1 Thursday, 18 January 2007
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.16 p.m.
5 JUDGE AGIUS: Yes, good afternoon. Madam Registrar, could you
6 call the case, please.
7 THE REGISTRAR: Good afternoon, Your Honours. This is case
8 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.
9 JUDGE AGIUS: I thank you, ma'am. For the record, Accused Nikolic
10 is not present because of health condition. We will be proceeding -- I
11 suppose you still have the -- okay, Ms. Nikolic.
12 MS. NIKOLIC: [Interpretation] Yes, Your Honour.
13 JUDGE AGIUS: For the purpose of today's sitting. Okay. Thank
14 you. Otherwise, Mr. Ostojic is still not here. Mr. Sarapa?
15 MR. HAYNES: I'm afraid, in my capacity as Mr. Sarapa's matron, I
16 voted him back to the sick bay.
17 JUDGE AGIUS: I hope that on his way he wasn't blown up by the
18 wind, because it's really bad outside. And I see that Mr. Bourgon is also
19 not present. Otherwise, I think we are full house. Prosecution is
20 represented by Mr. McCloskey and Mr. Thayer. Yes.
21 Next witness.
22 Before the witness comes in, Mr. McCloskey, we have now been given
23 copies of the relevant intercepts, but we haven't got a copy of the
24 witness's statement of the 18th of January. We haven't got a copy of it.
25 MR. McCLOSKEY: Yeah, we -- sorry, we have that for you,
1 Mr. President. It's -- sorry that we didn't get it to you.
2 JUDGE AGIUS: Good afternoon to you, sir.
3 THE WITNESS: [Interpretation] Good afternoon.
4 JUDGE AGIUS: And on behalf of the Tribunal I welcome you. You
5 are about to start giving evidence very soon. Our rules require that
6 before you do so you make a solemn declaration that you will be testifying
7 the truth. The text is going to be handed to you now. Please read it out
8 aloud and that will be your undertaking with us.
9 THE WITNESS: [Interpretation] I solemnly declare that I will speak
10 the truth, the whole truth, and nothing but the truth.
11 WITNESS: WITNESS PW-149
12 JUDGE AGIUS: I thank you. Please take a seat.
13 THE WITNESS: [Interpretation] Thank you.
14 [Witness answered through interpreter]
15 JUDGE AGIUS: Before you start giving evidence, I want to confirm
16 to you that the protective measures that you asked for via the Prosecution
17 have been granted. You will be testifying with a pseudonym and we will
18 have your voice and your face distorted. I suppose this has been
19 explained -- these measures have been explained to you already. I needn't
20 dwell on them, and I just want to know whether they are to your
22 THE WITNESS: [Interpretation] Yes.
23 JUDGE AGIUS: Okay. Thank you. Mr. McCloskey will be examining
24 you in chief.
25 Mr. McCloskey.
1 MR. McCLOSKEY: Thank you, Mr. President. Good afternoon,
3 Examination by Mr. McCloskey:
4 Q. Witness, first of all, could you look at what we call the
5 pseudonym sheet, it's PO2366, and tell us if that is you.
6 A. Yes, it is me.
7 Q. Okay. Thank you. Your Honour, perhaps I should sit down. I'm
8 better at it when I'm sitting down.
9 All right. Witness, did you give a short statement to myself and
10 an investigator today, actually, before you came to court?
11 A. Yes, I did.
12 Q. And was the information you provided true and correct?
13 A. Yes, it was.
14 Q. And if you were asked the same questions again, would your answers
15 be the same?
16 A. They would be the same.
17 Q. All right. At this time I'll read a summary of that statement if
18 I could.
19 JUDGE AGIUS: Go ahead.
20 MR. McCLOSKEY: The witness is a Bosnian Muslim. He grew up in
21 the Srebrenik area of Bosnia. After graduating from high school he did
22 his mandatory service in the JNA in 1990 and 1991. He was trained in
23 communications in the JNA but he did not gain experience or training in
24 radio intercepts at that time and he has not been a HAM radio enthusiast.
25 In the spring of 1992 he became a member of the armed forces. I
1 believe it was the Territorial Defence. In May 1995 he was assigned to
2 the -- what we have been calling the northern site and which I will not
3 name today, to the 21st Division of the BiH army as a member of the unit
4 intercepting enemy radio transmissions. The job and the equipment to
5 carry out the job were explained to the witness when he got there and he
6 soon began as a radio intercept operator. The witness stated his unit
7 operated separately from the 2nd Corps and MUP units at the site and had
8 their own room and equipment. The witness explained how his unit operated
9 equipment listening to enemy radio transmissions, taping interesting
10 conversations, and transcribing those conversations in small notebooks.
11 The witness stated that at some point in the shift his supervisor
12 would pick up the notebooks and type them into a computer. The witness
13 stated that it was his unit's procedure, he thinks, to write in the date
14 in the notebook. The witness reviewed original notebook ERN range
15 00804625 through 4742 and recognised his handwriting in various entries
16 including intercepts from 15 July 1995 at 2226 hours and 2228 hours. The
17 witness reviewed the notebook for date entries and found dates written in
18 for 13 July 1995 through 24 July 1995, with the exception of 17 July 1995,
19 which was not written in the notebook.
20 And that is the end of the summary.
21 Q. Now, Witness, let me just ask you if you could to take a look at
22 the original notebook that you had seen in my office this morning, and my
23 summary just referenced. And if you could, could you open it up to the
24 first page marked in blue and try to do it so it's on that ELMO machine
25 that I tried explaining to you earlier.
1 JUDGE AGIUS: Okay. One moment.
2 Madam Fauveau.
3 MS. FAUVEAU: [Interpretation] Your Honour, I would like to object
4 to this particular book. It is not part of the 65 ter list. He asked it
5 to be included but he added that two intercepts be added. But he never
6 asked that this particular notebook be added to the list. So I am forced
7 to object to this because we did receive no notice of it. We just got the
8 list of the exhibits, but we had no opportunity of knowing that this
9 particular notebook would be used.
10 JUDGE AGIUS: This is notebook 24?
11 MR. McCLOSKEY: That's my understanding, Your Honour. And these
12 intercepts from this notebook have been long part of our exhibits, so --
13 and this notebook has been available and --
14 JUDGE AGIUS: Let's first identify whether we are talking of
15 handwritten intercept notebook number 24, to start with. The second point
16 is whether Madam Fauveau's allegation or assertion that this notebook as
17 such has not been included in the 65 ter list.
