1 Friday, 12 January 2007
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 9.02 a.m.
6 JUDGE AGIUS: Good morning. Madam Registrar could you kindly call
7 the case, please.
8 THE REGISTRAR: Morning, Your Honours. IT-05-88-T, the Prosecutor
9 versus Vujadin Popovic et al.
10 JUDGE AGIUS: Thank you.
11 The accused are here. The parties' composition is exactly the
12 same as yesterday and the day before.
13 So the witness is here.
14 Witness, good morning to you.
15 THE WITNESS: [Interpretation] Good afternoon.
16 JUDGE AGIUS: We are going to proceed with your testimony and
17 hopefully conclude it soon. You are testifying to your solemn declaration
18 that you will be speaking the truth.
19 Mr. Bourgon had finished, Mr. Zivanovic has finished. Who was
20 planned to go next? Mr. Lazarevic
21 WITNESS: WITNESS PW-124 [Resumed]
22 Cross-examination by Mr. Lazarevic:
23 MR. LAZAREVIC: Your Honours, dobro jutro.
24 Q. [Interpretation] Good morning, Witness. In the statement given to
25 the OTP you state that at the same location, and we won't mention the
1 name, the same location that were you at, that there was a state security
2 unit as well. You said that that unit was established at a later stage,
3 once you had already arrived there in mid-1995. Do you remember that part
4 of the statement?
5 A. Yes.
6 Q. You also state that your unit exchanged information with that
7 state security unit; do you recall that?
8 A. Yes.
9 Q. I would kindly ask you to clarify this exchange of information for
10 us. Was it a two-way exchange, meaning you provided your information to
11 them and the other way around, or was it only a one-way exchange?
12 A. We always exchanged frequencies. That was the most common thing
13 we exchanged.
14 Q. How about the conversations you intercepted and transcribed, did
15 you compare them to the ones intercepted by the state security?
16 A. No.
17 Q. Generally speaking, what sort of relationship did you have with
18 the members of state security who worked at the location?
19 A. Good.
20 MR. LAZAREVIC: [In English] Can I ask, can we move for just a
21 little while on the private session?
22 JUDGE AGIUS: Let's go into private session for a short while.
23 [Private session]
8 [Open session]
9 THE REGISTRAR: We are in open session.
10 MR. LAZAREVIC: [Interpretation]
11 Q. The platoon commander we have just mentioned was present there and
12 supervised your work; isn't that so?
13 A. Yes.
14 Q. And you had regular, daily contact with him?
15 A. Yes.
16 Q. Was your relationship with him a good one, as would be between two
17 good colleagues?
18 A. Yes.
19 Q. At a certain point in 1995 was there a certain incident involving
20 the commander of your platoon and a member of the state security at the
22 A. I cannot recall that.
23 Q. Did your platoon commander complain to you saying that some
24 members of the state security committed a criminal report against him,
25 because of the fact that he destroyed some equipment, believing it
1 interfered with the work of your station?
2 A. I don't remember that.
3 Q. Thank you very much. Let us turn to another topic. The topic of
4 the notebooks you mentioned, and in -- which the intercepts were
5 transcribed into. Did you have those notebooks all the time, or did you
6 occasionally transcribe a certain conversation on a sheet of paper?
7 A. No, we always used notebooks.
8 Q. Another question in relation to that. At the location you were at
9 were there any files of the main participants in the intercepts which
10 would contain the features of their accept, characteristic words they
11 would use, their nicknames or similar, alongside with their name, rank and
12 function within the VRS?
13 A. No.
14 Q. Therefore, you've never seen such a thing?
15 A. No.
16 Q. Thank you.
17 MR. LAZAREVIC: [In English] Your Honours, at this point, I would
18 have to ask for the assistance of my colleagues from the Prosecution and
19 the assistance of Madam Usher. I would like the witness to take a look at
20 notebook number 26 which is already tendered here into documents. And if
21 the witness could be shown the page with ERN number 718633. That's
23 Q. [Interpretation] Witness, you identified your handwriting in this
24 conversation beginning after 255. I'm interested in the two lines just
25 before that at the top of the page. Is that your handwriting as well?
1 A. Yes.
2 Q. Thank you.
3 MR. LAZAREVIC: [In English] Can we take a look at the previous
5 Q. [Interpretation] Is this your handwriting as well?
6 A. Yes.
7 Q. Please take a look at, I believe it to be the sixth and the 7th
8 line on the page stating why. Who is the signals man Z, says -- I can't
9 make it out clearly, but you think it says, "This is" or "here is a guy by
10 the name of Borovcanin? Can you tell me whether this is indeed what it
12 A. Yes.
13 Q. And you say you transcribed that conversation from the tape, and
14 you were the one who intercepted it, judging by the fact that this is your
16 A. Yes.
17 Q. Can we go back, or rather go one page back at the top? [In
18 English] The other one. This is the next page. The previous page. Oh,
19 yes, that's the one.
20 [Interpretation] At the top of the page in the top left-hand
21 corner there is a word, "Borovcanin." Is that your handwriting?
22 A. Yes.
23 Q. And you identified that person to be a radio man or a signals
25 A. Yes.
1 Q. Thank you. To sum up, you say you intercepted a conversation in
2 which one of the participants was Borovcanin, and that you identified him
3 as a signals man. Is that a fair interpretation of everything we've
5 A. If this is what I wrote down, it should be like that.
6 Q. Hvala lepo.
7 MR. LAZAREVIC: [In English] Your Honours, I have no further
9 JUDGE AGIUS: Thank you, Mr. Lazarevic.
10 Madam Fauveau.
11 MS. FAUVEAU: [Interpretation] Thank you, Mr. President.
12 Cross-examination by Ms. Fauveau:
13 Q. In your statement you spoke of the channels on the -- where the
14 reels were not always sent, you wanted to re-use them, they were not
15 always sent. I would like to know when you re-used those reels, did you
16 record directly on them or would you erase them first?
17 A. The interpretation was not very clear. Could you please repeat.
18 Q. When you were reusing the reels, the tapes on we you already are
19 conversations taped, did you erase those tapes or did you tape directly
20 the new conversation on the former one?
21 A. We always used new tapes. We would send them down to the command
22 and would receive them back erased, blank.
23 Q. Could the witness be shown P2345, the statement to the
24 Prosecutor's office.
25 Sir, could you look at page --
1 JUDGE AGIUS: I'm sorry to interrupt you like this, but we seem to
2 have a problem. We -- at least I and my colleagues definitely cannot --
3 do not have on the monitor the document. I don't know if the rest of you
4 have it or not. But obviously you're referring the witness to this
5 document. If he can't see it, we have to -- he can see it?
6 THE REGISTRAR: The witness can see the document, yeah.
7 JUDGE AGIUS: How come? Oh, I see. I see. All right.
8 Yeah, go ahead. We'll follow from the hard copy.
9 MS. FAUVEAU: [Interpretation]
10 Q. Sir, page 3, paragraph --
11 JUDGE AGIUS: One moment, because I want to make sure that we can
12 follow, because we've got hard copies. You can follow because you
13 probably have hard copies as well, but your clients don't. So we'll only
14 proceed if you agree that we can proceed. Is there any one of you that
15 objects with us proceeding, or do you want to wait until this comes up on
16 the screen? We can solve it very easily, we can put it on the ELMO and
17 then everyone can follow. I take it that there is no objection?
18 Yes, Madam Fauveau, if you can proceed that and if you can dig it
19 up and put it on the ELMO, that would make everybody's life easier.
20 MS. FAUVEAU: [Interpretation] Page 3, paragraph 2 in the B/C/S
21 version, and page 2, paragraph 4 of the English version.
22 Q. Sir, in this paragraph you say -- in the second paragraph you can
23 read that you said, [In English] "Once a tape was full we would also give
24 this to the commander. Then he would send the tape to the 2nd Corps
25 headquarters and we would receive blank, secondhand tapes from 2nd Corps.
1 However, if we did not have any blank tapes we would immediately record
2 over tapes that we had at the side."
3 [Interpretation] Do you remember that sometimes you re-use
4 immediately on your site tapes which have already been used?
5 A. Could you please repeat the question? What do you mean,
7 Q. Without sending them to the 2nd Corps command, you re-used them
8 once they were full on the site where you were without sending them first
9 to the command of the 2nd Corps.
10 A. That would happen on occasion, but never with the same tape which
11 had previously been used by -- or with any of the devices.
12 Q. Sir, did you re-use --
13 THE INTERPRETER: Microphone, please. Microphone.
14 MS. FAUVEAU: [Interpretation]
15 Q. Sir, did you re-use the tapes you had already used and over which
16 some conversations or intercepts were already taped? Did you re-use them
17 to tape new conversations or intercepts?
18 A. Seldom.
19 Q. When those -- that happened, however rare it was, in that case did
20 you first erase the tape or would you directly tape again on the former
21 conversation which was taped?
22 A. I can't recall that at this moment.
23 Q. Yesterday you spoke about the signature of the person who would
24 type on the computer or the signature in the notebooks above the
25 conversations. This is page 353 -- 953, do you remember how many persons
1 in the team you were working with were in charge of typing those
2 conversations on the computer?
3 A. One.
4 Q. Why in that case was it necessary for that person to sign the
5 conversation in the notebook to be identified? Was it perfectly clear who
6 was actually typing on the computer?
7 A. Each shift had its own typist.
8 Q. Okay. Thank you very much I have no other question to ask.
9 JUDGE AGIUS: Thank you, Madam Fauveau.
10 Who goes next? Mr. Meek.
11 MR. JOSSE: My learned friend has asked me to confirm that I've
12 got no cross-examination, Your Honour.
13 MR. HAYNES: Nor I.
14 JUDGE AGIUS: Thank you. Mr. Meek is defending Mr. Beara and he
15 will be cross-examining you now.
16 MR. MEEK: Your Honour, may I get a podium?
17 Cross-examination by Mr. Meek:
18 Q. Good morning, Witness. How are you today?
19 A. Very well. Good morning.
20 Q. When you gave your statement to the Office of the Prosecutor in
21 November of 1999, you told them, and you've affirmed already that
22 everything you've told them then was true, that you started your training
23 after you arrived at the north location; is that correct?
24 A. Yes.
25 Q. And can you briefly tell me, describe for me the nature and length
1 of that training?
2 A. It lasted for about a month, and I was shown all the equipment and
3 I worked with it. I trained on it.
4 Q. Were you recording conversations and then transcribing those
5 conversations during that 30-day period?
6 A. I don't remember that.
7 Q. Did any part of this training involve the use -- or involve voice
8 recognition of participants that you might be intercepting?
9 A. No.
10 Q. In fact, as I understand it, you, in 1999, could not remember any
11 specific persons by recognising them by their voice; is that correct?
12 A. Yes.
13 Q. During this 30-day on-site training that you described, were you
14 briefed by any persons with your army as to any members of the VRS that
15 you might pay special or close attention to during your time there?
16 A. No, only the locations and frequencies were mentioned. The ones
17 we were supposed to monitor, not the people themselves.
18 Q. I want to ask you a little bit about the techniques you utilised
19 when you listened to the tape recording. It's my understanding first that
20 if you were listening to conversations that you might well listen to more
21 than one; is that true?
22 A. Sometimes, yes.
23 Q. And if you were listening to more than one conversation can you
24 give me an idea of the -- what was the most conversations that you might
25 listen to at one given time?
1 A. At any given time, only one.
2 Q. Okay. I think you indicated in your statement that some of the
3 equipment you had could pick up -- the frequencies could pick up, up to 20
4 conversations; is that true?
5 A. It cannot pick up 20 conversations, but rather each frequency was
6 split into 24 parts, which were then scanned.
7 Q. So if the scanner is scanning 24 parts or -- and two -- say three
8 conversations start at the same time, what would happen?
9 A. At that moment the most we could pick up were two conversations.
10 The rest would go unnoticed.
11 Q. Would you be wearing headphones when you're listening to these
13 A. Of course.
14 Q. Now, if I'm correct, you would hear a conversation that you
15 thought was interesting or important, and then you would push a button and
16 start taping that conversation; is that correct?
17 A. First we would start recording, then we would see if it was
18 interesting or not.
