the evidence that
9 we heard, with the help of a witness whose testimony we
10 heard, is real proper evidence on the basis of which we
11 can verify the validity of these documents. Bits of
12 paper with problematic translations which we were unable
13 to compare because some of the writing is quite
14 illegible is not a way to prove the reliability or
15 relevance of any document.
16 I have said all this referring to a document which
17 may be official and is not disputed, but what is
18 disputed is that the Prosecutor in this case, as in all
19 others, could not prove where it came from, the source
20 of that document, because Navrat could not recognise
21 this document. For these reasons and the reasons we
22 presented earlier, I propose that this document, as well
23 as the previous one, not be admitted into evidence.
24 MR. NIEMANN: Your Honour, might I just quickly respond? One
25 at a time I think might be easier. Your Honours, the
1 issue of whether or not there was a search of the
2 premises and whether the documents were legally seized
3 has been dealt with and disposed of by your Honours.
4 I note what Madam Residovic has said about this being a
5 public document and could be admitted anywhere and
6 I rely on it.
7 MR. GREAVES: Your Honour, in my submission there are three
8 problems the Prosecution have. I note what my learned
9 friend has said about my learned friend Ms. Residovic's
10 comments.
11 Firstly, this document lacks any form of relevance
12 or probative value. It is not probative of any fact or
13 issue in my submission. Secondly, as far as the quality
14 of the document is concerned, it is asserted that it is
15 a public document. Your Honour, a number of remarks are
16 made by my learned friend, and I will return to those in
17 a moment, about the quality of the document. Of course,
18 as my learned friend Mr. Ackerman said earlier on this
19 afternoon, on Friday we had the keeper of documents,
20 custodian of documents, come and prove public
21 documents. The Prosecution, and this is their third
22 problem in my submission, does it on this occasion in a
23 quite different way.
24 When we assert the Prosecution has to prove a
25 document, we did not have in mind that counsel for the
1 Prosecution would be giving evidence as to the
2 provenance of the document. What my learned friend has
3 said is this: it is typewritten, it bears a seal at the
4 bottom of the document, it appears -- note that word,
5 "appears" to be signed -- it has all the appearance of
6 a formal document of the type that your Honours has
7 seen.
8 Then a moment or two ago, he said:
9 "It is a more formal looking document than others
10 I have referred to because it has a stamp there which we
11 have seen from other evidence tends to be characteristic
12 of a lot of the documents we have examined."
13 Your Honour, in my submission it is not right that
14 counsel for the Prosecution should give evidence and
15 say, "this is an authentic document"; that is for others
16 to give evidence about and prove. That is why they had
17 the keeper of records here last Friday.
18 So in my respectful submission, there is no
19 evidence that this document is a genuine one, not least
20 because he asserts it has a stamp on it: there are very
21 many people out there in the world who are very skilled
22 at producing such stamps, and in my country during the
23 Second World War, there was a whole army of them in
24 prisoner of war camps doing precisely that; fooling our
25 German friends up hill and down dale. That is why you
1 have to prove the document, you have to prove that it
2 has a genuine stamp. That is why you call the keeper of
3 records to say, "I recognise this as a genuine stamp".
4 It is not for counsel for the Prosecution to give
5 evidence and do it instead.
6 JUDGE KARIBI-WHYTE: Have you any response to this?
7 MR. NIEMANN: Yes, your Honour. Very quickly, it seems to
8 be -- two things seem to be asserted. One is that I am
9 giving evidence, which is not true. What I am doing is
10 taking your Honours to the documents. The documents
11 speak for themselves. It is entirely appropriate for
12 counsel to refer to what a document says and show
13 your Honours by reference to the document what is being
14 said or what it shows. This is well known by counsel.
15 Secondly, your Honours, it seems to be argued that
16 there is only one way that a document can be admitted
17 into evidence and one way only, and that if the
18 Prosecution does not proceed pursuant to that one way
19 then that is the end of the matter, the thing is not
20 admitted. This document is not in the possession of the
21 keeper of records; this document was found at the
22 premises in INDA-BAU. Your Honours, it is the fact that
23 it was found at the premises of INDA-BAU, which is a
24 piece of evidence which the Prosecution considers to be
25 a very important part of the evidence. You do not
1 bring -- if the original of the document was there,
2 your Honours would say, quite rightly, "what is the
3 relevance of this document?" It is because of where it
4 was found; it is because of where it was located,
5 because of its relationship to other documents, that
6 makes it relevant and admissible and important, in our
7 submission.
8 So it is not correct to simply say, "the only way
9 it can be done is to call the keeper of records". On
10 its own, in isolation, calling the keeper of records,
11 your Honours would have a very legitimate question; "why
12 are you trying to put this into evidence?" In my
13 submission, your Honour --
14 JUDGE KARIBI-WHYTE: Let me find out exactly the proposal of
15 entering these documents as exhibits. Is it for the
16 authenticity of the documents or the content of what the
17 documents themselves represent?
18 MR. NIEMANN: Your Honours, the highly significant aspect of
19 them is what they say and where they were. It is just
20 the same as what often happens in so many cases that
21 your Honours will be familiar with, where the police go
22 in and execute a search warrant at the premises of a
23 person who is subsequently charged with an offence.
24 There is a whole range of things. One might be, in a
25 drug case, tendering a set of scales. A set of scales
1 might be an innocent kitchen appliance used for baking
2 cakes or something, or it could be a basis upon which
3 people weigh out heroin or some other form of drugs.
4 Just simply saying that you need the manufacturer of the
5 scales to come along to tender them is a nonsense. It
6 is where they are found that is the significant aspect
7 of it and their contents, in our submission.
8 JUDGE KARIBI-WHYTE: I think we have had enough for today.
9 We should continue tomorrow morning at 10.00, if you
10 still have more documents.
11 MR. NIEMANN: I have more documents, your Honour.
12 JUDGE JAN: How many more?
13 MR. NIEMANN: About 20, your Honour.
14 JUDGE KARIBI-WHYTE: Are you sure you have not covered the
15 ground yet for which these documents might be ...
16 MR. NIEMANN: Your Honours, I can assure you I would be
17 delighted to simply tender them in one exercise and it
18 be over with, but I fear that is not going to be
19 possible. I have to deal with them individually,
20 regrettably.
21 JUDGE KARIBI-WHYTE: Thank you very much.
22 (5.35 pm)
23 (Court adjourned until 10.00 am the following day)
24
25