1 Thursday, 14 December 2006
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.05 a.m.
5 JUDGE AGIUS: Madam Registrar, would you call the case, please.
6 THE REGISTRAR: Good morning, Your Honours. This is case number
7 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.
8 JUDGE AGIUS: Thank you. Good morning to you.
9 THE INTERPRETER: Microphone, Your Honour.
10 JUDGE AGIUS: Defence seem to be all here. Prosecution,
11 Mr. Thayer, Mr. McCloskey, and all the accused are here. All right.
12 So before we bring in the witness, please, there are a couple of
13 things. You will recall some time back we were dealing with a Prosecution
14 motion for protective measures relating to two witnesses in particular,
15 Witness number 70 and Witness number 80. This was filed on the 4th of
16 December after an invitation by ourselves. Basically, in its motion the
17 Prosecution requested the continuance in force of the protective measures
18 which had been granted in Krstic.
19 Going through the records of file before proceeding for our
20 Christmas and New Year's recess, we noted that although we have already
21 ruled orally as regards Witness number 70, we haven't finalised the
22 protective measures process relating to Witness number 80.
23 In Krstic, this individual was granted pseudonym and both voice
24 and facial distortion. Our proposal to you is, if you can try and refresh
25 your memory on this, our proposal is that we try and rule orally on this
1 before we go into recess, and I would appreciate if I have a joint
2 response from the Defence teams.
3 The other thing is perhaps more important, although the first one
4 is also important, of course, but what I'm going to say now, please, is
5 take it as guidance on something that we believe is of imperative, of
6 paramount importance.
7 Now, we have these last weeks been dealing with testimony relating
8 or concerning intercepts. The Defence teams have at different stages of
9 these proceedings, even basically before we started the trial proper,
10 intimated that they had serious concerns and serious objections relating
11 to practically all intercepts that the Prosecution meant to introduce
12 in -- in evidence in this case.
13 We also intimated to you that more or less although many of the
14 decisions that we will take on admissibility issues will be reserved to
15 the final stages of the trial when we are deliberating. Intercepts is not
16 one of them. Intercepts is a matter that we would like to deal with and
17 decide upon during the trial, during the trial, so that you are all in a
18 position to know where we stand and where you stand in relation to these
20 So we've been more or less thinking about how best to proceed. We
21 haven't concluded the testimony on intercepts, on intercepts, but we have
22 gone far enough to enable us to give you guidance. So our intention is to
23 rule on these intercepts and their admissibility when all the evidence on
24 them has been led by the Prosecution. That's when we intend to rule on
25 the admissibility. In other words, it would give you -- this would give
1 you the opportunity of knowing what the case of the Prosecution is
2 relating to these intercepts, and then you should be in a position to make
3 your submissions on the admissibility aspects of these -- of these
4 documents or on these pieces of evidence.
5 So our intention is to alert you already that more or less at that
6 stage we'll be requesting you to provide us, the Trial Chamber, with
7 written submissions and listing and explaining your arguments and
8 objections regarding each intercepts. You will, of course, make
9 submissions of a general nature but also of a specific nature. And of
10 course the Prosecution will be given adequate time and opportunity to --
11 to respond.
12 This is what we basically wanted to alert you to, giving you prior
13 notice that will be as soon as we have an indication that the Prosecution
14 hasn't got any further substantive material evidence to lead in relation
15 to these intercepts, then we are going to call on you and give you
16 adequate time to file these objections or arguments and submissions.
17 Yes, Mr. McCloskey.
18 MR. McCLOSKEY: And I don't wish to complicate the issue, but as
19 you may imagine that once the intercept operators are over, and I guess
20 that's what you're talking about, there will be voluminous evidence from
21 people that are involved in conversations, documents that correspond to
22 the conversations, all that material which will probably go to the end of
23 the case, but I understand that that's not what you're talking about,
24 and -- but that is all part of the intercept package, of course.
25 JUDGE AGIUS: Of course. That is fully understandable, and that's
1 exactly not what we had in mind.
2 Yes, Mr. Zivanovic.
3 MR. ZIVANOVIC: [Interpretation] Thank you, Your Honour.
4 I think that this could be applied not only once we're done with
5 all intercept operators but also when we examine the expert -- or, rather,
6 not the expert but the investigator who worked on intercepts, which is
7 Mrs. Stefanie Frease.
8 JUDGE AGIUS: Mr. Ostojic.
9 I think that's a very good idea Mr. Zivanovic.
11 MR. OSTOJIC: Good morning, Mr. President, Your Honours.
12 I actually wanted to make a submission, and quite frankly the
13 point was on the intercepts, and it's our position that we not only
14 suspect but we reasonably believe that these intercepts were either
15 recreated or created at a time between the period from 1995 when they
16 allegedly made those entries through 1998. There's absolutely no evidence
17 whatsoever to establish this chain of custody that is required for these
18 intercepts. We've seen from, I think, almost every witness and perhaps
19 I'm exaggerating, but I think it's every witness, quite candidly, that
20 there are numerous -- no, no, but I'm making a submission, that there are
21 numerous --
22 JUDGE AGIUS: We will require the submission at the right time.
23 We don't need it now.
24 MR. OSTOJIC: I'm making a submission right now, Your Honour.
25 Before -- I think it's premature to even suggest to rule on evidence
1 after it is concluded until this Court orders an independent expert to
2 review these books, especially book number 22. I'm asking for an
3 independent review not in a review from the OTP's experts, and I'm asking
4 that because our funds are actually, quite frankly, restrained and we
5 don't have that much money. So I think this Court can respectfully under
6 its guidelines proprio motu order an expert from Holland or preferably
7 someone from Italy where these books were generated from to examine both
8 the paper, the document quality, as well as the ink imprintations as well
9 as the handwriting samples. Those three things one expert can do within a
10 given 30- to 45-day period, I would suggest.
11 I'm asking this Court, given what the Court said and given what
12 the testimony is, that it orders that these documents be seized and either
13 turned over to the Defence so that our expert can make that analysis on
14 these documents, or that the Court takes it upon themselves and give to an
15 independent expert, preferably in Italy.
16 Thank you, Your Honour.
17 JUDGE AGIUS: Don't expect us to comment on that today,
18 Mr. Ostojic. If we are seized with an ad hoc motion on -- on the matter,
19 of course you will hear what we have to say and when we think we ought to
20 say it.
21 Yes, Mr. Thayer.
22 MR. THAYER: Good morning, Mr. President, Your Honours. Good
23 morning all.
24 I just wanted to alert the Court to our tentative schedule with
25 respect to the remaining intercept operators, just maybe to give everybody
1 an idea of the approximate time frame.
2 We have approximately, I believe, 15 intercept operators left,
3 assuming that the Court admits the testimony of some of these intercept
4 operators we've identified pursuant to the Chamber's 92 bis decision.
5 I think we've scheduled them basically through the end of January.
6 Given the way even an optimistic estimate things have been going, that
7 will probably take us through sometime in February. That would also
8 include the testimony of Ms. Frease to whom my learned colleague just
10 JUDGE AGIUS: I imagine so. I took that for granted.
11 MR. THAYER: So that's just the approximate time period, and
12 that's a pretty optimistic estimate, I'm afraid. That's basically one
13 day. Although these are going to be pure intercept operators. There's
14 going to be one supervisor from -- from MUP that we intend to call. Some
15 of the intercept operators have more intercepts than others, but that's
16 our general estimate right now.
17 JUDGE AGIUS: Thank you, Mr. Thayer, but I think -- let me make it
18 clear. The message is twofold. One is for the Defence to know that we
19 would be expecting you to come forward with your objections. After that
20 you have had an opportunity to know what the Prosecution evidence in
21 regard to intercepts is.
22 The second is that since we are giving this indication to the
23 Defence teams, you have a responsibility to group together the witnesses
24 on intercepts and conclude that phase of the trial as early as possible so
25 that, in other words, you don't fragment the evidence leaving some
1 important like Ms. Frease's testimony to a later stage which would
2 frustrate the whole purpose of the exercise.
3 I think we have said enough on it.
4 [Trial Chamber confers]
5 JUDGE AGIUS: More than enough I've been told. Thank you.
6 So I think we can bring the witness in.
7 [The witness enters court]
8 WITNESS: WITNESS PW-133 [Resumed]
9 [Witness answered through interpreter]
10 JUDGE AGIUS: Mr. Ostojic.
11 MR. OSTOJIC: Thank you, Mr. President.
12 Cross-examination by Mr. Ostojic: [Continued]
13 Q. Witness --
14 MR. OSTOJIC: May I proceed, Your Honour?
15 Q. Witness, sir, yesterday we spoke about how you determined who the
16 participants were in the conversation at tab 1 who were supposedly
17 Mr. Beara and Mr. Krstic. Since your testimony in the Blagojevic case is
18 being offered as evidence, sir, I wish to read the portion of that
19 testimony and to have you just explain that answer to me.
20 And it begins for Your Honours and my learned friends is on
21 page 4141, lines 1 through 17, I believe.
22 Sir, in that testimony they asked you how you determined that
23 they, Colonel Ljubo Beara and General Krstic were the participants in the
24 conversation, and I'd ask that you please listen carefully to your answer
25 on line 4, which states as follows: "Well, first of all, we would always
1 recognise Krstic's voice because he spoke on a number of different
2 occasions. You soon became familiar with his voice because he had a very
3 powerful, resonant voice. We always recognised Krstic. If sometimes we
4 didn't catch the introductory part of the conversation where they would
5 introduce themselves, they would sooner or later in the course of the
6 conversation say their names. If there was no way for us to know who the
7 speakers were, we would just put two question marks, speaker A question
8 mark, speaker B question mark. But if you look at the text of the
9 message, the way they speak to one another, they keep using their names.
10 So it was easy for us to understand who the participants were. This was
11 the channel or, rather, the frequency that he very often spoke on. It was
12 his phone. There were several ways for us to ascertain this."
13 Sir, I'd like you to look and if we can put on the e-court or if
14 we can have the tab, I'm not sure where the book was that the witness had
15 yesterday with the various intercepts, if he could take a look at that as
17 JUDGE AGIUS: I would imagine he still has it or --
18 MR. OSTOJIC: It's not before him, Your Honours, so ...
19 JUDGE AGIUS: So if we could make it available, please.
20 MR. OSTOJIC: And he may not need it.
21 Q. Sir, given your answer in Blagojevic on the 7th of November, 2003,
22 can you point out to us where Mr. Beara's name was mentioned and how was
23 it determined that you found that it was Mr. Beara in this conversation?
24 A. Just a minute, please.
25 MR. OSTOJIC: While he's looking, Your Honour, if I can just ask,
1 for purposes of a speedy conclusion to this, if we could have the original
2 logbook with the witness and we'll be looking at that on e-court next.
3 JUDGE AGIUS: And I think it's the Prosecution that has to help us
4 there. Madam Usher will oblige.
5 MR. OSTOJIC: Thank you, Your Honour.
6 THE WITNESS: [Interpretation] Looking at my transcript, the
7 happened written portion, there most likely was an introductory part in
8 this conversation which I did not transcribe. Normally the person from
9 the switchboard operator -- switchboard would make the connection between
10 the participants. Typically the one making the call, say, General Krstic,
11 would say, "Would you please get Beara for me, get Ljubo Beara for me."
12 Q. I understand that. I just want to ask you, do you have an
13 independent recollection of this conversation or are you just speculating
14 as to what may or may not have happened?
15 A. I'm not speculating. Based on my experience, based on how I did
16 this, I'm telling you how it was.
17 Q. So your --
18 A. Based on my experience.
19 Q. So you're telling us, sir, you remember the conversation as you
20 sit here today; correct?
21 A. This conversation is familiar, as is my handwriting. But as for
22 the response that you're looking for, namely how I recognised that it was
23 Ljubo Beara, I'm just simply telling you on what basis I was able to
24 recognise. I'm sure that on the switchboard his name was mentioned, and
25 then in the following portions of the conversation Krstic mentions Ljubo,
1 talks to him. His name, Ljubo, is mentioned.
