Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7247

1 Monday, 19 February 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.05 a.m.

5 JUDGE AGIUS: So good morning, Madam Registrar. Could you kindly

6 call the case, please.

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, Madam. For the record, all the accused

10 are here. The Defence teams are also all here. I don't see

11 Mr. Lazarevic. Yes, Mr. Stojanovic.

12 MR. STOJANOVIC: [Interpretation] Good morning, Your Honour.

13 Mr. Lazarevic will come to The Hague today, and he will be in the

14 courtroom as of tomorrow.

15 JUDGE AGIUS: I thank you for that information.

16 The Prosecution side, it's Mr. McCloskey, yes, Mr. Thayer, and --

17 Mr. Thayer, please help me.

18 MR. THAYER: Mr. Elderkin, Mr. President.

19 JUDGE AGIUS: Mr. Elderkin, thank you. Welcome back.

20 I asked Madam Registrar to keep the witness out for the time being

21 so we go through some housekeeping matters. We have been requested --

22 this is mainly directed to you, Madam Fauveau but it will affect of course

23 everyone else. You have asked us to see if it is at all possible to move

24 the Monday 26th sitting to the afternoon. Of course, that doesn't depend

25 entirely on us. We are working on it; and if there is a possibility to

Page 7248

1 accommodate you, we certainly will, but we will inform you in the course

2 of today. And probably I will receive a reply within the next 30 minutes

3 or hour or so. Okay.

4 Yes, Madam Fauveau.

5 MS. FAUVEAU: [Interpretation] I just wanted to say thank you,

6 Mr. President.

7 JUDGE AGIUS: Thank you. The other thing is this, Mr. Zivanovic.

8 I just wanted to confirm for the record that we were informed of your

9 request to the Registrar - you never made a request to the Tribunal, to

10 the Trial Chamber itself - to have present, to assist you, your own

11 forensic expert while Mr. Clark will be testifying. We have indicated

12 that we have absolutely no problem with that. It's something that has

13 been done in other trials, including by myself, so you can of course have

14 your expert assist you.

15 However, it would be preferable if, in future, such requests,

16 apart from being directed to the Registrar, that has to be informed of

17 course, are first and foremost directed to the Trial Chamber. This time

18 we are turning a blind eye to that, assuming that there is something new

19 that has cropped up in this case. And so we have no problem with that.

20 And that basically means that if anybody else later on wishes to

21 have the assistance of ex parte forensic experts present in the courtroom

22 while Prosecution forensic experts or Court-appointed forensic experts are

23 testifying, you will be able to do that. However, please do ask

24 beforehand and also keep in mind that some arrangements, seating

25 arrangements will need to be made, especially if there are three of you

Page 7249

1 sitting in the same.

2 All right. There is a motion which came in last week on Friday,

3 and this is a Prosecution fourth motion for leave to amend 65 ter

4 exhibit -- exhibit list. Is there a response, first response from any of

5 you? Basically, we are talking of documents related to PW-105, and three

6 intercepts, two of which are related to testimony of Prosecution Witness

7 145.

8 Yes, Mr. Bourgon.

9 MR. BOURGON: Good morning, Mr. President, good morning, Your

10 Honours. Just to let you know, we would ask for some additional time

11 before we can respond to this motion, simply because most of the people

12 were away from The Hague last week. We have tried to communicate by

13 e-mails and we haven't done that yet. We will need a bit more time before

14 we are in a position to respond. Thank you, Mr. President.

15 JUDGE AGIUS: Thank you, Mr. Bourgon.

16 [Trial Chamber confers]

17 JUDGE AGIUS: Mr. McCloskey, how soon do we have to decide,

18 considering that we are talking about documents related to witness PW-105

19 and PW-145.

20 MR. McCLOSKEY: I think Mr. Thayer is prepared to respond to that.

21 JUDGE AGIUS: All right. Mr. Thayer.

22 MR. THAYER: Good morning, Mr. President, Your Honours. With

23 respect to PW-145, as everyone is aware, we are in the midst of his

24 cross-examination. I think we have probably about an hour, maybe close to

25 an hour and a half of cross left with him. The issue need not necessarily

Page 7250

1 be resolved before he leaves town. I think we can conclude with his

2 testimony; and then if there is further argument, resolve the issue

3 afterwards. He is here, he is ready to go this morning. I anticipate he

4 will be done before noon today.

5 With respect to PW-105, our schedule, I think, optimistically

6 estimates that he may be testifying as early as first thing Thursday.

7 There is a -- if things move along very quickly, he could go Wednesday

8 afternoon.

9 JUDGE AGIUS: All right. Mr. Bourgon, what I suggest is the

10 following: That we try to resolve the issue as it relates to the current

11 witness, to PW-145, the earliest possible. I suggest maybe first -- first

12 break.

