Tribunal Criminal Tribunal for the Former Yugoslavia

Page 6356

1 Thursday, 25 January 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.07 a.m.

5 JUDGE AGIUS: Madam Registrar, could you call the case, please.

6 And good morning to you.

7 THE REGISTRAR: Good morning, 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.

10 Mr. Nikolic, good morning to you. I welcome you back on behalf of

11 the Trial Chamber. I hope you are feeling somewhat better. I gave

12 instructions that you change places with Mr. Popovic. You sit outside.

13 The registrar, through -- on the advice of the Detention Unit doctor

14 advised -- please remain seated -- advised us that you may need, from time

15 to time, to walk around a little bit. Any time you need that, please draw

16 our attention, and we will of course allow you to do that. Not in the

17 courtroom, obviously, but anything you need -- and if you are not feeling

18 well and would like to retire and go back to the Detention Unit, please

19 let us know.

20 So all the accused are here today. Yeah, the -- in the -- in one

21 monitor we are receiving the transcript; in the other monitor, at least I

22 am not -- no, and my colleagues aren't receiving anything. So -- and --

23 you have the same problem. Yeah. Anyway, for the time being, we can --

24 we can continue.

25 For the record, Ms. Condon is not here, as per the statement by

Page 6357

1 Mr. Zivanovic yesterday. Mr. Haynes is not here.

2 Mr. Sarapa, is there a problem with Mr. Haynes?

3 MR. SARAPA: [Interpretation] No problems whatsoever.

4 JUDGE AGIUS: And Mr. Josse is also not here. Mr. Krgovic, I

5 think you gave an explanation yesterday. That is still valid. Otherwise

6 we are a full house.

7 The Prosecution is Mr. McCloskey and Mr. Vanderpuye.

8 Before we bring in -- or shall we first finish with Ms. Frease and

9 then deal with some of the motions that have arrived since yesterday,

10 something like 150 pages worth of reading. Let's start with Ms. Frease

11 and then continue afterwards.

12 In the meantime, if you can -- because unfortunately we don't have

13 transcript scrolling in e-court, yeah.

14 Yeah, Mr. McCloskey.

15 MR. McCLOSKEY: If I could be excused for a moment, I see that

16 Mr. Nikolic is here. If I may go work on some witness issues to see if

17 there is anything we can do to fill some space.

18 JUDGE AGIUS: Certainly, Mr. McCloskey. And I appreciate that.

19 [The witness entered court]

20 JUDGE AGIUS: Good morning to you, Ms. Frease.

21 THE WITNESS: Good morning.

22 JUDGE AGIUS: And welcome back.

23 THE WITNESS: Thank you.

24 JUDGE AGIUS: You will continue your testimony in chief in part

25 again today.

Page 6358


2 JUDGE AGIUS: No cross-examination. May I just recall that you

3 have already made an undertaking with this Trial Chamber that you will be

4 testifying the truth; you have made a solemn declaration --


6 JUDGE AGIUS: -- which you don't need to repeat, obviously.


8 JUDGE AGIUS: Yes, Mr. Vanderpuye.

9 MR. VANDERPUYE: Good morning, president, Your Honours, counsel.

10 Examination by Mr. Vanderpuye [Continued]:

11 Q. Good morning, Ms. Frease.

12 A. Good morning.

13 Q. Hopefully we'll be able to pick up where we left off nearly a week

14 ago. Do you recall testifying about a project which involved your review,

15 organisation and analysis of certain intercepted communications that were

16 received by the Office of the Prosecutor?

17 A. Yes.

18 Q. And in conducting these various functions, did you have occasion

19 to come into possession and review original notebooks containing these

20 intercepted transcriptions?

21 JUDGE AGIUS: One moment, Mr. Vanderpuye, because I want it make

22 sure that there is no objection on the part of Defence counsel that we

23 proceed even though -- even though the -- the e-court transcript is not

24 yet on.

25 Mr. Ostojic.

Page 6359

1 MR. OSTOJIC: Good morning, Mr. President. We don't object to

2 proceeding, but I do object to the leading question that was put to the

3 witness. This witness, I understand, Ms. Frease, is obviously intelligent

4 and sophisticated. He can just ask her what she's reviewed, if anything,

5 and not put that it was original notebooks or not. That's what we're

6 hoping to learn from her. So I'm not going to object the entire time

7 during the direct examination, but I think at the very least with this

8 witness, there should be absolutely no leading by the Prosecution.

9 JUDGE AGIUS: I don't consider it a leading question. I mean

10 asking her whether she came into possession and review original notebooks

11 containing these intercepted transcriptions, I mean is not a leading

12 question. In any case, that question was put to her last time. I

13 remember it quite vividly and she answered it. She even stated in chief

14 that she had an occasion to review these notebooks when she came together

15 with someone else in possession of them while they were still in

16 Yugoslavia. I mean in -- over there anyway. So I don't think there is a

17 need to repeat that question in any case. I suggest you pass straight to

18 the substance of your examination-in-chief.

19 MR. VANDERPUYE: Thank you, Mr. President.

20 Q. I do recall -- and you will correct me if I'm wrong, that you

21 testified previously about coming into possession of a number of

22 materials?

23 A. Yes.

24 Q. I would like -- I would like to initially focus your attention on

25 the printed material that you came into possession of. And can you tell

Page 6360

1 us whether or not you came into possession of printed material relating to

2 these intercepted communications?

3 A. Yes.

4 Q. And when I say printed, I mean separate and apart from handwritten

5 transcriptions?

6 A. Yes, that's right.

7 Q. Okay. And, first, can you tell us what these printed versions of

8 intercepts actually are?

9 A. Yes. In April of 1998, we -- the Office of the Prosecutor came

10 into possession of printed -- well, printouts that the army of

11 Bosnia-Herzegovina, that the 2nd Corps had provided to -- to the office.

12 And these were -- it was about 550 pages of printed conversations that

13 looked like they originated from a couple of different sources; from the

14 military and then also from the police.

15 Q. And do you know whether or not these particular printouts

16 contained complete versions of the intercepts they purportedly contained?

17 A. They weren't -- it's a little -- it's a little tricky to answer,

18 so let me explain. They were complete in the sense that the substance was

19 the -- was the same. But because they were printouts they -- and they

20 were an analytical tool that was used by the army, they -- in the process,

21 what we learned was that the army had taken off sometimes the -- well,

22 always had taken off the headers that -- of the reports that they had sent

23 to their headquarters. So this was very much a working document for them

24 about events on the ground so that they could more easily analyse the

25 material contained therein.

Page 6361

1 Q. Do you know whether or not -- well, first of all, how is it that

2 you came to the conclusion that the headers, for example, were taken off?

3 A. Later when we saw the electronic printouts of the complete reports

4 that the army and the police sent to their headquarters, that was when it

5 became clear that -- that a lot of that sort of identifying material had

6 been taken off.

7 Q. When you refer to identifying material, are you referring to

8 things such as the location or direction or things of that nature?

9 MR. OSTOJIC: Same objection, Your Honour.

10 JUDGE AGIUS: It is a direct question. You can ask her what she's

11 referring to.


13 JUDGE AGIUS: I'll rephrase the question. When you refer to

14 identifying material, what material are you referring to?

15 THE WITNESS: I'm referring to the header, sometimes the

16 direction, sometimes the azimuth or other -- other bits of information

17 that the operators would have recorded when they sent their messages to

18 their headquarters.


20 Q. I would like to show the witness ERN 0072-7550, please. I just

21 wondered if I could have that placed on the ELMO so everybody could see

22 what we're talking about. Thank you.

23 Ms. Frease, do you recognise this object?

24 A. Yes.

25 Q. Could you tell us what it is, please, for the record?

Page 6362

1 A. It's the -- the original binder of printed material that -- that

2 the Office of the Prosecutor received in April of 1998, and it was the --

3 it was the material that we really started to use to analyse the

4 intercepted communication.

5 Q. Okay. Can you open the binder, please. Okay. I just wonder if

6 you could flip over a couple of pages so the Court and Defence counsel can

7 see what you are talking about when you refer to these old printouts. The

8 one displayed now on the ELMO is 0072-7552, and could you tell us in

9 substance -- well, generally when you referred to the header being missing

10 or information not being present on this, could you describe what you were

11 talking about?

12 A. Mm-hmm. Normally when the -- we learned later that when the

13 army -- when the units from the two different sites sent the intercepted

14 communication to their 2 Corps headquarters, they always put a header on

15 the top of the -- of the report containing the various conversations. And

16 the header just was directed to the army of Bosnia-Herzegovina to the

17 2 Corps, and then essentially the communication started.

18 Now, there is -- on this particular document, there is a date of

19 the 9th of July, 1995.

20 Q. Was it always the case that the date would appear in these

21 particular types of printouts?

22 A. No.

23 Q. Okay. Could we just go down to the bottom of the page on the ELMO

24 so the Court can see that? Now, at the bottom of the page, there appears

25 to be a line on this particular page which goes right to the base and it

Page 6363

1 appears that there is a photocopy mark right below it?

2 A. Right.

3 Q. Now, is this -- could you tell us what this is?

4 A. Yes. This is a photocopy. These are all photocopies of material

5 that came off of like a dot-matrix printer where the sheets, they are

6 old -- you know the old kind of printouts where the pages -- the document

7 would print out to the bottom of the page and then there would be a

8 perforated edge where it would tear at and then the communication would

9 continue. But in the process of tearing those pages, oftentimes then in

10 photocopying them, a few lines could be missing from the bottom of the

11 page or even the top of the next page.

12 Q. And was that an unusual occurrence with respect to these types of

13 printouts?

14 A. No, it was very common.

15 Q. Now, I see on the page that you've just turned over to, there

16 are -- there is a capitalised printing in this particular section of the

17 report.

18 A. Yes.

19 Q. Versus the top of the page where there is, I guess, sentence case

20 printing with respect to that. Could you tell the Court what the

21 distinction is between these two types of casing in the context of these

22 reports?

23 A. Yes. The reports that were printed in all capital letters came

24 from the police, and that was one way that we were able to quickly

25 distinguish who the source was on a particular document, at least at this

Page 6364

1 early stage.

2 JUDGE AGIUS: When you say the police, the police in general or

3 any particular section of the police?

4 THE WITNESS: The unit that was also based at the northern site.

5 JUDGE AGIUS: Thank you.


7 Q. And was the presence of these reports within the context of these

8 printouts an unusual occurrence?

9 A. No.

10 Q. And, in fact, is there -- is there another way to distinguish

11 between communications that originated, as you say, with the police at the

12 northern site versus those that originated with the 2nd Corps unit?

13 A. Yes. The police always put this sort of a header on it, that

14 started off with, "On the above-mentioned day, from the direction of" and

15 then they would mention the direction and then they would identify the

16 frequency. I can just point to it here. And then the channel. And then

17 they would say at this hour they recorded a conversation between -- if

18 they could -- if they understood and they could hear who the conversants

19 were, the participants were, then they would indicate those names. If

20 they didn't know who the participants were, then they would indicate X and

21 Y or something like that. But the police unit up there always started

22 their conversations with this kind of a header, which was different from

23 the military -- from the military units.