18 JUDGE KWON: And I would like to know, Mr. McCloskey, whether the
19 notebook is the original of that intercept, handwritten transcription.
20 JUDGE AGIUS: And last, but not least, whether we should discuss
21 this in the presence of the witness himself. I would prefer not to,
22 but ...
23 MR. McCLOSKEY: Yeah, that's probably a good idea.
24 JUDGE AGIUS: Witness, we need to discuss this procedural issue.
25 [Trial Chamber confers]
1 JUDGE AGIUS: Witness, you need to leave the courtroom for ...
2 Please explain to him that we will call him back very soon. Thank
4 [The witness stands down]
5 JUDGE AGIUS: Yes, Mr. McCloskey.
6 MR. McCLOSKEY: I think I may have it figured out, Mr. President.
7 As you know, this is a -- this is a witness -- I believe this is a witness
8 that was not originally on our -- on our list because he had an intercept
9 that went to the act or the conduct of the accused. So I believe he was
10 one of the people we brought on pursuant to your order. Now, his
11 intercept has always had a 65 ter number, these two intercepts, and the
12 only version we have of them is the original from the notebook. So that
13 has always had a 65 ter number. We may not have put the -- the original
14 notebook on the original exhibit list because we hadn't planned on calling
16 And -- but this is taking the 65 ter business to an all new
17 absurdity, that we are doing something in response to the Court's order,
18 the original exhibit, the key parts of it have 65 ter numbers. I'm just
19 using this document to help give the Court sense of what these intercepts
20 mean. To suggest that it didn't get a number initially before the Court
21 had even made its order, the problem with this is not only is there no
22 foundation in law in this court or any other court in this building, nor
23 has there been for 10 years, but this would require -- if we pushed it to
24 where the Defence would say -- I can tell you what Prosecutors would do in
25 response to a rule that required this sort of absurdity, they would end up
1 having to put in the beginning of their case 65 ter numbers for
2 everything. I don't do that. I don't like marking up entire collections
3 of documents, even though I could have done that very easily and had --
4 and been able to support the relevance.
5 So that's my view on that particular point. But I think I've --
6 between that and excuse my emotion on this issue, I've laid out to you
7 why, if there is no 65 ter for this notebook, that's -- that's -- that's
8 why. I don't know if we are even offering the notebook in evidence. I
9 think it would be helpful for you so I think I would. But that -- it's up
10 to the Court, I would imagine to make their decision if they believe this
11 is really in issue.
12 JUDGE AGIUS: Yes, Madam Fauveau.
13 MS. FAUVEAU: [Interpretation] Your Honour, quite simply I raise
14 no objection to the fact that the document -- or because it is simply not
15 on the list, 65 ter, but to this notebook in particular because I heard
16 yesterday for the first time, yesterday afternoon, that the witness which
17 has just arrived was part of the 21st Division. When the Prosecutor
18 filed his request requesting that this be added to the list, he gave a
19 summary of his testimony and it was not said that the witness came from
20 the 21st Division. So required additional work for us between yesterday
21 and today.
22 When the Prosecutor had already added to -- to add this witness to
23 the list and that the two intercepts be added to the list, he could also
24 have asked that this notebook be added to the list. I don't see where the
25 problem is, because the preparation of the Defence is completely different
1 if we have two intercepts to deal with, which are only two pages long in
2 total, or if we have one full notebook which has over 100 pages. I'm
3 sorry, we can't work that way. We can't have 24-hour notice, not even 24
4 hours to get ready for a witness.
5 JUDGE KWON: Excuse me, Madam Fauveau. I have difficulty
6 understanding your opposition. When Prosecution is using a photocopied
7 document of any kind, I think it is Prosecution's duty to have the
8 original available to the Chamber or to the parties at any time. So what
9 problem would there be in Prosecution using the original in presenting --
10 in order to present the copy, photocopied document?
11 JUDGE AGIUS: If I may add something to what Judge Kwon said, in
12 addition, I mean, experience throughout these past weeks have shown that
13 basically even though we would be dealing with specific intercepts, the
14 availability of the notebook itself, in its original form, it has served
15 the Defence teams to refer the witness to other entries in the notebook
16 and be able to put questions arising out of other entries. So I don't
17 know. I mean, of course we can hand down a decision; at the same time my
18 preference would be to avoid storms in a tea cup, as much as possible.
19 MS. FAUVEAU: [Interpretation] Your Honour, judges, I do not object
20 the original of these two intercepts, these two pages that is be used. My
21 objection, the one I raise, has to do with the whole notebook. And unlike
22 the other notebooks, this notebook actually doesn't belong to the same
23 unit as the others, so at some point in time we used the other notebooks,
24 we analysed them, and the procedure was roughly the same. We could manage
25 the situation. In this case, this is a notebook which belonged to another
1 unit in which the procedure might have been different, be completely
2 different, which required a different procedure for analysing it. If
3 other pages of the notebook were going to be used by the Prosecution, it
4 would be completely different.
5 [Trial Chamber confers]
6 JUDGE AGIUS: Anyway, Mr. McCloskey, do I take it that in the
7 course of your examination-in-chief you will be referring to the two
8 intercepts that are indicated, 2367 and 2368, and not to other intercepts
9 from this notebook?
10 MR. McCLOSKEY: That is correct, Your Honour. I wanted him to go
11 through the notebook briefly because of the issue of dating, as you have
12 heard from my summary that it appears they have a bit of a different
13 policy than the last group, and I just wanted to act -- so you could see
14 how it worked in practice from the -- from the notebook. This has been an
15 issue that the Defence has raised repeatedly and I can tell the Court I'm
16 sure with these counsel they will be raising issues repeatedly as they
17 have appropriate issues that we need to be able to respond to with
18 documents and material, that some might not have 65 ter numbers on them.
19 JUDGE AGIUS: All right. So the position is as follows, after
20 having deliberated amongst ourselves: Strictly speaking this has not yet
21 been tendered, it will be tendered at the end of the testimony, so -- but
22 that shouldn't make much difference. At the end of the day when you
23 tender the document it is going to be treated the same as other intercept
24 notebooks. In the meantime, we do see the justification sufficient reason
25 for allowing you to make use of this notebook in the course of the
1 examination-in-chief, and obviously it will be made available to the
2 Defence teams in case they wish to cross-examine also on the other
3 contents of this notebook, apart from the two intercepts.