19 Q. So then you recorded every conversation that you came upon until
20 you decided it wasn't interesting and you stopped recording it, or decided
21 that it was interesting and kept recording it. Is that what happened,
23 A. Yes.
24 Q. So, for example, if you came across the conversation, you started
25 recording it, did you immediately start -- and you felt that it was
1 interesting, did you immediately then start to write down what the
2 participants were saying at that time, or did you just let it record and
3 listen to it?
4 A. First we would let the whole conversation be recorded, then we
5 would listen back to it.
6 Q. Did you personally, was it your practice to take notes while you
7 were just listening to the conversation in the first event while it was
8 being recorded?
9 A. No.
10 Q. Earlier this morning you've testified and answered questions that
11 Ms. Fauveau put to you, in regards to the used tapes that you occasionally
12 would have to use. Do you remember that testimony?
13 A. Yes.
14 Q. And at times you had new tapes, and at other times you had tapes
15 that had been previously used and wiped clean and -- for re-use.
17 A. Yes.
18 Q. Sir, would you agree with me that the quality of the recording was
19 much greater on a new tape than one that had been re-used more than one
21 A. Yes.
22 Q. Now, on the 13th day of July can you tell me what time you started
23 your shift?
24 A. I really can't remember that.
25 Q. Well, can you remember, were you -- what time you would normally
1 start your shifts when you had a day shift in July 1995?
2 A. It was 12 years ago; I really cannot remember.
3 Q. You have no independent recollection, Witness, whatsoever? Is
4 that what you're telling us?
5 A. I can remember some things, but not when I did my shifts.
6 Q. I believe you testified yesterday that in regards to 65 ter
7 Exhibit 1130A, B, C and D, the conversation that Mr. Vanderpuye, my
8 learned colleague from the Prosecution asked you extensively about, that
9 you discovered that was the 13th or you knew that was the 13th of July due
10 to the night man having written down that date. Do you recall that
12 JUDGE AGIUS: Yes, Mr. Vanderpuye.
13 MR. VANDERPUYE: I just wondered if Mr. Meek would be so kind as
14 to refer me to the page and line.
15 MR. MEEK: Well, I would wonder if Mr. Vanderpuye would be so kind
16 to show -- give the witness the notebook number 92 so we can look at it on
17 the ELMO.
18 Mr. Vanderpuye, I'm looking at 0800.
19 MR. VANDERPUYE: Did you say 0800, Mr. Meek? Okay.
20 MR. MEEK:
21 Q. Witness, you are now looking at ERN number 00800801, which is
22 contained in 65 ter 2322, which is notebook 92. Do you see that, sir?
23 A. Yes.
24 Q. Is that your handwriting at the top of page 0800 where it starts
25 out "relativno" and then "dobro."
1 A. Yes.
2 Q. So if we back up two pages to 0798, that starts out 785.0 CH
3 20:07, is that your handwriting also, sir?
4 A. Yes.
5 Q. What date was that, sir?
6 A. If this was -- just one moment, please. It was probably the
8 Q. Again, flipping back to 0800, is that your handwriting at the top
9 of the page again, and then --
10 A. Yes.
11 Q. What's that hand -- maybe we ought to go into closed session for
12 just one moment, Judge, or private session?
13 JUDGE AGIUS: Yes, let's go into private session, please.
14 [Private session]
10 [Open session]
11 MR. MEEK:
12 Q. Below the line that's drawn across the page, three quarters down,
13 there is a 750.00, 3 channel, 00:10; below that, is that your handwriting,
15 A. No.
16 Q. Okay. So I believe from your testimony and your statement, that
17 you gave to the OTP in 1999, you indicated that you would be working for
18 approximately two hours, you would have six-hour shifts, you would work
19 for about two hours listening and then another four hours recording, or
20 transcribing what you heard. Is that a fact?
21 A. Yes.
22 Q. And the last that we see, if you go back to 0798, would have been
23 on the 12th of July, 1995. You transcribed an intercepted conversation
24 that was approximately two and three-quarter pages long; correct?
25 A. Yes.
1 Q. Now, I want to make sure I'm clear about this. At 10.07 p.m. on
2 the 12th, you pushed a button and recorded a conversation. Correct?
3 A. Yes.
4 Q. And does that help you refresh your recollection as to what time
5 you quit your shift that night, the approximately two hours where you
6 would tape record conversations?
7 A. I really don't know. It's -- I don't know.
8 JUDGE AGIUS: Actually, he -- in the transcript, and I actually
9 heard you said 10.07, but what I see here is 20.07.
10 MR. MEEK: Sorry, Your Honour. Military time always throws me
11 off. It would be 8.00. Correct?
12 Q. Would it be fair, sir, looking at page 0798 of this document, that
13 we know at least at 8.00, seven after 8.00 you had pushed a button and
14 tape-recorded a conversation in an intercept. Fair statement?
15 A. Yes.
16 Q. Okay. Now, in looking through that notebook, that was the last
17 conversation that you taped that night before you quit, correct?
18 A. Yes.
19 Q. And that seemed to be a fairly lengthy conversation, at least in
20 regards to the next conversation that someone else took at 10 minutes
21 after midnight, which only lasted about five lines. And it's on 0800. Do
22 you see that?
23 JUDGE AGIUS: Yes, Mr. Vanderpuye?
24 MR. VANDERPUYE: I'm going to object to the question. I don't
25 think that it's at least a fair question in terms of counting the number
1 of lines because you can see obvious differences in the size of the
3 JUDGE AGIUS: He can answer the question. He is not an
4 uneducated, stupid man. He can answer the question.
5 THE WITNESS: [Interpretation] Could you please repeat your
7 MR. MEEK:
8 Q. The conversation that you tape-recorded that started at seven
9 minutes after 8.00 p.m. on the 12th was a fairly long conversation, at
10 least in regards to some of the other ones that you took and other of your
11 colleagues took, specifically the one directly below it that started at
12 one [sic] after midnight on the 13th of July, correct?
13 A. Yes.
14 Q. So you normally took about four hours to listen to the tapes and
15 write down and transcribe what you thought you heard from them, and you've
16 already testified to that. So would it be a fair statement that you
17 probably didn't finish transcribing the intercept that ended on 0800 until
18 sometime after midnight on the 13th?
19 A. Not necessarily.
20 Q. Well -- and this would not have been the only intercept that you
21 transcribed after you went off your shift on the 12th, necessarily, would
22 it be?
23 A. Yes.
24 Q. Yes, it would be the only one you transcribed or it would be one
25 of several or many?
1 A. It would have been one of several.
2 Q. And according to your statement and testimony you always finished
3 doing that transcription before you finalised your shift, correct?
4 A. Not necessarily.
5 Q. So is it your testimony that you might wait until the next day to
6 listen to that tape and transcribe it?
7 A. No, that never happened. It had to be finished right after the
9 Q. Okay. You have notebook 92 in front of you. Why don't you just
10 go back and tell the Court how many conversations you transcribed on your
11 shift on the 12th and there -- or listened to on the 12th and thereafter
12 transcribed after 8.07 p.m.?
13 A. None. According to this notebook.
14 Q. What do you mean? You took this last one that started at 0798, we
15 just talked about it. At 8.07 p.m., and you have -- I believe you
16 testified that after you stopped your two-hour shift or so, you would then
17 go and listen to this tape and write out what you thought you heard.
18 A. It's possible that I noted this text down during this shift.
19 Q. Okay. So you're saying that at times, once you had stopped the
20 tape recording, for example, on this conversation, if there were no other
21 conversations you needed to tape, you would immediately start listening to
22 it, correct, and then transcribing?
23 A. Yes.
24 Q. Now, do you have any independent recollection of what you did the
25 evening of the 12th and when you finished transcribing that intercept that
1 ended at 0800?
2 JUDGE AGIUS: Why don't you also ask him whether he kept a copy of
3 the menu for the date.
4 THE WITNESS: [Interpretation] No.
5 MR. MEEK:
6 Q. Do you recall, sir, if you were using a new tape or a tape that
7 had been taped over when you listened to the conversation that began on
8 0808 in your notebook, which you wrote down started at 10.09 a.m. on the
9 13th of July?
10 A. No, I cannot recall.
11 Q. It was put to you yesterday, and I'll have to ask you, was it very
12 often -- let me rephrase that. How often, Witness, would it be that you
13 would transcribe two full pages and then cross them out and start all over
15 A. Only when I made a mistake or when I didn't hear it properly and I
16 wanted to hear it again, that piece.
17 Q. And would that happen once a week, once a month? Do you
19 A. I cannot remember, really.
20 Q. I'll put it to you, it didn't happen very often, did it, sir?
21 A. That is your assertion.
22 Q. Okay. We don't have the time here, but this notebook 92, and your
23 handwriting is very distinctive. Do you agree with me that there is no
24 where else in that whole notebook that you crossed out the way you did on
25 this intercept, crossed out two full pages and then started again. Would
1 you agree that's the only time you did it in that whole notebook?
2 A. I would need to look through the notebook in order to answer
4 Q. Hopefully we'll give you time to do that, Witness.
5 Now, according to your testimony sometime after 10.09 a.m. in the
6 morning of the 13th of July you began to transcribe the intercept in --
7 which you received, correct?
8 A. Yes.
9 Q. And you put down the participants of that, and again I'm going to
10 refer you -- have you look at 0808. You are at 0800 at the top, those
11 numbers. Excuse me.
12 A. Very well.
13 Q. All right. Frequency 254.300, that was the frequency, correct?
14 A. Yes.
15 Q. And that was direction south, wasn't it?
16 THE INTERPRETER: The interpreter did not understand what the
17 witness said, yes or no.
18 JUDGE AGIUS: Witness, you need to repeat your answer, because the
19 interpreter didn't hear it.
20 THE WITNESS: [Interpretation] Yes, I think that's what it was. I
21 didn't note down the direction, only the frequency and the channel.
22 MR. MEEK:
23 Q. Okay. Then if you -- and I would ask the -- that 65 ter 11D, I
24 believe it is, the transcribed version of this written intercept, be put
25 on the ELMO. I'll just be one ...
1 Here it is. Should be 1130 -- 65 ter number 1130B, I believe. On
2 the e-court, I'm sorry. That's not it. I want the typed version. Yeah,
4 Do you see that? Witness, you speak English, don't you?
5 A. Yes.
6 Q. Do you recognise this document as the typed version of your
7 handwritten notes?
8 A. Not in English, no.
9 Q. Not in English, okay. But you see where it says 254.300?
10 A. Yes.
11 Q. That coincides with your handwritten notes on page 0808, which you
12 have just been looking at to the right.
13 A. Yes.
14 Q. Okay. It says direction south, so that conversation was coming
15 from the south. Is that what that means, sir?
16 A. Well, it means that in the handwritten text that's mine, this is
17 not mentioned.
18 Q. No, I understand it's not mentioned in the handwritten section,
19 but that would be -- that frequency, to your knowledge, that's direction
20 south, correct?
21 A. Again, I say that's what it's supposed to be, what it should be
22 but I never noted down the direction.
23 Q. All right. Thank you. The direction was always noted down by
24 whoever typed your handwritten notes; isn't that true, sir?
25 A. Yes.
1 Q. And to your knowledge isn't Crna Rijeka, or the Black River, south
2 of the location that you were at on that day on the 13th intercepting
3 these conversations?
4 A. I really couldn't say.
5 Q. Okay. Thank you. Now, again looking back at your very first
6 transcription, which is on 0808, I don't know if that's still on the ELMO
7 for him or not, that he can see it.
8 JUDGE AGIUS: We have to go -- yes, yes.
9 MR. MEEK:
10 Q. You have the participants down as Zokic -- Zoka, correct?
11 A. Yes.
12 Q. Beara, correct?
13 A. Yes.
14 Q. And Lucic, correct?
15 A. Yes.
16 Q. And under Lucic you have "inaudible," don't you?
17 A. Yes.
18 Q. You couldn't hear him at all, could you?
19 A. Probably.
20 Q. What do you mean "probably," Witness? What do you mean probably?
21 If you wrote down "inaudible," why do you tell us now probably you
22 couldn't hear him?
23 A. It's probably because I wrote it down, it means that he couldn't
24 be heard completely.