24 Q. Okay. Can you tell us if you have any particular knowledge how it

25 is that these reports came to be apparently in the possession of the 2nd

Page 6365

1 Corps?

2 A. They shared information. The units up at the northern site shared

3 information. Well, I guess also the southern site. The information was

4 filtered and then -- and then the army and the police shared -- shared all

5 of their reports.

6 Q. Now, do you know approximately when this material was transferred

7 into the possession of the Office of the Prosecutor?

8 A. It was late April 1998. April 24th, I believe.

9 Q. Okay. And do you know who was involved in the receipt of this

10 item?

11 A. A former member of the Office of the Prosecutor. Do you want me

12 to mention him by name?

13 Q. Yeah, I think --

14 A. Peter Nicholson.

15 Q. And do you know where this occurred, where this transfer actually

16 took place?

17 A. In Tuzla.

18 Q. Okay. If I may, I'd like to draw your attention to other

19 documents, if we could. Now, you mentioned previously these intercepts

20 from the police located at the northern site -- state -- is that state

21 security?

22 A. Right.

23 Q. Okay. Now, do you know whether or not the Office of the

24 Prosecutor actually received any printouts from the State Security

25 Service?

Page 6366

1 A. Yes.

2 Q. Okay. Now, can you tell us the circumstances, if you know, under

3 which that material came into the possession of the Office of the

4 Prosecutor?

5 A. A -- many -- many conversations were handed over to the Office of

6 the Prosecutor in 1999.

7 Q. Okay. Now, do you know the circumstances under which this

8 particular transfer occurred?

9 A. Yes.

10 Q. Okay. Could you tell us about that, please?

11 A. They were handed over to Jean-Rene Ruez in July of that year, late

12 July of that year, I think the 27th of July.

13 Q. Did you have an opportunity to review any documents in confirming

14 the circumstances of this transfer?

15 A. Yes.

16 Q. Okay. Could I have please PO2400 on the ELMO. I'm sorry, in

17 e-court. All right. I think we have it.

18 Ms. Frease, can you see this?

19 A. Yes.

20 Q. Can you tell us what this document is?

21 A. It's a receipt from the agency for investigation and documentation

22 which is the police, the secret police. The name of the -- it was renamed

23 after the war ended. It's their document number 1406 dated the 27th of

24 July, 1999. And says that it was handed over to members of the -- of

25 the -- of an investigative team from the International Criminal Court on

Page 6367

1 that date, and then it provides a detailed list of all of the reports that

2 were handed over that day.

3 One thing that I forgot to add, in looking at the -- that printed

4 document that we -- that we just looked at, for the police reports, one of

5 the other identifying factors for the police reports was that they always

6 numbered the -- their conversations. So these numbers, like that start

7 with 365 from the 21st of June, 1995, that report number would have

8 appeared on that particular conversation.

9 Q. And when you say would have appeared on that, is it in the context

10 of a header or something of that nature?

11 A. Right. It was -- it was associated with a specific conversation.

12 Q. Okay. Could we just go to -- I think the second page of this

13 document in e-court. Okay.

14 And can you tell us what we have -- well, first, obviously you see

15 signatures on there, right?

16 A. Right.

17 Q. Can you tell us what is above the signatures following the long

18 list of reports?

19 A. Mm-hmm. It -- there's the next line down that starts

20 with "Takodje". Also that they provided some radio recordings of

21 conversations that relate to those report numbers and those report numbers

22 are found -- relate to reports that were provided on that list.

23 Q. Okay. And does that also relate to the line following?

24 A. That's right. That line says that those are recordings on

25 cassette that relate to the following report, the report numbers that are

Page 6368

1 mentioned.

2 Q. Okay. And the ultimate line?

3 A. And the last line is a 20-page diary that was provided.

4 Q. Okay. And in referring to this document you are able to confirm

5 that those items were received by the Office of the Prosecutor?

6 A. Yes.

7 Q. Okay. All right. May I focus your attention, please, on a

8 different set of documents that you previously mentioned you had reviewed,

9 and those relate to electronic versions of intercepted material. First,

10 could you tell the Court what is meant by -- what an electronic version of

11 printed material actually is?

12 A. Those are the reports that the military and the police typed up at

13 their locations and sent to their headquarters in electronic format.

14 Q. Now, with respect to the military, can you tell us, if you know,

15 if the Office of the Prosecutor came into possession of this electronic

16 material?

17 A. Yes.

18 Q. And if you know the circumstances under which that material came

19 into the possession of the Office of the Prosecutor, could you share that

20 with us as well?

21 A. Yes. I received first two diskettes from the military in -- the

22 date is escaping me right now.

23 Q. Okay. May I have, if I could, 65 ter 1071 displayed on the -- in

24 e-court, please.

25 A. I think it was 1999.

Page 6369

1 Q. All right. Do you recognise the document that's displayed at this

2 time?

3 A. Yes.

4 Q. Can you tell us what that is, please?

5 A. Yes. It's a receipt that was produced by 2 Corps headquarters in

6 Tuzla with their reference number, and dated the 10th of May, 1999.

7 Q. And can you -- I'm sorry. Could you tell us what -- is it

8 possible to have the translation also displayed, I guess side by side for

9 the benefit of the Court and counsel? All right. Thank you very much.

10 This document records the transfer of a certain two disks; it says

11 1.4 megabyte diskettes. Is that accurate? Is that what you received?

12 A. Yes, mm-hmm.

13 Q. Can you tell us by refering to the document when that occurred?

14 A. On the 10th of May, 1999.

15 Q. And the document also indicates that other material was

16 transferred as well. Can you tell us what that is?

17 A. Yes. The first item on the list relates to 55 notebooks in A5

18 format that were transferred to us containing transcripts of

19 conversations. The second item refers to an A4-format notebook containing

20 also transcripted conversations. The third item relates to the two

21 diskettes and then the fourth is a shift diary, also a notebook.

22 Q. These are the notebooks that you referred to earlier as original

23 notebooks?

24 A. Yes, those are some of them.

25 Q. Okay. Could I have also PO2311 displayed in e-court for the

Page 6370

1 witness, please. While we're waiting for that to load, could you tell us,

2 if you recall, the circumstances under which you received this material,

3 the 55 A5 notebooks and the two diskettes? Can you tell us where that

4 occurred?

5 A. In Tuzla.

6 Q. Okay. And besides -- may we go into private session for just a

7 moment?

8 JUDGE AGIUS: Certainly. Let's go into private session, please.

9 [Private session]

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 6371











11 Page 6371 redacted. Private session















Page 6372

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 [Open session]

8 JUDGE AGIUS: We are in open session all ready.

9 MR. VANDERPUYE: Thank you, Mr. President.

10 Q. Did there come a time that the Office of the Prosecutor received

11 additional or other electronic files containing intercepted material

12 relative to the 2nd Corps?

13 A. Yes. That was after I had left the office.

14 Q. Okay. And if you know, can you tell us the circumstances under

15 which that material came into the possession of the Office of the

16 Prosecutor?

17 A. It was in -- from documents that I reviewed, it was in December of

18 2000.

19 Q. Could I have 65 ter 1072, please, displayed in e-court? While

20 that document is loading, could you tell us, if you know, where this

21 occurred and who was involved from the end of the Office of the

22 Prosecutor?

23 A. Jean-Rene Ruez picked up some material, including seven diskettes

24 of electronic versions of -- of conversations.

25 Q. Okay. All right. Do you have 65 ter 1072 now? You can see that

Page 6373

1 document?

2 A. Yes.

3 Q. Is this the document you referred to as having -- having relied

4 upon in confirming the date of transfer?

5 A. Yes.

6 Q. Okay. Excuse me for one moment. Just bear with me. Okay. If I

7 could, I'd like to have the annex for -- annex number -- number 3, please,

8 displayed for the witness. I'm going to see if I can see the ERN number.

9 It's page 5 in English, yes. And it is page -- page -- I don't have a

10 page number but I have an ERN number of 01085071. It appears to be page 4

11 in the B/C/S. Great. Thank you very much.

12 Do you see that, Ms. Frease?

13 A. Yes.

14 Q. And does this relate to the seven diskettes to which you referred

15 previously?

16 A. Yes.

17 Q. Okay. And there is a range assigned to each diskette; is that

18 right?

19 A. Yes, a date range.

20 Q. Okay. And have you had an opportunity to verify that those disks,

21 in fact, contain the information that is indicated on this report?

22 A. I have not had an opportunity to go through disk by disk.

23 Q. Okay. Do you know if we have -- well, if the Office of the

24 Prosecutor has reports for -- within the range that is depicted on this?

25 A. Yes.

Page 6374

1 Q. And those are electronic reports; is that right?

2 A. Yes, they are.

3 Q. And have you had a opportunity to work with those reports in

4 evaluating the reliability of the intercepts that you have looked at?

5 A. Yes.

6 Q. Okay. Have you had an opportunity to compare the information

7 that's contained in these electronic versions of reports with the printed

8 reports that was received by the Office of the Prosecutor sometime

9 earlier, the ones contained in the binder that you had testified about?

10 A. Yes.

11 Q. Okay. And in comparing the two, have you found any textual

12 discrepancies between them, aside from what you mentioned concerning the

13 heading, direction, azimuth, things of that nature? I'm speaking

14 specifically about the actual text of the intercepted material.

15 A. I haven't seen any differences between the two, other than text

16 missing that was at the bottom or at the top of the printouts that we

17 talked about earlier.

18 Q. Were you able to determine whether the information that's

19 contained in these electronic versions of the printout materially

20 conformed to the original notebook transcriptions of those -- of

21 intercepted communications?

22 A. Yes.

23 Q. And did it substantially conform to the original notebooks?

24 A. Yes, it does.

25 Q. If I may, I would like to direct your attention to electronic data

Page 6375

1 of a different sort. Do you know if the Office of the Prosecutor came

2 into possession of electronic data from what you've described as the

3 police or the state security?

4 A. Yes.

5 Q. Okay. And if you could tell us what the circumstances surrounding

6 that transfer were?

7 A. That transfer also took place after I left the Office of the

8 Prosecutor. I left in July of 2000. I believe that material was handed

9 over in 2001, and was collected by an investigator working on this case,

10 an investigator by the name of Jean Gagnon.

11 Q. Could I have PO2399 please displayed in e-court? Okay. Thank

12 you.

13 Do you recognise this document?

14 A. Yes, I do.

15 Q. And is this a document that you reviewed in determining the

16 circumstances surrounding the transfer of electronic data from the state

17 security?

18 A. Yes, it was.

19 Q. Okay. And the date that's indicated here appears to be 8th of --

20 28th of August, 2001; is that right?

21 A. That's right.

22 Q. Okay. Could we just scroll down for a moment, please.

23 Okay, you recognise that signature?

24 A. Yes, I do.

25 Q. And whose signature is that?

Page 6376

1 A. That's Jean Gagnon's signature.

2 Q. Okay. Now, do you know -- first of all, how many disks or what

3 kind of data this information was transferred on?

4 A. Five disks are indicated in the receipt.

5 Q. Okay. And were you able to determine if this electronic data

6 conformed to the earlier acquired hard copies that you had mentioned

7 previously?