13 MR. BOURGON: We will do our best to be ready, Mr. President.

14 JUDGE AGIUS: I'm sure you will. And as regards the documents

15 related to PW-105, we will return to that first thing tomorrow morning.

16 All right? Thank you.

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

18 JUDGE AGIUS: Thank you.

19 So there is also another Prosecution motion which was filed last

20 Friday relating to Witness 186. This is a Prosecution motion for leave to

21 amend witness list by adding one intercept operator supervisor as a 92 ter

22 witness and for protective measures. When will Witness 186 be coming

23 over, Mr. Thayer?

24 MR. THAYER: Your Honour, he will be available to testify as early

25 as Tuesday, the 27th of February; that's when we have him scheduled. He

Page 7251

1 is available earlier, should that need arise, but that is the tentative

2 schedule for him.

3 [Trial Chamber confers]

4 JUDGE AGIUS: So I think we will need again once more here to

5 limit, to restrict the time limit for the filing of the response. You

6 will have up until the end of business on Wednesday, this Wednesday, to

7 respond to this motion.

8 Then there was -- I wish -- I would like to be -- have the Trial

9 Chamber updated on this. There was a motion filed on the 7th of February

10 by the Prosecution seeking protective measures for Witness 157, which is

11 PW- -- would be PW-104, together with an ex parte annex. You will recall

12 that I mentioned this to you last week, and that I had asked you to file

13 your responses not later than last Friday, Friday the 16th.

14 [Trial Chamber confers]

15 JUDGE AGIUS: The information that we have, and which we have

16 rechecked, is that none of you filed any responses to this, so I take it

17 we can proceed with disposing of the matter.

18 So the Trial Chamber is seized of a Prosecution motion requesting

19 protective measures for Witness 157 and containing an ex parte annex filed

20 on the 7th of February. We have taken into account the brief -- the brief

21 debate of last week in which we indicated that the Defence teams would be

22 required to file their responses by not later than the end of business day

23 of the 16th of February. Having confirmed that no such responses have

24 been filed, upon agreeing that the arguments brought forward by the

25 Prosecution, in paragraphs 5 and 6 of the motion, justify the granting of

Page 7252

1 the protective measures sought in the same motion; namely, that of

2 pseudonym and face distortion. The motion is hereby being granted. This

3 witness will testify as witness pseudonym PW-104. So that is determined.

4 I do not have any further preliminary matters I would like to

5 address you to. Do you have any? I hear none. So we may safely bring

6 back now Witness PW-145.

7 Mr. Krgovic, I take it that you had finished your

8 cross-examination. Is that correct?

9 MR. KRGOVIC: No, Your Honour.

10 JUDGE AGIUS: I wasn't here for the last -- okay. So you haven't

11 finished.

12 MR. KRGOVIC: No, Your Honour. I have maybe 15 minutes more.

13 JUDGE AGIUS: Okay. So -- yes, Mr. Zivanovic.

14 MR. ZIVANOVIC: [Interpretation] Your Honour, I just wanted to let

15 you know that Professor Dunjic has been appointed expert for five Defence

16 teams. We asked that he be present during the testimony of all OTP

17 forensic experts. So our motion does not pertain only to him being

18 present when Witness Clark is examined, but also other OTP witnesses

19 Wright, Haglund, Baraybar, and Lawrence. And he will be assisting five

20 Defence teams: Popovic, Beara, Nikolic, Borovcanin, and Pandurevic.

21 JUDGE AGIUS: I thank you so much for that information. This is

22 why I said in future, please table a proper motion to the Trial Chamber

23 because we would be seized with --

24 MR. ZIVANOVIC: [Interpretation] That's precisely what I wanted to

25 add. That first we addressed the registry and then the registry told us

Page 7253

1 to send our motion to the Chamber.

2 JUDGE AGIUS: Yes. And we did not insist on -- on having a proper

3 motion filed, because we knew that this had to be decided before the

4 weekend so that your expert will be here. Although we were all different

5 places, I made sure that everyone was informed and we could decide that in

6 good time.

7 [The witness entered court]

8 So, Witness, good morning to you, and welcome back.

9 THE WITNESS: [Interpretation] Good morning, thank you for

10 welcoming me back.

11 JUDGE AGIUS: Yes. We are going to proceed and hopefully conclude

12 with your testimony today. Last week you were being examined by

13 Mr. Krgovic. He will continue with his cross-examination and then we will

14 take it up from there.