2 As for Ljubo's voice, we had listened to it not only in this
3 dispatch but many times before that. The conversations frequently in
4 which he participated were not relevant, so we would not transcribe them.
5 Q. Well, sir, can you tell me why in November of 2003 you didn't
6 simply answer that when the Prosecutor asked you the question and answer
7 that I just read to you moments ago? You only mentioned that you
8 recognised Krstic's voice, that you felt his voice was rather
9 characteristically unique, and then you go on to proceed that in the
10 course of the conversation they say their names. And I submit to you,
11 sir, that nowhere in the course of the conversation does Mr. Beara say his
12 name, and nowhere in the course of the conversation does General Krstic
13 refer to the gentleman he's speaking to as Mr. Beara. Do you see that?
14 And explain to us why you didn't say that to the Court while you were
15 under oath in November of 2003.
16 A. Probably because the question was not formulated as you formulated
17 it now. Otherwise, I would have given a different answer. For example,
18 in one of lines it says, "Ljubo, this is not a secure line." So we know
19 that this was Ljubo. We knew his voice. We knew that there was an
20 introductory portion when the switchboard made the call. We knew that
21 Krstic had to make the call, otherwise how would he get Ljubo on the other
23 So I simply didn't write "Ljubo" down, but as soon as I heard who
24 was calling whom, I put the names of participants above the conversation.
25 I simply wasn't interested in anything after that.
1 Q. So is it fair to say, sir, that if you were asked a question how
2 did you determine that they were the participants in the conversation, you
3 would have answered it the way you did today; correct? Like you just did.
4 Is that what you're telling us? That the question was improper and had
5 they only asked the question of how did you determine that they were the
6 participants in the conversation, then you would have obviously told them
7 about the introductory material, the recognition of Mr. Beara's voice,
8 et cetera. Is that what you're suggesting?
9 JUDGE AGIUS: Yes, Mr. Thayer.
10 MR. THAYER: Your Honour, I believe that was answered at line 9.
11 JUDGE AGIUS: His answer before, or also last answer was probably
12 because they didn't ask me the question the way you asked. So otherwise I
13 would have told them.
14 MR. OSTOJIC: And I'm asking if that's the question that would
15 have -- no, but there's a reason -- wait, wait.
16 JUDGE AGIUS: He's been repeating that there were two fundamental
18 THE INTERPRETER: Could the speakers please not overlap.
19 JUDGE AGIUS: That he and they were familiar with the voices. And
20 secondly, that there was an introductory part. So I mean --
21 MR. OSTOJIC: What I would like just the Court to focus on, and
22 I'll move on, is if the Court looks specifically at the question on
23 page 4141, on line 2 and 3, which is the very question that this witness
24 seems to suggest that he would have answered it if he was asked that
25 question and in fact he was asked that question. But in any event.
1 Q. Sir, let me ask you this, clarify this for me: You remember the
2 conversation and the meeting you had with Stefanie Frease in November
3 1999; correct?
4 A. Yes, I remember.
5 Q. Here is what Ms. Frease says in her information report after
6 meeting with you relating specifically to that conversation on page 2,
7 second to the last paragraph. She will states: "He," meaning you,
8 sir, "read the conversation but did not recall it."
9 Is she wrong, sir? Isn't that what you told her, that you don't
10 recall the conversation at all?
11 A. I answered your question as to whether I remember the
12 conversation, referring to the conversation with Ms. Frease. I remember
13 that. I remember that she showed me this conversation.
14 Now, as to whether I remember this particular conversation, the
15 year when it took place, I most likely was not able to remember it and
16 most likely that's how I answered. I remember Ms. Frease showing this
17 conversation to me. I remember that.
18 Now, as for the particular conversation which took place back
19 then, it would be hard for me to remember it. It would be very hard.
20 Even back then it was already six years after the fact.
21 Q. Now, sir, what are the characteristics of Mr. Beara's voice that
22 you recall, if any?
23 JUDGE AGIUS: This is the third time --
24 MR. OSTOJIC: Fair enough, fair enough. I'll move on.
25 JUDGE AGIUS: -- the question is being asked and he --
1 MR. OSTOJIC: Fair enough, Your Honour.
2 Q. Sir, let me turn to the logbook that's next to you specifically
3 with the ERN number with the last four 4528. Do you see that next to you?
4 A. Yes.
5 Q. Sir, do you see -- thank you. See the handwriting that's on the
6 page that starts at approximately 1450, I think, from the copy? Do you
7 see that handwritten entry of a captured conversation? Yes, right there.
8 Do you see that? It's right there in front --
9 A. Just one moment, I want to find it.
10 Q. No, no. Don't turn the page. It's on that page. On the right
12 A. Left or right? Yes, I do remember it. I see it. Yes, 100
13 per cent.
14 Q. [Previous translation continues] ... Okay. Maybe I'll finish the
15 question, and we'll --
16 A. [In English] Okay. Sorry.
17 Q. No, it's my fault, thank you. Sir, is the conversation that's
18 reflected on this page and on the next page a conversation that you
19 captured and recorded, meaning wrote down?
20 A. Yes, that's my handwriting.
21 Q. Sir, who wrote the date 11.7.1995 before above the conversation?
22 A. That's my handwriting. I did it.
23 Q. [Previous translation continues] ... solve this for us, sir.
24 Given your testimony both in Blagojevic and here yesterday, I thought you
25 don't usually write dates of conversations, and then you explained to us
1 that you allegedly wrote the date of the conversation on the 16th of July,
2 1995. Sir, just tell me, do you write dates of a conversation before you
3 actually record or capture the conversation? Do you do it after, or do
4 you do it during the conversation?
5 JUDGE AGIUS: Mr. Thayer.
6 MR. THAYER: Your Honour, I think we've gone over this ground
7 sufficiently whether or not he writes the date of the conversation every
8 time he transcribes an intercepted conversation or not.
9 [Trial Chamber confers]
10 MR. OSTOJIC: If -- Your Honour, if I can just reply briefly.
11 JUDGE AGIUS: Yes.
12 MR. OSTOJIC: We never covered the 11th of July, 1995, and I think
13 it's -- and that's the only comment I need to make.
14 JUDGE AGIUS: But that is a completely different matter. You've
15 covered the other two matters, namely you've asked questions to the
16 witness in relation to writing dates, whether there was a specific
17 instruction and he's explained that. So that has been covered. He has
18 explained that there were times when he wrote it at the end of his shift.
19 And you have also covered the issue of when the transcript was effected,
20 whether it was effected during the -- the listening process or whether it
21 was done after, and that again has been covered by the witness, explaining
22 that when it was something short they would do it. Otherwise, they would
23 leave it.
24 Now you are moving, adjusting your question or the relevance of
25 your question to the issue of the 11th, the events of the 11th of July.
1 If you're restricted to that, yes, go ahead, but please don't try to cover
2 again the --
3 MR. OSTOJIC: I'm not, Your Honour.
4 JUDGE AGIUS: But you were with the previous question.
5 MR. OSTOJIC: I apologise if I was, Your Honour.
6 Q. Can you tell us, sir?
7 JUDGE AGIUS: Tell us what?
8 MR. OSTOJIC: To answer the question.
9 JUDGE AGIUS: I told you you cannot maintain the same question.
10 MR. OSTOJIC: Oh, okay. I didn't understand that. Okay, I'll ask
12 JUDGE AGIUS: I will polish my English. What can I say?
13 MR. OSTOJIC: [Speakers overlapping] -- perhaps didn't get the
14 proper translation, Your Honour, with all due respect.
15 Q. Sir, how is it on the 11th of July, 1995 you put the date at the
16 beginning of the conversation?
17 A. I said usually. Sometimes I would write it down and sometimes I
18 wouldn't. If I didn't write it in, I knew that it would be put in when it
19 was being entered into the computer. I -- if I did put it in, then it was
20 good, otherwise, I knew that it would be put in later. There was no
21 strict rule.
22 Q. Thank you, sir. Now I'd like to turn to the next five pages or so
23 to ERN number with the last four digits 4535, and that's the intercept
24 that is at tab 1 of your book, sir, that you already have in front of you.
25 Yesterday we were already starting to cover the first four entries of this
1 intercept. And, sir, is it fair to say with respect to the name
2 Sladojevic it is incorrectly placed in that first section of the
3 intercept? Is that your position, that it was a mistake?
4 A. I think that it was, yes.
5 Q. Sir, also the name, the other name that you use, Tasic, that you
6 entered on the fourth line of this first part of this conversation, that
7 was also a mistake; correct?
8 A. I believe that it was.
9 Q. And, sir, am I correct that you form the basis of this opinion
10 after the Krstic trial but before the Blagojevic trial; correct?
11 A. I came to that conclusion probably when we were trying to enter
12 this intercept onto the computer, because then we were working much more
13 precisely, and then if we needed sometimes we would call for help to be
14 able to transcribe everything. So as for the computer typed intercepts,
15 we were trying to be as precise there as possible.
16 Q. Let me ask you this, sir: Given on these first four lines or
17 first quarter, as I call it, of this intercept, given that you made two
18 mistakes, two errors in names, sir, why didn't you go back to the logbook
19 and simply correct the name? It's in pencil. You could have either
20 scratched it out or wrote over it, could you not?
21 A. Yes, you're right. Had I known I would be re-reading it, I would
22 have done that. I tried to do it properly on the computer entry. These
23 were notes, notes. Sometimes we used papers, and the notebook was used to
24 jot down notes. But when we were typing it into the computer, then we
25 would really did our best to do it properly, because that was the text
1 that was sent to the centre. The handwritten ones did not go there.
2 Q. Do you recall, sir, as you sit here today whether or not you had
3 to call for help or assistance to have this intercept transcribed?
4 A. I really don't know at this point, but if I couldn't transcribe
5 something myself, I always welcomed help. Perhaps somebody could hear
6 better, was at that point better, inclined to pick up whatever that was.
7 As for this intercept specifically, I really don't remember
8 whether I did that or not.
9 Q. All right. Let's look at the next four lines if you will, sir,
10 where it starts with the initial B on a colon. And the first line
11 says, "But I don't have any here." Do you see that? What doesn't he
12 have --
13 A. Yes.
14 Q. -- in here?
15 A. I would have to read the whole dispatch to see what isn't there.
16 Q. [Previous translation continues] ...
17 A. Just like this right now.
18 Q. Well, you've had 15 or so days ago when you met for five days with
19 Mr. Thayer, I presume you read the entire dispatch; correct?
20 JUDGE AGIUS: Yes, Mr. Thayer.
21 THE WITNESS: [Interpretation] But that was 15 days ago.
22 JUDGE AGIUS: Yes.
23 MR. THAYER: Your Honour, if I understand the question well, it
24 sounds like my learned colleague is asking the witness to get into the
25 mind of the callers in terms of what Colonel Beara is saying he doesn't
1 have any of. Now, if the question is specifically based on what he wrote
2 down, if there's some linguistic or if there's some other reason tied to
3 his actual transcription, I think that's a fair question, but the way it's
4 asked it sounds like he's asking for speculation based on the state of
5 mind of Colonel Beara.
6 JUDGE AGIUS: Also based on what we have heard before that he
7 doesn't remember this conversation.
8 MR. OSTOJIC: We're going --
9 JUDGE AGIUS: He recognises, he recognises what is written there,
10 but I think he's said on more than one occasion that don't ask him details
11 on the conversation itself because he doesn't remember.
12 MR. OSTOJIC: I think, with all due respect, Your Honour, if every
13 witness comes here and simply says I don't recall details, then they won't
14 look at any document and simply just tell the Court I can't testify to it,
15 I don't recall details. If he really wrote this conversation, this is an
16 opportunity that we can refresh his recollection on the document and he
17 can tell us whether or not he knows.
18 I don't understand the objection by my learned friend. It is
19 quite frankly inappropriate to suggest that there's merely linguistical
20 problems with it, and it's inappropriate for him to conclude as he did as
21 to who the purported participant of the conversation is.