8 A. Yes.

9 Q. Okay. And did it, in fact, conform to that?

10 A. I haven't compared the exact reports that came on those five disks

11 to the receipt that we previously discussed. But there are certainly --

12 but I have seen electronic versions of the reports that are mentioned in

13 that previous document.

14 Q. Okay. So in other words you can match the report numbers?

15 A. That's right.

16 Q. Okay. All right. Could I turn your attention to yet some other

17 documents.

18 A. Yes.

19 Q. I think we can get through this one relatively briefly. And this

20 relates to the acquisition of the original notebooks. And can you tell us

21 basically the circumstances under which the collection of notebooks was

22 acquired by the Office of the Prosecutor?

23 A. Yes. There was a mission, a trip to the Tuzla area in March of

24 1998, during which time those original notebooks were found. At the time,

25 however, the Office of the Prosecutor didn't have permission from the

Page 6377

1 Bosnian authorities to take possession of those. So the notebooks were

2 secured in the 2 Corps headquarters, and then were handed over to the

3 Office of the Prosecutor in April, the next month, April of 1998.

4 Q. Okay. Could I just have 65 ter 1068 displayed in e-court,

5 please. While we're waiting for that to load, can you tell us, did the

6 Office of the Prosecutor acquire the notebooks all at once or was that

7 staggered over a period of time?

8 A. It was staggered over a period of time during the first -- we

9 received the first batch, if you like, in April of 1998, and then two

10 subsequent groups that we've already talked about.

11 Q. Okay. Now, what we have displayed on e-court appears to bear your

12 signature in the B/C/S version. Can you tell us what that document is?

13 A. Yes. It's a receipt from the 2 Corps headquarters of the army of

14 the Federation of Bosnia-Herzegovina dated the 24th of April, 1998. And

15 it states that -- I can't read the whole document on the screen, but that

16 I took possession of documentation, right, that's -- there was a -- there

17 was an annex to this document that listed the 135 documents that I took

18 possession of on that day.

19 Q. Okay. You did, in fact, take possession of these items on that

20 day, is that --

21 A. That's correct.

22 Q. So this document is accurate in that regard?

23 A. Yes.

24 Q. Could I have 65 ter 1075, please, displayed on e-court. Okay.

25 Can you tell us what this document is?

Page 6378

1 A. This is a document that -- it's -- it's an index of the notebooks

2 that was compiled in March, during the March mission, when the notebooks

3 were first found and identified.

4 Q. Do you have an independent recollection as to how many notebooks

5 actually contain intercepted material was received among the 135 documents

6 that were turned over?

7 A. There were 134 notebooks.

8 Q. Okay. I would just like to turn to the last page of this

9 document. Just for the benefit of the Court, so they can see how many

10 documents were actually turned over and also that it does bear a signature

11 at the bottom, so I would ask that it not be broadcast. It is not being

12 broadcast. Okay. Very well.

13 JUDGE AGIUS: Thank you. I have a confirmation of that.


15 Q. Okay, Ms. Frease. You indicated that there were 134 notebooks

16 relating to intercepted material. And there was one additional book, I

17 guess?

18 A. Right. A list.

19 Q. Okay. Is that indicated on this particular document?

20 A. Yes, it is. It's item 135.

21 Q. Okay. And it refers to a list preceded by the number 83?

22 A. Right.

23 Q. Okay. And can you tell us what that relates to in particular, if

24 you know?

25 A. It says that it's daily reports of radio -- I can't read the word

Page 6379

1 on the screen.

2 Q. Okay.

3 JUDGE AGIUS: Do you need to zoom in so that maybe she can ...


5 Q. Are you able to make that out?

6 A. I'm not.

7 Q. Okay. Now, I would note on the bottom right there are -- if we

8 can into private session for a moment?

9 JUDGE AGIUS: Yes, let's go into private session.

10 [Private session]

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 6380

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 [Open session]

8 MR. VANDERPUYE: Are we in open session?

9 JUDGE AGIUS: Yes, we are.

10 MR. VANDERPUYE: Thank you.

11 Q. We've gone over already your acquisition of certain 55 A4

12 notebooks, one A5 notebook and a diary that was referred to in 65 ter

13 1071. Can you tell us, in relation to the April 1998 transfer, whether

14 that transfer, in May of 1999, was the second transfer?

15 A. Yes, it was.

16 Q. Okay. And do you remember the circumstances under which that

17 occurred?

18 A. It was during another mission to Tuzla, and -- and we were given

19 those documents by 2 Corps command.

20 Q. Okay. Now, did there come a time where there were other notebooks

21 that were subsequently acquired by the Office of the Prosecutor?

22 A. Yes.

23 Q. And can you tell us, if you know, what the circumstances regarding

24 that transfer was?

25 A. That was also after I left, but it was, I believe, Jean-Rene Ruez

Page 6381

1 picked them up in December of 2000.

2 Q. Was that at the same time that the seven disks were transferred to

3 the Office of the Prosecutor?

4 A. That's right.

5 Q. And do you know how many notebooks were involved in relation to

6 that transaction?

7 A. I believe there were 42, but it's indicated on the -- on the

8 receipt.

9 Q. Now, with respect to the condition of these notebooks following

10 their acquisition of the -- by the Office of the Prosecutor, could you

11 tell us whether or not any marks were placed on them?

12 A. Yes.

13 Q. Okay. Could you briefly just tell us what that -- were and the

14 circumstances surrounding them?

15 A. Yes, with the first 134 notebooks, they were numbered by -- during

16 the time that Captain -- that the captain that we previously mentioned and

17 Peter Nicholson made the inventory log. And then when I picked up the

18 additional notebooks, the additional 50 -- 55 plus two, I also numbered

19 those notebooks sequentially, so I started off from 135 and went up to 191

20 on those.

21 There was one time in the evidence, in the ICTY evidence unit,

22 that an evidence custodian was numbering pages inside of one notebook. We

23 noticed that he was doing it and asked him not to do that and he wrote a

24 note indicating that he had placed some markings inside of one notebook.

25 Those are all the markings that I am aware of that were placed on the

Page 6382

1 notebooks by people within the office of the -- or at the ICTY.

2 Q. All right. In addition to that, you are aware that the notebooks

3 are Bates stamped?

4 A. Yes.

5 Q. And other than the markings, the placing of the numbers on the

6 notebooks, the incident that you just recounted and the Bates stamps that

7 were placed in the notebooks, is that right?

8 A. Right.

9 Q. Other than those things, do you know whether or not the notebooks

10 have been altered or changed in any way with respect to their condition

11 since their acquisition?

12 A. No.

13 Q. No, you don't know, or no they haven't been?

14 A. No, they haven't been.

15 Q. Okay. I would like to lead you to a completely different area, if

16 I could.

17 Was one of your objectives in evaluating these intercepts an

18 effort to determine whether or not the material was genuine?

19 A. Yes.

20 Q. In doing that, was one of your efforts also to determine whether

21 or not it was reliable?

22 A. Yes.

23 Q. And could you tell the Court generally, in terms of your efforts

24 to determine whether or not the material was reliable, could you tell the

25 Court generally what you did?

Page 6383

1 A. It was a long process, and the information, as we've just

2 discussed, came in at different points. So we started off working with

3 the printed -- the printouts, that big binder of 550 pages or so, and

4 began to log it, associate dates with conversations, where we were able

5 to, and record participants, people who were speaking, if those were

6 indicated, and we also recorded other significant -- other names that came

7 up in the conversation -- that came up in the conversations, and also

8 locations that came up in the conversations. We also summarised the

9 conversations. So that we began to develop a knowledge of this body of

10 material.

11 Then ...

12 Q. Please proceed.

13 A. Then as additional -- then as we started to work with the

14 notebooks, we started to cross-reference the information in the notebooks

15 with what we had from those original printouts, from those reports. And

16 from there we were able to fill in more information about the dates. And

17 we were able to see sometimes that there were lines missing at the bottom

18 of those reports.

19 It was really a constant process of cross-referencing and -- and

20 making them -- and understanding and working with the material more and

21 more.

22 Q. Did you have occasion to examine, I would say, third-party

23 information or information that didn't original from the intercepts

24 themselves?

25 A. Yes.

Page 6384

1 Q. Okay. And could you tell us what kind of information that was?

2 A. Yes. That came from other aspects of the ongoing investigation.

3 It came from material from overhead imagery, for example, from media

4 reports, from phone books, from captured military documents.

5 Q. Okay.

6 A. Material -- material like that.

7 Q. Okay. Now, did you or the people that were involved in this

8 project undertake to corroborate the contents of these intercepted

9 materials?

10 A. Yes.

11 Q. Okay. And did you do that in your effort to determine whether or

12 not the material was reliable?

13 A. Yes.

14 Q. Could you tell us -- tell the Judges what kinds of factors did you

15 look at in determining or assessing the reliability of this material?

16 A. We looked at a lot of different things. We looked at internal

17 consistency among -- between the reports and the notebooks. And then we

18 started finding conversations that seemed to be recorded twice, and we --

19 initially we didn't understand how that could be the case. And we didn't

20 understand that until we were able to learn that there were two sites from

21 which this communication was being recorded. We looked at -- yeah, date

22 reliability, how closely the -- the notebooks -- or the printouts mirrored

23 what was recorded in the notebooks. It was all a process of -- of a lot

24 of comparison and cross-referencing. And then, as -- as -- as we

25 mentioned also looking at -- at third party, at outside sources to

Page 6385

1 corroborate the information that was contained within -- independently

2 corroborate the information that was contained within the intercepted

3 material.

4 Q. And did you compare the information that you found in these

5 intercepted materials with your general knowledge about circumstances of

6 the case?

7 A. Yes.

8 Q. Okay. And did you attempt to cross-reference or analyse -- you've

9 mentioned that occasionally you came across conversations that seemed to

10 have originated from two different sites?

11 A. Right.

12 Q. And you were able to cross-reference those conversations?

13 A. Yes.

14 Q. And did you find certain identifiable consistencies between them?

15 A. Yes.

16 Q. And could you tell the Court what kinds of consistencies you found

17 and -- and whether or not you considered those consistencies in

18 determining the reliability of the information?

19 A. Where -- sometimes the dates were the same, but sometimes also we

20 didn't have dates on two or three of the conversations. But, for example,

21 the times, the times would be very, very close. Sometimes identical,

22 sometimes within a minute or two. The conversants, the participants

23 speaking would be the same or -- and we would also find phrases, pieces of

24 parts, sections of the conversations that were very, very close or -- or

25 identical. So we knew that we were dealing -- that we -- or we -- we

Page 6386

1 believed that we had the same conversation, but again at that particular

2 time, we didn't understand how it was that we had the same conversation

3 that was recorded either two times or sometimes three times.

4 Q. In determining the -- in evaluating the reliability of this

5 material originating from the two different sites, in terms of

6 evaluating -- in terms of evaluating their reliability for your purposes,

7 did you consider certain factors about them, such as how closely related

8 they were physically or operationally or whether they shared certain

9 information?

10 A. Once we were able to begin speaking with the operators, we

11 understood that there were two sites. And then that gave a whole lot more

12 reliability to the -- to the process, because they were located at such

13 distances and yet they were simultaneously recording the same thing. So,

14 yes, that contributed also to the -- to the reliability of the -- of the

15 material.