25 Q. Now, Witness, I just -- I want again to have you look at what you
1 crossed out, and you have a -- three dots which means inaudible, right,
2 and then you have P-u-k Beara. Tell the court what P-u-k means?
3 A. That's an abbreviation for colonel.
4 Q. Okay. Now, if you jump over to page 0810, could you move it a
5 little bit? There you go. You have at this point decided you can't hear
6 the tape well enough, you're going to cross out two pages and start all
7 over. Am I correct in that?
8 A. Yes.
9 Q. And you wrote down everything that you heard on the tape because
10 you wanted to be as accurate as possible for your command, and that was
11 part of the rules, correct?
12 A. Yes.
13 Q. Why is it that -- apparently you couldn't hear Colonel Beara when
14 you started to re-listen to it?
15 A. I don't know.
16 Q. Okay. Would it be a fair statement that the quality of this tape
17 was very, very poor?
18 A. I don't know about the tape.
19 Q. Well, sir, let me ask you this question: Do you have some
20 problems with your hearing?
21 JUDGE AGIUS: Yes, Mr. Vanderpuye.
22 MR. VANDERPUYE: I think that's an objectionable question. I
23 would ask the Court to countenance my objection.
24 MR. MEEK: Judge, let me just respond to that. It's not because
25 he said -- he can't say whether the tape was bad, so the next question is,
1 if the tape was fine, whether his hearing was bad.
2 MR. VANDERPUYE: I don't think -- I don't think that's a
3 reasonable inference.
4 JUDGE AGIUS: Ask him to explain why he's saying so and not
5 whether his hearing -- I mean, he hasn't shown any hearing impairment or
7 MR. MEEK:
8 Q. What other explanations -- if your hearing is perfect, your
9 hearing is fine, and the tape is of good quality, what other
10 explanations would it be that you couldn't hear that -- Colonel Beara
11 when you started re-listening to the tape the second time when you heard
12 it the first time?
13 A. Usually one can hear one collocutor far better than the other.
14 Q. Okay. Now, would you answer my question? Why is it, besides if
15 the quality of the tape was fine and your hearing is fine, what other
16 reason would it be that you did not hear Colonel Beara when you
17 re-listened to the tape the second time when you, in fact, had already
18 written it down when you first started listening to the tape?
19 A. Believe me, I don't know.
20 Q. Could it have been an equipment failure, that the equipment you
21 were listening to it on just wasn't good?
22 A. The equipment was fine.
23 Q. And as you just said, that -- the fact would be that most of these
24 things you could always hear one of the participants better than another,
25 or other participants, correct?
1 A. Yes.
2 Q. Now, let's go back for a minute, because you've put "inaudible" on
3 Lucic, but when we get to the typed-out version that the OTP did, which is
4 an addition to tab 6, and I believe that would be 1130 -- I think E.
5 Could that be shown to him on the screen in the e-court? Yeah. And I
6 don't believe there is a B/C/S version of that. Okay. Leave that one on
7 for a minute.
8 Now, this is again -- what's on the screen now is an English
9 translation of what you had crossed out in your two pages of handwritten
10 notes. Do you understand that, sir?
11 A. Yes.
12 Q. So then I will again just refer you back to 0808, the page that
13 you first started crossing out this conversation. You have B, "Beara
14 speaking." Correct?
15 A. Yes.
16 Q. And again what does z-d-r-a-v-o "zdravo" in that 0808, what does
17 that mean?
18 A. A greeting.
19 Q. Okay. Greeting such as what? Hello? Is that, "Hello, Sjor
20 Lucic, kako se"? I don't know if that's on the screen, sir, but in the
21 handwritten notebook you have in front of you.
22 A. It's a standard greeting.
23 Q. And I agree with you now, I want you to -- again, I don't know
24 what you're looking at, do you have 0808 on the screen in front of you or
25 just on the right? Is it on the screen too?
1 A. On the ELMO.
2 Q. What you think you are hearing is a person saying, "Colonel
3 Beara," and then, "Hello, Sjor Lucic, how are you?" Correct?
4 A. Yes.
5 Q. Now, where is the word "speaking" in there? Beara speaking, is
6 the word "speaking" in B/C/S in there anywhere?
7 A. There is such a word, but it's not used.
8 Q. Okay. After allegedly the person claiming to be Beara on this
9 transcript or on this tape recording says, "How are you," look at your
10 handwritten notes. What's the next word? You have "..." and then you
11 have what?
12 A. Excellent or very well.
13 Q. Which is -- which means very well, correct? So is it my
14 understanding that since Lucic was inaudible, that the person purported to
15 be Beara asked Lucic how are you and then answered his own self that he
16 was doing excellent?
17 A. No. The dots should represent the other collocutor.
18 Q. Which would have been who?
19 A. Lucic.
20 Q. All right. Nowhere in the transcribed English version is
21 "odlicno" or "excellent" anywhere in there. Can you tell me why that is?
22 JUDGE AGIUS: Yes, Mr. Vanderpuye.
23 MR. VANDERPUYE: There are, I think, two things that are going on.
24 One is, I do see the word "excellent" actually in this transcript -- or
25 this translation. The second thing is, I don't know if the witness has a
1 basis of knowledge to speak to the veracity or accuracy of the English
2 translation. And I think that in that regard the questions are irrelevant
3 as put to this particular witness.
4 JUDGE AGIUS: First of all, the translations that we have are
5 translations made for us, that's number one. They are not translations
6 originating from the same offices or facilities or commands.
7 MR. MEEK: I appreciate that, Judge. I'll skip that.
8 Q. I'll just ask the witness then to go back and flip, if you would,
9 to the notebook page where you decided you couldn't hear and you were
10 going to start over, and you did that at 0810.
11 JUDGE AGIUS: You could ask the witness if he sees in the
12 translation the word "excellent," which admittedly there is. What is
13 purported to be the translation of the crossed-out part. Okay? You can
14 ask him whether that indeed shows up, whether there is the equivalent word
15 in B/C/S in the handwritten --
16 MR. MEEK: That's just what I was going to ask him, Judge.
17 JUDGE AGIUS: All right.
18 MR. MEEK:
19 Q. Please turn to page 0810 in your diary, Witness. The notebook.
20 Do you have it? In the notebook to your right on the ELMO. Where you
21 started re-transcribing it. Do you see that?
22 A. Yes.
23 Q. For the record, you're going to agree with me that there is no
24 word "odlicno" or "excellent" in that second one, is there?
25 A. It's not there.
1 JUDGE AGIUS: I heard you say odlicno.
2 MR. MEEK: Yeah.
3 JUDGE AGIUS: Well, on page 0808, I do see "odlicno" on the third
4 line of the script, which is cancelled.
5 MR. MEEK: That's correct, Your Honour. And I asked the witness
6 to go to 0810 where he decides to start -- re-begin his transcription of
7 this conversation.
8 JUDGE AGIUS: And it's not there.
9 MR. MEEK: It's not there, Judge.
10 Q. In fact, we can go on and on about the things that aren't there
11 from the first to the second, can't we, Witness?
12 A. Very well.
13 Q. Do you believe, sir, that your listening to this tape-recorded
14 conversation the second time you could hear it any better than you could
15 the first time?
16 A. That's probably why I cancelled the first one and started anew.
17 Q. All right. But apparently that's why you did, but then you
18 started the new one and right away you don't pick up Colonel Beara, and
19 two sentences later you don't pick up "excellent," correct?
20 A. Yes, that is so.
21 Q. And maybe I've already asked you this and if I did I'm sure you're
22 going to tell me. You don't know if that was a new tape or a used tape
23 that had been taped over and over again, do you?
24 A. I don't.
25 Q. Now, on the second one, and again I refer you to 0810, where you
1 restarted it, and yesterday the learned Judge A. Agius asked you why it
2 was you didn't put the participants, the frequency number and the time,
3 and you answered because it was a continuation of the same conversation,
5 A. Yes.
6 Q. Okay. Now -- and maybe you can't answer this, but maybe you can.
7 When we finally get a transcription or when it goes to -- we get an
8 English transcription, we have the participants being Beara, Lucic, and it
9 says, "Lucic and Zoka (barely audible)" instead of "(inaudible)"?
10 A. I don't know that.
11 Q. Then I would ask that 65 ter 1130C be put on the e-court for this
12 witness for just a moment. All right. And for the record, this is the
13 end result of the typist, encryptionist typing out your handwritten notes,
14 correct? Now, do you see in B/C/S in your own language, the participants?
15 Right under direction south, direction J? See it?
16 A. Yes.
17 Q. It says, "Beara -- and Lucic Zoka (barely audible)" isn't that
18 what it says? Isn't that what it says, sir?
19 A. That's what it says.
20 Q. Now, if you can tell me this, who was barely audible, Zoka? Or
21 Lucic and Zoka?
22 A. Are you asking me about my text or the typed-out version?
23 Q. Let me ask you about yours, first.
24 JUDGE AGIUS: He's answered that. He's answered that.
25 MR. MEEK: Okay.
1 Q. Then as far as -- in your version, it's completely inaudible,
3 A. Yes.
4 Q. And now in the typed version all of a sudden it becomes barely
5 audible and we don't even know who it is that's barely audible or Zoka or
6 Lucic and Zoka both; fair statement?
7 A. You would have to ask the person who did the encryption.
8 Q. I would like to do that sometime. Then you wrote down the time.
9 You wrote down this conversation was taped at 10.09 a.m., didn't you?
10 A. Yes.
11 Q. And then on 65 ter 1130C, which is in front of you on the screen,
12 that conversation came in at 10.15 a.m. on the 13th, correct?
13 A. Yes.
14 Q. You didn't recognise this person that you put down as Beara, you
15 didn't recognise his voice, did you, sir?
16 A. Yes.
17 Q. You did recognise his voice or you did not?
18 A. I can no longer remember.
19 Q. Yesterday in your testimony you told the Prosecutor when he asked
20 you the question --.
21 MR. MEEK: That would be on page 66 of yesterday's transcripts,
22 Your Honours, line starting at 17 through 21.
23 Q. And the Prosecutor even asked you some questions about the typed
24 version and you answered on line 17 "I don't know in the typewritten
25 text." Which you just answered to me about some questions, and I
1 understand that.
2 The Prosecutor then asked you, "Okay. Now, with respect to what
3 you have written in your notebook versus any other document that you may
4 have reviewed, which would you consider the more authoritative or
5 accurate?" Your answer, "Mine, of course."
6 Do you remember that, sir?
7 A. Yes.
8 Q. Okay. I think that's pretty clear, and I would like to take you
9 back to the original notebook, 0812. Do you see it?
10 A. Yes.
11 Q. We have been told by the Prosecutor before you testified that you
12 actually looked and reviewed the notebook and the printout of this
13 intercept. That's true, isn't it?
14 A. Yes.
15 Q. And you say in particular the phrase on that page, 0812, "Daj mi
16 ga," or, "Let me talk to him," or "Put him on," is attributed to B, Beara
17 in the printout, and to Lucic in the notebook. In any event, Witness,
18 look at page 0812. When the person speaking says, "Put him on" or "Let me
19 talk to him," "Daj mi ga," that's in your handwritten, isn't it, sir?
20 A. Yes.
21 Q. Now, you have that as being Lucic saying that, don't you, even
22 though the typed version had Beara saying that? You in your own
23 handwriting had Lucic saying that, didn't you, sir?
24 A. Yes.
25 Q. And that's more authoritative than the typed -- or the typed
1 version, isn't it, according to you?
2 A. Yes.
3 Q. Okay. So I'll come back to that in just a moment. Did you know
4 at the time or do you know now, and have you learned since that time or
5 did you know at the time, that Zoka was the nickname for Zoran Malinic and
6 that Lucic and Zoran Malinic were both stationed at Nova Kasaba on the
7 13th of July, 1995?
8 A. I did not.
9 Q. And isn't it true, sir, that the more authoritative of the typed
10 version and your handwritten notes, are your handwritten notes and it was
11 Lucic who said let me talk to him?
12 A. According to my version, yes, Lucic said it.
13 Q. And then thereafter every time that you have a B for Beara, it
14 should have been an L for Lucic because that's the voice you heard
15 saying, "Let me speak to him." Isn't that true?