22 But I'll proceed and I'm ask the next question.
23 Q. Sir, in the first four lines do you see where it says, "But I need
24 30 men." Do you see that? Next time the B, the initial B starts to speak
25 he says, "But I don't have any here." Do you see that? Do you see that?
1 A. Thirty people. Then the next one is take from Tasic or
2 Sladojevic. I can't pull up anything from here. Then the next line
3 is, "I don't have any here. I need them tonight, and I will -- today, and
4 I will return them this evening." "Krle, please understand. I cannot
6 So Beara is asking for 30 people from Krstic. I don't know if I'm
7 right, but that's what I conclude on the basis of what is written here.
8 Q. Now, you mentioned in your direct examination with Mr. Thayer
9 after you met with him for five or so days that you knew Mr. Beara or he
10 was a well-known figure; correct?
11 A. He was known to us.
12 Q. Well, tell us, sir, at that time what you knew Mr. Beara's
13 position to be and/or his duties.
14 A. Right now I don't remember that, what he was, who he was. What
15 was important to me was to note down his conversations, but as for the
16 rest, there was a service there whose job it was to analyse all of that.
17 We were just taking down the intercept, helping each other to get it down
18 correctly. But the proper technical analysis was conducted at the place
19 where it was supposed to be conducted.
20 Q. And that was where, sir?
21 A. That was the place where we were sending the computer typewritten
23 Q. And in the second -- again we're looking at the second four
24 entries. The initial B, supposedly Mr. Beara, says, "I need 15 to 30 men
25 with Boban, Indjic. I can't do anything."
1 Do you see that? Do you see that? What --
2 A. Yes, yes.
3 Q. What can't he do, sir; do you know? What --
4 A. Yes, I see that part.
5 Q. What can't he do; do you know?
6 JUDGE AGIUS: Again, the question shouldn't be that. What you
7 should be asking him -- how can he answer for what allegedly the other --
8 the person --
9 MR. OSTOJIC: I'll try to explain.
10 JUDGE AGIUS: [Speakers overlapping] --
11 MR. OSTOJIC: If the Prosecutor wants to bring a witness to
12 suggest that Mr. Beara was well known but he doesn't know how he's well
13 known but he understood his voice but can't recall what the
14 characteristics are, quite frankly maybe this witness somehow, Your
15 Honour, can speculate to the fact that he would know what was meant when
16 Mr. Beara said that.
17 JUDGE AGIUS: Then make your submissions later when the witness is
18 not here and --
19 MR. OSTOJIC: I think that --
20 JUDGE AGIUS: -- when you come to submission stage.
21 MR. OSTOJIC: I think I have a right to put the case to the
22 witness, Your Honour.
23 THE INTERPRETER: Could the speakers please not overlap.
24 JUDGE AGIUS: You are perfectly right, but Mr. Ostojic should
25 learn to let me finish what I'm saying.
1 MR. OSTOJIC: That was my fault. I apologise, Your Honour.
2 JUDGE AGIUS: So Mr. Ostojic, you can -- the witness has already
3 told you that his job was to transcribe what he heard. His job is not to
4 explain to you what he thinks if he thinks the interlocutors taking part
5 in the conversation had in mind when they were -- how can he explain
7 MR. OSTOJIC: I move on, Your Honour. I respectfully disagree
8 with the Court but I will move on.
9 Q. Sir, on the next four lines --
10 JUDGE KWON: Mr. Ostojic, if I can interrupt you a minute.
11 MR. OSTOJIC: Please.
12 JUDGE KWON: Mr. Witness, Witness PW-133, just now, just a little
13 time ago, you said that you don't remember what Mr. Beara was or who he
14 was at the time, but you are saying still you remember that you were able
15 to recognise his voice. I have some difficulty understanding that. How
16 can you remember that you recognise at the time Mr. Beara's voice while
17 you don't remember who he was or what he was? Could you explain that to
19 THE WITNESS: [Interpretation] Yes. I have been a ham radio
20 operator since I was 17, and I've spent thousands and thousands of hours
21 with headphones on and with the equipment. So I was in a situation when I
22 was on a frequency and I heard a conversation, I would know who it was
23 because I had heard them before. I would be able to recognise who the
24 people were who were speaking without having to have them introduce
1 As a ham radio operator, I had trained my sense of hearing so much
2 to be able to recognise the modulation of people, many people, not just
3 Beara. At that time when I was listening to somebody frequently, the
4 modulation would remain in my head. I can't recall how long it would
5 stay. Right not perhaps I cannot recall, but at that time I was 100
6 per cent familiar with that voice and I knew it and recognised it.
7 JUDGE KWON: Mr. Ostojic, was it your submission that Mr. Beara
8 appears only this note as one of the participants in the intercepted
9 conversation? Is it true? Only in this notebook?
10 THE INTERPRETER: Microphone, please.
11 JUDGE KWON: In total how many?
12 MR. OSTOJIC: I believe in total there's two, I think, where he's
13 a participant, I believe.
14 JUDGE KWON: A participant.
15 MR. OSTOJIC: Two or three, and then there's a total of, I
16 think --
17 JUDGE KWON: I'm sorry I'm overlapping. And how many notebooks?
18 MR. OSTOJIC: I think over two notebooks, Your Honour.
19 JUDGE KWON: Two notebooks in total of how many notebooks do you
21 MR. OSTOJIC: Two hundred.
22 JUDGE KWON: So I take it to be true, Mr. Witness, there are two
23 intercepts, two intercepted conversations among more than 200 notebooks.
24 Then I think you answered in some way -- in one way or another, but I'd
25 like to hear your explanation again. There's only two conversations which
1 were intercepted. Then one may think that you are saying that -- you are
2 saying that you were able to recognise Mr. Beara's voice. Maybe -- yes,
3 one may find it difficult to follow what you're saying, that you were able
4 to recognise Mr. Beara's voice. So if you could explain it to me again.
5 THE WITNESS: [Interpretation] I will try. Those two intercepts of
6 Mr. Beara were written down. I agree with that. But there are many, many
7 conversations of his that were not written down. They were simply not
8 that important. Maybe it was his conversation with his ex-wife or
9 something, we had a lot of conversations like that, or with his children,
10 or private conversations.
11 Another thing, that tape, if I listened to it before and if it was
12 difficult to transcribe it, I would have to listen to the tape five or six
13 times. So then hopefully after having listened to it so many times I
14 would manage to recall his voice and his modulation. I didn't hear him
15 only one single time and that was it. I was able to hear him from the
16 tape many times. And also, I heard him many times in unimportant
18 As a ham radio operator, I was trained and I had the ability to
19 recognise modulations. That was very important to us in -- in amateur
20 radio world. Perhaps I had the natural gift for such a thing. But at
21 that time I was able to recognise and remember his modulation.
22 JUDGE KWON: And after having read these intercepts and having
23 gone through all the notebooks, you still don't remember who Mr. Beara was
24 and what Mr. Beara was at the time?
25 THE WITNESS: [Interpretation] I still don't recall who Mr. Beara
1 was. Every time I go back home from here I would try not to remember
2 anything. I just had to struggle to make a living. All of these things
3 are something that I really do not want to remember that much. It's still
4 something that was hard.
5 JUDGE KWON: Thank you. Sorry for interruption.
6 MR. OSTOJIC: Thank you, Judge Kwon.
7 JUDGE AGIUS: Thank you, Judge Kwon.
8 Mr. Ostojic.
9 MR. OSTOJIC: I'll speed it up, Your Honours.
10 Q. Sir, if you can see since you reviewed this intercept several
11 times with my learned friend, on no less than five occasions does the
12 participant who you identify as Mr. Beara state that he either doesn't
13 know what to do, he doesn't have anything here, and he can't do anything.
14 Sir, given that, do you think, having recognised Mr. Beara's voice
15 and purportedly knowing what he was at that time, does that sound like a
16 person who was helpless?
17 A. Based on this he cannot sound like a helpless person. He sounds
18 like a person who is missing people, who has a shortage of people, but it
19 does not sound like a helpless person. He cannot sound like that.
20 Q. Let me ask you this, sir: In the conversation on the third -- or
21 in the middle of the paragraph where you have the initial B. It
22 says, "But I don't have any. If I did, I still wouldn't be asking for the
23 third day."
24 Do you see that?
25 A. Okay. Yes. I found it.
1 Q. Let me give you a hypothetical, sir. If you were supposed to
2 testify yesterday on the 13th of December, and if I made the
3 comment, "I've been waiting for the third day," that would mean that it's
4 the 14th, 15th, and 16th; correct? If I make that statement, I would have
5 made it on the 16th. Would that be accurate?
6 A. I understood you to say that if you're waiting for something for
7 the third day, what you were waiting for was three days ago. You asked
8 for it for the first time three days ago. That's what I understood. But
9 then when you went on, I'm sorry, I didn't get what you were saying.
10 Q. If I was waiting for it and it was supposed to arrive on the 13th,
11 and if I've waited three days, that means that it should be the 16th of
12 July; correct?
13 JUDGE AGIUS: Yes, Mr. Thayer.
14 MR. THAYER: Your Honour, I think this exercise is irrelevant to
15 this witness's purpose for being here. You know, we can play different
16 ways of counting days depending on what day you start, and that doesn't
17 help with this witness.
18 JUDGE AGIUS: I think I am anticipating Mr. Ostojic's next
20 Do proceed, Mr. Ostojic.
21 MR. OSTOJIC:
22 Q. Can you tell us that, sir?
23 A. Just one moment, please. From this sentence all I can conclude is
24 that he has already been waiting for three days for something that he
25 asked for three days ago.
1 Q. Well, let's assume that it's the 13th of any given month, okay?
2 And if Mr. Beara --
3 A. Yes.
4 Q. -- were the participant in this conversation says, "They were
5 supposed to arrive on the 13th but didn't," and then he continues to
6 say, "I wouldn't still be asking for the third day."
7 Isn't it correct, sir, that that means that this conversation
8 occurred on the 16th of July, 1995?
9 A. Well, that's debatable. I don't know what day you are calculating
10 from, from the day he's talking, or you start counting three days from the
11 next day. If it's from the day that he's talking, it could be the 13th,
12 14th and 15th. If you're talking about the next day and another three
13 days, I mean, I really didn't understand which day you were calculating
14 from. If you're counting from the following day after the 13th, then that
15 would be the 16th. But if you're counting on the same day, then -- I
16 don't know. This is my understanding of it.
17 Q. Okay. Well, I don't have an understanding of it, because in your
18 testimony you say that this conversation could have been captured on
19 the 14th or 15th, and I'm suggesting to you, sir, that it's rather plain,
20 based on what you wrote down, as well as given that you purportedly made
21 the entry of 16 July 1995 that this conversation did not happen on the
22 14th of July, it did not happen on the 15th of July, but in fact, it
23 happened, if at all, on the 16th of July, 1995. Correct?
24 A. I really couldn't tell you exactly.
25 JUDGE AGIUS: Yes, Mr. Thayer.
1 MR. THAYER: And he's been asked that question repeatedly, Your
3 MR. OSTOJIC: Well, Your Honour, if I may just respond.
4 An objection can be made if it's asked and answered, but I don't
5 think we covered this ground at all. I don't think we covered this ground
6 at all with specifically this intercept. And he led evidence that was,
7 quite frankly, unfair and irresponsible to lead to suggest that it's
8 the 14th or the 15th.
9 We're going through the intercept right now. This was never
10 asked. It was never asked and, quite frankly, it was never answered. He
11 doesn't like the answer, but he still should try to restrain himself and
12 refrain from objecting.
13 JUDGE AGIUS: Let's calm it down. Basically I think Mr. Ostojic's
14 question is to try and elicit from the witness a revised assessment of
15 when this particular transcript could have been taking place. He is
16 suggesting after having put previous questions that it is more probable
17 than not that it was on the 16th of July that it was transcribed.
18 Yes, Mr. Thayer.
19 MR. THAYER: Yes, Your Honour. And, again, I just believe that
20 that question was asked yesterday in the context of the date he had
21 written down. There was a series of questions that went directly to the
22 date that Mr. Ostojic tried to put to the witness. He believed that the
23 conversation was written down and the answer was clear yesterday.