4 Yes, do you want to say something, Mr. Zivanovic?
5 MR. ZIVANOVIC: [Interpretation] Yes, Your Honour. Thank you. As
6 concerns the intercepts taken from a completely different unit, I wanted
7 to say inter alia we had the opportunity to see in those other books some
8 dates when they were filed. Without the originals or at least copies,
9 certified copies, we cannot see when they were filed or archived, for that
10 matter. We cannot see the sequence of filing. Therefore, I believe it
11 will be useful for us to be able to see those notebooks or at least their
13 JUDGE AGIUS: All right. They will be made available, as already
14 decided by the Trial Chamber. And you will be allowed to make use of them
15 as it becomes necessary, as we go along.
16 So, Madam Usher, if you could kindly -- well, I should finish the
17 sentence, bring -- readmit the witness.
18 MR. McCLOSKEY: While he's coming in, I think counsel knows this,
19 but all the notebooks are on EDS and always have been, so we are ready for
21 [The witness entered court]
22 JUDGE AGIUS: So I thank you for your -- Witness, I thank you for
23 being patient with us and for your understanding. We have solved the
24 problem that we had. Mr. McCloskey will proceed with his questions.
25 MR. McCLOSKEY: Thank you, Mr. President.
1 Q. Okay, Witness, we'll let the noise abate a bit.
2 All right. And thank you for opening this up to the first page.
3 This is PO236, the entire notebook. It -- the last four digits of the ERN
4 that we are at now are 4626. Can you just point your finger to where the
5 handwritten date is in this? I think we can all see it, but just show us
6 where the date was put on this particular page.
7 A. [Witness indicates]
8 Q. Okay. And what's -- can you read out the word next to it so we
9 know what that means? Sorry, the one that says --
10 A. Thursday.
11 Q. Yes. So that's the day of the week. Okay. Now, could you --
12 could you just flip through the notebook, and I think it should be the
13 next blue tab, to the next date that's marked down. Okay. We're at now
14 ERN 4632, and I think you've just pointed down in the -- little bit below
15 the middle of the page to 14 July 1995 with the day of the week, "Petak."
16 Also there is a big arrow on the top of that. Can you tell us what that
17 arrow is?
18 A. We usually put that arrow there in case that conversation
19 continues. It means the continuation of the previous conversation.
20 Q. Okay. Let's keep flipping through it to the -- to the next
21 date, which should be marked on a -- on a blue tab to make this easier.
22 Okay. There we are. At ERN 4638. We see 15 July where you pointed, and
23 now could you flip through 15 July to 2226 hours, an intercept at 2226
25 A. 22 hours?
1 Q. We see it in the left corner, but we'll get some help getting it
2 better on the screen. Now, that intercept at 2226 hours, whose
3 handwriting is that in?
4 A. It is in my handwriting.
5 Q. And was that an intercept that came in at 2226 hours on the 15th
6 of July, 1995?
7 A. Yes.
8 Q. And that is 65 ter number 1182A. I'm told there's a different 65
9 ter number. I guess that is PO2367A. Or is it B. Sorry, B is the
10 original in B/C/S.
11 Could you look at the next one at 2228 hours? And do you
12 recognise the handwriting there as well?
13 A. Yes, I do.
14 THE INTERPRETER: Could the witness please speak up?
15 MR. McCLOSKEY:
16 Q. Sorry, you need to speak up a bit. Okay. And whose handwriting
17 is the 2228?
18 A. It's my handwriting.
19 Q. All right. And that is PO2368B.
20 All right. Now, could you continue flipping through that to the
21 next date that -- that comes up in the book, just so they can see the date
22 after this 15th date.
23 JUDGE KWON: Is it 2226 or 28?
24 MR. McCLOSKEY: Excuse me, Your Honour, there was two intercepts.
25 One at 22 ...
1 JUDGE KWON: Oh, yes, thank you. I was mistaken.
2 THE WITNESS: [Interpretation] 18th of July.
3 MR. McCLOSKEY:
4 Q. Sorry to ask you to go back and see if you can find the 16th. It
5 should be marked there with one of the blue markers.
6 A. 16th of July 1995, Sunday.
7 Q. Okay. And that's ERN, last four digits, 4651. And that came in
8 sequence after 15 July, didn't it?
9 A. Yes.
10 Q. Okay. Now, is it fair if you -- if you flip through there looking
11 for the 17th of July, you wouldn't find it?
12 A. You could. No, we will not find the 17th.
13 Q. And do you know that because you looked for it in my office and it
14 wasn't there?
15 A. Yes, that's right.
16 Q. Okay. And we've already seen the 18th that we had just gone to,
17 and are the days 18th through the 24th all in the -- all marked in the
18 notebook from your review in my office?
19 A. Yes.
20 Q. Could you just show us that last page so we can see what that
21 looks like in the notebook? Okay. Now, you've recently told me that you
22 think it was policy to put in dates in the notebook for your unit. Are
23 you -- can you be a little more clear on that? Do you remember any more
24 about that? Was it a practice, a policy or not? Can you just do your
25 best to answer that question?
1 A. It was the practice. We would generally put the dates in and then
2 we would also put in the time of the intercept.
3 Q. All right. And you have -- I -- and you've given us more detailed
4 information in your -- in your statement about that, I don't think I'll
5 ask you about that, but others might.
6 MR. McCLOSKEY: And at this point I don't have any other
7 questions, Mr. President.
8 JUDGE KWON: Mr. McCloskey, could you tell me again the 65 ter
9 number of this entire notebook?
10 MR. McCLOSKEY: Yes. PO2369 is the one that Ms. Stewart has
11 allotted it.
12 JUDGE KWON: Thank you.
13 JUDGE AGIUS: And one further question. I'm just referring you to
14 the list of Prosecution exhibits. 2367 has ERN number 4650, and 2368 has
15 the same ERN number; is that correct? Because I think it shouldn't be the
17 MR. McCLOSKEY: I know they're right next to each other, Your
18 Honour. And I see a correction being made, so we'll make sure that the --
19 yeah. PO2368 should be 4650. If I can get that book, we can sort this
20 out. I apologise.