16 Q. Did you also undertake to interview or speak to the individual

17 operators that had been identified in order to determine whether or not

18 the material was genuine?

19 A. Yes.

20 Q. Okay. And in doing so --

21 JUDGE AGIUS: One moment. I think we need to clear -- clarify

22 here whether she means to say that she spoke to all of them or to some of

23 them. At least we need to know, more or less, how many of these intercept

24 operators she spoke or they spoke to.

25 MR. VANDERPUYE: Thank you, Mr. President.

Page 6387

1 Q. Can you tell us approximately how many of these intercept

2 operators you spoke to or were spoken to by members that were involved in

3 this process of verifying this information?

4 A. We spoke to them at -- at different points. In total I guess -- I

5 mean it's hard for me to say off the top of my head, but during the time

6 that I was with the Office of the Prosecutor, I guess that I would have --

7 or members of the -- members of the Prosecution team would have spoken to,

8 I don't know, 15 or so operators.

9 JUDGE AGIUS: And one further question. Were these 15 or so

10 operators identified, chosen at random, and what was the source of your

11 information as to the identities of these intercept operators that you

12 spoke to?

13 THE WITNESS: We first -- we took the notebooks and we tried -- we

14 focused on conversations that we considered to be important to the

15 investigation. Taking those handwritten notes then we went to Tuzla and

16 we tried to identify who those operators were, based on their handwriting.

17 Taking the original notebooks with us, and showing them to the operators

18 who were there and then also taking handwriting samples from them to be

19 able to compare them to -- to the original notebooks. So it was an

20 ongoing -- it was an ongoing process, but one that was fairly narrowly

21 focused initially to the conversations that the Office of the Prosecutor

22 thought were of most interest to the investigation.

23 JUDGE AGIUS: Just another -- a further question. Were you given

24 a list containing the names of the various intercept operators that worked

25 the two locations, the northern and the southern one, at any time by the

Page 6388

1 Bosnian authorities?

2 THE WITNESS: Yes. Yes.

3 JUDGE AGIUS: Go ahead, Mr. Vanderpuye.

4 MR. VANDERPUYE: Thank you, Mr. President.

5 Q. During the course of these missions that you undertook to identify

6 certain operators, did you -- you did this based upon the initial trip or

7 did you do that based upon having gathered handwriting samples and

8 performed some analysis on your own?

9 A. We had performed -- we had worked with the material a lot before

10 we contacted -- before we attempted to contact the intercept operators.

11 So we knew the material quite well, and -- and then planned -- it was --

12 it was just a -- it was the next step, really, in working on the

13 reliability of the material.

14 Q. Now, in addition to that, in determining the reliability of this

15 information, did you speak to the intercept operators or their commanders

16 about the process itself?

17 A. Yes.

18 Q. With respect to the process itself, are there particular aspects

19 of it that you considered in evaluating the reliability of the information

20 contained in the intercepted material?

21 A. Yes.

22 Q. Could you tell the Court what -- what you considered?

23 A. We learned that -- that they had -- that they had a process in

24 place, that the operators were -- were told that they were to record

25 exactly what they heard and that if they -- if they weren't sure about

Page 6389

1 what they heard, that they should leave you know either a series of dots

2 or indicate that a particular part of the conversation was

3 incomprehensible or inaudible, that if they didn't know who the

4 participants were, that they should indicate that by X and Y, 1 or 2,

5 something like that, not to guess. Over the course of time, the operators

6 indicated that they learned, by voice, that they were able to identify a

7 number of the participants. But if the -- if names didn't appear in the

8 body of conversations, then they were instructed to put those names in

9 parentheses. And so those sorts of procedures, I guess, also -- also gave

10 us more confidence in -- in the process. So you would often see an X and

11 a Y with perhaps a name in parentheses, and to us that indicated that

12 that's who they believed was speaking at the time, but again the name --

13 the name hadn't been mentioned in the conversation and so that was why it

14 wasn't indicated as such.

15 JUDGE AGIUS: I think we need to clarify one further point while

16 we are at this. As I understand it, Ms. Frease is taking the two

17 locations together.

18 THE WITNESS: Right.

19 JUDGE AGIUS: There were different intercept operators from

20 different units, say army, intelligence, police, national security or

21 whatever. You have been giving us an indication as to what you were told

22 to be the practice during these intercept operations. Was the practice

23 the same across the board in the case of all the different kinds of

24 operators, or were there sections that had something different in their --

25 in their practice?

Page 6390

1 THE WITNESS: One of the -- one of the units, for example, was

2 much more consistent in writing down the dates, and in even indicating

3 which operator, who it was that was recording that conversation. They

4 would sign their names almost always at the bottom of those conversations.

5 So there were those kinds of differences.

6 JUDGE AGIUS: Would you remember which section or which unit

7 adopted this practice or at least told you that they adopted this

8 practice?

9 THE WITNESS: Yes. Shall I say it in open court?

10 JUDGE AGIUS: Let's go into private session for this.

11 [Private session]

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 [Open session]

17 JUDGE AGIUS: Okay. Go ahead, Mr. Vanderpuye.

18 MR. VANDERPUYE: Thank you, Mr. President.

19 Q. Well, did you receive information that all the units across the

20 board, for example, employed the use of notebooks?

21 A. Yes.

22 Q. Okay. Can you tell us about that?

23 A. I believe it was in December of 1994 that they began to use

24 notebooks in order to record conversations. And the commander at 2 Corps

25 headquarters would number and date the notebooks and then they would be

Page 6391

1 delivered, empty notebooks would be delivered, generally at the beginning

2 of shifts and old ones would be picked up at the end of old shifts and

3 taken back to their headquarters.

4 Q. With respect to, for example, state security, do you know what

5 their practice was with respect to the use of notebooks?

6 A. They didn't have the practice of using notebooks. They -- they

7 wrote conversations on, you know, bits of paper that they could find, and

8 then typed them up and -- and send them forward. Sometimes they would

9 type them up directly.

10 Q. And with respect --

11 JUDGE AGIUS: And what would happen to these sheets of paper?

12 Would they -- would they preserve them or not?

13 THE WITNESS: What I --

14 JUDGE AGIUS: If you know.

15 THE WITNESS: What I was told was that they burned them, they

16 destroyed them.


18 Q. Do you know, for example, with respect to the 21st Division,

19 whether or not -- what their practice was with respect to the use of

20 notebooks?

21 A. Yes. They would -- they used notebooks. They recorded the

22 conversations in them and then they typed them up and sent them forward.

23 Q. In consideration of the factors that you looked at in terms of

24 evaluating the reliability of the material, did you look, for example, or

25 consider whether or not this information was directly transcribed or

Page 6392

1 transcribed off of a tape, for example? Did you consider that in

2 determining or evaluating the reliability of this information?

3 A. I'm not sure I understand your question.

4 Q. Well, do you know whether or not this information -- I guess I

5 should take it by unit, but do you know whether or not this information

6 that was recorded in the notebooks was directly transcribed, that is

7 without it being recorded, right out of the -- straight off the head sets

8 or it was recorded off of -- off of a recording that was transcribed based

9 upon a recording that was -- if that was the practice? Do you know that?

10 A. It was the practice that the conversations were recorded on to

11 tape and then -- and -- that the -- the time that the conversation started

12 would be noted on a little piece of -- on a piece of paper and then later,

13 sometimes immediately, it depended what the content of the conversation

14 was and how important the operator thought the conversation was, but then

15 either immediately or shortly thereafter the conversation would be

16 transcribed from listening to the tape. That was the general practice.

17 Q. Do you know whether or not the -- or did you learn, I should say,

18 from your conversations with the operators, whether or not they were

19 permitted to make assumptions or engage in analysis of the information

20 that they were intercepting?

21 A. They were not -- they were not permitted to make assumptions. Nor

22 did they engage in analysis. Their job was to record the information as

23 accurately as they could -- as they could get it down. And -- and then to

24 forward it to their headquarters, where it would then be analysed and

25 subsequent action would be taken. But their job was -- was purely to

Page 6393

1 record the information that was coming across.

2 Q. Now, is that information that you've just relayed, was that based

3 upon your conversations with individual operators in general or ...

4 A. Yes.

5 Q. Okay. And were you able to verify or confirm that information

6 with any -- any of their commanders or somebody in a position of

7 authority?

8 A. Yes.

9 Q. And was that done in relation to the material that was transcribed

10 by 2nd Corps operators?

11 A. Yes.

12 Q. And what about in relation to the material that was transcribed by

13 state security or as you called it, the police intercept operators located

14 at the northern facility?

15 A. Yes. Also for them. It was important to them to have the

16 information and to forward it on to their headquarters. Sometimes it was

17 very operationally important, and so to have the information recorded as

18 accurately as possible was critical.

19 Q. Now, you indicated earlier that the material was taped and then

20 transcribed. Did you -- were you able to ascertain just in general terms,

21 because it's impossible to say specifically, but just in general terms,

22 how long a period of time for example would elapse between the time that

23 an intercept was recorded and the time that it was transcribed?

24 A. Oftentimes during -- oftentimes it was really a matter of minutes.

25 And sometimes we see differences, in fact, in the -- in the time that the

Page 6394

1 intercept operator recorded in the notebook and then the time that the

2 typist recorded on the typed version of that conversation. I'm sure

3 you've come across examples of that where -- right, where an operator may

4 say that a -- or wrote down that a conversation took place at for example

5 10.30, but the -- but the typist reported or recorded that it -- recorded

6 10.35, or 10.34, you know. So it was -- it was quickly. It was the same

7 day, always, and usually within a very short period of time.

8 Q. In terms of these time discrepancies, as you've described them --

9 in your effort to evaluate the reliability of this information, were the

10 time discrepancies you have indicated, 10.30 to 10.35, a dispositive

11 factor in terms of the reliability of the information or was it one of

12 several factors that you considered in terms of evaluating whether or not

13 the particular communication was reliable?

14 A. It was -- yeah, I mean -- I'm not sure I understand.

15 JUDGE AGIUS: I will rephrase the question. Were you given an

16 explanation for such discrepancies, as Mr. Vanderpuye has referred to

17 them, which was acceptable enough to you to reach certain conclusions?


19 JUDGE AGIUS: And what were these explanations, if you could

20 remember?

21 THE WITNESS: Well, simply that -- that -- and it was -- it was

22 one -- it was one typist in particular who -- who changed the times a

23 little bit from the time of the actual recording to the time that he

24 actually typed it up.

25 JUDGE AGIUS: Did you ever become privy to the reason why this

Page 6395

1 particular --


3 JUDGE AGIUS: -- typist would do that?


5 JUDGE AGIUS: Yes, Mr. Vanderpuye. I think it's time to have the

6 break.

7 MR. VANDERPUYE: I think that it's a good time for it. Thank you.

8 JUDGE AGIUS: If I could ask you how much more time do you require

9 so that we plan ahead.

10 MR. VANDERPUYE: I really have only one other area to take the

11 witness through. I think it will take about half an hour.

12 JUDGE AGIUS: So we will have a 25-minute break.

13 MR. VANDERPUYE: Thank you, Mr. President.

14 --- Recess taken at 10.29 a.m.