24 JUDGE AGIUS: Let's move, Mr. Ostojic.
25 MR. OSTOJIC: I think it's unfair that he would suggest to the
1 witness how he should count the days, but we can address that in a later
2 submission, Your Honour, on the [indiscernible] particularly of this
4 JUDGE AGIUS: I don't think the witness needs any lessons on how
5 to count dates. I think he was very clever in answering the question.
6 MR. OSTOJIC:
7 Q. Sir, I want to ask you a question, if you can look on the front
8 page of your document where is says under K: and if you scroll down from
9 the bottom, nine lines from the bottom. It says, "I can't guarantee
10 anything," and this is purportedly by Mr. Krstic, "I can't guarantee
11 anything. I'll take steps."
12 Do you see that?
13 A. Yes, I do.
14 Q. Now, sir, can you explain to us why that supposedly "I'll take
15 steps" was not transcribed in the typewritten form?
16 A. I can't find it here, "I'll take steps." Under this sentence, "I
17 can't guarantee anything, I'll take steps." Underneath that it
18 says, "Krle, I don't know what to do anymore."
19 Now, your question was something else, right?
20 Q. No, it wasn't. It was exactly that. Where it states, "I can't
21 guarantee anything," and then it's added, "I'll take steps." Do you see
23 A. Yes. Right behind the comma, yes.
24 Q. What I'm asking you is, why isn't that phrase or that sentence
25 typed out in the daily report that was issued?
1 A. Well, right now I can't remember that. I can only speculate and I
2 do not wish to do that.
3 Q. Okay. Sir, I want to look at the last section here that talks
4 about the 3.500 parcels. Do you see that? Sir, it's my --
5 A. Yes.
6 Q. -- submission that at the time there were 300 or so men in
7 Potocari that were supposedly going to be sent to Bratunac and that in
8 fact if anything was said in this conversation that there was a pause and
9 it was suggested and should have been written with an interval between the
10 3 and the 5. So the participant that you heard actually said, "3 -- 500,"
11 as opposed to 3.500. Am I correct, sir?
12 A. Well, this 3, 500, to be fully certain I would have to listen to
13 the tape again. But at that point in time I heard 3.500 and that's what I
14 wrote down.
15 Q. I don't know if you wrote it down, sir. The typist who typed your
16 conversation after having listened to it purportedly with you, they have a
17 space between the number 3 and the number 5. Do you know why they have a
18 space between the number 3 and the number 5? And I submit that nowhere in
19 any notebook whenever they mention any numbers is there such a space or
21 Do you see that on the typed version, sir? You might have to flip
22 a page or two.
23 A. Just a minute. I need to find the typewritten version, because I
24 just have the handwritten version in front of me now.
25 Yes, I see the pause.
1 Q. And I know you weren't the typist, sir, but do you know why there
2 was a pause? And can you just identify what exhibit -- or put it on the
3 ELMO, if I can ask him that, Your Honour, to see which one he's actually
4 looking at.
5 JUDGE AGIUS: Yes, by all means.
6 MR. OSTOJIC: Because there are two of them, with all due respect.
7 Q. Sir, can you just point that out for us and point out where you
8 see this pause?
9 MR. OSTOJIC: Your Honour, would if be possible to -- or I don't
10 know that we can. That's okay.
11 Q. And then if you look at the page prior to that, sir -- well, I
12 think it's the page after that. Mine is in a different order. I'm sorry.
13 MR. OSTOJIC: Thank you, Madam Usher. We have to keep scrolling
14 to find the other typed intercept. I'm not sure what order the Prosecutor
15 has given it to him in, but it's ...
16 Now -- well, that's okay. We can proceed anyway, if the Court
18 It's not there. Okay. Good enough.
19 May I proceed, Your Honour?
20 JUDGE AGIUS: Yes, Mr. Ostojic.
21 MR. OSTOJIC:
22 Q. Sir, we know that the tape doesn't exist, and I appreciate your
23 comment that in order to be sure that we could determine it, would you
24 agree with me, sir, that an intercept operator such as yourself with the
25 experience that you suggest that you have, that, sir, it would have been
1 more appropriate and disciplined when people are discussing numbers to
2 actually write them out instead of writing them numerically? Would that
3 be fair? And the reason that you would write it out instead of write it
4 numerically is because of specificity and clarity.
5 A. [No interpretation].
6 JUDGE AGIUS: Yes, Mr. Thayer. One moment.
7 MR. OSTOJIC: But he answered already.
8 MR. THAYER: It was a compound question. That was my only
9 objection, so we just know which part he's answering to.
10 JUDGE KWON: I haven't heard the answer.
11 THE INTERPRETER: The speakers overlapped; the interpreters
12 weren't able to hear the witness.
13 MR. OSTOJIC: Can you --
14 JUDGE AGIUS: Let's divide the question and then -- because
15 Mr. Thayer I think is right, that there is more than one.
16 So it was put to you, sir, that the tape doesn't exist relating to
17 this, and then you were asked whether an intercept operator such as
18 yourself, an experienced intercept operator such as yourself, whether it
19 would have been more proper, more appropriate and orderly, when people are
20 discussing members -- numbers to actually write them down instead of
21 writing them numerically. Writing words in other -- or instead of just
22 numbers. That's the first question that I would like you to answer.
23 To avoid confusion, wouldn't it have been more appropriate if you
24 had written "three thousand," words, rather than numbers?
25 THE WITNESS: [Interpretation] I fully agree. Yes, I think so.
1 JUDGE AGIUS: And then would that be fair. And then the reason he
2 would write it out because of specificity and clarity which I don't think
3 you need to pursue because he's agreeing with you.
4 THE INTERPRETER: Microphone for Mr. Ostojic, please.
5 JUDGE AGIUS: Yes, why -- why do you agree with Mr. Ostojic, that
6 it would have been more appropriate had you written down the numbers in
7 words rather than numerically only?
8 THE WITNESS: [Interpretation] It would be more proper, because
9 even when writing out cheques or doing something with your bank account
10 you have to spell the figure out. And, yes, it would have been more
11 proper because now we have a situation because there is a space missing to
12 indicate hundreds and thousands. In my elementary school, I normally put
13 a full stop to indicate thousands, and most likely I told him 3.500 and
14 the typist put in a space, an interval between. And I have it in one
15 version 3.500. So this must be 3.500.
16 MR. OSTOJIC:
17 Q. Okay. Sir. Let me ask you this: If you look at that logbook,
18 and if you look on the opposite page, don't you see a period or a marking
19 that was actually bled through, which is why we think we need an expert
20 but that's not your concern, that that marking was actually bled through
21 and is in exactly that point after the 3? So I'm asking you, sir, to flip
22 the page from one side to the other and you'll see that there's a mark on
23 the opposite page that seems to have been enhanced.
24 A. I apologise, but I don't know which portion you're referring to
25 now. Is it the handwritten one or -- would you please show me this
1 specific place?
2 MR. OSTOJIC: I will with the assistance --
3 JUDGE KWON: Can you put the real notebook on the ELMO so we can
5 MR. OSTOJIC: Yes. Exactly, Your Honour.
6 JUDGE AGIUS: Usher, 4537, the first five lines of it, please, in
7 particular. If you or the technicians could zoom in on that section,
9 MR. OSTOJIC:
10 Q. Now, we're looking specifically at the 3 and the 500. Do you see
11 that, sir? Do you see that? Now --
12 A. Yes.
13 Q. -- I count how many lines or boxes on the grid, and I think if I'm
14 right if you count from the right to the left there are nine such boxes to
15 that period, and what I'm asking you to do, sir, is just kind of hold your
16 finger there and then flip the page backwards, okay, flip the page over,
17 and you'll see right at the point is where there seems to be a mark that
18 was enhanced by you which bled through the paper as we've seen and as
19 you've testified can happen, and that that's actually a -- if we can move
20 it over to the left a little so we can see it on the screen. There we
22 JUDGE AGIUS: No, no. The page that we had. Can you bring it
23 down, please? No, that's -- okay. It's my mistake. Yes. And could
24 someone please zoom us in on the third line. Is it the third line?
25 MR. OSTOJIC: It is, Your Honour.
1 JUDGE AGIUS: I think so, yes.
2 MR. OSTOJIC:
3 Q. Do you see that, sir?
4 JUDGE AGIUS: I think if --
5 THE WITNESS: [Interpretation] Could you please show me the exact
7 MR. OSTOJIC:
8 Q. The Court just did, sir.
9 JUDGE AGIUS: I think for our better understanding, to be able
10 follow your point better and his answer, once he's finished we'd like to
11 see the notebook here.
12 MR. OSTOJIC: Of course.
13 JUDGE AGIUS: All right.
14 MR. OSTOJIC:
15 Q. Sir, if you look on -- oh, sorry. If you look on the screen,
16 maybe he can then find it, but --
17 JUDGE AGIUS: I think we need to see the notebook. If you could
18 bring it over, please.
19 MR. OSTOJIC: Fair enough.
20 JUDGE AGIUS: Well, we will not comment, but we have been able to
21 have a good look at it. I suppose if the witness wishes to answer that
22 question or can answer that question he will proceed to answer it and then
23 you move on to your next, please.
24 MR. OSTOJIC: Yes, Your Honour.
25 Q. Sir, do you see that dot --
1 THE INTERPRETER: Microphone, please.
2 MR. OSTOJIC:
3 Q. Sir, do you see the dot, sir, that you have after the letter 3 in
4 this conversation? Do you see that?
5 A. Yes, I see that. Can I put it up to the light? Can I take it in
6 my hands and lift it up to the light?
7 Q. [Previous translation continues] ...
8 JUDGE AGIUS: Of course. Of course.
9 THE WITNESS: [Interpretation] I apologise, but I don't see
10 anything on the opposite page -- on the opposite side, sorry.
11 MR. OSTOJIC:
12 Q. Sir, I know we don't have the tape and I know what the typist
13 wrote down, 3 with a space, interval or pause as we've identified it, and
14 then 500. Do you have any independent recollection, sir, as you sit here
15 as to whether or not the participant in this conversation said 3, 500, or
16 if the participant actually said 3.500?
17 A. If I wrote down 3.500, that means that I heard it. I believe that
18 I heard it.
19 Q. Well, I'm asking --
20 A. Since I wrote it down and gave it to somebody else to type it.
21 Q. I'm asking you, sir, as you sit here today, do you have an
22 independent recollection of that?
23 A. At this point in time after so much time has gone by, I don't
24 remember. I know that I did that, but right now I cannot remember the
25 exact steps that I took. It's been too long.
1 Q. One last point if we can open the book and turn to page 4536, sir.
2 I always seem to have problems with the last part of sentences, but in
3 this one, sir, if you can see where it talks about the Red Berets. Do you
4 see that? It's five lines down. It's on the right-hand side if you can
5 just adjust it. It's five lines down from the top, so we need the top.
6 Then we need it moved over a little.
7 Do you see that, the word "Red Berets"?
8 A. Yes.
9 Q. Sir, was that written at the same time as your other conversation
10 that was captured on this, or was this added later?
11 A. I believe and I think that it was at the same time, when the
12 conversation was transcribed.
13 Q. Now, you write everything else, it seems to be, in a hand -- your
14 handwriting there is not printed, but the words "Red Berets" are printed.
15 Can you reconcile how it is that the conversation is primarily handwritten
16 but the word "Red Berets" is printed? Just so we have an understanding of
17 your style.
18 A. Yes. Not just on this page. For example, we have on the other
19 page that "Draga" was written down in capitals. So I did have a habit of
20 emphasising some names. Because I have a rather bad handwriting, I would
21 try to write it clearly. And if there was a name, if there was a location
22 indicated or a frequency, my idea was to highlight it in some way and to
23 ensure that it was written down as clearly as possible.