16 A. That's what it seems like to be.
17 Q. And I'll just wrap this up. I'm sure you worked hard, you didn't
18 have much sleep, and this was a poor recording, and you couldn't tell one
19 voice from the other. Isn't that a fact, sir?
20 A. In this case I could probably hear Beara very well, whereas Lucic
21 I couldn't.
22 Q. Then when we get down to the page where Lucic wants to speak with
23 Zoka, that's the same voice you thought was Beara's. Correct?
24 A. Could you repeat that?
25 JUDGE AGIUS: I think this is unfair on the witness and you are
1 confusing the witness.
2 MR. MEEK: He already answered that question, Judge.
3 JUDGE AGIUS: Because he told you his terms by what there is in
4 the -- in the transcript. He agreed ...
5 [Trial Chamber confers]
6 MR. MEEK: Your Honour.
7 JUDGE AGIUS: Yes, Mr. Meek.
8 MR. MEEK: May it please Your Honours, I would just refer the
9 Court to the question that I started at page 31, line 20, and this
10 witness's response at line 23 on page 31, and with that, Your Honour, I
11 have no further questions of the witness.
12 JUDGE AGIUS: I know, but just to be clear --
13 JUDGE KWON: Can I clarify one thing?
14 JUDGE AGIUS: Go ahead, Judge.
15 JUDGE KWON: Mr. Witness, could you take a look at the page 0809
16 of the notebook? This is part of the crossed-out transcription where you
17 said that you cannot hear Lucic very well, or inaudible, et al, right.
18 THE WITNESS: [Interpretation] Yes.
19 JUDGE KWON: But in the bottom part you can see, "Aha, daj mi ga."
20 Do you see that?
21 THE WITNESS: [Interpretation] Yes.
22 JUDGE KWON: One can see that that is the voice of Beara according
23 to what you said so far. Am I correct in so assuming?
24 THE WITNESS: [Interpretation] Of course. That's why it was
25 crossed out.
1 JUDGE KWON: Ah-ha. Thank you. Let me be clear. So what you
2 just said is that's the reason why you crossed that part, two pages? Is
3 that what you said right now.
4 THE WITNESS: [Interpretation] The reason why I crossed out these
5 two pages was that I could hear another voice in the background, and I
6 wanted to listen to it again and try and make out what it was saying.
7 JUDGE KWON: So the voice who said "daj mi ga" was another voice.
8 THE WITNESS: [Interpretation] Yes.
9 JUDGE KWON: Thank you.
10 JUDGE AGIUS: My question to -- to you in addition to what my
11 colleague, Judge Kwon has asked you is the follows: Forget the
12 typewritten versions of what is alleged to be your entry, forget them for
13 the time being. Forget the handwritten entry in the notebook which you
14 crossed out. Forget that. Concentrate on the next handwritten entry,
15 which is the second -- your second attempt to transcribe that intercept.
16 In that entry you put, against the various intercepted words, letters: B,
17 L, and later on Z. Having testified here now for all this time, and
18 having been asked questions by not only counsel for the Prosecution, but
19 also Defence counsel, is there any entry there attributed to any of the
20 individuals that those three letters, B, L and Z represent that you would
21 concede is wrongly attributed to that person in your entry? In other
22 words, for example, Judge Kwon asked you as regards the words, "Aha, daj
23 mi ga." If you look at 0812, that appears to have been said according to
24 you, by Lucic or Lukic. Lucic. Do you stand by that or could that be
25 mistakenly attributed to Lucic and should have been attributed to someone
1 else? Is there any such words or expressions in your entry in the
2 notebook for that intercepted conversation that you would like to draw our
3 attention to as being mistakenly attributed to a particular person?
4 THE WITNESS: [Interpretation] In this text there were two lines,
5 rather we have Beara and Lucic. "Aha, daj mi ga," most certainly is not
6 something that should be attributed to Mr. Beara.
7 JUDGE AGIUS: All right. Thank you.
8 I take it from what I had heard that there are no other
9 cross-examinations. Is there re-examination, Mr. Vanderpuye?
10 MR. VANDERPUYE: There is a brief re-examination, with the Court's
12 JUDGE AGIUS: Yes.
13 Re-examination by Mr. Vanderpuye:
14 Q. Witness, with respect to this particular area of conversation, and
15 that is the phrase, "daj mi ga," that you have attributed to Mr. Lucic in
16 your handwritten transcription of this intercept, you've indicated to the
17 Court that you are -- you stand by your attribution of that phrase to
18 Mr. Lucic; is that correct?
19 A. Yes. Or to someone on his end or at his end of the connection.
20 Q. Now, with respect to what follows this phrase, "Daj mi ga," that
21 is the continued conversation between -- as you have indicated in your
22 handwritten material, a continued conversation between Zoka and Beara, do
23 you stand what is contained in your handwritten transcription?
24 A. Yes.
25 Q. Having reviewed this material and given it some thought during
1 examination by Defence counsel and also by the Court, can you provide any
2 explanation for why you have made this particular attribution in light of
3 what follows in your written transmission -- written transcription?
4 A. Could you please reformulate?
5 Q. Okay. I think I can do that. I think the gist of what's being
6 asked of you is, if you have attributed the phrase "daj mi ga" to
7 Mr. Lucic, then reasonably what should follow is a conversation between
8 Zoka and Mr. Lucic? What you have in your written transcript is a
9 conversation that follows between Zoka and Mr. Beara. Now, having had
10 that put to you, and having given it some thought, can you, if you can, do
11 you have an explanation for why that is the case or as it appears in
12 your -- in what you wrote down in your notebook?
13 A. The voice came from Lucic's side. You can see from the
14 conversation that Zoka and Lucic were on the same line, so either one of
15 them could have said that. It could have been in the background that Zoka
16 said "daj mi ga," but anyway it was at that end of the connection.
17 MR. MEEK: Judge, I'm going to object to the speculative nature of
18 this answer, and I -- further, I don't even believe this is proper
19 redirect examination.
20 JUDGE AGIUS: It is proper re-examination, obviously, because it
21 arises out of what you asked and also what I asked. The -- and there is
22 no speculative element to the question either. In fact, I'm going to
23 rephrase your question myself because I think it is very important. And
24 it will hopefully shed enough lighten enabling us to decide what weight,
25 if at all, to give to this -- this transcript in particular.
1 It's been put to you, as follows, Witness. And could you please
2 go to 0812 from the notebook? So I take you back again to those words
3 attributed to Lucic according to you, and you have confirmed that. "Aha,
4 daj mi ga," which translated into English is "Ah-ha let me talk to him."
5 And then you have Zoka or Z who says "Da." Mr. Vanderpuye is suggesting
6 to you that if "aha, daj mi ga," are words that were spoken by Lucic to
7 Zoka, and if Zoka replied, as is obvious from the transcript itself, then
8 the rest of the conversation should have been between Lucic and Zoka and
9 not between Beara and Zoka. If you look at the notebook, what you have
10 after the "da" then it's Beara's, "Zdravo, Zoka." And then Zoka who is
11 inaudible, and Beara "Sta, ima novo," and then Zoka and then Beara and
12 then Zoka and then Beara, and then Zoka. It is being suggested to you
13 that if the words, "Aha, daj mi ga" by Lucic in other words it was Lucic
14 looking for Zoka, the rest of the conversation would be between those two
15 and not between Beara and Zoka. Do you have any explanation for this? I
16 don't any if I have misrepresented your question, Mr. Vanderpuye. Please
17 correct me.
18 MR. VANDERPUYE: No, I think it's a pretty fair assessment of the
20 JUDGE AGIUS: Yeah.
21 THE WITNESS: [Interpretation] There are two sides in each
22 conversation. One -- you can hear one better, the other one not so well.
23 In this case, one collocutor, Beara in this case, could be heard very
24 well. So I had no doubts that it was him. The other end where Lucic was,
25 and this text, "Aha, daj mi ga," Zoka could said that in the background,
1 but he was at the other end of the line, the other end that could not be
2 heard as well.
3 THE INTERPRETER: Microphone, please.
4 JUDGE AGIUS: I apologise. Do you have any other questions?
5 MR. VANDERPUYE: Just a couple.
6 JUDGE AGIUS: Go ahead.
7 MR. VANDERPUYE:
8 Q. Now, you have indicated that it is entirely possible that -- well,
9 you --
10 JUDGE AGIUS: Try to conclude as quickly as you can, because we
11 should have had the break about eight minutes ago.
12 MR. VANDERPUYE: I'm sorry, I wasn't aware of that.
13 JUDGE AGIUS: Go ahead and conclude, please. Unless I have
14 objections from -- if anyone insists that we have the break now, I will
15 have it now.
16 MR. VANDERPUYE: Okay.
17 MR. MEEK: I think we ought to have the break, judge, because I'm
18 going to have some re-examination when he gets done.
19 MR. VANDERPUYE: That's fine. That's fine.
20 JUDGE AGIUS: Let's have a 25-minute break.
21 --- Recess taken at 10.38 a.m.
22 --- On resuming at 11.09 a.m.
23 JUDGE AGIUS: So, for the record, Mr. McCloskey is not present
25 Yes, Mr. Vanderpuye, you may proceed with your re-examination.
1 MR. VANDERPUYE: Thank you, Mr. President, I just only have maybe
2 a couple of questions.
3 JUDGE AGIUS: I hope so.
4 MR. VANDERPUYE:
5 Q. Witness, you had indicated in response to the Court's question
6 that the phrase "daj mi ga" as you have attributed it to Mr. Lucic may
7 have been the result of some confusion, may perhaps -- should have been
8 attributed to somebody else, maybe Zoka or somebody on that end of that
10 JUDGE AGIUS: One moment. That is not exactly what he said. You
11 are saying should have been. He never said it should have been.
12 MR. VANDERPUYE: Oh, I'm sorry.
13 JUDGE AGIUS: He's saying it may have been or could have been.
14 MR. VANDERPUYE: Okay. Thank you.
15 Q. That it may be the case that it should -- that would more properly
16 have been attributed to someone else?
17 JUDGE AGIUS: No, he never conceded that. He said that came --
18 those words were uttered from the --
19 MR. VANDERPUYE: Lucic end of the conversation.
20 JUDGE AGIUS: Exactly. But there was more than one person
21 speaking at that end.
22 MR. VANDERPUYE: Right.
23 Q. If that were the case, that it was someone other than Lucic who
24 had uttered those words, but from the Lucic end of the conversation, then
25 what follows that transition, would that make sense in your view?
1 JUDGE AGIUS: I don't there is a need for that question. Let us
2 draw conclusions.
3 MR. VANDERPUYE: Okay.
4 JUDGE AGIUS: Let us draw conclusions.
5 MR. VANDERPUYE: Okay. In that case I have no further questions.
6 JUDGE AGIUS: Okay. Thank you.
7 So, do you have questions, Judge Kwon?
8 There are no further questions for you, sir.
9 What is the matter, Mr. Meek?
10 MR. MEEK: Nothing is the matter, Your Honour. I would just like
11 to say I have no further re-cross-examination other than the fact that
12 should, in the future, at some point Your Honours want to admit this
13 notebook 92 in its entirety, I would like the Court to take judicial
14 notice that this witness, this was the only intercept where he crossed out
15 two pages and there are no other intercepts where he crossed out even
16 slightly close to that.
17 JUDGE AGIUS: Actually, I thank you, Mr. Meek, for that
18 observation. I was tempted at the time to -- to concede that to you,
19 because obviously you're right, there doesn't seem to be any other pages.
20 All right.
21 Sir, that brings your testimony to an end. On behalf of the Trial
22 Chamber, I wish to thank you for having come to give testimony. Our staff
23 will assist you making -- concluded the arrangements necessary for your
24 return. On behalf of everyone, we wish you a safe journey.
25 THE WITNESS: [Interpretation] Thank you.
1 [The witness withdrew]
2 JUDGE AGIUS: So, documents, exhibits.
3 Mr. Vanderpuye.
4 MR. VANDERPUYE: Thank you, Mr. President. We propose to tender
5 at this time the witness statement PO2345 and the pseudonym sheet under
6 seal PO2346 in evidence, and then offer for -- to be marked for
7 identification, subject to connection later on -- okay. I think everybody
8 has a copy of the tender sheet. And I would just -- I don't want to
9 necessarily go through all of them, but everything on it I would offer for
10 identification purposes.