15 --- On resuming at 10.58 a.m.

16 JUDGE AGIUS: Mr. Vanderpuye.

17 MR. VANDERPUYE: Thank you, Mr. President.

18 Q. I think when we left off we were talking about particular factors

19 you considered and in that circumstance was relative to time that an

20 intercept appeared to be transcribed in the notebook versus the time that

21 it appeared to be typed or the time that was indicated in the typed

22 transcription. When you came across these types of discrepancies would

23 you consider whether or not there were additional errors or discrepancies

24 between the notebook and the printouts in evaluating whether or not the

25 information contained in it was reliable?

Page 6396

1 A. Yes.

2 Q. Okay. And --

3 A. Is this on?

4 JUDGE AGIUS: The witness is inquiring whether the second

5 microphone should be on. It's on now.


7 Q. And so in determining or evaluating the reliability of the

8 communication as a whole, which you would consider -- would you consider,

9 I should say, more than whether or not there was a discrepancy in terms of

10 the time or ...

11 A. Yes.

12 Q. Okay. Now, you know that your testimony today is limited and you

13 will be coming back, I think, relatively shortly, to talk about some of

14 the work that you are doing regarding the intercepts used in this

15 particular case, but I would like to move ahead today, see how far we can

16 get. I would like to direct your attention to another area, if I could.

17 Now, in relation to your prior engagement with the Office of the

18 Prosecutor, were you at some point asked to put together certain

19 corroborative material regarding the intercepted material that had been

20 received?

21 A. Yes.

22 Q. Okay. And was that done in relation to the Krstic case?

23 A. Yes.

24 Q. And was that information also used in the Blagojevic case?

25 A. Yes.

Page 6397

1 Q. Could you just briefly explain to the Court, and to counsel, what

2 that process entailed?

3 A. In the process of analysing the intercepted communication, we

4 would -- when we came across information that we thought could be

5 corroborated independently, we would highlight those conversations and set

6 them aside. So when it came time, we -- we went through that material

7 and -- in addition to other material, and then looked for independent

8 material that could corroborate the -- the intercepts.

9 Q. All right. And when you are talking about independent material,

10 are you referring to military documents, as you have indicated before and

11 things of that nature?

12 A. Yes.

13 Q. Okay. And are those documents that were provided to you by other

14 members of the team involved in this process in some instances?

15 A. In some instances, yes.

16 Q. And in other instances, were those documents that you came across

17 on your own?

18 A. Yes.

19 Q. Okay. And could you tell the Court -- well, you know what, why

20 don't we just go right into this. Did you prepare a -- and you have

21 indicated that you did prepare some material regarding this, right?

22 A. Yes.

23 Q. Okay. Could I have 65 ter 1074, please, brought up in e-court, if

24 I may.

25 While that's loading, could you just tell the Court what the

Page 6398

1 nature of this material is?

2 A. It's a compilation of a dozen intercepts and other material that

3 independently corroborate those -- those intercepts.

4 Q. Okay. Now, does that represent the totality of the work you have

5 done with respect to verifying the reliability of this intercept material

6 or is it a -- really a sample, a representative sample of the type of work

7 that was done in reviewing these -- that material?

8 A. It's a representative sample.

9 Q. Can you tell us - I hope you have it on your screen - can you tell

10 us what we have on the screen at this time?

11 A. It is an index of the conversations, the intercepted conversations

12 and what they discuss and then in addition what the corroborative material

13 focuses on.

14 Q. Okay. And could you just describe generally the layout of this

15 material? That is, here you have an index, and you've mentioned that

16 there is a particular intercept in this corroborative material. Could you

17 tell -- just so the Court has some familiarity with the way it's laid out,

18 how it is that you've prepared this document?

19 A. Mm-hmm. There are tab numbers, 1 through 12, I believe. The date

20 of the intercepted conversation, and the time that was intercepted. In

21 some cases there are more -- there are more than one conversation. And

22 then the general subject of that conversation. So, for example, tab 1 is

23 a telephone conversation between General Gobillard and General Gvero on

24 the 11th of July at 1800 hours. The corroborative material would go

25 directly to that conversation, but would have been from a third party. In

Page 6399

1 this case, UNPROFOR notes.

2 Q. Okay. That seems like a good place to start. I would like to

3 focus your attention, and maybe we could go through three of these, so the

4 Court has an idea or understanding of how it is organised and what process

5 you engaged in. All right. Is it possible to go to page 2 on this

6 document? Okay.

7 Can you tell us what's on the screen now, what -- what that is?

8 A. It's a summary that I prepared of the conversation. It

9 says "General Gobillard, acting commander of UNPROFOR, command for Bosnia

10 and Herzegovina, Sarajevo" and "General Gvero, assistant commander for

11 morale, religious and legal affairs, VRS main staff," had a conversation

12 which they discussed issues related to the takeover of the Srebrenica

13 enclave, and I highlighted 13 points. It was a conversation that was

14 intercepted by the State Security Service in Tuzla.

15 Q. Okay.

16 A. On the 11th of July, 1995, at 1800 hours.

17 Q. Okay. Can we turn to the next page, please. Okay. Can you tell

18 us -- well, I think we can see what this is. This appears to be a

19 document that was prepared on the 11th of July. Can you tell us what it

20 is?

21 A. Yes. It's -- they are notes taken by a staffer to General

22 Gobillard. His signature is on the second page at the bottom. It's a

23 tale of their notes from a telephone conversation between General

24 Gobillard and General Gvero on the 11th of July, 1995. He recorded the

25 time at 1810.

Page 6400

1 Q. Okay. If I could, could you tell us what these -- well, there is

2 a number one that's indicated on the -- on this piece -- on this document.

3 And there are other numbers. Could we scroll down, please. Okay.

4 One through seven on this page. Could you tell us what those

5 mean?

6 A. Yes. Would it be possible to also have the intercepted -- the

7 intercept on the same screen?

8 Q. I think we can. All right. We can do it on the ELMO. All right.

9 All right. Could I -- yes, we do.

10 All right. Ms. Frease, do you have ERN ending 077 in front of you

11 on the e-court system?

12 A. Yes.

13 Q. Okay. And do you have ERN ending 080 -- or maybe I'm mistaken.

14 Do you have the intercept that you referred to previously in front of you?

15 A. Yes.

16 Q. Okay. And can you tell us what the -- in the process of

17 explaining what these numbers meant.

18 A. Right. They -- what they show are particular parts of the

19 intercepted communication that the police recorded, and those parts of the

20 conversation that correspond to the notes that were taken by General

21 Gobillard's aide. And so the numbers essentially, you know, just match up

22 between those two conversations. The notes on the one hand, and the --

23 the intercepted communication on the other.

24 Number 1 indicates simply the date and time and the conversants.

25 So before when I mentioned that the police always started their

Page 6401

1 intercepted communication with a set phrase that says, "On the

2 aforementioned day, while monitoring radio relay in the Pale direction on

3 frequency 836000 megahertz at 1800 hours, we recorded a conversation

4 between General Gvero and General Gobillard." And that information is

5 reflected in point 1 of the notes that Major Fortin took.

6 Point 2 reflecting -- it becomes self-evident, but General --

7 point 2 on the radio communication says it is now clear to me that General

8 Gobillard gave the order for the shelling of the Serb positions. And

9 point 2, I can't see it on the screen now, but point 2, if you can scroll

10 down, I don't know, on the notes, or to the left, so that I can see the

11 numbers. Sorry, the first document -- other direction. Yeah. There you

12 go. Point 2, then there says General Gvero's first reaction that it was

13 now clear -- and now the text is cut off for me, but essentially it

14 follows the radio recording. Point 3, the same, and throughout those two

15 documents.

16 Q. Okay. And so the numbers that you've indicated on both of these

17 documents correlate with points that you considered in terms of verifying

18 the accuracy and the reliability of the intercepted material; is that

19 right?

20 A. That's correct.

21 Q. Okay. And in it particular case you have indicated that the

22 information was recorded by -- well, if you could just tell us who it was

23 recorded by?

24 A. The State Security Services.

25 Q. Okay. And with respect to General Gobillard, can you tell us who

Page 6402

1 recorded the information?

2 A. Major Fortin, I believe it was, his aide.

3 Q. Okay.

4 A. His signature block is indicated on the second page of that

5 telephone conversation.

6 Q. Okay. Well, if we could just go to the second page, so everybody

7 could see what that is, and then we'll move on to the next.

8 A. I'm happy to go through, you know, points 3 and 4 if that's of

9 interest.

10 Q. Well, I think it might be helpful to go through a few of them.

11 Maybe some of the more salient points, that may be helpful.

12 [Prosecution counsel confer]


14 Q. All right. You know what, let's take a look at tab number 6.

15 That's page 45 in e-court. Maybe we can go through some of the points in

16 this conversation. Okay.

17 Is this --

18 JUDGE AGIUS: Yes, Madam Fauveau.

19 MS. FAUVEAU: [Interpretation] Mr. President, I think certain of

20 the accused do not receive the translation in B/C/S.

21 JUDGE AGIUS: The translation of this document, you mean? Or

22 interpretation?

23 MS. FAUVEAU: [Interpretation] The interpretation, Mr. President.

24 JUDGE AGIUS: Now, let me check.

25 MS. FAUVEAU: [No interpretation]

Page 6403

1 JUDGE AGIUS: Okay. Thank you for pointing this out and also for

2 having it clarified.

3 Yes, go ahead, please.

4 MR. VANDERPUYE: Thank you, Mr. President.

5 Q. Could you tell us what -- I'm sorry.

6 JUDGE AGIUS: I just want to make sure because I'm told that there

7 is no translation of the document.

8 MR. VANDERPUYE: That is correct.

9 JUDGE AGIUS: Are you fine with the situation now? No, I see that

10 Mr. Borovcanin -- yes. Can you explain your problem exactly?

11 THE ACCUSED BOROVCANIN: [Interpretation] Your Honours, we don't

12 have any of the documents in the language that we understand, not only

13 this one, but from the very beginning.

14 JUDGE AGIUS: All right. What we can do is, I suppose, use the

15 same -- if it is possible to have the -- the two juxtaposed on the

16 monitor, okay, that's fine. If it's not, we'll have one in English,

17 either in e-court or on -- on the -- on the ELMO, and the other B/C/S text

18 either on e-court or on the ELMO, so that they can follow.

19 MR. VANDERPUYE: Mr. President, as I understand it, there is not a

20 B/C/S text --

21 JUDGE AGIUS: There is no translation.

22 MR. VANDERPUYE: -- of this particular binder.

23 JUDGE AGIUS: I see, there is no translation of this. One moment.

24 [Trial Chamber confers]

25 MR. VANDERPUYE: The record should be clear that the intercepted

Page 6404

1 material itself is obviously in B/C/S. The corroborative material is also

2 to a great extent in B/C/S. Of course the -- I'm sorry.