21 JUDGE AGIUS: They are both 4650, at least from what we have
22 photocopies of. Okay. But the important thing is that we've cleared
24 MR. McCLOSKEY: The second intercept shares the page with the
25 first one that would be 4650.
1 JUDGE AGIUS: Now, cross-examination.
2 Mr. Zivanovic.
3 MR. ZIVANOVIC: [Interpretation] Thank you, Your Honour.
4 Cross-examination by Mr. Zivanovic:
5 Q. [Interpretation] Good afternoon, Witness.
6 A. Good afternoon.
7 Q. Can you please tell me how many notebooks were used at your unit
8 at the same time in the course of your work?
9 A. At the same time each device or station had its own notebook.
10 Three workstations, meaning three notebooks.
11 Q. Can you tell me if the notebooks were marked in any way?
12 A. Yes, they were.
13 Q. Do you remember how they were marked?
14 A. They were marked after the device or the workstation where they
15 were. One of them was marked as RRU-1.
16 Q. Did you mark the notebooks yourself or did somebody else do
18 A. They were already marked.
19 Q. Do you know who marked them?
20 A. I don't know.
21 Q. Can you please tell me, you did not enter the data from the
22 notebooks into the computer, did you?
23 A. No, I didn't.
24 Q. You had the opportunity now to see some of these transcribed
25 intercepts. Is it your impression that the dates were written in some
1 places by a different pen and by a different person than the person who
2 actually transcribed the intercept?
3 A. I didn't notice that.
4 Q. You perhaps didn't pay attention to that?
5 JUDGE AGIUS: One moment.
6 Witness, I am noticing that you are starting to give your answer
7 even before Mr. Zivanovic has finished his question. The procedure here
8 is that whatever you are saying, and you are both speaking the same
9 language, has to be translated to us in English and in French. And if you
10 overlap, as you are doing, the interpreters won't be able to catch what
11 you are saying. So please allow a pause, very short one, but please allow
12 a pause after Mr. Zivanovic's question, and the others as well, of course,
13 before you start answering the question. Okay? Thank you.
14 MR. ZIVANOVIC: [Interpretation]
15 Q. Just one more question. Are you aware, or do you know if there
16 was any coordination between your unit and the other two units that were
17 at the same location regarding the roster or schedule of who would be
18 monitoring what?
19 A. I don't know that.
20 Q. Thank you.
21 MR. ZIVANOVIC: [Interpretation] I have no further questions for
22 this witness.
23 JUDGE AGIUS: I thank you, Mr. Zivanovic.
24 Mr. Meek.
25 MR. MEEK: Your Honour, we have no questions for this witness.
1 JUDGE AGIUS: All right. Thank you.
2 Ms. Nikolic.
3 MS. NIKOLIC: [Interpretation] We have no questions for this
4 witness, Your Honour.
5 JUDGE AGIUS: I thank you, Madam Nikolic.
6 Mr. Stojanovic.
7 MR. STOJANOVIC: [Interpretation] Good afternoon. We will put just
8 a few questions to the witness, Your Honour, in view of the unit that the
9 witness coming from.
10 Cross-examination by Mr. Stojanovic:
11 Q. [Interpretation] Sir, can you please tell us the unit that you
12 belonged to, you don't have to tell us its name. Can you tell us from
13 what time or when was your unit at the location where you were starting
14 from July 1995?
15 A. I don't know when my unit started its work at that location.
16 Q. Did you hear from other members of other units that were doing the
17 same work as you were how long they had been monitoring the conversations
18 of members of the army of Republika Srpska?
19 A. Well, no, I didn't ask them that.
20 Q. The next thing I would like to ask you is, did you receive and are
21 you aware of receiving or did you know that you were receiving orders on
22 which frequencies you were going to be monitoring?
23 A. That's what the commander was there for. The commander received
24 orders. We didn't receive orders.
25 Q. And the commander of your unit, was he the one who conveyed
1 personally to you which frequency you would be listening to on a
2 particular day or on those particular days in a particular shift?
3 A. I don't remember.
4 Q. Would you agree with me if I were to say that the majority of your
5 work consisted of listening to the East Bosnia Corps conversations?
6 A. No.
7 Q. Can you then please tell us what routes you were monitoring and
8 which units of the army of Republika Srpska were you monitoring?
9 A. Our routes were the ones along the combat actions, and then I
10 think -- well, then we also -- we monitored that sector.
11 Q. Can you please try to be a little bit more specific? I at least
12 didn't understand. Can you please tell us which routes and which units
13 you personally were monitoring in mid-1995?
14 A. I don't remember.
15 Q. Would you agree with me that you mostly focused on Brcko, Doboj,
16 and Ozren?
17 A. That's right. That was the focus, but in extraordinary situations
18 we monitored other areas.
19 Q. Can you remember the time period when these extraordinary
20 situations were occurring, which time period was this?
21 A. I don't know the specific dates.
22 Q. And finally can we agree that before 1995 you didn't have any HAM
23 radio operator training and you did not work in that field at all?
24 A. Yes, that is correct, I did not have any such training.
25 MR. STOJANOVIC: [Interpretation] Thank you, Your Honours. I have
1 no further questions for this witness.
2 JUDGE AGIUS: Thank you, Mr. Stojanovic.
3 Madam Fauveau.
4 MS. FAUVEAU: [Interpretation] Thank you, Your Honour.
5 Cross-examination by Ms. Fauveau:
6 Q. [Interpretation] Sir, in your deposition that you gave in the
7 Prosecutor's office this morning, you said that the 21st Division had
8 tried to find the people who would work on communications and that you had
9 some experience in that field. Do you know why -- if they were looking
10 for people working in the communications division, how you would end up
11 working as an operator on intercepts?
12 A. I worked on that equipment in the other army, the one that we used
13 for intercepting work.
14 Q. And that you said that they were looking for people who would work
15 on communications, can you explain how they first of all sought you ought
16 to work in communications and then you ended up working on intercepts?
17 A. I worked in the communications centre in the other army, so it's
19 Q. And when you joined the 21st Division did you work in
20 communications as well or just as an interceptor?