24 Q. Sir, read the sentence to us that you --
25 THE INTERPRETER: Microphone, please.
1 MR. OSTOJIC:
2 Q. Sir, read the sentence to us that precedes this "Red Beret," if
3 you will.
4 A. "Check with Blagojevic, take his Red Berets."
5 Q. Now linguistically if you look at this and if you were -- can you
6 pause or stop after you say "uzmi njeguve." [phoen] Would the sentence
7 still make sense, sir? "Check with Blagojevic, take his."
8 A. I don't think so, because take his what?
9 Q. Well, they're talking about men throughout the conversation, are
10 they not? But I'm asking you in the B/C/S language that it's proper
11 grammatically where you could have a pause after "uzmi njeguve" period,
12 and that the words "Red Berets" was simply added after the fact, sir?
13 A. If it was without Red Berets, take his, could perhaps mean take
14 his men, regardless of what men he had. As for Red Berets, it's a notion
15 that doesn't figure here very frequently. So I don't know what that means
16 Red Berets was said here. Had he written men, I would have -- had he said
17 men, I would have written down men. I would not have given it a thought.
18 Q. When was the first time that your unit in the southern site
19 started maintaining and keeping these logbooks; do you know?
20 A. Hmm, I can't remember that.
21 Q. Well, maybe I can help try to jog your memory. You came to the
22 southern site in the spring of 1995; correct?
23 A. Yes.
24 Q. At that time in -- I think you said April or March, in that time,
25 sir, were logbooks such as this kept in the southern site and were you
1 required to keep track of captured conversations in the spring of 1995?
2 JUDGE AGIUS: Yes, Mr. Thayer. One moment. Stop, stop, stop.
3 MR. THAYER: Again, just to make the record clear, if it's a
4 compound question I just want to break them up ahead of time so we don't
5 have to go back and do it again.
6 MR. OSTOJIC: You know, they argue, Your Honour, about the waste
7 of time and -- but I think -- the interruptions by Mr. Thayer in the last
8 several weeks I think just reflects that the Defence is not wasting their
9 time. We did ask yesterday if we can ask compound questions. The
10 Prosecution constantly asks leading questions and compound questions.
11 Respectfully we do not object. We do not smirk either. However, Your
12 Honour, I think --
13 JUDGE AGIUS: Stop, Mr. Ostojic.
14 MR. OSTOJIC: It's important --
15 JUDGE AGIUS: Stop, stop, stop. Stop. It's a good thing that we
16 will be going in recess. I think it's a compound question and both
17 questions --
18 MR. OSTOJIC: I don't --
19 JUDGE AGIUS: And both questions -- please don't interrupt me,
20 Mr. Ostojic. And both questions have been put already more than once
21 yesterday, both by the Prosecution and by yourself. One is whether
22 logbooks such as this one were kept in the southern site in the spring of
23 April, that's March, April of 1995, and that was answered yesterday. And
24 whether he was required to keep track of captured conversations in the
25 spring of 1995. Perhaps that even needs clarification. What do you mean
1 by keeping track of captured conversations? Whether to -- in other words,
2 to transcribe them in a notebook. If that is what you mean, yes, that has
3 been answered. If you mean something different, then it hasn't been
4 answered. But the rest has been answered.
5 MR. OSTOJIC: Your Honour, I think I'm merely trying to refresh
6 the recollection of this witness by jogging his memory with the time that
7 he came to this site, which was in the spring of 1995, and I don't think
8 it's been put to him whether or not at the spring of 1995, whether it was
9 April or March, whether these logbooks were in existence and whether they
10 were required at that time to make entries such as those that we see in
11 July and August of 1995.
12 JUDGE AGIUS: Witness, did you already give us this information
13 yesterday? You confirmed yesterday that more or less in April of 1995 you
14 moved to the southern post. What were you doing there? What were you
15 doing there?
16 THE WITNESS: [Interpretation] Yes. Could you please repeat that?
17 JUDGE AGIUS: What were you doing there in March, April of 1995 in
18 this southern post or facility?
19 THE WITNESS: [Interpretation] We did the same type of work.
20 JUDGE AGIUS: This is why we're -- he's been telling us.
21 MR. OSTOJIC: If the Court is satisfied, that's fine. I will not
22 argue with the Court about that.
23 JUDGE AGIUS: Next question.
24 MR. OSTOJIC: Thank you. I have no further questions, Your
1 JUDGE AGIUS: Okay. Thank you. I think there's no point in
2 starting with the next cross-examination now. We'll have the break.
3 Let's revise a little bit, because of course we have other things
4 to do as well.
5 First of all, I just wanted to confirm to you that we are sitting
6 pursuant to Rule 15 bis. Judge Stole will -- something urgent cropped up
7 for him and he will probably be able to join us during the next session,
8 but he couldn't make it for this first session. That's what I wanted to
10 The other thing is this: Do you still require 30 minutes?
11 MR. ZIVANOVIC: [Interpretation] Your Honours, I think that even 15
12 minutes will suffice.
13 JUDGE AGIUS: And Mr. Lazarevic -- sorry, Ms. Nikolic.
14 MS. NIKOLIC: [Interpretation] Your Honours, I will not have
15 questions for this witness.
16 JUDGE AGIUS: Mr. Lazarevic.
17 MR. LAZAREVIC: Yes. Thank you, Your Honour. We decided not to
18 cross-examine the witness.
19 JUDGE AGIUS: Madam Fauveau?
20 MS. FAUVEAU: [Interpretation] [No interpretation].
21 JUDGE AGIUS: Okay. She -- yes, they didn't translate it into
22 English. She probably will not have any questions, but --
23 MS. FAUVEAU: [Interpretation] No questions, Your Honour.
24 JUDGE AGIUS: And Mr. Krgovic or Mr. Josse, I don't know. You had
25 intimated nothing?
1 MR. JOSSE: Our position remains the same, the Court will be glad
2 to hear.
3 JUDGE AGIUS: And Mr. Sarapa or Mr. Haynes? You said possibly 10
4 minutes, possibly, but also possibly not.
5 MR. SARAPA: [Interpretation] Most likely nothing, and if there is
6 anything, five minutes at the most.
7 JUDGE AGIUS: All right. But still, I was for a moment thinking
8 of whether we could go on but I think it would be wiser to have the break,
9 because the 15, 10 minutes could suddenly become 20 and I wouldn't like to
10 leave the staff here.
11 All right. So we'll have a 25-minute break starting from now.
12 Half an hour, yes, because we need to discuss some outstanding motions.
13 Thank you.
14 --- Recess taken at 10.28 a.m.
15 --- On resuming at 11.04 a.m.
16 JUDGE AGIUS: Judge Stole should be with us soon, if we are still
18 Yes. Mr. Zivanovic will go next.
19 MR. ZIVANOVIC: [Interpretation] Thank you, Your Honour.
20 Cross-examination by Mr. Zivanovic:
21 Q. [Interpretation] Good day.
22 A. Good day.
23 Q. Yesterday, you explained to us that, amongst other things,
24 sometimes you also typed these reports into the computer. You remember
25 that, don't you?
1 A. Yes.
2 Q. Now, could you please clarify one thing to which you already
3 replied to but it wasn't quite clear to me. In the heading of the report
4 were you able to type in the date and number or was this something that
5 was assigned automatically by the computer?
6 A. We would get the heading as soon as we opened a new document for
7 typing. There was the macro at the top where there was a place for the
8 date. I don't know whether this was entered automatically. You had to
9 put the time in by hand and also the participants. I cannot remember
10 about the date, whether it was done automatically on the basis of the
11 computer date or whether you had to type in it by hand. I don't remember
13 Q. I assume that you cannot remember about the number of the reports
14 either. Was this generated automatically by the computer or did you have
15 to type it in yourself?
16 A. I think you -- your assumption is all right. I really cannot
18 Q. Thank you. Yesterday you were shown an intercept between Krstic
19 and Obrenovic which you noted in the notebook on the 2nd of August, 1995.
20 Do you recall that?
21 A. Just one moment, please. I have it under Wednesday here.
22 Q. All right. Very well. And you also saw the typed version of that
23 intercept. Do you remember that?
24 A. Yes.
25 Q. Do you remember if you yourself typed that intercept into the
1 computer? If you remember.
2 A. I don't remember.
3 Q. Do you remember if there were any problems in sending off that
4 intercept or that report to your superior command?
5 A. Can you clarify what kind of problems you are thinking of? You
6 can have different kinds of problem. So if you can just maybe clarify
7 that a little bit.
8 Q. Perhaps it would be much better to show you a document; that is
9 Defence Exhibit 1D93.
10 Can you please look at this document and then tell me if this
11 perhaps jogs your memory.
12 A. Just one moment, please.
13 This document that I'm looking at now is something that I never
14 saw in my life when I was in Konjuh.
15 Q. Thank you. And you don't remember any such problem cropping up?
16 A. This is something that our computer technician would know. We
17 didn't really discuss this sort of thing much.
18 Q. Thank you. Yesterday you also mentioned some technical problems
19 or some technical aspects that affect the sound quality when the
20 intercepts are being found.
21 A. Yes.
22 Q. Does the distance from the antenna affect the quality of
24 A. Yes, distance does have an effect.
25 Q. Thank you. Can you please tell me, if you know, in view of your
1 technical qualifications in respect of these matters what this distance
2 would be enabling intercepts to be monitored from an RRU1 device?
3 A. I couldn't give you the technical data, but I can tell you
4 something else. For example, if the elevation that is picking up those
5 waves, that would be 230 to 270 megahertz, and particularly if the
6 antennas that are being listened to are visible from our elevation, then
7 the reception is very good.
8 If you look at ham operators, we can have very good antenna
9 contacts at much higher frequencies, and that is more difficult. But here
10 it was much easier in our case to do it because that is the kind of
11 wavelength that it was possible to do it.
12 Q. Do you know how far your elevation was from the axis that was
13 being monitored?
14 A. Well, I really couldn't tell you, but I could very easily
15 calculate that on the map if you showed it to me and if that's what you're
16 interested in.
17 Q. Do you know how far your facility, the southern facility, where
18 you were, is from the northern facility?
19 A. Well, I can say that it was just perhaps a couple of kilometres as
20 the crow flies, but I cannot give you a precise number.
21 Q. Could you give us an approximate distance?
22 A. Well, I could give you an approximate distance. As the crow
23 flies, it could be from 15 to 20 kilometres, up to 22 kilometres distance
24 as the crow flies.
25 Q. And just one more question. Does that mean that the distance is
1 not important if you have optical visibility, if you have visual
3 A. It is important, but not to such a degree.
4 MR. ZIVANOVIC: I have no further questions.
5 JUDGE AGIUS: I thank you, Mr. Zivanovic.
6 Madam Nikolic, I understand no questions.
7 Mr. Lazarevic, no questions. I just -- I know, but I'm just
8 reconfirming, that's all.
9 Madam Fauveau.
10 MS. FAUVEAU: [Interpretation] Just very few questions,
11 Mr. President.
12 Cross-examination by Ms. Fauveau:
13 Q. [Interpretation] With regard to the typist, the one typing the
14 conversation, was the typist given only that task of typing?
15 A. That was the task of that person, the only one, but that person
16 was also capable of working. So sometimes if we couldn't press a button
17 and stop and he was close by, he would be able to do something like that.
18 But he mostly carried out the typing assignments. He was trained for
19 other kind of work, but that was his main assignment.
20 Q. [Previous translation continues] ... the person would themselves
21 intercept the conversation, would they also be in charge of intercepting
23 A. Whoever was in the shift would stop the device when a signal was
24 picked up, and they would try to record it on the tape. That was our job.
25 JUDGE AGIUS: I just want to make sure that you have understood
1 the question.
2 The question is with reference to the typist, would the typist
3 also during the shift have the responsibility of logging in and
4 intercepting conversations, or would his or her work be restricted only to
6 THE WITNESS: [Interpretation] All right. Thank you. The person
7 entrusted with the typing would only do the typing. That was his main
8 task. Intercepting conversations is something I -- I really never saw
9 anything like that happen when I was on my shift intercepting
10 conversations. I never saw anything like that happen.