15 So, Mr. Krgovic.

16 WITNESS: WITNESS PW-145 [Resumed]

17 [Witness answered through interpreter]

18 MR. KRGOVIC: Thank you, Your Honour.

19 Cross-examination by Mr. Krgovic [Continued]

20 Q. [Interpretation] Good morning, sir.

21 A. Good morning.

22 Q. Do you remember when we ceased our cross-examination, I was

23 examining you about the contents of three conversations, and we said that

24 those were conversations with UNPROFOR and some other organisations; that

25 was my last question.

Page 7254

1 A. No, that's not what we were discussing.

2 Q. I wanted to continue where we left it off, with that line of

3 questioning. That's on page 89 of the transcript.

4 "[In English] You can see from this document that he spoke to

5 UNPROFOR members, is that correct?"

6 "Yes.

7 "This concerned relationship with UNPROFOR?"

8 [Interpretation] And your answer was, "Yes."

9 Let me just remind you, those were the conversations that you

10 taped, conversations with the president, or rather conversation with the

11 president, and the other conversation involved Mr. Koljevic?

12 A. Yes. Your question was why I had written that in the first

13 conversation it referred to Karadzic. That's what we were discussing.

14 Q. Well, that's what we were discussing prior to that, and what I

15 just read out to you was my last question to you. But if you don't

16 remember, I can refresh your memory again.

17 A. As far as I remember, the last answer I gave you concerned the

18 conversation between Gvero and Koljevic. You gave me that example and you

19 said that Gvero also addressed Koljevic as President. I said to you that

20 in that conversation he identified Koljevic very precisely by addressing

21 him both as President and Professor. I told you then that I was sure that

22 in the first conversation, it was Karadzic.

23 Q. Sir, in the course of your work prior to this time, and during

24 this time, you did not record a single conversation between General Gvero

25 and any other president or Karadzic, except for the one that I showed you

Page 7255

1 here or the OTP showed you. Is that correct?

2 A. I don't really remember whether I intercepted any other

3 conversation. As far as I can remember now, after all these years, I did

4 not intercept any conversation where Gvero addressed somebody with that

5 title. I told you that if we were not sure about something, we never

6 wrote that down, and I'm sure that in that case it was Karadzic.

7 Q. But in addition to this conversation, you didn't intercept any

8 other Karadzic conversations. Is that correct?

9 A. As I have told you, it's very difficult for me now to remember

10 after all these years whether I did or didn't. I simply can't remember

11 whether there were such conversations. I don't remember.

12 Q. Do you remember what post Nikola Koljevic held?

13 A. I can only guess. I think he was vice-president.

14 JUDGE AGIUS: Mr. Thayer.

15 MR. THAYER: If we could just have a time-frame of some kind for

16 the question, Your Honour, I think that would be helpful.

17 JUDGE AGIUS: That's a very fair comment, Mr. Krgovic.

18 MR. KRGOVIC: [Interpretation]

19 Q. At the time when you intercepted this conversation, do you know

20 what post Nikola Koljevic held?

21 A. As I have just told you, as far as I can remember, and it's

22 difficult to remember after all these years, he was vice-president. Now,

23 whether he was vice prime minister or vice-president, I really wouldn't be

24 able to tell you now.

25 MR. KRGOVIC: [Interpretation] Could the witness be shown 6D7,

Page 7256

1 please? Page 2 of this document, please.

2 Q. Sir, this is a document, Official Gazette of Republika Srpska,

3 and you can see a decision that was published in that issue.

4 MR. KRGOVIC: [Interpretation] Could you scroll down, please?

5 Q. Sir, did you know that at that moment, Mr. Koljevic was president

6 of the Committee for Cooperation with the UN and international

7 organisations?

8 A. I can see that now; but as you can see in the text that follows,

9 it says that he was vice-president of Republika Srpska.

10 Q. So, when Gvero addressed Koljevic, he addressed him as President,

11 meaning president of the committee; vice-president, meaning as

12 vice-president of Republika Srpska; and Professor because that was the

13 post he held at the university?

14 A. Yes, I know that, or rather, I can see that he held this post,

15 too, which I didn't know about earlier.

16 I think there is something wrong with the microphone because I can

17 hear myself talking.

18 JUDGE AGIUS: Yes. Can we deal with that, please?

19 MR. KRGOVIC: Mr. Thayer, your microphone is...

20 THE WITNESS: [Interpretation] I could hear my own voice, and I

21 could tell that a mic was on.

22 What you just said is not how it was in that conversation. He

23 didn't say vice-president of this and that or Professor or that. All it

24 said was "President, vice-president, professor."

25 MR. KRGOVIC: [Interpretation]

Page 7257

1 Q. And that's precisely what I did; I enumerated the posts he held.

2 He was the president of the state Committee for Cooperation with the

3 United Nations; He was vice-president of the Republika Srpska; and a

4 professor at the university?