11 JUDGE AGIUS: All right. With the understanding that those
12 documents that appear in bold --
13 MR. VANDERPUYE: Should be tendered --
14 JUDGE AGIUS: On the sheet.
15 MR. VANDERPUYE: Should be tendered.
16 JUDGE AGIUS: Again those will be marked for identification
17 purposes only for the time being pending final determination of the issues
18 relating to intercepts and to the notebook. Yes, now there is also under
19 1379D an audio tape, which we didn't hear.
20 MR. VANDERPUYE: Ah. With respect to the audio tape, I would --
21 well, we'll have it marked for identification purposes.
22 JUDGE AGIUS: You haven't made use of it with this witness.
23 MR. VANDERPUYE: That's true. I don't believe we're ultimately
24 going to submit it, but if it's only marked for identification purposes,
25 perhaps that's okay at this time.
1 JUDGE AGIUS: Okay. Agreed. Any objections on the part of the
2 Defence teams, apart from the usual caveats in relation to this category
3 or this class of documents? I hear none. So they are so admitted as
4 stated earlier. Any of the Defence team wishes to tender any documents?
5 I see none. So that brings the Witness PW-124 chapter to an end. Let me
6 clear up what I have in front of me first.
7 So now there are some housekeeping matters that we have to attend
9 [Trial Chamber confers]
10 JUDGE AGIUS: Judge Kwon has --
11 JUDGE KWON: Just a question to Mr. Meek. Notebook 92 hasn't been
12 tendered. Would it be okay with you?
13 MR. MEEK: Yes, it would, Your Honour.
14 JUDGE AGIUS: Now, let's try to do this exercise in a logical way.
15 I think we need to start first with the Popovic Defence motion pursuant to
16 Rule 127 A for the extension of time to file a response to the
17 Prosecution's submission of the 9th of January, 2007. This Popovic
18 Defence motion was filed on the 11th of January. We are handing now an
19 oral decision. If required by you, Mr. Zivanovic, we'll follow up with a
20 written decision. If not, the oral decision will stand, will suffice.
21 Our decision is to reject your request for 14-days time since the
22 filing of the OTP submission to respond and challenge the OTP submissions
23 that you referred to in your motion. The reasons are as follows: We are
24 of the opinion that a copy of the intercept and the intercept book was --
25 has been available for a sufficient time to enable you to take stock of or
1 familiarise yourself with its contents.
2 The second, there is no legal justification for your submission
3 that you haven't had time to go through the OTP submissions, and, in fact,
4 this in itself is contradicted by the rest of the motion which deals
5 precisely with the submissions. The rest you can deal with in your
7 However, having disposed of your motion as is, I now call upon
8 you, and I will be calling upon the others as well, your other colleagues,
9 to make any oral submissions now on the Prosecution 9th January
10 submission. And we will start with that.
11 MR. ZIVANOVIC: [Interpretation] Your Honours, I would just like to
12 have your written decision on this, please.
13 JUDGE AGIUS: Yes, certainly. As I said, once you have asked for
14 a written decision, you will also have a written decision, will be along
15 the lines that you have just explained in our oral decision. But that's
16 the decision already, in other words, you are now asked to proceed with
17 your oral submissions in response to the Prosecution's submission.
18 MR. ZIVANOVIC: [Interpretation] What I would like to say is the
19 following: In the submission given to us by the Prosecutor two days
20 before bringing the witness into the courtroom is in my assessment lacking
21 in stating valid reasons why this evidence was not proposed for use
22 earlier. The Prosecutor analysed evidence or analysed the intercept
23 itself. I believe that the whole point of the Prosecutor was to, by
24 having a positive decision from you, to have the intercept placed on the
25 list, and also to accept the reasons and the analysis of the intercept
1 itself, with which we do not happen to agree.
2 What we wanted to have an opportunity to state our position on is
3 also to be given enough time to do that, even though it's not as much time
4 as the Prosecutor had, and we would like to dispute the validity of the
5 analysis provided by the Prosecutor on this analysis. Especially we would
6 like to deal with the reasons why the intercept was not placed on the list
7 of exhibits right away, even though it had been available for the past
8 four years. Thank you.
9 JUDGE AGIUS: Would anyone, any other Defence team like to make
10 oral submissions?
11 Mr. Bourgon.
12 MR. BOURGON: Thank you, Mr. President. At this time I would like
13 to support the objections made by my colleague, and the object of my
14 submission is to respectfully request the Trial Chamber not to allow the
15 Prosecution to add the proposed 20 April intercept to which Rule 65 ter
16 list of exhibits and consequently to rule that the testimony of Witness 77
17 is no longer relevant and necessary.
18 As a background to my submission, Mr. President, the Defence would
19 like to recall that the 20 April intercept was not on the Prosecution's
20 list on Rule 65 list of exhibits, nor was it mentioned in two Prosecution
21 motions to modify its list of exhibits in both August and September. The
22 first time that the 20 April intercept was mentioned is in the Prosecution
23 motion of 21 November in which it requested Witness 77 to be changed from
24 Rule 92 bis to Rule 92 ter in accordance with the Trial Chamber's ruling
25 on 92 bis, the -- its 92 bis ruling.
1 Now, the Defence immediately opposed this motion from the
2 Prosecution and on the basis that the Prosecution had not exercised due
3 diligence in bringing the intercept, nor provided any information as to
4 the need to use this intercept in the first place. Now, nonetheless, we
5 agreed at the time to change Witness 77 from Rule 92 bis to Rule 92 ter
6 because there was at the time 22 intercepts in the whole package. Of
7 course, Mr. President, as mentioned yesterday we now know that 20 of those
8 intercepts are -- were not transcribed by Witness 77 and had we known this
9 fact, we would have also objected to even changing the witness from 92 bis
10 to 92 ter.
11 The Prosecution replied to our response, that was a few days
12 later, and for the first time they attempted to justify the use of the 20
13 April intercept. And what they said, they said three things: They said
14 that the intercept goes to the acts and conduct of the accused; they said
15 that it was during the period relevant to the indictment; and they said
16 that it was critical to the Trial Chamber's understanding of the events
17 without saying why.
18 Now, even though we did not have an opportunity to respond to
19 these three arguments, of course we were ready to say at the time that
20 even though the name Nikolic may be on that intercept, there is nothing in
21 the material which was provided by the Prosecution which says that the
22 intercept actually corresponds to Nikolic, the accused in this case.
23 The second thing is about the relevant period, it was said --
24 Prosecution said that it was the relevant period but now they recognise
25 that the intercept, which dates of 20 April, 1995, is outside of the
1 period relevant to the indictment. They actually used the date to say
2 this is why they did not look at the intercept in the first place. Then
3 the Prosecution says the events are not related to Srebrenica. On the 13
4 December the Trial Chamber gave its ruling and said, yes, Witness 77 can
5 testify pursuant to Rule 92 ter, but if the Prosecution wants to use this
6 20 April intercept it would have to use -- they would have to show good
7 cause. In other words, our understanding is that the Trial Chamber
8 invited the Prosecution to make an application so that we could consider
9 whether this 20 April intercept could be added to its list of -- this Rule
10 65 ter list.
11 As we know, the Prosecution filed on 15 December, it filed an
12 application to add 10 more intercepts on its list, but not this one. It
13 didn't do anything. Despite the chamber's ruling of 13 December, it did
14 not even try to get this intercept on its rule 65 ter list, and it's only
15 on 9 January that they give us this new application, a few days ago, in
16 which they argue three things, and I would like to argue three things to
17 show that good cause has not been shown in the circumstances.
18 First of all, the Prosecution says that the OTP initially focused
19 on intercepts from the June to October 1995 period, and that is why they
20 missed this particular intercept dated from April. First of all, it is on
21 the record, and I hear -- I join the submissions of my colleague, that the
22 Prosecution has been in possession of all intercept material at the latest
23 on 13 December 2000. Now I say that is on the record because if we look
24 back to the testimony of P 131, this is what we get. Now, the argument
25 that they did not look at this particular intercept because it was outside
1 of the relevant period doesn't stand when we look at the fact that there
2 are intercepts outside of this period on its list. So why would it have
3 missed this one but not the others?
4 And then a third one is that of course this argument confirms that
5 20 April is indeed outside of the relevant period of this indictment.
6 That was the first Prosecution submission.
7 In the second one, the Prosecution concedes the intercept is not
8 related to the Srebrenica events. So immediately its relevance goes very
9 much down unless there is a very specific reason to use the intercept. In
10 response what we say is that this intercept mentions first of all again I
11 go back to the fact that we don't know whether this is Nikolic the accused
12 in this case or not. Again, this goes to whether this is relevant. There
13 is no indication that the witness can tell us whether this is really
14 Nikolic or not. And then if we look at the content of the intercept, it
15 deals with two Polish volunteers.
16 Now, Mr. President, this is a case of an alleged genocide against
17 Bosnian Muslims. Two Polish volunteers in that case simply has nothing to
18 do with the fact that whether or not this intercept is relevant. It can
19 have no probative value and no relevance to the issues in this case.
20 The third argument raised by the Prosecution is that they say that
21 the 20 April intercept is part of a small group of intercepts involving
22 the accused Popovic and Nikolic. Indeed, Mr. President, they're right.
23 There are no intercepts involving these two accused. There are a very
24 limited number of intercepts where we even find the name Nikolic without
25 even knowing if it is the Nikolic in this case. Now, the other intercept
1 that is referred to by the Prosecution dates back to 19 January. Again,
2 way outside of the relevant period of this indictment. Moreover, for that
3 19 January intercept, they don't have an operator and they don't have a
4 notebook. And that would be contrary to the Trial Chamber's decision that
5 if there is something that goes to the acts and conduct of the accused,
6 there must be the operator who would testify this case.
7 Finally, Mr. President, the Prosecution adds that if the Trial
8 Chamber decides to use this 20 April intercept, then it will follow up
9 with another request to add three more documents on the Rule 65 ter list
10 of exhibits. Three more documents they found after. Once they find the
11 20 April intercept, now they find three our documents in their collection
12 that comes from the Drina Corps. Now we're back to square one,
13 Mr. President, and the question is, when will this end? When this going
14 around in circles end and when will the Defence be finally informed of
15 what the Prosecution's case entails?
16 The last part of this submission, Mr. President, we respectfully
17 submit that the Prosecution has not shown good cause. Good cause is two
18 things: Why the document was in the on the list in the first list, and
19 there has been no due diligence in this case. They have had these
20 intercepts for more than six years. They have had all the time in the
21 world to find the intercept, they did not put the intercept on the list,
22 and due diligence is simply lacking in this case.
23 As to the alleged critical need for the use of this document, when
24 we look at the relevance, what the document talks about, that it's not
25 related to Srebrenica, that it's not related in terms of date and that we
1 have no link that we know of that it is linked to one of the accused in
2 this case. For this reason, good cause has not been shown.
3 In conclusion, when we look at Witness 77, if we take away the 20
4 intercepts that are not his, that's what the Prosecution told us, then
5 we're back -- we have two intercepts. One of those the Prosecution has
6 recognised, and I am -- undoubtedly my colleague will say so, that it is
7 not critical and that it does not go to the acts and conduct of the
8 accused. So in the end we're back with only one intercept and that is
9 the intercept of 20 April, which was not originally on the Prosecution's
11 So in conclusion, Mr. President, unless the Trial Chamber has a
12 burning desire to hear another witness that we will put questions to as to
13 how difficult it was to transcribe intercepts, I simply suggest
14 respectfully that Witness 77 will not -- should not testify today and
15 should be sent home, and that would be the end of the matter.