21 JUDGE AGIUS: Yes, Mr. McCloskey?
22 MR. McCLOSKEY: There's an assumption there that I don't think is
23 appropriate. I think as we've heard the description of -- it's very
24 consistent with communications, so I think this is confusing and is going
25 to create confusing answers.
1 JUDGE AGIUS: Actually, my -- what I'm thinking about is that when
2 you were summarising his testimony, you indicated a date when he joined
3 the army, and then another date which goes years later when he was
4 assigned to this location for the work that you indicated or you mentioned
5 in your summary. So there was this interval of time.
6 And your question may be understood as covering the period from
7 the very first day he joined the army. So perhaps you can address that.
8 I don't think you need any sermons from me or -- Madam Fauveau.
9 MS. FAUVEAU: [Interpretation] Your Honour, I think the best thing
10 to do would be to submit to the witness his declaration which he made
11 today and which has the number P2365, page 2, paragraph 2.
12 Q. Sir, I am going to read out the relevant part in your
13 declaration. "[In English] (redacted)
16 JUDGE AGIUS: Stop. Redact, please.
17 MS. FAUVEAU: [Interpretation] I apologise, Your Honour.
18 JUDGE AGIUS: And if you mean to continue reading the entire
19 paragraph, there is also the name of the commander that we cannot state in
20 open session. So let's redact this for the time being.
21 The witness has the text in front of him; go ahead and repeat your
22 question, please.
23 MS. FAUVEAU: [Interpretation]
24 Q. Sir, in view of the declaration you made this morning, can you
25 explain how a unit which was trying to find somebody to work in
1 communications assigned you to be in charge of intercepts?
2 MR. McCLOSKEY: He's answered that to the degree that he could.
3 Now we're speculating into any more command decisions. He said he used
4 the equipment in his former job.
5 JUDGE AGIUS: I think Mr. McCloskey is right. He has already made
6 that statement. If you want him to clarify more, yes, by all means. But
7 he has already stated that the reason why he thinks he was assigned to do
8 intercept work was because before he did that he was already engaged in
9 communication operations. If you go to the previous page you will find
10 it. He kept saying he had worked on that equipment in the other army, the
11 one that used for intercept work. And then he said again, "I worked in
12 the communications centre in the other army, so it's connected."
13 Thank you.
14 MS. FAUVEAU: [Interpretation]
15 Q. Sir, when you said that you used the equipment, what equipment
16 exactly are you talking about?
17 A. I don't understand the question. In this army, you mean?
18 JUDGE AGIUS: Let me try and simplify things.
19 When you were in the upper location in 1995, after you had been
20 assigned to do intercept work there, what equipment did you use? And the
21 next question will be, prior to being assigned to that location in 1995,
22 what equipment were you familiar with in the inception operations. This
23 is basically what is being asked of you. Let's start with the period post
24 your allocation to the upper -- to the north station.
25 THE WITNESS: [Interpretation] There I used the RRU-1. That's a
1 listening device. We used the UHER devices to record the conversations.
2 We used antennas.
3 JUDGE AGIUS: And prior to your assignment to the northern
4 location what equipment were you familiar with?
5 THE WITNESS: [Interpretation] I worked in the communications
6 centre in the other army. It was a room full of all sorts of equipment;
7 FM-200, VZ-12K, all the teletypists and the telegraph equipment, it all
8 went through my apparatus, my equipment.
9 JUDGE AGIUS: I can't help you more than that, Madam Fauveau. So
10 you proceed with the next questions.
11 MS. FAUVEAU: [Interpretation].
12 Q. Is it correct that before you joined the 21st Division you never
13 worked on RRU-1 equipment?
14 A. But I worked on the RRU-800.
15 Q. And before joining that particular location where you worked from
16 you never worked on intercepts; is that right?
17 A. No, I did not.
18 Q. Sir, you said that there were other units in the same building,
19 and you said that there was no coordination when my colleague asked you
20 the question. Do you know whether there was any exchange of information
21 between your unit and the unit of the 2nd Corps which was also stationed
22 in this particular location?
23 A. I don't know.
24 Q. I would like the witness to be shown Exhibit 5D108, which is an
25 exhibit which also exists in English. Could we show, or rather scroll
1 down to the bottom of the page? Actually, I apologise. Could we first of
2 all show the top of the page?
3 Sir, would you agree, and I just want to know if you know and you
4 can confirm that this is a document which comes from another unit of the
5 2nd Corps which was situated in the same site as yourself?
6 A. I did not see them up there. They were there, but I did not
7 communicate with them. We had no access to them.
8 Q. Could the witness be now shown what he had seen before a bit lower
9 on the page.
10 Sir, do you see on the third page at the bottom just before the
11 indication of the frequencies which I indicated, the third line at the
12 bottom. You can read the information transmitted, to the 21st Division
13 [as interpreted]. Is this true?
14 I think there is a mistake in the translation. The information
15 are transmitted from the 21st Division and not to the 21st Division. This
16 based on previous experience. Does this help you to remember whether your
17 commander yourself gave some information to the other unit.
18 A. I don't know. It wasn't part of my job.
19 Q. If I understand you, personally you don't know, but you don't
20 exclude there may have been exchange of information, at the level of the
21 commander of your unit and the other commander of the unit?
22 A. I don't know.
23 Q. Sir, you said that you knew that the reports were made and sent
24 and in your statement - I think you still have it in front of you - page
25 2, paragraph 4. You stated that the intercepts were typed in the computer
1 in the same room where you were, but after that they were sent from
2 another room. Does this mean you had two computers?
3 A. It does not. It was my duty to note down a conversation into the
4 notebook, and then the commander did the rest. I know there was one
5 computer there. That's where data were entered. It is likely though that
6 he would send the reports from another computer.
7 Q. Could the witness be shown 5D169? I'm sorry, it's an exhibit
8 which wasn't registered in the e-court system because it wasn't available
9 because we heard only yesterday that it was a witness from the 21st
10 Division. So the -- it's put in e-court only this morning.
11 Sir, have you ever seen a report sent from your unit?
12 A. No, I did not.
13 Q. This document bears -- letterhead, the name of your unit. Isn't
14 it true? At the top of the document on the left side.
15 A. Yes, it does. I had no access to those documents.
16 Q. Can the witness be shown the notebook P2369, and if he could be
17 shown page 4626, please. Could the date be shown? No, just show a little
18 more so that the date may appear. Thank you very much.