5 A. Yes. What you just said is quite clear to me; but as I told you,

6 this is what was said and written down at the time. The conversation that

7 you showed me last time, I think, was not something that I intercepted.

8 Q. Can we agree, sir, that when you recorded the intercept, there

9 were at least three people in Republika Srpska who could be addressed as

10 "President" who held the post of president of specific bodies?

11 A. I am aware that that's what the situation was, but what I told

12 you; but what I told you, that I am sure that it was Karadzic, I can

13 explain if you wish why I am sure. Because I think this sort of leading,

14 He was, wasn't, is a bit --

15 Q. Yes, go ahead, explain.

16 A. The way that we worked at that time was such that nothing was

17 reproduced or put in the transcript that we were not sure of. If we were

18 not 100 per cent sure of something, we would indicate that by some sign, a

19 mark, a question mark, or a brief explanation in parentheses that we were

20 not sure what this was about.

21 Further, the communication itself, this communication of the Main

22 Staff that we were monitoring, our job was much easier when identifying

23 the speakers because of the way they themselves communicated. This is

24 why. They would always have a subordinate answer the phone, then he would

25 connect the speaker with his superior. So some of those people who

Page 7258

1 worked, and I can give you the name of a person that I remember very well,

2 that is Rajko Banduka, who very frequently picked up the calls.

3 He would pass on the calls to his superiors, and probably we

4 didn't hear that. He would call someone at the request of his superior,

5 and then he would ask that person and then he would say such-and-such a

6 person wants to speak to you. We did not tape those parts of the

7 conversation, and we did not transcribe them or reproduce them because at

8 the time we had a lot of problems.

9 There was a shortage of recording tapes, very frequently there was

10 no power supply, electricity was cut. So any kind of saving, meaning

11 saving the energy, sparing the device's motor from working, would mean a

12 lot to us. We always had information like that; and of course because of

13 us, we would never write down any information that was incorrect because

14 that was would take things in a completely different direction.

15 Q. Sir, you, as an operator, was supposed to record the conversation.

16 Is that correct?

17 A. Yes. Yes, amongst other things.

18 Q. Then you were supposed to transcribe it on a piece of paper or

19 directly on to the computer?

20 A. Yes.

21 Q. And you were supposed to send it to your superior command?

22 A. Yes.

23 Q. It was not your job to analyse or comment about the intercepts; is

24 that correct?

25 A. Well, we did have some analytical tasks. There were such jobs,

Page 7259

1 because determining what was interesting or not for us, determining if a

2 conversation was interesting or not for us is analysis. All the

3 conversations that we heard, if we had to transcribe all of them, that

4 would be an enormous task.

5 Q. In this specific case when you recorded this conversation, you did

6 not, in the transcript of that conversation, put what you heard, but you

7 added something, too. Is that correct?

8 A. I don't know what -- what you are thinking of. I can't remember

9 what you mean.

10 Q. You added the name Karadzic, which was not heard in the

11 conversation. You did not hear it in the conversation?

12 A. I explained to you just now why we added that, and I think it's

13 quite clear. The way we worked is clear, and what happened before the

14 actual conversations were recorded. I think that I was clear.

15 Q. But you did not faithfully transcribed what was said on the tape,

16 but you added the name of Karadzic. This is what I'm asking you.

17 A. The name Karadzic was written because probably from this time

18 distance - I really cannot recall every single conversation individually -

19 but the way we worked was that we wrote only what we were sure of, and I

20 am repeating this. This was made much easier for us. Our work was much

21 easier because of the way people on this route communicated, the people in

22 the Main Staff.

23 Q. So that means that you did not faithfully transcribe what you

24 heard, but you entered your observations and some conclusions of yours.

25 This is my question.

Page 7260

1 A. I am saying to you now that what was written, we cannot say that

2 it is not faithfully transcribed what I wrote down. It was written down

3 on the basis of information that we had and information that we were sure

4 of. I am sure we performed our tasks properly.

5 Q. Did you have the possibility of comparing intercepts, for example,

6 between Karadzic and Gvero, so that you could know that they were these

7 persons?

8 A. We did not do that because we said that in that section Karadzic

9 was not heard, so there was no chance of comparing it with some other

10 conversation, but I had heard him several times before. And, as I said,

11 identification was most often done by people who would be on the line

12 before them. I've mentioned Rajko Banduka, who used to pick up the

13 conversations, the calls before.

14 Q. But in this particular intercept, there isn't that introductory

15 part?

16 A. No, it's not there. It might sound a bit now, but it would take

17 up a lot of our time. There was a lot of work, so we always focused on --

18 we concentrated on what was most important, what was said, who said it.

19 And in this case the information that was conveyed was definitely

20 accurate, because of the way we worked. And that was how I explained it.