3 [Trial Chamber confers]

4 JUDGE AGIUS: We are not happy with the arrangement. As we tried

5 to explain on previous occasions, there are certain rules that govern our

6 procedure, meant to protect the rights of the accused that we would always

7 respect. So the document that we have on e-court at the moment, it's

8 65 -- sorry, ERN 0119, is a very short one, three lines, basically, and

9 that can be read out and automatically translated or interpreted in B/C/S,

10 but it's our decision not to proceed with further questions referring to

11 other such documents that have not been translated in B/C/S and made

12 available to the parties, which can be followed by the accused for the

13 time being, until you have a proper binder with the proper translations in

14 place.

15 [Trial Chamber confers]

16 JUDGE AGIUS: Just in case there is a more practical solution,

17 there are several of these documents, I understand. Perhaps the 65 ter

18 number of these documents can be identified and one have a look at them

19 and see whether it is practical to proceed with an interpretation or

20 translation of them now, as we go along. I am not in a position to -- to

21 know if it's practical or not. If it's practical, maybe we can save the

22 day along those lines. If it's not, I mean the only way to deal with it

23 is the way we indicated earlier on. You know -- you're familiar with

24 these documents; we are not because we haven't seen them.

25 MR. VANDERPUYE: Yes, Mr. President. Certainly with respect to

Page 6405

1 the ultimate tender or admissibility of the document itself, I think

2 obviously given the objection that's raised, and I think it's a legitimate

3 one, we will provide the translations. I think though, with respect to

4 the two tabs that I wanted to proceed with, outside of the summaries that

5 were prepared by the witness, they are translations of the documents that

6 were relied upon in terms of assessing the reliability of the material.

7 One of them is a photograph, and certainly the other is a translation of

8 documents that were originally in B/C/S, and I think we can upload -- I

9 think they are already uploaded on e-court.

10 JUDGE AGIUS: All right. What can be -- what can be made use of

11 today in a manner which guarantees the ability of -- of the accused to

12 follow the proceedings, it's okay. But we will have a hedge. You will

13 encounter a hedge in the case of any other documents. What you can deal

14 with in accordance or in conformity with our ruling, yes, by all means.

15 What you cannot has to be postponed until a later date. In any case,

16 Ms. Frease is returning.

17 MR. VANDERPUYE: Okay. I think we can give it a try with the

18 Court's indulgence.

19 JUDGE AGIUS: Yes, go ahead.

20 MR. VANDERPUYE: Thank you.

21 Q. All right. I had referred you initially to page 45 of the

22 document that's on e-court. Could we turn to page 46 and 47. I think

23 those are the two documents, one in English and one in B/C/S. All right.

24 Do you recognise these particular documents, Ms. Frease?

25 A. Yes.

Page 6406

1 Q. And could you tell us what they relate to within the context of

2 the binder that you prepared?

3 A. Yes. These are two conversations that relate to prisoners being

4 detained at Nova Kasaba, at the stadium at Nova Kasaba.

5 Q. And can you tell us if you were able to -- were you able to find

6 any corroborative information relating to this particular intercept?

7 A. Yes. The -- the two -- the two conversations, this is one of the

8 two from the 13th of July at 1602.

9 Q. Okay.

10 A. There is another one, I believe, that is also included in the

11 packet, that also makes reference to prisoners and being held at Nova

12 Kasaba. In this first conversation at 1602, it says that they've got an

13 extension down in Nova Kasaba. It's a conversation between X and Y, so

14 the operator who recorded this didn't know who was speaking. X, three

15 lines down, asks where Malinic's unit is, and says then that they said

16 that there are over 1500 gathered at the stadium. And then reiterates two

17 lines down that, yes, there are 1500 at the stadium in Kasaba.

18 Q. Can we look at pages 48 and 50, please.

19 A. So ...

20 Q. Can you tell us what's on the screen now?

21 A. Yes. This is another conversation that was recorded at 1730, also

22 on the 13th of July, in which they talk about 6.000 being at three

23 different points, roughly 1.500 to 2.000 at each location. And that -- if

24 you could scroll down a little bit, and maybe go to the next page on the

25 B/C/S version. They talk -- they mention Kasaba also in this

Page 6407

1 conversation. And again it's a conversation between X and Y, so the --

2 the operator that recorded this didn't know who the conversants were.

3 Q. Okay. Now, obviously it was recorded at a different time than the

4 other?

5 A. Yes.

6 Q. So can you tell the Court how it is this particular intercept is

7 corroborative of the previous?

8 A. Well, we used these to -- with over -- with overhead imagery,

9 actually that we had, that we got from -- showing the soccer field at Nova

10 Kasaba on the 13th of July in which groups of prisoners were gathered. So

11 these were two of the conversations that we used in order to -- well, we

12 used the overhead imagery to corroborate these two conversations.

13 Q. Okay. Could we turn to page 54, please. Okay.

14 Can you tell us what -- can you tell us what this is, this

15 photograph?

16 A. It's an -- it's an -- an aerial image of Nova Kasaba, of the

17 soccer field at Nova Kasaba. It's not a very clear picture, but what it

18 indicates is that it was shot at about sometime around 1400 hours on the

19 13th of July in the -- in the soccer field. You can see a couple of

20 groups of what were identified as -- by analysts as being groups of

21 people.

22 Q. Okay. And the analyst determination that they were groups of

23 people is what informs your assessment of the reliability of the

24 information contained in the intercepts?

25 A. Right.

Page 6408

1 Q. Okay. Now, were you able to determine if there were -- if there

2 was additional corroborative material of this particular intercept?

3 A. Yes. Since I put this together, there has been additional

4 information that's come in that helps to further corroborate the two

5 previous intercepts and additional intercepts that all relate to the

6 events around Nova Kasaba on the 13th of July at about 2.00.

7 Q. Okay. Could I have -- let's see, PO2361A and PO2361B shown in

8 e-court, please.

9 Do you recognise what's being displayed in e-court --

10 A. Yes.

11 Q. -- now? Okay. Now, did you examine this particular -- first of

12 all, for the record, could you tell us what it is?

13 A. It's a conversation that was intercepted by the army at 1400 hours

14 on the 13th of July.

15 Q. Okay. And does that correspond to the aerial image that you

16 previously testified about?

17 A. Yes.

18 Q. Okay. In terms of time -- what about in terms of location?

19 A. Yes. The conversation mentions in the second line that they have

20 over 1.000. I have it -- it says, "I have over 1.000." And then six

21 lines down Y is speaking. This is a conversation between X and Y again.

22 People who were talking were unknown. It says, "Well, they are down here

23 at the soccer field."

24 Q. Okay. Now, is there some indication that the soccer field that is

25 referred to in this particular intercept is the -- what is depicted in the

Page 6409

1 aerial imagery?

2 A. Yes.

3 Q. Okay. Could we -- could I have P02362A and P02362B please shown

4 in e-court.

5 Okay. Do you recognise this document?

6 A. I -- I'm not sure the translation is correct.

7 Q. Okay.

8 A. 1405, it should be. It should start -- and where is that? I

9 think you might -- I think you have the second page of the first intercept

10 that we looked at -- of the previous intercept that we looked at at 1400

11 hours, that's the second page of that intercept. So now we need the

12 translation of this one at 1405. I have an ERN number, if it helps.

13 Q. I think it will.

14 A. 0092-7316.

15 Q. 7316. All right. We're going to try and locate that. I think,

16 we have a linkage problem. ERN on the left part of the screen is

17 00927815. We're looking for 7816. Please excuse me. All right. We have

18 a hard copy of it, if we can put it on the ELMO, maybe that will speed

19 things along. And the document that's in B/C/S should be on this -- this

20 appears to be the second page of that intercept, so I wonder if we could

21 page back to 00778895.

22 All right. I think maybe we've solved the problem. Can you tell

23 us about this particular intercept?

24 A. This is one that was recorded also by the army at 1405 on the 13th

25 of July, and it -- the participants are X and Y. X asked, "Where is

Page 6410

1 that?" Y says, "Well, here at the soccer field." And then three lines

2 down it says -- the English translation is, "Bro, don't take anymore. I'm

3 going to send you an urgent telegram. Don't take anymore. Move it a bit.

4 I will send you a telegram and explain everything."

5 And then Y says, "Okay." X says, "Secure it well and the rest you

6 will receive in a telegram. Don't do anything before that." Meaning

7 before receiving the telegram.

8 Q. Were you able to ascertain whether or not such a telegram exists

9 and whether or not it's corroborative of this particular intercept?

10 A. Yes.

11 Q. Okay. Was that telegram provided to you by members of the team

12 working with you in verifying the reliability of this information?

13 A. Yes.

14 Q. Could I have 65 ter 00192 please displayed in e-court.

15 Okay. Do you recognise -- do you recognise these documents or

16 this document?

17 A. Yes.

18 Q. Can you tell us what it is for the record?

19 A. Yes. It's a document that was sent by the forward command post of

20 the 65th Motorised Protection Regiment from a place called Borike at 1400

21 hours. That's the -- that's the time listed at the top of the document.

22 It was sent -- however, there is a handwritten note at the bottom of it

23 indicating the 13th of July, 1995 at 1510. It's a document that was

24 written by the commander of that protection regiment, Lieutenant-Colonel

25 Milomir Savcic and it is directed to the commander of the Main Staff of

Page 6411

1 Republika Srpska army for his information. It's also directed to the

2 assistant commander for morale, religious and legal affairs of the Main

3 Staff of the VRS for his information. And to the commander of the

4 military police battalion of the 65th Motorised Protection Regiment and it

5 is an order to him.

6 Q. And can you tell us what points of comparison you have made that

7 corroborate the intercepted material that you have reviewed?

8 A. The first opening paragraph says that there are over 1.000 members

9 of the former 28th Division of the so-called BiH army captured in the area

10 of Dusanovo (Kasaba). This is Nova Kasaba and also in the intercepts is

11 referred to as the football pitch or the football field. Prisoners are

12 under the control of the army police battalion of the 65th Motorised

13 Protection Regiment.

14 So the fact that they talk about the -- the custody of 1.000

15 members in Kasaba was significant. The date is significant, and the time

16 is significant. Also, just some of the text, some of the words that are

17 used in the -- in the order comparing to the words used in -- in the

18 intercept from 1405 on that same day are -- are very similar. And this

19 order talks about prohibiting point 1 in the document, prohibiting access

20 to all unauthorised individuals. And then -- well, shall I go through all

21 four points? There are loose references that tie them together. First of

22 all, that the time and the fact that the people in the conversation at

23 1405 are talking about the fact that they're going to send a telegram and

24 not to act before receiving that telegram, and then having them move

25 people away. And it is significant that in point 3 of the order it says

Page 6412

1 that the commander of the military police battalion shall take measures to

2 remove war prisoners from the main Milici-Zvornik road, place them

3 somewhere indoors or in the area protected from sighting from the ground

4 or the air.

5 It then goes on in the last paragraph to say that once the

6 commander of the military police battalion receives this order, he should

7 contact General Miletic and receive from him additional orders to verify

8 if the proposal has been approved. I'll stop there.

9 Q. Okay. Now, if I could, I would like to take you to what you have

10 in your index as tab 8. And that's page 60 of 65 ter 10 -- I mean 1074.

11 Now, that is a summary that hasn't been translated, so I would ask if we

12 could just go to page 61, which is the intercept itself in question. And

13 63 I think is where the B/C/S version of the intercept is.