11 MS. FAUVEAU: [Interpretation]
12 Q. Sir, the person in charge of typing the conversations, was that
13 person subordinated to the same commander as you were?
14 A. Yes, absolutely.
15 MS. FAUVEAU: [Interpretation] Thank you very much. No further
16 questions, Mr. President.
17 JUDGE AGIUS: Mr. Krgovic, I suppose, or Mr. Josse, I'm confirming
18 that they have no questions. I'm going through this for the record more
19 than anything.
20 Yes, Mr. Sarapa.
21 MR. SARAPA: [Interpretation] No questions, Your Honour.
22 JUDGE AGIUS: So no questions.
23 Is there re-examination, Mr. Thayer?
24 MR. THAYER: There is very briefly, Your Honour.
25 JUDGE AGIUS: Go ahead then, please.
1 Re-examination by Mr. Thayer:
2 Q. Good morning, Witness. Sir, my learned friend Mr. Ostojic asked
3 or suggested to you that the first time you spoke about whether Colonel
4 Beara was known or unknown to you at the time you took down the
5 intercepted conversation was during a recent proofing. Do you recall,
6 sir, whether or not you testified about that topic in the Krstic case?
7 A. I don't remember.
8 Q. If I read a portion of your testimony would that refresh your
9 recollection about whether or not you testified about that topic in the
10 Krstic case, sir?
11 JUDGE AGIUS: Go ahead, Mr. Thayer. I mean, it's almost a
12 rhetorical question.
13 MR. THAYER:
14 Q. And, sir, just for the record, we're looking at the transcript in
15 Krstic on page 4472, line --
16 JUDGE AGIUS: Mr. Bourgon. One moment.
17 MR. BOURGON: Thank you, Mr. President.
18 Mr. President, what my colleague is doing now is trying to use
19 something that is not on the record. So he's using a past statement.
20 There's a procedure for this. So one, I an appreciate the question that
21 he did put to the witness, but now we can just take the page and show it
22 to the witness. It does not have to be read into the transcript. The
23 witness can look at it and say whether that does refresh his memory and
24 then answer the question that my colleague asked, but not to read part of
25 that transcript in -- of the Krstic transcript into these proceedings.
1 Thank you, Mr. President.
2 JUDGE AGIUS: We have to read it too. I mean, we have to know
3 what it says.
4 Yes, Mr. Ostojic.
5 MR. OSTOJIC: I think, Your Honour, with all due respect, it
6 wasn't a question of whether he says he's known to him. It was the
7 question of the voice that we suggested to him, and the point was that he
8 recollected or recalled that he knew his voice at that time. And clearly
9 we know what it says on Krstic, because we invited him to bring in that
10 evidence and whether he said that in whatever manner he did. So the
11 question has nothing to do what I was asking about. So I think it's
12 beyond -- he's asked him if he knew him, if he claims he knew him. I
13 asked him specifically about his recollection which was added on the
14 11th of November.
15 JUDGE AGIUS: It makes it even more obvious that we need to see
16 what he allegedly said in Krstic, because otherwise how can we establish
17 whether this is a proper re-examination? Exactly.
18 So let's --
19 [Trial Chamber confers]
20 JUDGE AGIUS: Yes, okay. So please proceed with reading out to
21 the witness the excerpt from Krstic. I am making it clear on behalf of
22 the Trial Chamber to you that that part that you are reading is not being
23 introduced as evidence in this case. All right?
24 MR. THAYER: Very well, Your Honour.
25 JUDGE AGIUS: So that is, I hope, properly understood.
1 MR. THAYER:
2 Q. The question is:
3 "Q. This type of conversation that we have just referred to in
4 Exhibit -- Prosecution Exhibit 328, was this conversation classified as an
5 important one?
6 "A. This conversation was taped because a colonel, Ljubo Beara,
7 and General Krstic appear. They were very well-known figures at the
9 Sir, does that refresh your recollection as to whether you
10 testified about that topic as to whether Colonel Beara was known or
11 unknown to you at the time you took this conversation?
12 JUDGE AGIUS: If it doesn't -- if it doesn't follow yours, it
13 follows Judge Kwon's.
14 MR. OSTOJIC: And I would just say mischaracterises what it says,
15 but enough said.
16 JUDGE AGIUS: You can -- you can make submissions.
17 Yes, Mr. Witness.
18 THE INTERPRETER: Both microphones for the witness are turned off.
19 JUDGE AGIUS: Both microphones for the witness are turned off.
20 While mine is on when it should be off.
21 THE WITNESS: [Interpretation] May I?
22 At the time, Colonel Beara's was known to me. I recognised it
23 because I would listen to him from the tape a lot of times and also from
24 other conversations, unimportant ones, meaning that I did recognise the
25 voice at the time for my purposes.
1 JUDGE AGIUS: But I think you've missed the point, Witness. I
2 don't think the point was to seek again a repetition from you that you
3 recognised the voice because you were familiar with it at the time. I
4 think the light of -- the substance of Mr. Thayer's point in reading out
5 what you allegedly said in Krstic is to point out to you that on that
6 occasion, according to him and according to the transcript, you didn't
7 just mention that you recognised the voice, but you also said that this --
8 who you describe as Colonel Beara and Krstic were very well-known persons
9 to you at the time. This is the point that I suppose Mr. Thayer is
10 addressing you to.
11 Yes, Mr. Thayer.
12 MR. THAYER: Yes, Your Honour, and I just wanted to clarify. I'm
13 not making the point that in Krstic this witness testified concerning
14 voice recognition. That was not the case, and --
15 JUDGE AGIUS: But he's answered that.
16 MR. THAYER: Yes. I just didn't want anyone to think that I was
17 trying to get more than is what is in the transcript, that is all.
18 Shall we put the question again or --
19 JUDGE AGIUS: Please. He is not my witness.
20 MR. THAYER: I just didn't know whether there was another
22 JUDGE AGIUS: I just brought him forward because he missed your
23 point, I think.
24 MR. THAYER: Yes.
25 Q. Sir --
1 JUDGE AGIUS: You were not on the same wavelength.
2 MR. THAYER: I will try to adjust the frequency, Your Honour.
3 JUDGE AGIUS: And he will recognise the modulation.
4 MR. THAYER:
5 Q. Sir, having had that portion of the prior testimony read to you,
6 does that refresh your recollection in any way concerning whether or not
7 at the time you took down that conversation Colonel Beara was known or
8 unknown to you?
9 A. It was known to me.
10 Q. Just for clarification of the record, so we can settle this. I
11 see in the transcript the word is "it was known to me." Was Colonel Beara
12 known to you at the time, sir?
13 A. Yes, at the time he was known to me. I had heard of him several
14 times, from other friends of mine even from the command when we would
15 exchange visits. He was known to me.
16 Q. I want to follow up on a question His Honour Judge Kwon asked you,
17 sir. As you sit here today, do you recall whether at the time you took
18 this conversation down you knew anything more about Colonel Beara other
19 than he was a colonel and his name, as reflected in the intercept
20 transcription you wrote down, for example, unit, or any other information,
21 as you sit here today can you recall whether you had more knowledge about
22 him then?
23 A. I cannot remember that.
24 Q. And I thank you, sir.
25 MR. THAYER: That concludes my redirect.
1 Questioned by the Court:
2 JUDGE KWON: One point that clarifies that. It just disappeared.
3 Give me a minute.
4 Yes. It's at page 48, line 18. The witness to the question to
5 Mr. Thayer answered: "At that time, Colonel Beara's," probably
6 voice, "was known to me. I recognised it because I would listen to him
7 from the tape a lot of times, and also from other conversations."
8 What tape do you refer to?
9 A. The tape that we had recorded then at that time, and because of
10 the bad quality, then we would have to listen to it over and over, if
11 something was missing, if we didn't transcribe a word properly. And that
12 is why I recalled the modulation, regardless of whether I wanted to or
14 JUDGE KWON: If you had heard something not important, unimportant
15 conversation, you would have erased it without having to rehear it through
16 the tape? Is it correct?
17 A. Yes. If there was nothing important or if there was a new
18 frequency, that would be new information for us. Or if there was a new
19 name, we would note that down. But if there was nothing new, if it was
20 all old information or if the conversation itself was unimportant, we
21 would re-record over the tape. We would go back to zero or wherever we
22 started from, and then we would record a new conversation over that one.
23 JUDGE KWON: So if you are saying that you heard the tape a lot of
24 times, then, you referred to the specific tape of this conversation, be it
25 15th or 16th of July?
1 A. Yes, precisely.
2 JUDGE AGIUS: There are no further questions for you, sir, which
3 means your testimony ends here. On behalf of the Tribunal, I should like
4 to thank you for having come over to give testimony. Madam Usher will
5 escort you out of the courtroom and the rest of the staff assists you upon
6 your return become home, and on behalf of everyone here, I would like to
7 wish you a safe journey back home.
8 THE WITNESS: [Interpretation] Thank you very much.
9 [The witness withdrew]
10 JUDGE AGIUS: All right. I'm informed Mr. Bourgon would like to
11 say something. Or, rather, let's go the exhibits first.
12 Mr. Thayer.
13 MR. THAYER: Yes, Your Honour. We've tendered the exhibit list.
14 I can enumerate them or we can proceed as we have.
15 JUDGE AGIUS: Yes. Has the list been circulated?
16 MR. THAYER: Yes it has, Your Honour. I think everybody has a
18 JUDGE AGIUS: And with the usual caveat on the admissibility of
19 intercepts? Do you have any objection to the introduction into evidence
20 of any of these documents? I hear none.
21 Those in bold print -- yes --
22 MS. NIKOLIC: [Interpretation] There is, yes.
23 JUDGE AGIUS: Okay. Ms. Nikolic.
24 MS. NIKOLIC: [Interpretation] Your Honours, we object to
25 Exhibit 1385 because this is the intercept that was not mentioned by this
1 witness in the Blagojevic case, nor was it mentioned in the past two days
2 in this trial. Therefore, it wasn't showed to this witness except in
3 proofing for the evidence when he met with the OTP as he was preparing to
4 testify in our trial.
5 In addition to that, in the pre-trial brief for Witness 76 in
6 relation to the summary done for this witness, this intercept is not
7 mentioned at all as one of the items that he will be asked about and that
8 he will be giving evidence before this Trial Chamber.
9 JUDGE AGIUS: Yes. What would you like to say about this,
10 Mr. Thayer?
11 MR. THAYER: Yes, Your Honour, briefly.
12 The item has been on this witness's exhibit list for some time.
13 The Defence has been aware of this exhibit. It has been provided to them
14 in hard copy and other forms with 65 ter numbers and the packet. It is
15 the -- our position that the foundation has been laid for these exhibits
16 which we are choosing not to show the individual witness during the
17 testimony. He testified that he reviewed the packet. He identified his
18 handwriting, his handwritten notebooks, or his handwritten transcription,
19 that he compared that with the actual notebooks, that the copies in the
20 packet were fair and accurate, that if they were a transcription that he
21 identified that as well. And we believe the foundation has been laid.
22 That is the procedure we have been following so that we don't need to show
23 every single witness every single intercept.
24 We will have, in addition, further testimony from Ms. Frease that
25 will ultimately tie --
1 [Trial Chamber confers]
2 JUDGE AGIUS: Yes. Thank you. Do you wish to add anything, or is
3 it finished, your submission is over?
4 MR. THAYER: My submission is over, Mr. President.
5 JUDGE AGIUS: All right. So the position is the following: That
6 we do want a confirmation from you that when you referred the witness to
7 the packet yesterday in the beginning of your examination-in-chief, this
8 1385, particularly the one which is a photocopy of the handwritten
9 notebook, was included in the packet.
10 MR. THAYER: Absolutely, Your Honour.
11 JUDGE AGIUS: I mean, it's not a question that I had doubt in my
12 mind, but we have also a record to look after.