21 You can check in some of the conversations that some parts of the

22 conversation, which might create the impression that these operators, who

23 were subordinated to the Main Staff officers, constantly listened to these

24 conversations. Because sometimes during a conversation, he would directly

25 address, for example, Rajko would directly connect this interlocutor with

Page 7261

1 somebody else.

2 We would note down those parts, indicating that there had been a

3 change of speaker. Sometimes we would not transcribe the initial part

4 where he would be waiting for the connection to go through. It would take

5 ten or 15 minutes before the speaker who was being sought would actually

6 pick up the phone. So that would take up too much tape.

7 MR. KRGOVIC: [Interpretation] Could the witness be shown now

8 Exhibit 6D --

9 THE INTERPRETER: Microphone, please.

10 JUDGE AGIUS: The interpreter could not hear you.

11 MR. KRGOVIC: [Interpretation] 6D14.

12 THE INTERPRETER: The interpreter did not hear the end of his

13 question.

14 Q. I am going to show you the transcript of this conversation now?

15 JUDGE AGIUS: The interpreter did not hear - at least that's what

16 we have on the transcript - the last part of your question. Was the last

17 part of your question what you just stated? What was the last part of

18 your question?

19 MR. KRGOVIC: [In English] I will just repeat the question.

20 JUDGE AGIUS: Yes, please. I think that should be it.

21 MR. KRGOVIC: [Interpretation]

22 Q. Sir, I am going to show you a transcript of the audio recording of

23 this conversation that was transcribed, and that's essentially what you

24 heard.

25 MR. KRGOVIC: [Interpretation] I can stipulate perhaps with the

Page 7262

1 Prosecutor that these two things are identical.

2 Q. We received this from the Prosecution, so this is the transcript

3 of what was recorded on the audio tape and this is what you heard. Can we

4 agree that this is what you actually heard, and that this is what is

5 reflected in the transcript here.

6 JUDGE AGIUS: Yes, Mr. Thayer.

7 MR. THAYER: Just so the record is clear, Your Honour, we've moved

8 on from a different intercept from the one that's taken up the bulk of the

9 conversation thus far. Just so there is no confusion on the record, we

10 are now talking about an intercept that deals with General Nicolai.

11 JUDGE AGIUS: Thank you.

12 MR. KRGOVIC: [Interpretation] No. This is the intercept --

13 actually, of -- it pertains to the two conversations that the witness

14 alleges are with Karadzic. This is one of those conversations.

15 Q. Have you seen this transcript, sir?

16 A. I am just looking at it. Perhaps we can scroll down so I can read

17 on, if it's possible.

18 MR. KRGOVIC: [Interpretation] For the Chamber and for my

19 colleagues from the Prosecution, this is a document in tab 2.

20 JUDGE AGIUS: Okay. Let him go through the text, as he said he

21 would like to do. And when he is ready, then put your question, please.

22 Can we proceed with the question, Witness?

23 THE WITNESS: [Interpretation] Yes, but I don't see the end here.

24 Can I see the end of the actual intercept, the end of the transcript?

25 MR. KRGOVIC: [Interpretation]

Page 7263

1 Q. That is the transcript. This is all that you heard and recorded.

2 This was transcribed from the tape.

3 JUDGE AGIUS: So it is being put to you that what you have on the

4 screen in front of you, ending with the words, "Da, da, dobro, probat," et

5 cetera, is indeed the end of the transcript.

6 So I suggest you put your question now, Mr. Krgovic.

7 THE WITNESS: [Interpretation] It's all right. Just one moment.

8 Yes. It's clear to me that this is the end of the conversation. I just

9 wanted to see. Probably there were other transcripts after this one, so

10 the usual codes are not there, but --

11 MR. KRGOVIC: [Interpretation]

12 Q. This was taken from the tape that you recorded, sir. Is this what

13 would correspond to your recollection of the content of the conversation?

14 A. Well, I don't remember very much when I'm reading it now.

15 Q. Would you like to listen to the tape to refresh your memory, if

16 you wish?

17 A. Yes, yes. Very well.

18 MR. KRGOVIC: [Interpretation] Your Honours, I'm going to play the

19 audio recording of the intercepted conversation that we are looking at

20 right now. And the transcript will appear on the screen, so that the

21 Chamber and the Prosecution will be able to follow.

22 JUDGE AGIUS: Thank you, Mr. Krgovic. By all means.

23 Yes, Mr. Thayer.

24 MR. THAYER: Your Honour, just again, for the sake of clarity, the

25 conversation that we are about to play is located at tab 2 of the witness

Page 7264

1 packet. The conversation concerning President Karadzic, which took up the

2 majority of the morning, is located at tab 3.