19 First of all, can you tell me what frequency was used for this
21 THE INTERPRETER: Could the witness please repeat the figure?
22 JUDGE AGIUS: Can you repeat your answer, please?
23 THE WITNESS: [Interpretation] 24875.
24 MS. FAUVEAU: [Interpretation]
25 Q. Do you know if there is any mistake in this frequency?
1 A. I don't know.
2 Q. A moment ago you looked through the whole notebook and you saw
3 that most of the time dates had been indicated in the notebook. Do you
4 know who actually wrote those dates?
5 A. The dates were entered by the operators on duty. And in
6 exceptional cases, the commander.
7 Q. Do you know when these dates were noted in the notebook?
8 A. I don't know. I don't remember.
9 Q. Do you admit the possibility that somebody might have written
10 those dates later?
11 A. I don't know.
12 Q. Could the witness be shown page 4687?
13 Sir, would you agree that in this specific case the date 18 July
14 1995 has been written in with a different pen? The pen is different for
15 the -- different from the text, which is before, and then which comes
16 after, where there is an indication of the year.
17 A. There were several pencils, not just one there.
18 Q. And can you recognise the handwriting of the person who put this
19 date and possibly tell us if it is the same person who wrote before or
21 A. I don't know. I don't know, I can't say.
22 Q. Could the witness now be shown pages 4649 and 4650, 50.
23 Sir, the intercept which starts at page 49 at 2226 and finishes
24 page 50, which ends at page 50, is it true that you wrote everything you
25 heard on your own?
1 A. Yes, this is my handwriting.
2 Q. And on page 50 there is -- it's about a certain equipment which
3 was to be sent. You have know idea, you never heard what equipment this
4 was supposed to be?
5 A. I don't see it here. Where is it?
6 Q. Page 4650?
7 A. 650, yes.
8 Q. Line 10. Starts by Y, letter Y.
9 A. Could you please clarify it for me? I cannot find my bearing
11 Q. If you count the lines, the second line there is a Y, then the
12 third, fourth, fifth, sixth, seventh, eighth, ninth line, there is again a
13 Y, letter Y. So on the ninth and 10th line there -- there is a question
14 about an -- equipment, and I just want to clear the fact that you wrote
15 down everything you heard at the time and you didn't hear what sort of
16 equipment it was at the time.
17 Mr. President, do I have your permission to read a text in
19 So, lines 9 and 10 on the page where you wrote: "This piece of
20 equipment that went to Josipovic last time."
21 I'm speaking about the specific point which you mentioned in this
22 line number nine, and I'm asking you whether today you remember, is this
23 all you heard on this point?
24 A. This is it. That's what I heard.
25 Q. Therefore, you have no idea what it's about. True?
1 A. It is.
2 MS. FAUVEAU: [Interpretation] Mr. President, I have no other
4 JUDGE AGIUS: I thank you, Madam Fauveau.
5 Mr. Krgovic or Mr. Josse.
6 MR. JOSSE: Nothing, Your Honour.
7 JUDGE AGIUS: Thank you.
8 Mr. Haynes.
9 MR. HAYNES: No, thank you.
10 JUDGE AGIUS: Is there re-examination? No.
11 Witness, that brings your testimony, that concludes your
12 testimony. And you are free to go back home, in fact. Our staff will
13 assist you. On behalf -- before you leave the courtroom, on behalf of
14 everyone in the chamber, I wish like to thank you for coming over, and I
15 also wish you a safe journey back home.
16 THE WITNESS: [Interpretation] Thank you.
17 [The witness withdrew]
18 JUDGE AGIUS: So, documents. Prosecution. I suppose 2365 being
19 the witness statement under Rule 92 ter. 2366 being the pseudonym sheet,
20 they are both admitted and be preserved under seal. And then there are
21 two intercepts, 2367 and 2368, both versions, plus 2369. We have, of
22 course, taken into account the general objections there have been on
23 intercepts and also on notebooks, so these will be marked for
24 identifications purposes. In the meantime, are there objections? I hear
25 none. So that will be it. I have spurred you having to do that.
1 Madam Fauveau, would you like to tender the 5D169?
2 MS. FAUVEAU: [Interpretation] Yes, also 5D108 and 169. 5D169,
3 which we don't yet have with its translation.
4 JUDGE AGIUS: Which one you don't have translation of?
5 JUDGE KWON: 169.
6 JUDGE AGIUS: 169, okay. And the other one exists. Any
8 MR. McCLOSKEY: No, Mr. President.
9 JUDGE AGIUS: So 5D108 is admitted, 5D169 is marked for
10 identification purposes until such time as the translation is made into
11 English and is made -- and French is made available and confirmed.
12 All right. I don't know if -- 108 I don't have in front of me at
13 the moment, but whether this one should be under seal or not. I think it
14 ought to be because it mentions both the location and also other -- yeah.
15 So that will be under seal, 169. 108 I haven't got in front of me at the
16 moment, so if someone could assist me on that. Anyway, use your good
17 judgement, Madam Registrar, if there is anything contained which could
18 expose the identity of the witness, then it will go under seal.
19 So I take it that you don't have any further witnesses.
20 MR. McCLOSKEY: That's correct, Mr. President.
21 JUDGE AGIUS: And yesterday, before we adjourned I invited you to
22 have some mutual consultations to see if we could make use of the time
23 that we have profitably. Have there been consultations?
24 MR. McCLOSKEY: Yes, there have. There have been a few
1 JUDGE AGIUS: And can someone enlighten us on the outcome of these
3 JUDGE AGIUS: Well, we've come up with a couple of subjects. And
4 I can go over -- I'll just go over each one of them briefly and we will
5 see how they flesh out. We haven't really been able to come to anything
6 too definitive, but I think we can take up some time tomorrow.
7 Regarding the issue of the U.S. aerial images, Mr. Ostojic and I
8 had spoken and we haven't had a chance to speak and I've spoken briefly to
9 Mr. Meek, and at this point I'm not sure there is much we can say, but I
10 don't know if Mr. Meek's got anything to add. I was hopeful with
11 Mr. Ostojic we could work something out. So I think we'll have to wait
12 until he's back.