13 So that is a confirmation.
14 Our position is that then the Prosecution doesn't have to put to
15 the witness each and every document that it is relying to specifically. I
16 mean, this was put to the witness as a document contained in the package
17 that he was asked questions upon, and therefore the objection to the
18 admission of 1385 as based -- or as expounded by Ms. Nikolic is not being
20 Of course, there is the issue, other issues relating to intercepts
21 in general, so these documents, the intercepts and the handwritten
22 notebook, will be marked for identification purposes.
23 The transcript of the testimony in Blagojevic will become P02333,
24 and it will remain under seal for obvious reasons, and so will the
25 pseudonym sheet.
1 Now, Mr. Ostojic, would you like to tender any document?
2 MR. OSTOJIC: Mr. President, the only document will be identified
3 as 1D70, 7-0. So 1D70, which is the information report on November 1999.
4 JUDGE AGIUS: All right. That's Ms. Frease's information, report,
5 if I understand you well, no?
6 MR. OSTOJIC: Correct.
7 JUDGE AGIUS: Is there an objection?
8 MR. THAYER: No objection. I just request that it be placed under
9 seal, Your Honour.
10 JUDGE AGIUS: All right. Okay. And so it is so admitted under
12 No further documents, I suppose. Okay. So that closes that
14 Mr. Bourgon.
15 MR. BOURGON: Thank you, Mr. President. I have, with the leave of
16 the Trial Chamber, four submissions to make. I'll try to move as quickly
17 as I can in order not to waste too much time.
18 The first submission, Mr. President, deals with a decision issued
19 by the Deputy Registrar on the 29th of November of this year concerning
20 the partly indigent status of our client, Mr. Nikolic. We believe that
21 the Deputy Registrar misdirected himself in law in that decision, and we
22 intend to ask for a review before the Trial Chamber in accordance with the
23 directive on the assignment of Defence counsel. Pursuant to that
24 directive, we have 15 days to make such a request for review. The
25 deadline would therefore be today, on the 14th of December.
1 We are not in a position to make our request for review today
2 because we have not been able to meet with the duty counsel who was
3 assigned to represent Mr. Nikolic at the time when he appeared before the
4 Tribunal for the first time and at the time when he filled in what we call
5 the declaration of means.
6 So accordingly, we respectfully request an extension of time in
7 accordance with Rule 126 to file our request until we've had and
8 opportunity to meet with the duty counsel. We know who he is, and we
9 have -- we did try to approach him, and that could be until Friday the
10 22nd of December, Mr. President.
11 JUDGE AGIUS: Okay. That's point one. Let's move to matter
12 number two.
13 MR. BOURGON: Thank you, Mr. President.
14 The second issue is the -- the second submission deals with the --
15 and I need to go into private session for this one, Mr. President, please.
16 JUDGE AGIUS: Let's go into private session for a short while.
17 [Private session]
19 [Open session]
20 MR. BOURGON: The next submission, Mr. President, deals with
21 Prosecution motion for order of protection for the new Witness P108.
22 Mr. President, we will respond to this motion in writing, of
23 course, in accordance with the Rules. However, this motion places us in a
24 difficult situation which needs to be addressed at this time.
25 There is a witness out there called P108, and all we know that he
1 lives -- he or she lives in Zvornik. We don't know what -- what he will
2 testify about, and we don't know his identity. All we know is that
3 according to the Prosecution this would be, of course, bad evidence, as if
4 the Prosecution could bring exculpatory witness -- an exculpatory witness
5 but that's not really the issue. This causes us two practical
7 First, is we've been meeting with lots of people in Zvornik, and
8 we continue to meet with people in the Zvornik area, and we will do so
9 during the winter recess, and this place us in the potential difficult
10 situation concerning that maybe we've met this person already and we don't
11 know, or possibly that we could run into this person over the winter
13 Secondly, pursuant to the Trial Chamber's decision on the Rule 65
14 motion, on the Prosecution motion to amend the Rule 65 list, this witness
15 could be called as early as 15 January, which makes it very difficult for
16 us to plan the way ahead in terms of preparations of the case for the
18 We believe it is inappropriate for the name of this witness, or at
19 least part of the contents, the subject matter of his testimony, to be
20 concealed from us, and we take the view that this creates actually more
21 risk than less to the security of this witness. If the security threat is
22 so high as the Prosecution says it is, then there might be another less
23 severe way to handle this, and maybe one thing that could be looked upon
24 is disclosure of subject matter for counsel eyes only. But at least
25 something that will allow us to know what this Witness P108 is about.
1 And that's the third submission, Mr. President.
2 JUDGE AGIUS: Do you have any further submissions?
3 MR. BOURGON: I have a fourth and final submission which deals
4 with the Rule 65 ter summary which was provided by the Prosecution for the
5 witness that we -- that has just completed his testimony. Now that is
6 that the testimony of this witness is over, we are in a position to
7 compare what he said and what he testified about with what was announced
8 in the summary.
9 Now, we argued that at the beginning of this case that the
10 summaries prepared by the Prosecution did not reflect the Prosecution's
11 case and they should be treated with the greatest care. This one is a
12 very good example. Pursuant to this summary, the witness was to testify
13 about a conversation which took place on the 2nd of August between General
14 Krstic and Major -- it says Major Obrenovic, where Krstic ordered --
15 JUDGE PROST: Mr. Bourgon. Mr. Bourgon, I'm sorry to interrupt
16 you. I'm terribly sorry to interrupt you, but I just want to clarify when
17 you're speaking about a summary, are you speaking about a summary that was
18 read out to us in court or are you speaking about the summary that's on
19 the 65 ter documents?
20 MR. BOURGON: I apologise, Judge. I was looking at my notes.
21 I'm talking about Rule 65 ter summary that was joined to the
22 pre-trial brief, not the summary that was provided by the --
23 JUDGE PROST: Thank you. I just wanted to clarify that. Thank
24 you. Go ahead.
25 MR. BOURGON: And I just quote this -- this was Witness 76 in the
1 summary, and the summary read as follows: "The conversation between
2 General Krstic and Major Obrenovic where Krstic orders Obrenovic to kill
3 all the prisoners Obrenovic had captured."
4 Now, when we look at -- when we know that this conversation took
5 place on the 2nd of August but we've had the testimony, and what we know
6 now is that this did not deal with prisoners and this did not deal with
7 persons that had been captured, yet that was in the summary. And to us
8 there are many examples like this where either the contents of the summary
9 does not reflect the Prosecution's case or where the Prosecution is
10 leading evidence that goes beyond what was announced in the summaries.
11 For this, Mr. President, we think that this is a source of the
12 delays that we have sometimes in this trial, and the object of our
13 submissions today is that at the beginning of the case the Defence has
14 highlighted difficulties with the Prosecution pre-trial brief. We said
15 that there were defects, and we asked the Trial Chamber to respectfully
16 look into the situation and maybe order the Prosecution to file a new
17 brief. The pre-trial brief is a document that we use throughout the case,
18 especially in this case when we're trying to find -- find out where the
19 Prosecution is going with this case, and given that this is a document
20 that still contains defects, we would like the Trial Chamber,
21 Mr. President, respectfully to look into this situation and order the
22 Prosecution to cure those defects.
23 Thank you, Mr. President. That was my fourth and final
25 JUDGE AGIUS: I thank you. Mr. Bourgon, before you sit down, in
1 the beginning of the sitting I referred you to also protective measures
2 sought for Witness number 80; in other words, the Prosecution's request to
3 have remaining in place the measures already implemented in the Krstic
4 trial vis-a-vis this witness. Do you have a common position so that we
5 can rule on it orally now?
6 MR. BOURGON: I believe we have already stated our position that
7 there was no objection to the measures requested.
8 JUDGE AGIUS: That's my impression, but I just wanted a
9 confirmation of it. All right. I seem to have it.
10 So we can start with that. Judge Prost and Judge Kwon?
11 So we confirm first and foremost - and this is an oral decision -
12 the orders put in place, the protective measures put in place in regard to
13 Witness number 80.
14 Now, Mr. McCloskey, I don't think it's the case of dealing with
15 the first point raised by Mr. Bourgon relating to the pretended indigence
16 of his client as established by the registrar in his decision, or do you
17 wish to address it?
18 MR. McCLOSKEY: No, no problem. That's not our -- our place.
19 JUDGE AGIUS: So let's move to the -- it doesn't mean that I will
20 not come back to you, Mr. Bourgon, on this.
21 Second issue, protective measures motion relating to the proposed
22 December witnesses.
23 MR. McCLOSKEY: No. I don't have a -- I don't have a problem with
24 additional time with that.
25 JUDGE AGIUS: Okay. So you don't have a problem with that.
1 Number three, the issue relating to P108. We are aware, as you
2 are, that on -- I don't remember the date, but we -- in relation to this
3 witness, we had given the Prosecution two options, either to immediately
4 disclose the identity of PW-0108 to the Defence or submit a submission for
5 protective measures no later than the 12th of December, which obviously
6 you opted for the second option that we had indicated and we are dealing
7 with that.
8 There is an objection on the part of Mr. Bourgon that this still
9 puts them in the precarious situation of not knowing the name of this
10 individual and the inability therefore when they visit Zvornik in the
11 proximate few weeks to try to gather information.
12 MR. McCLOSKEY: I understand that. I think this is a matter to be
13 dealt with in the filings. It's a very serious matter, and we have made
14 our filing. I -- this witness is in a very dangerous situation. There
15 have been people in this situation murdered, and -- and I just think this
16 is serious enough that -- an off-the-cuff kind of surprise motion. I
17 mean, we will -- we'll look at the record, and if we need to respond in
18 more detail we will, but I think this is something that is proper for the
19 filings. I disagree with him, and I -- and we're not in a position at
20 this point to -- I mean, we'll always talk with Mr. Bourgon, and if
21 there's a way to work it out, we will.
22 On a practical -- we can see that we want to bunch those intercept
23 operators, so we're not going to be getting to this witness for a while,
24 and so in -- so it's not really a -- a crucial issue right now, but I'll
25 try to work anything out. But I -- this is a serious enough issue I
1 really would like to stick with our submissions and go over them before I
2 say something that I don't recall or I get mixed up about.
3 JUDGE AGIUS: Thank you. There was also a suggestion by
4 Mr. Bourgon that perhaps a way out would be disclosure of this person's
5 identity to the Defence counsel, Defence counsel only. Do you wish to
6 address that now, or do you wish to give it thought?
7 MR. McCLOSKEY: That's problematic, Your Honour, not because I
8 think anyone's doing anything they shouldn't be, but once they have that
9 information, they will ask questions about it. The word gets out.
10 Zvornik is right now a place where there's a lot of tension and lot of
11 concern by -- on the witnesses that are there, and part of that is because
12 people are -- are there asking questions and mentioning names. So that's
13 a problem.
14 [Trial Chamber confers]
15 JUDGE AGIUS: So the position as it seems, and we wouldn't be
16 saying much, obviously, is that on the face of it at the present moment
17 the Prosecution's motion seeking protective measures, the protective
18 measures indicated in that motion for this witness, P108, is in compliance
19 with our previous decision. So that's -- that's the starting point. So
20 if you think that that aggravates your position in any way, we are not
21 going to suggest anything that -- to you. I mean, it's up to you to
22 decide how best to protect your client's interests, and we will then deal
23 with the matter as and when we are seized with it.
24 Yes, and then there was the last issue raised by Mr. Bourgon, and
25 that is a complaint relating to the 65 ter summaries to wit and in
1 particular this persons, this last witness's 65 ter summaries, and
2 possible suggestion that maybe it's the case of calling on you to
3 re-propose a fresh pre-trial brief with updated and more correct
4 information contained in the summaries.
6 MR. McCLOSKEY: Yes, Mr. President. I'm looking at our summary,
7 and in my view it is -- it's accurate. It is concise, and it gave a
8 pretty good explanation and outline of what this person will testify to.
9 That and the fact that I believe it was a 92 ter witness where we're --
10 where we're referring the -- where we're referring the Defence to
11 testimony there can be no surprise about where he's coming from.