3 JUDGE AGIUS: Thank you. Do you agree with that, Mr. Krgovic?

4 MR. KRGOVIC: [Interpretation] We are talking about two

5 conversations; one in tab 2 and one in tab 3.

6 JUDGE AGIUS: So we are in agreement.

7 MR. KRGOVIC: [Interpretation] Both of them refer to the alleged

8 conversation with Karadzic.

9 JUDGE KWON: And the version we are just looking at is the

10 different version which is in tab 2, which is a transcript of recording?

11 MR. KRGOVIC: [Interpretation] What you are listening to now is

12 actually the transcript of the intercepted conversation without

13 assumptions, conclusions, without any additions.

14 JUDGE AGIUS: Yes, let's go ahead.

15 [Audiotape played]

16 MR. KRGOVIC: [Interpretation] I am sorry, Your Honours, but we

17 reversed the order. This is actually the second intercept, and I am going

18 to ask my assistant actually to play the -- the previous conversation.

19 JUDGE AGIUS: Thank you, Mr. Krgovic.

20 [Audiotape played]

21 MR. KRGOVIC: [Interpretation]

22 Q. Could you please compare this audio recording with the transcript

23 that you have in front of you? Are they identical?

24 A. Yes, I've compared them. They are identical.

25 Q. And Karadzic is not mentioned there or any other comments, or

Page 7265

1 there is no one announcing a conversation or anything like that. Do you

2 agree with me?

3 A. Yes. In this particular recording that we heard, yes, that is

4 correct.

5 MR. KRGOVIC: [Interpretation] Can we please show the witness 6D15?

6 Q. This is the transcript of the next conversation that you recorded.

7 I am going to play the recording of that conversation as well, so you can

8 compare if the transcript is identical to the audio recording.

9 [Audiotape played]

10 MR. KRGOVIC: [Interpretation]

11 Q. Were you able to compare the transcript, before you, with what you

12 heard on the recording, and could you establish that they were identical?

13 A. Yes, yes.

14 Q. Sir, when you wanted to be sure that a certain person participated

15 in a conversation, did you use a document or some other source to confirm

16 who the interlocutors were? In this particular case, you claim it was

17 Karadzic. Did you do this, did you conduct any analysis to establish that

18 it was indeed Karadzic?

19 A. If we could hear the other person on the line, and in this case we

20 were not able to hear, then we would make a comparison, or rather, we

21 would go and listen to one of the conversations that we had, that we had

22 recorded. And this is how we would establish who the participants were,

23 if we were not sure about the identity.

24 In this particular case, we were unable to do that because, as you

25 could hear yourself, you can't hear the other voice on the line. You

Page 7266

1 could just hear some minor background noise, but no identifiable voice.

2 And in cases where we were not sure, we would also contact the army.

3 We would assist each other if we were not sure. We would have

4 them listen to a conversation if we wanted to be sure about a word or a

5 facility or a person, and that's what our method was. We -- we wanted to

6 make absolutely sure about the identity and about what was recorded, that

7 it was accurate.

8 Q. All right. So let us conclude, sir. In this case, you couldn't

9 hear the other person on the line. You didn't hear the name Karadzic

10 uttered, correct?

11 A. Yes.

12 THE INTERPRETER: Microphone, please.

13 A. In this particular conversation one cannot hear that. I can

14 repeat to you what I said earlier. I don't remember exactly what preceded

15 this conversation. But the way, the method of our work, the method of

16 recording was such that we only wrote down things we were sure of.

17 Q. Would you please just answer my question, please. You didn't hear

18 the name Karadzic you uttered and you didn't hear the other participant in

19 the conversation; correct?

20 A. Yes, correct and I confirmed that. In this conversation, we

21 didn't that.

22 Q. You didn't have the other in order voice, to make the comparison,

23 and you didn't have any additional documents in order to make analysis.

24 JUDGE AGIUS: Before you answer this question, Mr. Thayer, I

25 noticed you standing up and then sitting down again. Do you wish to --

Page 7267

1 MR. THAYER: I just second-thought my objection, Your Honour.

2 JUDGE AGIUS: All right. Thank you.

3 Witness, I suppose you can answer the question. It's being

4 suggested to you by Mr. Krgovic to agree that you didn't have the other

5 voice to make the comparison, and you didn't have any additional documents

6 in order to make an -- a proper analysis. Do you agree with that

7 proposition?

8 THE WITNESS: [Interpretation] Well, I wouldn't fully agree

9 because, as I have said earlier, after this time lapse, it's very

10 difficult to know what work we did before the conversation ensued or

11 followed. And as I said to you, we did have certain samples of

12 conversations that we would use, so that if, for example, a new voice

13 appeared, we would set it aside so that we could give it to our colleagues

14 coming in the next shift so that they could use it for comparison.