13 Mr. Josse has spoken to Mr. Thayer about some issues related to --
14 the witness Rupert Smith, which I think they are ready to talk about for
15 some time. Not -- I'm not sure how long. We have been in continuing --
16 well, contact with the Borovcanin team, because we would like to offer his
17 statement into evidence, and that is a tape that will take many hours, and
18 they have told us they -- and I think they've told the Court that they
19 wish to challenge that admissibility, and they're working on that and so
20 we've agreed that they'll hopefully soon be able to get in their motions
21 about that on that particular issue.
22 Now, that is a -- a tape of many, many hours, and if it is just
23 for the future, 15 hours. In the past we've sometimes played just
24 Prosecution relevant portions, sometimes the Defence wants everything.
25 We'll work on that, but if that is admissable, which I am not aware of
1 any - well, we'll hear their legal argument - that will help us in the
2 future when we have these Fridays with a bit of -- if the Court doesn't
3 mind, we may be able to take a few hours on days like that or we could do
4 it in -- you know, one big, long sitting. Anyway, that's an issue for the
5 future, as we've discussed.
6 The -- Mr. Thayer has been talking with most of the Defence
7 counsel with the idea about having Stefanie Frease testify about
8 audiotapes. It's an issue that was brought up and when we got them and a
9 bit about those audiotapes, the originals we could even bring in an UHER
10 and play them. But -- and not -- no cross-examination at this point,
11 because Defence would like time to cross-examine, of course. But they --
12 most Defence as far as we know didn't did not have an objection to hearing
13 a bit of Ms. Frease's direct on this point which has come up a couple of
14 times, which would save us time so she wouldn't be having to talk about
15 that when she does come at the end of that time. So, that was a creative
16 idea of Mr. Thayer's which he has more detail if -- if you have any
18 We have one short five-minute tape of the going-away function for
19 General Zivanovic on July at the yellow restaurant which you may remember
20 going by on the site visit. We have been talking to Mr. Josse and the
21 Defence team about that. I'm not sure we've come up with any agreement or
22 not. It's a -- we've taken a -- it's a some one- to two-hour tape, but
23 we've taken some five or six minutes of the relevant portions, so that's
24 not real long. But it is something.
25 JUDGE AGIUS: I thank you. So, as I see it, there is no point in
1 discussing today or tomorrow the U.S. aerial images. However, let me make
2 it clear, I think there has been enough time for -- for discussing mutual
3 discussions on this issue. So we will hear what Mr. Ostojic will have to
4 say when he returns. In other words we will put the question again. Then
5 reserve for ourselves the decision to impose a dead-line by which time you
6 have to clear this so we can proceed.
7 The Borovcanin tape, I take it we will -- it's not feasible
8 actually at present as things are that we dedicate the -- the rest of
9 today and tomorrow to that. I think it's still something that has to be
10 gone deep into.
11 So let's start with the last one, the five-minute tape for the
12 celebration of Zivanovic's retirement. Yes, Mr. Josse.
13 MR. JOSSE: The position here, Your Honours, is as follows: Very
14 helpfully my learned friends who prosecute allowed me to see that tape
15 yesterday. Mr. Krgovic had had an opportunity to see it somewhat earlier.
16 We understand, as Mr. McCloskey has just said, that the five-minute tape
17 is an edited version of a longer video of the whole event. Frankly we
18 would be anxious, on reflection, to see that one to two-hour tape before
19 we decide what starts to take. Having said that, we will almost certainly
20 oppose the admission into evidence of this particular tape. So there will
21 need to be some sort of argument in relation to it.
22 Our present inclination is to invite the Trial Chamber to view
23 the tape and then hear submissions as to whether it should be admitted
24 into evidence because clearly it's quite difficult for you to decide
25 whether something should be admitted into evidence without having first
1 seen it. But the problem is, and I wrote to Mr. McCloskey quite late last
2 night, and I know he's been very busy with the last witness, so
3 unsurprisingly he hasn't replied saying that really we need to see the
4 unedited tape, because it may be that were the Chamber to admit the edited
5 version, we'll say that the Chamber -- we'll invite the Chamber to see the
6 full unexcavated version, I beg your pardon. So that's the position on
8 JUDGE AGIUS: I thank you, Mr. Josse.
9 Mr. McCloskey, do you wish to comment on that?
10 MR. McCLOSKEY: I don't -- I don't -- except to say that they've
11 had the whole tape since March 2006. If they need help finding where they
12 have, we can always help them and -- and we have it available at -- at
13 Your Honour's wish.
14 JUDGE AGIUS: But that basically strikes it off the agenda for
15 today or tomorrow.
16 MR. JOSSE: Could I just say, Your Honour, that the legal
17 argument as to admissibility, when it happens, will take minutes.
18 Literally minutes. So it's not going to be a great time filler, is what
19 I'm saying.
20 JUDGE AGIUS: Yeah, but it's all predicated on your first request,
21 namely to be able to view the entire --
22 MR. JOSSE: Absolutely, that is our request.
23 JUDGE AGIUS: So that's why I am saying that certainly we have to
24 write it off from today's and tomorrow's agenda.
25 MR. JOSSE: We are very grateful, thank you.
1 JUDGE AGIUS: So that will give you the opportunity to view the
2 entire -- I fully understand your argument. Mr. McCloskey is saying
3 you've had it already in your possession for some time.
4 MR. JOSSE: Needless to say I will discuss that with the rest of
5 the team.
6 JUDGE AGIUS: Thank you. So we are left with two items. One is
7 the partial initial testimony of Stefanie Frease, with no
8 cross-examination for the time being, in the sense that cross-examination
9 will be reserved until later. Is there anyone of the Defence teams that
10 wishes to register an objection, an opposition to such a suggestion? I
11 hear none.
12 Next question to you, Mr. McCloskey, how long would you expect her
13 to be in the witness box?
14 MR. McCLOSKEY: It's hard to say. I don't think it should take
15 more than an hour or two. It -- Mr. Vanderpuye is working with her as we
16 speak. She -- we sort of sprung this on her, and I'm -- as long as she's
17 still willing, I'm hoping not more than -- well, it shouldn't take more
18 than an hour, and I -- I -- so I would say an hour. But that's a guess.