14 Okay. Do you recognise this -- wait a minute. I don't have the

15 B/C/S version. Okay. All right. Do you recognise this particular

16 intercept, Ms. Frease?

17 A. Yes.

18 Q. And can you tell us about this one in relation to the work that

19 you've done in preparing this binder?

20 A. Yes. This was a conversation that was intercepted on the 16th of

21 July at 1358, and it relates to the fact that Lieutenant-Colonel Popovic

22 needs 1500 [sic] litres of D2 diesel fuel.

23 Q. Okay. Now, were you able to come up with information that

24 corroborates this -- this request, this particular intercept?

25 A. Yes, and if I could just maybe mention a couple of other points in

Page 6413

1 this conversation. It's -- it's topped up a little bit that -- the line

2 gets disconnected a couple of times, but it mentions lieutenant -- that

3 Lieutenant-Colonel Popovic is at Palma, the -- and then -- that -- which

4 is the -- the code-name for the Zvornik brigade and that he needs this --

5 this 500 litres of D2 urgently. I believe it's on the second page that

6 they say -- if we could go to the second page of the intercept.

7 Q. All right.

8 A. And of the translation. The second page of the translation.

9 Q. Should be page 62.

10 A. Okay. Right. If you -- if you look down towards the bottom of

11 it, say about half a dozen lines, in parentheses, it says immediately

12 after the end of the conversation, and then the next line down says, "A

13 bus loaded with oil is to go to Pilica village, that's it. 500 litres."

14 And it talks about -- up in the conversation earlier, it talks about that

15 it's important for it to get there, otherwise, his work will stop. That's

16 just a little bit above that line. At the time we knew that from

17 testimony of another witness that there were executions happening in

18 Pilica village on that day. The corroborative -- the independently sort

19 of corroborative material that we used, maybe we can go to that.

20 Q. Yes, that's on page 66 and 67.

21 A. Okay.

22 Q. All right. Could you tell us about this document?

23 A. This is a document that was seized at the Zvornik Brigade by

24 members of the Office of the Prosecutor in 1998, and it's a fuel log dated

25 the 16th of July, 1995. That you'll see -- I think it's box 6 in the top

Page 6414

1 left corner where it says "date." And then -- could you scroll back up to

2 the top of the document. Yeah. Thank you.

3 And then it -- it mentions needing 500 -- 500 litres of D2, and

4 that it is going to Lieutenant-Colonel Popovic. That's in box number 15,

5 that his name is indicated. And box number 14 gives the name -- right,

6 the Drina Corps command as the recipient. Can you zoom up a little bit on

7 the English translation. Yeah, thank you.

8 So it was -- it was -- the name and addressee of the sender was

9 Zvornik and it was as I said, going to Lieutenant-Colonel Popovic, 500

10 litres of D2. 300 -- it seems that 360 arrived and that 140 were sent

11 back.

12 Q. Now, is there an indication on this particular document as to the

13 location that the fuel was sent, other than the recipient of the fuel

14 itself?

15 A. I don't see that.

16 Q. Okay. And with respect to the other aspects of the document, that

17 is the date, the recipient and the amount of fuel, are those the factors

18 you considered in corroborating or verifying the reliability of the

19 particular intercept?

20 A. Yes.

21 Q. Okay.

22 MR. VANDERPUYE: Your Honours, I think I will leave it at that for

23 today. I don't think there is a need to go through the entire binder.

24 JUDGE AGIUS: Okay. I thank you so much, Mr. Vanderpuye, and you,

25 Ms. Frease. Of course we will need you again to return. And you will be

Page 6415

1 advised accordingly.

2 THE WITNESS: Thank you.

3 JUDGE AGIUS: Thank you.

4 MR. McCLOSKEY: Again, just -- Mr. President, the same rule

5 applies. We will endeavour not to talk to her about her prior testimony,

6 but for the upcoming testimony.

7 JUDGE AGIUS: Of course. The situation remains as we established

8 it last time Ms. Frease came to give evidence.

9 [The witness withdrew]

10 JUDGE AGIUS: So let's go through some of the housekeeping matters

11 that have surfaced since yesterday. Yes. Are you tendering any documents

12 today?

13 MR. VANDERPUYE: I thought I would wait until the

14 cross-examination.

15 JUDGE AGIUS: I think that was the procedure that we had adopted

16 last time. I just wanted to make sure.

17 Let's start with this one. Yesterday the Defence team for Colonel

18 Beara filed a motion called, "Defence request for assistance re:

19 Examination of a limited number of witnesses" with annexes A and B.

20 Basically, what is being asked from Messrs. Ostojic and Meek is that we

21 grant the Defence of Colonel Beara the assistance of Mr. Nebojsa Mrkic

22 such that he has a limited right of audience to examine five to seven

23 witnesses during the OTP case and seven to 10 witnesses during the Defence

24 case so that the Defence can move more efficiently, et cetera. This has

25 been intimated orally by Mr. Ostojic prior to the Christmas and New Years

Page 6416

1 recess. And to my recollection, you had stood up, Mr. McCloskey, and

2 intimated that you wouldn't oppose or that we would rather agree with such

3 a request.

4 So does any one of you wish to add anything to this, particularly

5 in relation to the point whether it should be us that we should decide

6 this or -- or the Registrar? I know that the Registrar has passed on the

7 baby to us, but I would like to hear -- we'd like to hear some submissions

8 in regard -- I don't know. Mr. Ostojic first.

9 MR. OSTOJIC: Thank you, Mr. President. I think our motion and

10 request orally made in December of last year was just to advise the Court

11 that we did try to correctly contact the Registry with all the

12 documentation, and me and my learned friend Mr. McCloskey have sat down

13 and agreed, with respect to which witnesses they will be, because they

14 keep shifting, we will sit in advance and make sure and ensure that

15 Mr. McCloskey doesn't have an objection to the witnesses that Mr. Mrkic

16 would potentially cross-examine and also those witnesses that we would

17 call in our direct Defence case.

18 I would just like to also add, we submitted his CV, his

19 credentials. I think he has been in court, if not 100 per cent of the

20 time, at least 90 per cent of the time. He is aware of the facts in the

21 case. He has an excellent reputation back home as well as here. He is

22 supported also by the ADC and Mr. Karnavas, specifically in my

23 conversations with Mr. Karnavas. Also he has been able to translate and

24 interpret for Mr. Meek with our client Mr. Beara. I think it's a good

25 working relationship. It has functioned well given the Court's

Page 6417

1 accelerated schedule. We think it would be necessary so that we don't

2 have any delays, but also, in light of the fact that the Registry did

3 defer to the Court, we think it was best to just bring it to the Court's

4 attention and ask that leave from Your Honours here today.

5 JUDGE AGIUS: I thank you. Mr. McCloskey.

6 MR. McCLOSKEY: No objection, Mr. President.

7 JUDGE AGIUS: Basically, what is of concern to the Trial Chamber

8 before we pass on to decide the issue is this: That although the bottom

9 line and the Registrar's communication to you, Mr. Ostojic, is that the

10 final decision according to the Registrar, whether to grant audience to a

11 person other than counsel and allow him or her to cross-examine lies with

12 the Chamber seized of the case, although he says that, in the previous

13 paragraph, by reference to some instances to which you had referred in

14 your communication with the Registrar, the Registrar says, "As to the two

15 cases in which legal assistance were authorised to perform a

16 cross-examination, I would like to emphasise that the Registrar, for the

17 reasons outlined above," and I don't need to go into those, "had voiced

18 his concerns and did not agree with the approach taken by the Chamber in

19 question." So we would like you to sort of address the Trial Chamber as

20 the following: The same breath, the Registrar is saying, when on previous

21 occasion the Trial Chamber accorded or granted a legal assistant to

22 cross-examine witnesses, that was not something that we digested well,

23 meaning the Registrar, we didn't agree with it. We still don't agree with

24 it.

25 It's true that in his letter he is full of praise for the

Page 6418

1 qualities of Mr. Mrkic, which we have no reason to doubt, and

2 Mr. McCloskey also has no reason to doubt. But then, how are we going to

3 overcome this -- this hurdle?

4 MR. McCLOSKEY: I suggest we could fire Mr. Meek.

5 [Trial Chamber confers]

6 JUDGE AGIUS: Do you wish to address this matter?

7 MR. OSTOJIC: Yes. Since, Mr. President, you raised it.

8 Obviously, in one case, Mr. President, you were involved in that case, and

9 the other one was a current case that is on trial in another courtroom. I

10 believe, with all due respect to the Registry, that they should not get

11 that intimately involved with running the courtroom and that it's Your

12 Honour's decision as to what latitude or discretion we as the lawyers can

13 have in order to efficiently present and to defend the case here. And I

14 say respectly to the Registry, we've tried and we've been very courteous

15 to them and they don't see it as we see it, but I don't know that they're

16 intimately involved with the specific day-to-day process. So I think it's

17 your decision, Your Honours.

18 JUDGE AGIUS: I thank you. And we are proceeding with our

19 decision herewith. It will be an oral decision which will not be followed

20 by a written one.

21 So we are seized of a Defence request for assistance in the

22 examination of a limited number of witnesses with annexes A and B, to

23 with -- particularly by enabling or by authorizing legal assistance in

24 Nebojsa Mrkic in the Beara Defence team to have a limited right of

25 audience to examine five to seven witnesses during the OTP case or seven

Page 6419

1 to 10 witnesses during the Defence case. We have heard submissions from

2 the parties, including that of the lead counsel for the Prosecution in

3 this case, Mr. McCloskey, who agrees with the motion of the Beara Defence

4 team. The Trial Chamber has gone through the documentation, and having

5 considered their submissions and the qualities of Mr. Mrkic and the

6 interests of justice in this particular case, grants the motion.

7 So that's --

8 MR. OSTOJIC: Thank you, Your Honour.

9 JUDGE AGIUS: Now, I suppose Mr. McCloskey is going to tell you

10 now tit for tat. There is a Prosecution motion filed also yesterday which

11 runs into something like 76 pages that includes a lot of photocopies of

12 transcripts and translations and typed versions thereof. The essence of

13 the Prosecution motion is to have -- to be granted leave to amend the 65

14 ter witness list of witnesses, and permit the appearance and testimony of

15 an additional two intercept operator persons, individuals. And in

16 addition, the Prosecution is requesting for these two witnesses protective

17 measures that are indicated in the motion itself.

18 When do you plan, if granted, if this motion is granted, when will

19 you be in a position to bring forward these two witnesses, Mr. McCloskey?

20 MR. McCLOSKEY: We are in the process of speaking to them and

21 we -- we hope within -- it's possible we could get them in before our --

22 our break. As you know, they are the result of the continuing search,

23 especially for the southern area, while we had a list of who people were,

24 we didn't know who did individual intercepts and these acts and conduct of

25 intercepts. I don't know if counsel may consider some kind of

Page 6420

1 stipulation, since their intercepts are few and the issues have been very

2 clearly set out and -- and I can agree to most things counsel may bring up

3 in cross-examination, such as a difference or that -- there are various

4 things we have seen them bring out.

5 So we're trying, but we have been trying all along with other

6 witnesses and there are issues about pregnant cows and other things that

7 are pretty serious, actually. I don't have the most immediate

8 intelligence on that, but I get it hourly on our witnesses.