15 I can't remember now 100 per cent. I can't be certain and tell

16 you: Yes, we absolutely did or we absolutely didn't. Our method of work

17 was such that we made no assumptions. We didn't write down anything that

18 was based on assumptions.

19 MR. KRGOVIC: [Interpretation] Could the witness be shown Exhibit

20 P02375A and B, which is 1074 on 65 ter list. I'll give you the ERN

21 number: 03 --

22 THE INTERPRETER: Could the counsel please repeat the number.

23 MR. KRGOVIC: [Interpretation] 0320-1098, 0320-1099. Could you

24 please scroll down? The next page. Conversation 536. The next page,

25 please.

Page 7268

1 Q. Sir, you can see here at the bottom, you noted down, "Today at the

2 Supreme Command headquarters, only General Gvero is present."

3 A. Yes.

4 Q. There is no intercept here, just your statement about Gvero being

5 there on that day at the Supreme Command headquarters. Is that correct?

6 A. Yes, that was our conclusion, which was based on a conversation

7 most likely; a conversation between the subordinates. Very frequently,

8 they would say themselves this and that person is present, this and that

9 person is absent. This is what the subordinates would say, and we

10 believed that only the information gleaned from the conversation was

11 important, and not the entire conversation. So this is how we saved time.

12 .

13 That was something that we wrote down, this particular fact, which

14 was probably taken from the conversations on that day. That fact was

15 important on that day because that was the day of the events in

16 Srebrenica, and it was important that General Gvero was the one who was at

17 the Main Staff, main headquarters.

18 When I say that he was the only one there, that did not include

19 the support staff; no, it only pertained to senior officers.

20 Q. Do you know what the Supreme Command is and where Supreme Command

21 headquarters was located of the army of Republika Srpska?

22 A. As far as I know, I think that the headquarters was located in Han

23 Pijesak.

24 Q. It doesn't say here "Main Staff;" it says the "Supreme Command?"

25 A. Well, I'm no military expert to draw a distinction between the

Page 7269

1 supreme staff and -- Supreme Command and Main Staff. All I know is that

2 Mladic was Chief of Staff, and Karadzic was the Supreme Commander or

3 something like that. This is what I wrote down.

4 Q. I am suggesting to you that the Supreme Command was located at

5 Pale, and that Gvero was not a member of the Supreme Command and did not

6 sit at the Supreme Command headquarters at the time you noted this down.

7 Would you agree with me?

8 A. Yes, I would agree with you. I just noticed now that we wrote

9 here "Supreme Command" for some reason. It's possible this was an

10 omission on our part, but I am telling you, again, that I am no military

11 expert to be able to draw a distinction between the Supreme Command and

12 the Main Staff. In my mind, there is no great difference. I don't know

13 what each term stands for.

14 Q. So you see no difference between the Supreme Command and Main

15 Staff. You see no difference between the president of one body and

16 president of another body. Is that what you're trying to say?

17 A. No. No, that's not what I said, that I see no difference between

18 president of one body and president of another body. I know very well who

19 presided over what and who was what. But when it comes to the Supreme

20 Command, well, I'm trying to find in the text above, Main Staff, Supreme

21 Command.

22 Why we wrote down Supreme Command here, I have no idea. This was

23 probably a mistake on our part. And you know in haste one makes mistakes.

24 I know that he was with the Main Staff. I know that. Why we wrote this

25 down, I don't know.

Page 7270

1 Q. Which means that when entering your comments, you made mistakes.

2 Is that the conclusion that we should draw, based on what you said?

3 A. Let me tell you something: It is possible that there were

4 mistakes. I am sure that you will find mistakes in dates. You know, in

5 haste it's normal to make mistakes. Under the circumstances we worked, we

6 wanted to forward as much information as possible, and I'm sure that there

7 were typos and mistakes in expressions we used. Mistakes are possible in

8 all kinds of work. And it is possible that we did make mistakes, but

9 those were not detrimental mistakes.

10 Now, whether we said the Main Staff or the Supreme Command

11 headquarters, well, in my mind there is no great difference there. But

12 once again, I'm no expert when it comes to military terms.

13 Q. Based on that, it would seem that Gvero was at the Supreme

14 Command. Is that what you are claiming, or are you now saying that what

15 is written down here is not accurate?

16 JUDGE AGIUS: Yes, Mr. Thayer.

17 MR. THAYER: Your Honour, I think at this point we've exhausted

18 the questions on this topic. I think he's answered the question a couple

19 of times.