19 JUDGE AGIUS: And will that happen today or tomorrow?
20 MR. McCLOSKEY: Tomorrow.
21 JUDGE AGIUS: Tomorrow, okay.
22 [Trial Chamber confers]
23 JUDGE AGIUS: Mr. Josse, I am coming back to you. Do you think it
24 is feasible on your part to review between today and tomorrow the entire
25 video, the two-hour video?
1 MR. JOSSE: Could I have a moment, please?
2 [Defence counsel confer]
3 MR. McCLOSKEY: We do have an English transcript of the entire
4 thing, so that will -- should help.
5 MR. JOSSE: The answer is yes, so long as the Prosecution are able
6 to help by providing either another version of the unedited tape. I
7 accept they've already served it, but we wouldn't have it to hand,
8 frankly. Or alternatively, make available to us a facility for
9 Mr. Krgovic and I to watch it, presumably later this afternoon.
10 JUDGE AGIUS: All right. Yes, that ...
11 MR. McCLOSKEY: No objection, Your Honour. I -- unfortunately I
12 do have some sympathy of having something, not knowing I have it, but we
13 should be able to help them out.
14 JUDGE AGIUS: All right. So -- so if we're talking of -- speaking
15 of tomorrow, we have a conservative estimate of one hour for Stefanie
16 Frease and then I don't know if I have understood or misunderstood
17 Mr. Josse's proposal, namely that if we are to view a video here, whether
18 it can suffice to see the edited version or whether we will be required to
19 view the entire unredacted or unedited.
20 MR. JOSSE: That's the decision the Defence need to make, having
21 viewed the full version.
22 JUDGE AGIUS: Okay. So let's put --
23 [French on English channel]
24 Let's put this on the agenda for tomorrow. If we can go ahead,
25 we'll go ahead. If not, we don't.
1 There is one final matter which has been suggested and that is
2 oral submissions by Mr. Josse, and I think Madam Fauveau, if I'm not
3 mistaken, on the Smith proposed evidence.
4 MR. JOSSE: Well, speaking on behalf of the Gvero team, and I
5 think Madam Fauveau as well, it's simply a matter of clarifying where the
6 filings in relation to this are up to. It's our view that some
7 clarification by way of oral submission would help all concerned. Again,
8 Your Honour, it really won't take very long, but we will be anxious for
9 the Court to add it to the agenda.
10 JUDGE AGIUS: All right. I think this we can deal with today. So
11 let's do this, so that in the meantime we also equip ourselves with the
12 necessary documentation. We'll have a 30-minute break.
13 [Trial Chamber confers].
14 JUDGE AGIUS: So the preference here is to shift it to -- to
15 tomorrow as well. If it's not going to engage us in a long discussion, I
16 think we can fit it in tomorrow.
17 MR. JOSSE: Again, speaking for myself and Mr. Krgovic, the sooner
18 we get to see the Zivanovic party video, the better, and we would prefer
19 that as well.
20 JUDGE AGIUS: Do you think you will be engaging us in long
21 submissions tomorrow when we deal with this Smith business?
22 MS. FAUVEAU: [Interpretation] No, Mr. President. My only concern
23 on this subject is: Is it a witness of fact or an expert witness, is the
24 only question I'm concerned about.
25 JUDGE AGIUS: But that is a submission that you have already made,
1 basically. So we'll leave everything for tomorrow. Tomorrow we are
2 sitting in the morning, as you know. So we'll start at 9.00, and when we
3 start you will tell us whether we are -- how we are going to handle the --
4 the matter relating to the Zivanovic video. All right?
5 MR. JOSSE: Of course.
6 JUDGE AGIUS: Yes, Mr. Josse. There is one last thing that I'm
7 going to draw your attention to. The Prosecution has yesterday filed
8 another motion for the issuance of a subpoena involving only one
9 individual for the reasons that are indicated in the application itself
10 and the attached document. Are there any objections for the issuance of
11 this subpoena from any of the Defence teams?
12 MR. HAYNES: Well, speaking for myself, the first application was
13 ex parte and served to us as a matter I imagine of courtesy. This one,
14 although served publicly and confidentially, has an ex parte annex, which
15 none of us have seen. So we're not really in a position to state a view
16 one way or the other, and I take the view it's none of our business.
17 JUDGE AGIUS: That's fair enough, I fully understand that. But
18 unless there are any substantive or material objections to the issuance of
19 such subpoena, we will issue it first thing -- when is the latest day you
20 need it, Mr. McCloskey? We can have it ready in a pretty short time.
21 MR. McCLOSKEY: Thank you, so much. We do need it by tomorrow.
22 JUDGE AGIUS: All right, okay. So we will -- yes, sorry. I
23 didn't notice you, Madam Fauveau.
24 MS. FAUVEAU: [Interpretation] Mr. President, briefly on another
25 subject. The Chamber made an order concerning the arguments of the
1 Defence on the intercept. I would ask for a modification of the time
2 limit so that our submissions can be made when Ms. Stefanie Frease may
3 come so that she can finish her testimony, because this is linked very
4 much to the intercepts. Stefanie Frease.
5 [Trial Chamber confers]
6 JUDGE AGIUS: Madam Fauveau, as you can imagine, during our mutual
7 consultations, the dead-line was one of the issues that we discussed at
8 length, and it's -- the date of the 2nd of February has not been reached
9 in a random or haphazard manner. The choice of that date was reached
10 specifically because we require an outline of the objections to the
11 intercepts that by that time we would have dealt with before Stefanie
12 Frease testifies. Then, of course, after her testimony, if you wish to
13 add to your objections or -- you will be free -- you will be free to do
14 so. Again, with a time limit. But the idea was setting the 2nd of
15 February precisely so that we have an overview of -- of the position of
16 the various Defence teams which until now we have allowed to remain more
17 or less in a vacuum, except for the few indications that we've had from
18 Mr. Ostojic and Mr. Zivanovic on matters of authenticity and all that. So
19 please try to stick to that date, and after the testimony of Ms. Frease,
20 we will see whether it's the case of revisiting the matter or not. All
22 So I think we can adjourn for today. I wish to thank the staff
23 for having been patient with us for almost 15 minutes past the time when
24 we should have gone into break. But I think you will all be happy knowing
25 that you have the rest of the afternoon and evening free. Thank you.
1 --- Whereupon the hearing adjourned at 3.58 p.m.,
2 to be reconvened on Friday, the 19th day of
3 January, 2007, at 9.00 a.m.