16 Thank you very much, Mr. President.
17 JUDGE AGIUS: Thank you, Mr. Bourgon.
18 Yes, Mr. Zivanovic?
19 MR. ZIVANOVIC: [Interpretation] Thank you, Your Honours. I would
20 like to add two things in view of your decision today. First, I believe
21 that this analysis of the intercept, according to the Prosecutor
22 indicates -- that the intercept of the 20th of April indicates ethnic
23 intolerance on the part of my client. I'm only speaking on behalf of my
24 client now, does not stand, and this is evident from the contents of the
25 intercept, and that is why I believe that this should not be a reason to
1 accept this intercept and have it on the Prosecutor list. It should not
2 be the one valid reason that the Prosecutor is justifying for leaving out
3 this intercept from the original 65 ter list.
4 I also believe that the reason to accept this intercept should not
5 be the one also given by the Prosecutor and that is that this intercept
6 actually proves the veracity or the authenticity of all the other
7 intercepts which come from different locations and different time periods,
8 which were picked up and transcribed. Especially the evidence that he
9 bases this conclusion on, and these exhibits are not on the list. And the
10 Prosecutor said that. He is talking about the death of one of the two
11 volunteers, without saying when and what the circumstances of the deaths
12 were, and this happens five or six months before in a completely different
13 location, in a completely different place. So I believe that those two
14 reasons should not be the reasons based on which the intercept is being
15 placed on the Prosecutor's 65 ter list. Thank you.
16 JUDGE AGIUS: Thank you, Mr. Zivanovic.
17 Mr. Meek.
18 MR. MEEK: May it please the Court, the Defence for Mr. Beara also
19 joins these objections.
20 JUDGE AGIUS: Thank you. Any further oral submissions?
21 Would you like to respond if -- you haven't had time either to
22 respond to Mr. Zivanovic's motion for delay in any case. So could you now
23 respond to the submissions made by the three learned counsel, Zivanovic,
24 Bourgon and Meek?
25 MR. THAYER: I will, Mr. President, and I will do my best to keep
1 it brief.
2 With respect to the good cause argument, Your Honours, I won't
3 belabour our 9 January submission. I think we've explained that fully,
4 and I don't think it would be helpful at this point to go into any more
5 detail than we have already unless the Court has further inquiries about
6 the explanation provided in the submission. I think it's quite clear; the
7 chronology, which my learned colleague Mr. Bourgon correctly stated. This
8 was something that was discovered after the Court's 12 September 92 bis
9 decision as we were expands the search, and I will just leave it there
10 with respect to the good cause argument for failing to list that on the 65
11 ter witness list.
12 Let me just jump directly to the relevance of -- of the intercept,
13 and respond to a couple of things that my learned colleague Mr. Bourgon
14 stated. First of all, the Prosecution has never stated that the June to
15 October date range is the relevant date range for the indictment.
16 Obviously is belied by the document itself. The date range refers only to
17 the common-sensical period for the thousands of intercepts we had in the
18 collection. Given the military operation in Srebrenica and the aftermath,
19 looking from June to October seemed like that was the most potentially
20 fruitful area to do the intensive search that has led to the vast, vast
21 majority of the intercepts which have been offered here and which we will
22 continue to offer. So we are talking about two different time-frames,
23 obviously, for those purposes.
24 What I would point out is that we are arguing obviously that the
25 intercept, when taken in context with the additional documents that we
1 have referred to in the submission, and I'll pick up on my learned
2 colleague's Mr. Zivanovic's final point, do go directly to the issue that
3 has recently been raised by several Defence counsel as to the reliability
4 and, in fact, the actual authenticity of these intercepts. The suggestion
5 that, in fact, they have been fabricated or they were created sometime
6 after the events which the notebooks purport to have recorded them. When
7 we look at this intercept and the documents which the Prosecution has
8 referred to, we see that they are right on point with each other, they are
9 absolutely corroborative of one another. These are Main Staff and Drina
10 Corps documents ultimately going down to the Zvornik Brigade which
11 coincide absolutely perfectly with the content of this intercept. It also
12 shows, as we noted in the submission, the relationship between the Popovic
13 and Nikolic individuals in the conversation. It shows the flow of the
14 chain of command, which are important for the Court to see, how that works
15 in practice. Fortuitously, this intercept was made at the time, and we
16 can see here an absolutely perfect example of the job that these intercept
17 operators were doing.
18 We would submit, Your Honours, that this is probative, relevant
19 evidence that is ultimately helpful to the Court in its decision-making
20 both in respect of the admissibility, reliability, and authenticity of
21 these intercepts as well as the other issues I just raised, the
22 relationships between these individuals, the operation of the chain of
23 command, and again the bias which -- which we will argue is exhibited in
24 the text of the conversation. Again, with respect to the analysis that
25 was referred to by my learned colleague Mr. Zivanovic, that's for another
1 day and I won't burden the Court with that now. I think, as we understand
2 it, that will be a matter for later submissions.
3 What we are asking the Trial Chamber to do, Your Honours, is to
4 continue its case-by-case assessment of these requests to add to our 65
5 ter exhibit and witness list. We believe that the Trial Chamber has
6 struck in its 6 December and 11, I believe, January rulings the
7 appropriate balance between emphasising, prioritising the rights of the
8 accused but at the same time admitting relevant probative evidence to come
9 before this Court. We believe that during the four previous months the
10 trial has not been burdened or slowed appreciably because of some of our
11 prior requests. We are doing our best to limit the future requests, but I
12 think we all recognise that these kinds of things will emerge. I believe
13 the Prosecution believes that the Court's approach thus far is faithful to
14 Rule 73 bis F, but also ultimately to the general discretion as proposed
15 in the Trial Chamber in 89 C and D, and ultimately this is a matter of
16 truth-seeking, and we would submit that this intercept and the related
17 documents, when taken in context, ultimately further that search, and I
18 will leave it there, Your Honours.
19 JUDGE AGIUS: I thank you.
20 Yes, Mr. Zivanovic?
21 MR. ZIVANOVIC: [Interpretation] I apologise for interrupting for
22 the third time. I will try to clarify what I said previously. Again, I
23 wish to stress the following: The Prosecutor was ordered by the Bench to
24 state their reasons as to why this intercept had not been put on the list
25 previously, and they put forth some reasons, but everything else they said
1 as to the importance and relevance of the transcript -- of the intercept
2 is not the reason why they did not put it on the list. It should have
3 been the reason why they should have put it. And it is no justification,
4 no excuse for not putting it on the list. I'm trying to say the
5 following: I have nothing against the Prosecutor writing whatever they
6 want in their brief or submission. They can analyse whatever piece of
7 evidence they wish, but what I want for my part to be given sufficient
8 time to respond to that analysis.
9 At the moment when they should show good reason for not putting an
10 exhibit on the list, since they had it in their possession for five years
11 and they give it to us two days before having the witness here, they
12 topped that with an additional analysis which leaves us with less than one
13 day to respond to. I don't believe that is fair.
14 JUDGE AGIUS: Yes, Mr. Bourgon. Briefly, please.
15 MR. BOURGON: Thank you, Mr. President. Briefly, firstly the
16 Prosecution said that they would not go back on their 9 January filing.
17 Of course they have not explained again why six year in possession of this
18 material and they can't come up with a coherent case six years later.
19 Secondly, most importantly, they said, "We will continue to offer
20 intercepts." That means that they are still looking at these intercepts
21 and that the case will keep changing. As the case keeps changing, then of
22 course delays will pile up.
23 Then they say of course this has to be looked with the additional
24 documents of those documents are not on the record and those documents of
25 course we will object to having those documents put on the Rule 65 ter
1 list of exhibits. What is accepted by the Defence at all times,
2 Prosecution can continue to investigate, but this is not a continued
3 investigation. This is going back to material in their possession for six
4 years. That's what we mean when we talk about a -- the right of an
5 accused to be charged -- to be tried within a reasonable delay. Six years
6 with this material is just too much. 10 years working on Srebrenica is
7 too much. Should they find a new witness that nobody knew about that's
8 something out of the ordinary and that is both critical to the Trial
9 Chamber's understanding, maybe then we can argue and maybe we can
10 understand that there is a need to add something. But now we're talking
11 about an intercept that has no relevance, that they had for six years, and
12 there is no reason for that not to be there.
13 Then they show on the contents they say they want to show the flow
14 of the chain of command. Well, to begin with, they should show the flow
15 of the chain of command in July. But they do not have any intercepts in
16 July or June or August that involve Mr. Popovic and Mr. Nikolic. Over and
17 above the fact of course we don't know if these are the right individuals,
18 but leaving that aside they don't know, they have nothing about these two
19 individuals speaking during the relevant period. So in order to patch up
20 this -- what is missing in their case, they go back to one intercept of
21 January, two people talking together, and one intercept of April that is
23 So, Mr. President, they are building up their case as they go
24 along. They're trying to do patch-up work with evidence that was in their
25 possession for a long time. And my colleague said, this has not slowed
1 the proceedings. Well, if I just look at all the filings, all the
2 arguments, everything that we have been receiving concerning this Witness
3 77 and this one intercept since the 21st of November, this has been indeed
4 a significant cause of delay in this case, as it is again today. Now, I'm
5 offering the Trial Chamber really an opportunity to really show some
6 judicial restraint and do the right thing for the rights of the accused
7 and say Prosecution that's enough. You've had the material, let's move on
8 and get to the next witness, and that's what I'm offering the Trial
9 Chamber. Thank you, Mr. President.
10 JUDGE AGIUS: We will have a short break so that we can deliberate
11 further and conclude and we will come back to you with an oral decision in
12 a few minutes' time.
13 --- Break taken at 11.49 a.m.
14 --- On resuming at 12.40 p.m.
15 JUDGE AGIUS: So, this is an oral decision that we are giving
16 pursuant to the Prosecution's 9th January, 2007 submission, which in turn
17 is pursuant to our 12th September, 2006 decision on Prosecution's
18 confidential motion for admission of written evidence in lieu of viva voce
19 testimony pursuant to Rule 92 bis.
20 Having previously disposed of Popovic Defence motion pursuant to
21 Rule 127 A for the extension of time to file a response of the
22 Prosecution's submission by rejecting same, having heard submissions by --
23 oral submissions from the parties we provide as follows: The first matter
24 in issue was to decide whether the Prosecution has, in conformity with our
25 13th December decision, identified the specific written evidence of
1 Witness 77, which it proposes for admission pursuant to Rule 92 ter.
2 In addition to the fact that we have not heard objections in
3 relation -- we have in the received objections in relation to this issue,
4 we are satisfied that, as explained in paragraph 3 of the Prosecution's
5 submission, that this requirement has been met and therefore that there
6 are no further obstacles to having Witness 77 testify pursuant to Rule 92
7 ter. That disposes of the first matter.
8 Second matter relates to intercept 1 in Annex A, which is better
9 described in the filings and decisions that preceded this one. The matter
10 at issue indeed is whether to include the said intercept, or the intercept
11 in question, and the Prosecution's 65 ter list. As per our 13th December
12 decision, before the Prosecution could have this intercept included in
13 their 65 ter list, it was required from them to show good cause. The
14 Trial Chamber believes that the threshold required in the exercise -- for
15 the purpose of this exercise is not a high one and can be met on a prima
16 facie basis. We have considered the contents of the Prosecution 9th
17 January submissions and also the arguments put forward by three of the
18 Defence teams today, and we are satisfied that -- basing ourselves on what
19 is contained in paragraph 5 of the Prosecution 9th January filing, we are
20 satisfied that the threshold has been sufficiently met and we are
21 consequently persuaded that a good cause has been shown. The Trial
22 Chamber is also persuaded that at prima facie level, the alleged
23 relationship between the two mentioned accused, that is Popovic and
24 Nikolic, is of relevance to the case again on a prima facie level. This
25 ruling of course is without prejudice to the arguments and submissions
1 pertinent to the ultimate determination of admissibility and weight
3 Our decision therefore in relation to this intercept is to accede
4 to the Prosecution request in having it included in the Prosecution's 65
5 ter motion.
6 As with the case of the Popovic Defence motion, we will follow up
7 with a proper written version of this decision in due course.
8 So, that disposes of the matters relating to Witness number 77,
9 but not completely. And Witness 77 we are pooling with all the remaining
10 intercept operator witnesses and as we intimated yesterday, after having
11 given this matter further thought, we are going to hand down an order.