9 JUDGE AGIUS: Thank you. Are there any responses on the part of

10 the Defence teams? Any of the Defence teams? Just trying to find in the

11 body of the motion itself the details of the protective measures that you

12 are asking for. They escape me as -- as I look through it. They escape

13 me as I look through it. Is anyone checking from your side?

14 MR. McCLOSKEY: Yes. Pseudonym and face are the protective

15 measures. We have not asked for voice.

16 JUDGE AGIUS: Voice distortion, all right. Do I -- do -- do we

17 take your silence as no objection? Yeah, Mr. Zivanovic.

18 MR. ZIVANOVIC: [Interpretation] As for these two witnesses, I

19 don't have any objections, but I do have an objection relating to the

20 third witness.

21 JUDGE AGIUS: The third -- which third one?

22 [Trial Chamber confers]

23 MR. ZIVANOVIC: [Interpretation] I'm sorry, I'm talking about the

24 second submission requesting the protective measures for another witness.

25 JUDGE AGIUS: All right. So that's -- that's clear enough. So

Page 6421

1 can we proceed with the -- yes, yes. Can we proceed with deciding this

2 issue? Okay.

3 So again the Trial Chamber is seized of a confidential Prosecution

4 motion for leave to amend the witness list by adding two intercept

5 operators as 92 ter witnesses. Such motion being filed on the 24th of

6 January, 2007. Reference is made to the motion itself and to annexes A, B

7 and C, which identify also these witnesses. The Trial Chamber has heard

8 the submissions of the parties, also in relation to the protective

9 measures being sought by the Prosecution for these two witnesses, namely,

10 use of pseudonym and facial -- facial distortion.

11 There being sufficient reason for granting the motion and no

12 objections having been heard, the motion is hereby granted. This oral

13 decision will not be followed by a written one. Okay.

14 Now, there is a further Prosecution motion also filed yesterday,

15 confidentially, requesting protective measures for three witnesses. The

16 witnesses are identified in the motion itself. What is being sought by

17 the Prosecution is the use of a pseudonym and face distortion for all

18 these three witnesses.

19 Does any one of the Defence teams wish to make submissions?

20 Mr. Zivanovic.

21 MR. ZIVANOVIC: [Interpretation] Thank you, Your Honour. I just

22 wanted to tell the Trial Chamber that we are going to make a written

23 response to the Prosecutor's proposal regarding the protective measures

24 for Witness PW-101. We are going to submit this by tomorrow.

25 JUDGE AGIUS: And I thank you, Mr. Zivanovic.

Page 6422

1 When is this -- when are these witnesses planned to be called? We

2 are talking of Witness 143.

3 MR. McCLOSKEY: Two of them were the intercept folks I mentioned

4 earlier that I hope to get some information on. Then one of the -- the

5 third is -- if I could go into private session.

6 JUDGE AGIUS: By all means. Let's go into private session.

7 [Private session]

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 [Open session]

19 JUDGE AGIUS: I was saying that having heard Mr. Zivanovic, we

20 will postpone our decision until we have had an opportunity to go through

21 his written filing, planned for tomorrow. Since there are inherent time

22 constraints considering the proximity of the testimony of these witnesses,

23 we are imposing on you, Mr. McCloskey, in case you wish to reply to

24 Mr. Zivanovic's written filing, a deadline of Monday and not later.

25 The same applies to any other Defence team that wishes, like

Page 6423

1 Mr. Zivanovic, to raise their concerns or objections in relation to this

2 motion. You will have until the end of business of tomorrow, Friday, to

3 do that. And again, Prosecution will have until the end of business on

4 Monday to respond, if it so wishes. All right? And that disposes of this

5 motion as well.

6 And we come now to this other motion that was filed yesterday by

7 Mr. Zivanovic for Colonel Popovic. It's a request for extension of time

8 regarding the 17 January 2007 order regarding intercept communications.

9 Mr. Zivanovic is basically asking that the deadline of the 2nd February,

10 in his opinion, simply does not allow the Defence to digest the evidence

11 of the above-mentioned, or the MUP and particular division operators to

12 whom he refers in his motion, as well as those witnesses to -- scheduled

13 to testify after the said date of the 2nd of February.

14 Mr. Zivanovic refers us to a previous statement that we made,

15 namely, that we would -- we plan to rule on the admissibility of intercept

16 evidence when all the evidence on them has been led by the Prosecution.

17 And according to him, the order that we gave imposing the 2nd February

18 deadline is incongruent with our previous statement. I will not ask you

19 to explain why it would be incongruent with that previous statement,

20 because that previous statement refers to the ruling and to nothing else.

21 But what is the Prosecution's position on this?

22 MR. McCLOSKEY: Normally, Mr. President, I -- I'm not very pushy

23 about deadlines like this, so I -- I don't really have any serious --

24 JUDGE AGIUS: You are not like us.

25 MR. McCLOSKEY: -- objections. But -- but in terms of intercepts,

Page 6424

1 two Trial Chambers have looked at much of the same material. This

2 material has been available forever and ever. We have three more army

3 intercept operators to testify, but as you know, that's very repetitive

4 and the material they will testify with is clear. Ms. Frease is almost

5 finished. The last chapter of her testimony will be just talking about

6 the collection of intercepts that we have put together for this trial and

7 what she has done to help collect them. So that's the material that --

8 that may be heard after your February 2nd date, just to put you in the

9 factual context.

10 As for -- I won't take a position either way. I'll leave that

11 one.

12 JUDGE AGIUS: I thank you.

13 Mr. Zivanovic, do you wish to maintain your motion or ...

14 MR. ZIVANOVIC: [Interpretation] Your Honour, I stand by the

15 proposal that I made, and I think it will not have any effect on the

16 proceedings. I would just like to underscore that besides what I said, I

17 also asked the Prosecution to state clearly whether all the material

18 relating to the intercepts has been disclosed to the Defence in any form,

19 including the placement of it on the EDS. I still haven't received a

20 response. It's quite difficult to submit a motion like this, as you

21 specified in your order, without having a clear picture of if what I

22 manage to find so far is actually all that there is, relating to this

23 matter. Thank you.

24 JUDGE AGIUS: I thank you. As in the case of every other motion,

25 of course we have had the opportunity to discuss amongst ourselves, and we

Page 6425

1 do have some concerns about your motion, because I think it's based on a

2 misconception or misunderstanding of our previous order. In fact, I

3 invite Judge Prost to address you on -- on this, hoping that it will make

4 things clearer. Yeah, Judge Prost.

5 JUDGE PROST: Mr. Zivanovic, we wanted you to take into

6 consideration the following in determining whether you need to maintain

7 your request. Because perhaps -- perhaps you weren't clear on the -- the

8 effect of our order, what we were seeking in the order.

9 The Defence teams have all objected to the admissibility of all

10 the intercepts, which obviously we consider a very important issue. So

11 far, however, the Chamber has really no indication as to the basis, as to

12 the underlying basis for the objections other than some general statements

13 that are in the filings and have been made, and some comments from counsel

14 during the course of the proceedings.

15 Having now heard several weeks of evidence, we assume that the

16 Defence must know at this stage at least some indication of the basis, the

17 types of objections that are going to be made. And we are looking to have

18 those articulated to us to assist us in dealing with what is a very

19 critical issue. So that's what we're looking for at this stage is an

20 outline of the basis of the objections. But we reiterate, we are not

21 seeking full arguments on the evidence at this time, and the Defence will

22 certainly have an opportunity to make those kinds of submissions before we

23 make any kind of ruling on this issue.

24 At this point though, we are just looking for some guidance from

25 the Defence teams on the nature of the arguments, and in that context, we

Page 6426

1 think the deadline that we set was quite a reasonable one for that kind of

2 information. So we would ask you to take that into consideration and we

3 can come back to this perhaps next week and just see if there is a need to

4 extend the deadline in light of that. Thanks.

5 JUDGE AGIUS: We can assure Mr. Zivanovic that you will find us

6 reasonable at all times.

7 MR. ZIVANOVIC: [Interpretation] Thank you, Your Honour.

8 JUDGE AGIUS: So we will ask you about whether you maintain or

9 reiterate your position this coming Monday again and then if -- if you do,

10 we'll -- we'll proceed with our decision, which will be an oral one.

11 Now, we are anxious to know what we are going to do tomorrow,

12 Mr. McCloskey.

13 MR. McCLOSKEY: Mr. President, when we lost that -- that witness

14 that we thought would take up the whole day, I have been trying to find

15 someone for tomorrow, but given -- even if I had willing people, there is

16 this four-day visa requirement. The short answer is I don't have anyone

17 for tomorrow.

18 JUDGE AGIUS: Is there any business that we could transact? For

19 example, I don't know, I heard you state yesterday that you had some

20 informal consultations with Mr. Ostojic in relation to the aerial images.

21 MR. McCLOSKEY: The -- the nature of -- of the case thus far is

22 that there's so much -- we don't really even have anything to argue about

23 at this point that we could use your help on. Mr. Ostojic and I seem

24 pretty close to the aerial image situation, and -- and Mr. Bourgon is

25 even -- I can't get him to argue with me. Although I'm sure he could

Page 6427

1 think up something, but we're at a loss. I'm sorry. And I just meant

2 that in good taste. I didn't mean to upset you, Mr. Bourgon.

3 JUDGE AGIUS: And you don't even leave me space to act as an agent

4 provocateur. I can't even do that. Let's do it this way: Maybe you can

5 rethink this whole matter. We are at your disposal. It's not a day of --

6 for us, there are various issues, various motions outstanding that we will

7 be dealing with. We will be here, like I'm sure every one of you. If

8 there is any business that we can transact tomorrow in open court, then

9 please do let us know. We are at your disposal. We will be here and the

10 courtroom is available.

11 MR. McCLOSKEY: Thank you, Mr. President. I have been in

12 discussions with -- with Ms. Nikolic about some witness issues which I

13 think she may want to discuss. We have been hustling to try to get

14 witnesses for next week, and we have managed to -- looks like we've done

15 that. So far I was able to -- we had a gap on Wednesday but last night I

16 was able to talk to Hilga Bromborg and he has been willing to drop

17 everything he is doing next week and come from Norway to testify about his

18 report about the missing. And I've had discussions with Ms. Nikolic about

19 that and we have -- and she has asked me, and she can of course speak for

20 herself, if there was a -- if there is some way we could work with that so

21 they would have time to cross-examine the witness later.

22 With Mr. Nikolic here, we believe we can put in some witnesses and

23 put Mr. Bromberg off, but of course that depends on Mr. Nikolic's ability

24 to be here. That's where we are on that -- on that point. And I

25 would ... [microphone not activated].

Page 6428

1 JUDGE AGIUS: The Trial Chamber is sure that you are all doing

2 your best to make the best use possible of the resources that are

3 available. And the -- including time availability.

4 So we stand adjourned -- not until tomorrow then until Monday.

5 Monday we will be sitting in the morning. Thank you.

6 --- Whereupon the hearing adjourned at 12.22 p.m.,

7 to be reconvened on Monday, the 28th day of

8 January, 2007, at 9.00 a.m.