12 Now, on the particular point Mr. Bourgon is mentioning, that --
13 something about that this is -- that Obrenovic is not talking about
14 prisoners and that we have misstated it. The -- if you go to that
15 intercept, you'll see that Krstic says something to the effect, "How's it
16 go?" Obrenovic says, "Ah, we've got some more on minefields and at
17 gunpoint." And Mr. Obrenovic was referring to Muslims, prisoners that
18 they've taken. And if you take a look at the daily combat report for
19 August 2nd, you will see that same situation talked about. And so when
20 General Krstic says three times to kill them all, it is our view that what
21 he's referring to are those people that they've captured at gunpoint
22 during August 2nd. And as you've seen evidence and you'll see further
23 evidence of people going through the woods and getting killed, this is
24 what this is talking about. It's right on point. It's in the Krstic --
25 probably the Krstic judgement -- or excuse me, the Krstic testimony which
1 went through this intercept at length. He got his facts completely wrong,
2 and luckily I'm here and I lived that and so I can respond on my feet.
3 But when there are going to be serious allegations like this to
4 what is a serious document, the 65 ter list, we have no problem with a
5 brief mentioning of it and then a filing so we can accurately respond.
6 But when these kind of frivolous comments are going to be made on
7 important documents where a simple reading of the facts would -- would
8 make it clear, that's a problem. Luckily I'm here, I'm healthy and I can
9 respond to it, but it's really a problem.
10 But it's Christmas, and Mr. Ostojic had invited me to talk about
11 that a bit more, and I can if -- if we'd like. There's other witnesses,
12 Dr. French, other things like that, but that's -- that would be my
13 response to Mr. Bourgon.
14 JUDGE AGIUS: Thank you, Mr. McCloskey.
15 Mr. Bourgon, very briefly, please.
16 MR. BOURGON: Very quickly, Mr. President.
17 That might be the Prosecution's theory of the case. That's very
18 different from what a witness is going to be called to say, and this
19 witness has never mentioned anything about prisoners. And my reading of
20 that intercept, there is absolutely nothing about. It's more of a
21 fighting situation and nothing about prisoners.
22 So it's what the witness will talk about. And these witness
23 summaries have to be treated with great care. But the object of my
24 intervention at this time was to call upon the Trial Chamber to look at
25 what we said about the pre-trial brief at the beginning of the case.
1 Those problems still exist and do not allow us to work with the pre-trial
2 brief, and we kindly ask, Mr. President, respectfully that you look into
3 the pre-trial brief to see. Because at the beginning, if you recall, you
4 mentioned that this could be a problem also for Your Honours and your
5 staff working on this case, and I simply ask that you look at this
6 document and you see whether these comments that we made at the beginning
7 are still there and, if so, to intervene and order the Prosecution to cure
8 the defects.
9 JUDGE AGIUS: I think we've heard enough on this, Mr. McCloskey.
10 We are not going to ask you to revise your pre-trial brief taking into
11 consideration what the proposed witnesses of the Defence will be saying.
12 So we can leave it at that.
13 Now, give us one minute to decide on the extension issues, please.
14 [Trial Chamber confers]
15 JUDGE KWON: Mr. Bourgon, do you view a 65 ter -- the summary or
16 pre-trial brief as kind of evidence? I have difficulty following your
17 objection. Prosecution is entitled to put their case into their brief and
18 summary, as they understand it, but we never take it as a part of
20 MR. BOURGON: Our submission -- our submission, Your Honour, is
21 that these of course 65 ter summary, they are not evidence nor should they
22 be treated as evidence. However, it is our view that those summaries are
23 a tool which can be used by Your Honours as well as by the staff within
24 Chambers in order to prepare for the hearing of a witness. And if these
25 summaries reflect information that is different from the real -- from the
1 case that will be led when the witness appears, then it is something that
2 can influence the process. That's what we're saying. It's not helpful to
3 have a summary that goes beyond what the witness will talk about. And in
4 the same regard, it doesn't help if that summary says something and then
5 the witness comes and says more. There are decisions in -- before other
6 Trial Chambers where as soon as the witness goes beyond the 65 ter summary
7 then the witness is stopped and the Prosecution cannot lead further
9 That's all we're saying, Your Honour.
10 JUDGE AGIUS: I can assure you we'll never see that happening in
11 this Trial Chamber.
12 Yes, Mr. McCloskey.
13 MR. McCLOSKEY: I would invite Mr. Bourgon and all other Defence
14 counsel if there's a particular summary they think is lacking and they
15 want more information, come to us. It's the first time I've heard this.
16 And this summary was right on the money.
17 JUDGE AGIUS: Okay. So there are two requests that you have made,
18 Mr. Bourgon. The first one for an extended period for the filing of your
19 response or position or motion, and one relating to the registrar's
20 decision on the partial indigence and also corresponding -- of costs
21 relating to your client. You're seeking an extension up to the 22nd of
22 December. We are granting you that extension.
23 You also seek an extension up to the same date in order to be able
24 to consider more fully the new points raised in the follow-up to the
25 Prosecution motion for protective measures for the December witnesses.
1 You're seeking an additional period up to the 22nd of December. We are
2 also granting that.
3 MR. BOURGON: If I may, Mr. President. The second request was not
4 for additional time. It was to file an additional response, because there
5 has been already motion, response, and reply, and now we just want to have
6 an opportunity to respond to issues that were raised in the reply that we
7 could not respond before.
8 JUDGE AGIUS: Agreed.
9 MR. BOURGON: Thank you, Mr. President.
10 JUDGE AGIUS: You have the permission to file the additional
12 Which brings me to perhaps the most enjoyable part of today's
13 sitting. Please allow me on behalf of -- yes.
14 I hear that Mr. Ostojic has some submissions to make in the
15 absence of Mr. Thayer. Or Mr. Thayer is still here, yes.
16 MR. OSTOJIC: He gets my e-mails actually often but never replies.
17 JUDGE AGIUS: So that's it.
18 MR. OSTOJIC: In any event, Your Honour, there's two points, one
19 that was raised by my learned friend Mr. McCloskey a couple of weeks ago
20 regarding the aerial images and the testimony of Mr. Ruez. I just want to
21 be clear because I think it was just said in a time when we weren't
22 discussing it. I want just our position to be clear. We don't want
23 Mr. Ruez back. We want to interrogate him further on the aerial images.
24 We did get the response from the embassy of the United States of America
25 which I think confirms that the questions we asked were appropriate.
1 The only question I'd like to ask the Court is to help us get the
2 letter from the OTP that they sent to the embassy dated the 21st of
3 October this year where they outlined the areas.
4 What we are specifically concerned with is, if the Court will
5 recall, the images and how they're, in our view at least with all due
6 respect, somewhat inconsistent. There's an emblem on one but not on all,
7 there's dates on some, and I'm just summarising it for the Court, and I
8 think I'm accurate. So we want our position to be clear. We would like
9 it in this break if you could schedule. I know Mr. Ruez might be on his
10 island or wherever he goes in the winter, but we'd like to --
11 JUDGE AGIUS: I think and again we are -- I wasn't expecting this,
12 so whatever I say is subject to control and agreement with my two
14 But our understanding to my knowledge is that there has been an
15 exchange of correspondence between Mr. McCloskey and the Defence teams,
16 and the last we heard of was a sort of an invitation from Mr. McCloskey to
17 you to come forward with what exactly you wish to convey by way of
18 information for the US embassy to be able to determine exactly the outcome
19 of the request by -- by Mr. McCloskey.
20 So to our knowledge we are waiting for the feedback from
21 Mr. McCloskey based, I would suppose, on the follow-up, but we haven't
22 heard anything. So I don't know what has been happening.
23 MR. OSTOJIC: I just wanted to point that out and we'll clarify
24 that over the break and get that to the Court.
25 The second issue I have, and this would be the last issue, Your
1 Honour, is we've been dealing with the registry with respect to our
2 learned friend Mr. Nebojsa Mrkic here is our now -- technically our
3 assistant. The registrar as recently as yesterday, the 13th, has referred
4 us to the Court to make a decision.
5 We have applied that Mr. Mrkic, who previously has been a judge in
6 the former Yugoslavia for eight and a half years, is an experienced
7 lawyer, that he have an audience with this Court on a very limited basis.
8 And what we're suggesting is because of the workload and the witnesses
9 that might or are expected to be somewhat sped up in light of the fact
10 also that the Prosecution has, I think, five or six different Prosecutors
11 assisting in the presentation of evidence, we would request respectfully
12 from this Court that you grant Mr. Mrkic the opportunity to cross-examine
13 five to seven witnesses during the OTP case, and seven to 10 during our
14 Defence case so that we can more efficiently go through the evidence and
15 make a presentation to the Court.
16 The registry, and I think I gave the letter to -- they've sent a
17 response saying to defer it to the Court. He at all times will be under
18 our supervision. We will be present, either Mr. Meek or myself, during
19 those times, and we're requesting that orally now so that we could proceed
20 in the next session and organise which witnesses, if the Court allows, he
21 may examine.
22 Thank you, Your Honour.
23 JUDGE AGIUS: But of course we are taken - I speak for myself -
24 completely by surprise on this. What I suggest is that following -- as a
25 follow-up to this letter to you by Mr. Martin Petrov dated 13 December,
1 you follow up with a proper formal request, and I suggest that it would be
2 extremely, extremely helpful that we are at least put in the same position
3 that enabled Mr. Petrov to reach this conclusion. In other words, that we
4 have a proper indication of Mr. Mrkic's background, his CV, experience and
5 whatever. I think that is fundamental to whatever motion.
6 If this materialises, when would be -- do you already have in mind
7 the specific witnesses that -- Prosecution witnesses that he will
9 MR. OSTOJIC: Not with all seven but we do have specifically three
10 witnesses that we have been discussing and would like, in accordance with
11 our client's wishes also, to have Mr. Mrkic cross-examine.
12 JUDGE AGIUS: And would these be amongst the January testimony?
13 MR. OSTOJIC: I haven't yet received the January witness list but
14 they might be.
15 But two other points for your consideration I must put on the
16 record. One, my learned Mr. McCloskey, we've talked about it well over a
17 month ago, he has no objection to it whatsoever, and I gave him the same
18 parameters as I've shared with the Court. And also the ADC has said that
19 they have no objection to us seeking this and of approving Mr. Mrkic as
20 acting in the limited basis as another co-counsel in this case.
21 JUDGE AGIUS: Okay. I think -- yes, Mr. McCloskey. Do you want
22 to put on record?
23 MR. McCLOSKEY: Yes, that's correct. While we will certainly miss
24 Mr. Ostojic's cross-examination, I have no objection.
25 JUDGE AGIUS: Thank you. Mr. Thayer, do you associate yourself?
1 Yes, I think we can leave it at that. We will give this --
2 MR. THAYER: [Microphone not activated].
3 JUDGE AGIUS: We will give this all due consideration, and we will
4 be awaiting your formal request. I think it has to be followed up by a
5 formal request --
6 MR. OSTOJIC: Thank you, Your Honour.
7 JUDGE AGIUS: -- and attendant documents.
8 Which brings me to what I had in mind to say before we break -- we
9 break for this festive season.
10 We have basically been living together, this trial, for a number
11 of months now, intensively I would say, but also positively and
12 profitably. I think we all agree on that. We are now all looking forward
13 to a well-merited, well-deserved short break, relatively speaking, over
14 which some of us will be celebrating Christmas, I don't know if all, and
15 also some other religious feasts. We will all certainly be celebrating
16 the arrival of the new year, if not the end of the present one, and so on
17 behalf of Judge Kwon, Judge Prost, on behalf also of Judge Stole, who
18 because of very serious reasons couldn't be with us this morning, I wish
19 to extend to you and to your families and loved ones our warmest and most
20 heart-felt greetings and best wishes for this festive season and also for
21 the entire new year that hopefully will see us back all together on
22 January the 10th when we start again.
23 Thank you.
24 --- Whereupon the hearing adjourned at 12.11 p.m.,
25 to be reconvened on Wednesday, the 10th day
1 of January, 2007, at 9.00 a.m.