12 We expressed to you yesterday that after having heard the evidence
13 of several intercept operator witnesses, including the one whose
14 evidence -- whose testimony we have concluded a few minutes ago, we have
15 had growing concerns about the way we have been proceeding. We have
16 intimated to you that the way examination-in-chief and cross-examination
17 have been carried out has resulted, in our opinion, in unduly lengthy
18 evidence, which, in many instances has, indeed, been repetitive and in
19 some instances - we maintain this position - has been of marginal
20 relevance at best. We consider that much of the evidence that has been
21 elicited from the various witnesses amounts to unnecessary cumulative
22 evidence, and is therefore of minimal -- and is also of minimal
24 We reiterate our responsibility that we have in our duty to ensure
25 the fair and expeditious conduct of this trial, and the order that we will
1 be handing down aims at addressing both the question of fairness and also
2 the question of expediting the proceedings in a reasonable manner. In
3 view of this, and after carefully considering the various submissions that
4 you made yesterday, we have come to the following conclusion, which we are
5 incorporating by way of a court order. As from now the Prosecution shall
6 be permitted a maximum of 30 minutes for examination-in-chief of each
7 intercept operator witness. The Defence collectively shall be permitted
8 a maximum of two hours and 20 minutes for cross-examination of each
10 The way we intend this to proceed is as follows: At the earliest
11 opportunity, but not longer soon after the end of the examination-in-chief
12 the Defence teams shall inform the Trial Chamber if agreement has been
13 reached between them as to the sharing, the partition of the said time
14 limit allowed for cross-examination. If no such agreement has been
15 reached, each Defence team will have at its disposal a maximum of 20
16 minutes for cross-examining each witness. However, upon good cause being
17 shown, parties will be permitted by the Trial Chamber to exceed these
19 There is also one further matter that we need to bring to your
20 attention, and that these limitations will not be applicable in the case
21 of any MUP intercept operator witnesses. While the Chamber, having heard
22 your various submissions yesterday, will not restrict any party from
23 asking relevant, probative questions, we would make the following
24 recommendations to you: We feel that considerable evidence regarding the
25 general interception of communications and the applicable procedures, as
1 well as equipment used, has already been heard. Therefore, in the case of
2 the Prosecution we would recommend that the evidence summaries be reduced
3 to cover only and merely the specifics of each particular witness, as the
4 case may be. Similarly, we would suggest that counsel for accused should
5 focus their future questioning of individual intercept operators on the
6 specific communications intercepted personally by the witness being
7 examined. The examination should avoid, as much as possible, repetitive
8 evidence on the procedures, equipment and other matters related to the
9 interception process generally, which have been covered already at length
10 by several previous witnesses, unless of course a good reason is
11 forthcoming for putting such a question, in which case we will allow such
12 questions. This is our decision.
13 I know that very soon we shall have Witness number 77 walk in the
14 courtroom to start giving evidence. I don't know if you wish to have five
15 minutes to discuss amongst yourselves how you wish to partition the time
16 allocated. We won't have another break after now. In other words, we
17 will then adjourn at quarter to 2.00.
18 Yes, Mr. Bourgon.
19 MR. BOURGON: Thank you, Mr. President. We take good note of the
20 Trial Chamber's decision and at this time I would respectfully request the
21 permission to do an oral application for certification of the Trial
22 Chamber's decision concerning the fact that the Trial Chamber's decision
23 that good cause has been shown by the Prosecution. I can either make
24 that -- this application orally or make it in writing but we would
25 need -- we would respectfully submit that the witness could not testify
1 until this matter has been resolved both for certification and in the
2 event certification is granted that the appeal has been resolved. We
3 feel this is a very important issue for the conduct of this case. If
4 the Prosecution is allowed to show good cause on such limited material
5 with six years with that material in their possessions, that means for us
6 that everything open, that they can put any document that they have, that
7 they can find any new documents that so in the simple reason that we have
8 the Drina Corps collection, which includes a million pages untranslated,
9 that now they can use anything at any time in this case and, for us, it
10 is an issue that we indeed need that we have to appeal. And that is why
11 I can either make this application orally or writing. Thank you,
12 Mr. President.
13 JUDGE AGIUS: Thank you, Mr. Bourgon.
14 Do you wish to response respond to that, Mr. McCloskey, or
15 Mr. Thayer?
16 MR. THAYER: Your Honour, we would leave that entirely in the
17 Court's hands. We are prepared to argue against certification now. The
18 witness is here. I don't see any impediment, frankly, to getting on with
19 his testimony and getting on with any appellate issues later.
20 JUDGE AGIUS: Thank you, Mr. Thayer. There is no point in hearing
21 submissions on the certification oral request that has been made if we
22 have already intimated that the written version of our decision will be --
23 will be handed down. I need of course -- it is not a decision that I can
24 take, and I would never even think of taking. I need to consult my
25 colleagues on the issue on whether to await the decision on the
1 certification before we proceed with the testimony of this witness.
2 Certainly other submissions I don't -- I don't think they are appropriate
3 at this stage.
4 [Trial Chamber confers]
5 JUDGE AGIUS: So, it's needless or superfluous to say that we have
6 been discussing, and our decision at the moment is as follows:
7 Mr. Bourgon is the only one who stood up to register his objection or his
8 reservations on our decision, on our decision relating to the intercept,
9 that's what we're talking about. First of all, we would like it know
10 whether there are any other Defence teams that also wish to make
11 submissions, oral submissions by way of substantiating an oral request for
12 certification. Yeah, Mr. Meek.
13 MR. MEEK: May it please Your Honours, the Defence for Mr. Beara
14 certainly joins in the motion by Mr. Bourgon.
15 JUDGE AGIUS: All right.
16 Mr. Zivanovic.
17 MR. ZIVANOVIC: [Interpretation] Yes, we will probably also join
18 the motion.
19 JUDGE AGIUS: Now at this point I think I'm almost -- yes, I
20 apologise to the interpreters. I moved too fast.
21 At this point I think we need -- Mr. Bourgon, we need to go a
22 little bit beyond what we have done so far. The Prosecution has said
23 okay, certification matters, we'll leave them in your hands. But we need
24 to hear more in-depth submissions on the part of the Defence in
25 particular, Mr. Bourgon, by way of substantiating your, or explaining why
1 the Trial Chamber should grant certification. I think what you have
2 stated is good, but it is very laconic.
3 MR. BOURGON: Thank you, Mr. President. Do I understand that
4 the Trial Chamber's ruling is that you want an oral application at this
6 JUDGE AGIUS: You have already, as far as we are concerned, we
7 have an oral application for certification. Let's take it step by step.
8 We handed down our oral decision. Okay? You have intimated that
9 you are not happy with it, and that you were asking orally for a
10 certification, and that in the meantime, pending the final determination
11 of the matter that we decided earlier on, either by us not granting
12 certification or if we grant certification by the final decision from the
13 Appeals Chamber, in the meantime Witness number 77 will not be heard.
14 This is basically the position, as I understand it. This is what you have
15 submitted. Right. So there are various issues to be discussed.
16 First and foremost is why, according to you, in addition to what
17 you have already stated, we should grant certification. We don't want to
18 listen why -- why our decision is wrong. Please limit yourself to the
19 grounds that are provided by our regulations which form or should form the
20 basis for a Trial Chamber decision to grant certification. Okay, yes,
21 Rule 73 B. I mean, you know as much as I do that the Rules, our law, does
22 not give an automatic right of appeal. It's limited, and it's limited,
23 there are parameters that have to be met and within which we have to
24 operate. So what I am inviting you to do, and of course others can -- can
25 follow you, is to address these issues. Not trying to explain why in your
1 opinion our decision is wrong. Okay?
2 MR. BOURGON: Thank you, Mr. President. First of all, I must say
3 that I really, really appreciate the Trial Chamber's invitation to make
4 this oral application without referring to the decision itself because
5 indeed whether the Trial Chamber believes its decision is right or whether
6 I believe it's wrong is irrelevant in -- in the matter of asking for
7 certification. So whether it's wrong, right or wrong is not the issue.
8 The issue is the consequences of the decision. Now, the consequences of
9 the decision, if I look at Rule 73 B or C, a request for certification,
10 there are two things that the Defence must satisfy in order to get a
11 certification. And that is, certification if the decision involves an
12 issue that will significantly affect the fair and expeditious conduct of
13 the proceedings or the outcome of the trial. And then one more which says
14 that in the opinion of the Trial Chamber an immediate resolution by the
15 Appeals Chamber may materially advance the proceedings.
16 With respect to the first criteria, Mr. President, whether this
17 issue will affect the fair conduct of the proceedings we say definitely
18 yes, because if we use the Trial Chamber's ruling and what we understand
19 of it as what is the meaning of good cause, that means that according to
20 the standard, and the Trial Chamber has set the standard in its decision,
21 pursuant to this standard it means that any future Prosecution requests
22 will be considered in accordance with that standard. And that opens the
23 door, in our view, with many more documents coming in, documents that were
24 not on the Rule 65 ter list of exhibits, and on various criteria, but
25 having a very low threshold as the Trial Chamber explained.
1 Now when these documents come in, we believe this is both an
2 impediment to a fair trial because as new documents come in, then it
3 changes the case against the accused as we go along in the trial. That's
4 for fairness. Now, as far as the expeditious conduct of the proceedings,
5 if we go on with the Trial Chamber's decision, that means every time the
6 Prosecution will apply for a new document, we already know that they will
7 apply for at least three documents in relation to intercept one or the 20
8 April intercept. So already we know that we will have to file a -- an
9 opposition to these three documents they will be requesting as a result,
10 as a direct result of the Trial Chamber's decision. We also know that
11 every time from now on and this trial is far from over, they will be
12 applying many more times. My colleague has said, "We will continue to
13 provide new intercepts." So as all this material comes in, every time we
14 will have to file motions to oppose in order to protect the rights of our
15 clients to a fair trial. This will indeed take much more time. Time on
16 behalf of the parties, time on behalf of the Trial Chamber, time generally
17 in this trial. This is for the first criterion.
18 The second criterion is whether the Trial Chamber believes it may
19 materially advance the proceedings in order that we can go on with this
20 trial. Well, absolutely, Mr. President. If we get a confirmation by the
21 Appeals Chamber that indeed good cause is, as the Trial Chamber has said,
22 very low and allows the Prosecution to do what it wants when it wants,
23 when it wants it and however it wants to do it, then of course we won't
24 object every time after that. So we will save lots of time by going to
25 the Appeals Chamber and getting a ruling. What is meant by good cause and
1 what is the criteria? And as you know, Mr. President, we already have a
2 standing or an outstanding request for certification on a similar decision
3 that allowed new witnesses to be introduced and, again, new exhibits.
4 So it has come to the point where we need to go to the Appeals
5 Chamber to sort this out so that if we are wrong then of course we will
6 stop objecting on this principle. But for now, we feel that we will
7 continue to object every time there is a new witness, every time there is
8 a new document, every time there is a procedure that is undertaken by the
9 Prosecution which we feel is contrary to the rights and the interests of
10 our client. So in order to solve all this, we feel that we absolutely
11 meet both criteria under Rule 73 B, and that certification should be
13 Now, with respect to the second question that you invited me to
14 address, which is whether Witness 77 should be allowed to begin or not
15 with his testimony pending this application. Our submission is that
16 Witness 77 should wait because if it is determined if certification is
17 granted, and if certification is granted then we will go to the appeals
18 and it might be that this document number 77, if the Appeals Chamber says
19 that, no, it was not good cause, then the document -- or the intercept
20 doesn't go in and there is no need for Witness 77 to testify. In any
21 event, if he starts today he has to come back on Tuesday, and there is
22 no -- not much sense in doing this when we know that maybe all of the
23 testimony will be a useless procedure if that intercept goes out following
24 our application. For all these -- these arguments and submissions,
25 Mr. President, we simply ask you, one, to grant certification, and, number
1 two, to wait until your decision is granted, whether this witness, that he
2 can testify only once the matter has been resolved.
3 As a last point, Mr. President, I'm not sure if my colleagues
4 understood the -- your question about whether they would -- they are
5 joining in or not to this application. Two of my colleagues have; I don't
6 know about the others. My understanding is that they will join me in this
7 motion for certification and that they will also join me in requesting
8 that the witness be delayed until this matter is resolved. I would like
9 this specific question put to each of my colleagues to see whether they
10 yes or no, and so also I can know where I stand in this thing. I thank
11 you, Mr. President.
12 JUDGE AGIUS: I thank you, Mr. Bourgon. In addition to that, of
13 course, it goes without saying, but also any of the Defence teams that
14 wish to contribute to this debate, please do so by all means. And then I
15 will revert back to Mr. Thayer.
16 Let's start. Mr. Zivanovic has already intimated that he agrees.
17 Do you wish to make further submissions to the ones made by your
18 colleague, Mr. Bourgon?
19 MR. ZIVANOVIC: [Interpretation] Thank you, Your Honour. I
20 would -- I fully back everything my learned friend Mr. Bourgon has said.
21 I would just like to express one more time fear that the decision the way
22 it has been adopted, gives an opportunity to the Prosecutor at the last
23 minute before the witness arrives under pressure and when he needs to be
24 heard urgently, would then provide some submissions that were prepared a
25 month in advance while we are left with a day or two only to respond to
1 such submissions. I would just like to add that, because it seems to me
2 that that would be our chief motive to fully back this submission.
3 JUDGE AGIUS: But again, my invitation to you is to restrict
4 submissions to the requirements under Rule 73 for the purposes of granting
5 or denying certification.
6 Mr. Meek has already associated himself. Do you wish to
7 contribute any submissions yourself.
8 MR. MEEK: Very briefly, Your Honour. Under Rule 73B I believe
9 that the certification should take place. What I fear is that the
10 important part is the significantly affecting the fairness of the trial,
11 not the expeditious, but the fairness of the trial. I am really worried
12 that this ruling is just going to turn into this trial being a trial by
13 ambush. The OTP is going to be able to do whatever they want to, they're
14 going to be able to bring in documents at the last moment like they have
15 done here, and this where -- this is our problem. I fully agree with
16 everything Mr. Bourgon has said, but I am very fearful this is going to
17 turn into a trial by ambush case. Thank you.
18 JUDGE AGIUS: Any of the other Defence teams would like to make
20 Madam Fauveau.
21 MS. FAUVEAU: [Interpretation] Mr. President, the Defence of
22 General Miletic does not adopt a position against the certification
23 request because it is a document that does not concern our client, but
24 since there is already a request formulated by a team of the Defence I
25 would like to say that I support entirely the argument of Mr. Bourgon;
1 that is that the witness should not be called to the bar until this
2 problem is resolved.
3 JUDGE AGIUS: Thank you. Yes, Mr. Lazarevic.
4 MR. LAZAREVIC: Yes, thank you. Your Honour, more or less our
5 position is the same as Ms. Fauveau. Basically it does not concern most
6 our client, but as a matter of principle we do support what was said.
7 JUDGE AGIUS: I thank you. I don't know if there are any further
8 final submissions. None. None.
9 Mr. Thayer.
10 MR. THAYER: Thank you, Mr. President. We, of course, oppose the
11 motion for certification, as we did in a nearly identical motion for
12 certification on the Trial Chamber's 6 December 2006 decision. The
13 standard under 73 B has not been met under either prong. The good cause
14 standard articulated by the Court today, we believe, is a strong
15 gatekeeper and will continue to be, both when the Prosecution is
16 presenting its case, as well as when the Defence is presenting its case.
17 We expect that during this trial on both sides there will be similar
18 situations and we believe that the good cause standard as articulated by
19 the Court will more than adequately regulate the sort of fear that's been
20 expressed here of floodgates opening and a trial getting out of hand,
21 which simply, I would respectfully submit, that there is no record of in
22 the past or predictor of in the future.
23 We will continue to be very conservative and careful in presenting
24 to the Court any future requests for additional witnesses or evidence. We
25 trust the Court, as I said earlier, to continue to apply its careful
1 discretion in balancing and actually, as the Court stated, prioritising
2 the rights of the accused yet balancing that with the other realities and
3 considerations of these complex trials, new evidence and the probative
4 nature of new evidence and the other factors.
5 Frankly, Your Honour, there is no record of ambush in this case.
6 We have a record of a very complex case getting under way, and us dealing
7 with the realities of preparing and prosecuting a very complex and a
8 multi-defendant case. That is a far situation from ambush, that is a far
9 situation from a Trial Chamber letting the Prosecution run amok. And as a
10 member of the team, I can certainly represent to the Court that I don't
11 feel like I'm being enable to run amok anywhere in this courtroom. I feel
12 like we have conducted on this side as efficient as possible, given the
13 circumstances, trial thus far.
14 With respect to the specific provisions, Your Honours, of 73
15 B(ii), there is simply no evidence that this will efficient -- this will
16 significantly affect the fair or expeditious conduct of this entire trial.
17 This is a very limited issue. The Court has ruled on it in the past. The
18 Court in the Prosecution's submission is applying a very limited and
19 conservative standard, and again we will continue to work with all parties
20 in terms of any future presentations we have to expand our witness list or
21 our exhibit list.
22 And we understand that the Court will continue to apply a
23 case-by-case, carefully considered approach to any further requests. And
24 there has been no showing, frankly, Your Honour, that there needs to be an
25 immediate resolution by the Appeals Chamber that would materially affect
1 these proceedings.
2 JUDGE AGIUS: I thank you, Mr. Thayer.
3 Yes, Mr. Bourgon.
4 MR. BOURGON: Thank you, Mr. President. If I may reply to the
5 submissions of my colleague, with your permission. The only thing I will
6 address is that my colleague has indicated that there were no indications
7 that this trial was getting out of control and no -- no justification for
8 the fear that we have expressed. Mr. President, since the beginning of
9 this trial we started the trial, the Prosecution did not have a -- the
10 case was not ready, we made submissions and we were turned down. The
11 Prosecution has already applied for new witnesses in three different
12 occasions. The Prosecution has already applied for new documents and I
13 believe we are at the seventh submission of the Prosecution in this case.
14 And every time the criteria that is -- appears to be used is indeed
15 whether there was good cause and whether there is a prejudice to the
17 Well, the prejudice to the Defence, Mr. President, is that when we
18 prepared this case we were given a number of months to prepare this case
19 and we have prepared this case. On the basis that what was announced by
20 the Prosecution. And the case has to proceed on the basis of what the
21 Prosecution put on its Rule 65 ter list of witnesses and exhibits. We
22 recognise that there are circumstances when an additional witness or when
23 an additional document may have to come in, in the interests of justice.
24 But what is happening now with the kind of criteria issued by the Trial
25 Chamber today for good cause, it's not the exception, it's rather the
1 exception will be that the Prosecution will not be able to introduce any
2 kind of document. And for these reasons, Mr. President, we need to
3 address this standard of good cause and this standard of whether or not
4 the Prosecution can be allowed to continue in this type of proceedings.
5 The case-by-case approach is not a right approach. It's a
6 case-by-case if there is exceptionally a document or a witness that will
7 change the nature of the case. But as far as the Defence we have prepared
8 the case for the Defence, we are prepared each of our defences and now we
9 are completely being kept off balance by new documents, new witnesses, and
10 frankly, Mr. President, we don't know where the Prosecution is going with
11 this case, although it should be, as it said, they said this was an
12 obvious case, well it certainly does not look like an obvious case to us,
13 the way they are trying, looking for additional and witnesses for issues
14 such as this one. Thank you, Mr. President.
15 JUDGE AGIUS: I thank you, Mr. Bourgon.
16 [Trial Chamber confers]
17 JUDGE AGIUS: I don't think that we have reached a stage where we
18 can decide on your oral request for certification. As yet we need to
19 discuss further. We have agreed to continue discussing this over the
20 weekend. I'm sure you will be working over the weekend too, and we will
21 come back to you with a decision or written on Monday -- on Tuesday,
22 sorry. My apologies to you.
23 In the meantime, we also feel that until at least we have decided
24 the issue and how we are going to decide it we are not -- we don't know as
25 yet, we will not start with the testimony of Witness number 77. I don't
1 know his PW number. So, however, we -- simply because we don't know how
2 we are going to decide this matter, it will be impractical on our part to
3 give you instructions to return him home unless you feel that you can
4 safely do that and have him returned in case we decide against the
6 As I said, we don't know where we stand on this, we will give it
7 all due consideration it deserves, and if we are in a position to decide
8 it on Tuesday, we will do so. In the meantime, Witness number 77 can
9 wait. Okay. Thank you.
10 [Trial Chamber confers]
11 JUDGE AGIUS: Also, at the same level, again simply because we are
12 still discussing and we need to discuss a lot more, if certification is
13 granted there is also the possibility that Witness 77 will not start. So
14 what I suggest is that while you retain 77 available, you also take
15 necessary steps to have the subsequent witness available on -- on Tuesday,
16 should we need to start with that other subsequent witness.
17 All right. So that's the position, and you will work it out
19 Madam Fauveau.
20 MS. FAUVEAU: [Interpretation] Mr. President, regarding the witness
21 that was supposed to be called after Witness 77, the Defence took note of
22 your decision for the time granted for the cross-examination and we will
23 indeed and obviously respect your decision, but I would like to ask you
24 the following question regarding the witness that was supposed to be here
25 on Tuesday. This is a person that was working as a crypto-protector. So
1 the limits imposed for the cross-examination concern equally that
2 particular person or does your decision concern only the operators who
3 were intercepting telephone conversations? Because, in fact, if your
4 limit is concerning as well cryptoprotection witnesses, I would like to
5 ask you for more time with your leave because it is the only witness that
6 can testify on crypto-protection and on the reports that were sent. We
7 heard a few witnesses until now, but they were not able to tell us
8 anything on that issue.
9 JUDGE AGIUS: Yes, Mr. Josse.
10 MR. JOSSE: Your Honour, we seek a similar clarification. When
11 Your Honour talked about MUP intercept operators, Your Honour include
12 amongst them the SDB intercept operators? In short, are they one and the
14 JUDGE AGIUS: Our feeling was, you mentioned the MUP precisely
15 because you yourself raised the issue, as you raised the SDB we probably
16 would have addressed that as well. Mr. McCloskey had himself mentioned
17 other possible future witnesses who were in a supervisory position. We
18 did not address that. We will address that by -- on a case-by-case basis
19 when it arises because one supervisor can be more important than another
20 or one has less information to offer than another.
21 But SDB, I would suggest that I give the floor to Mr. McCloskey to
22 hear the OTP's position on this and we will come back to you on -- on this
23 on -- on Tuesday.
24 The same applies to you. You will understand, Madam Fauveau that
25 this is something that requires consultation amongst us and that it will
1 only be decided after due consultation has been concluded.
2 But I thank you both for having made these observations, and I
3 invite Mr. McCloskey or Mr. Thayer, I don't know who wishes to take the
5 MR. McCLOSKEY: Mr. President, MUP means Ministry of Interior and
6 CSB, SDB all those are Ministry of the Interior. So that's all the same.
7 And just one reminder. Ms. Fauveau pointed out yesterday that one
8 of our filings had mentioned there might be another witness that had done
9 the same intercept as the witness I had. The -- then you brought the
10 witness back in and he saw his handwriting. The mistake was in the
11 filing. Just to let you know, we checked on that and she was correct.
12 There is not another witness with the same intercept, and we are not
13 claiming there is.
14 JUDGE AGIUS: So what happens to our decision then in relation to
16 MS. FAUVEAU: [Interpretation] Mr. President, as I have stated
17 yesterday, I do not request that that witness be called back because the
18 other intercept is really not important for my client. So because this
19 question has been clarified, I do not need to have this witness called
21 JUDGE AGIUS: All right. There are six other Defence teams and I
22 don't know what their position will be. Anyway, we'll cross -- we'll deal
23 with that when -- when ...
24 So, I thank you all for all your constructive submissions and
25 cooperation with the Trial Chamber. We will not be sitting on Monday, as
1 already communicated to you, and on Tuesday we will start with our
2 decision, hopefully, on the oral request for certification and move from
4 Thank you.
5 --- Whereupon the hearing adjourned at 1.32 p.m.,
6 to be reconvened on Tuesday, the 16th day of
7 January, 2007, at 2.15 p.m.