20 JUDGE AGIUS: I think so, too. I think that you need to move on,

21 Mr. Krgovic.

22 And, Witness, you also need to keep your answers short as

23 possible, because many a time you are really going, beating around the

24 bush, basically, at the end of the day.

25 Yes, Mr. Krgovic.

Page 7271

1 THE WITNESS: [Interpretation] Very well.

2 MR. KRGOVIC: [Interpretation] Your Honours, could the witness be

3 shown 6D44.

4 Q. Sir, this is a document sent by Gvero, or sent to Gvero several

5 days later where. Contrary to what you say, Gvero is questioned here as

6 to why he had contacted the UN and the representatives of the

7 international community without consulting the president prior to that.

8 MR. KRGOVIC: [Interpretation] Could you please scroll down so that

9 the witness could read the whole document?

10 Q. Would you please read the last paragraph especially attentively.

11 Have you read it?

12 A. Just a moment, please. Could you please turn off your microphone.

13 I've read it. Now your question.

14 Q. You didn't hear the conversation, or rather, you didn't hear the

15 other participant in the conversation. You didn't hear the name of

16 Karadzic uttered. You didn't do a comparative analysis. And I am telling

17 you, I'm putting to you on the 11th of July, Karadzic was the last person

18 with whom Gvero would talk to, because they had had a conflict since April

19 of that year and ceased any communication at that point.

20 There was only written communication where Karadzic questioned

21 Gvero as to why he had not informed him of his activities. I am putting

22 to you that in that conversation, you wrongly identified the other person

23 as Karadzic. Now, looking at all of these documents, would you agree with

24 me?

25 A. Just a minute. Let me read this all the way to the end and

Page 7272

1 examine this claim of yours that he criticises Gvero for not informing him

2 previously. Could you enlarge the document, please? Could you zoom in,

3 please? Yes, and then scroll down. That's fine.

4 Q. I can give you a hard copy.

5 A. No need for that.

6 [Trial Chamber and registrar confer]

7 THE WITNESS: [Interpretation] This is what I can tell you: As I

8 understood you, you said that in this order he wants Gvero, or rather, he

9 criticises him for not informing him. And as I can see he is not

10 criticising him for not informing him, but he is criticising him for

11 making contacts independently of the Ministry of Information, and he

12 should normally contact them through this ministry. I don't see it saying

13 anywhere that he criticises Gvero for not -- for not consulting him

14 earlier.

15 MR. KRGOVIC: [Interpretation]

16 Q. Would you read this sentence that you -- that -- where it says

17 that Gvero contacted without authorisation international organisation. He

18 did it without prior approval?

19 A. Yes. I saw this.

20 Q. Does this order have a different tone from that conversation that

21 you intercepted? You know the spirit of that conversation, and you can

22 now read the document. Would you agree that the nature of those two

23 sources is completely opposite?

24 A. This document is dated the 17th of July, which is to say after the

25 events. I wouldn't be able to say now. I wasn't involved in all of that.

Page 7273

1 Q. And had you been updated with all these documents that I showed

2 you, would then your assumption that it was Karadzic have changed?

3 A. I cannot go into the relationship and, as you say now, they

4 were -- they had such-and-such a relationship or their relationship was

5 like this. I -- probably now I really wouldn't be guided by this about

6 what things were actually like, but our work made it possible for us to be

7 certain in our decisions, and, again, I repeat we were definitely writing

8 only what we were sure of. I don't want to keep repeating myself anymore.

9 Q. So you wrote what you were sure of, not what you heard?

10 A. Well, now --

11 JUDGE AGIUS: Mr. Thayer.

12 MR. THAYER: Objection, Your Honour. He's answered the question.

13 JUDGE AGIUS: I think he's answered and reanswered it and

14 reanswered it. I think what needs to be made clear is this, and once and

15 for all and we can close the chapter on this here.

16 You agreed beforehand that the name of -- name Karadzic was never

17 actually mentioned during both of these intercepts, and it was your

18 conclusion that still one of the interlocutors was Karadzic. Can you

19 confirm that?

20 THE WITNESS: [Interpretation] These transcripts, in this part of

21 the conversation, this was not mentioned, but I don't want to repeat again

22 what I said before. So I agree with you as far as these transcripts are

23 concerned.

24 JUDGE AGIUS: And one final question on my part on this. In both

25 these intercepts, although the name Karadzic is not specifically

Page 7274

1 mentioned, in both of them there is use of the word "President." Did that

2 carry any weight in your judgement when you came to conclude that the

3 other interlocutor was Karadzic?

4 THE WITNESS: [Interpretation] Yes, it did have weight, but I say

5 it again: We were sure of that because - probably, I cannot be 100 per

6 cent sure - before that there was a conversation between their

7 subordinates, the people who actually connected the lines. I don't recall

8 any of the high-ranking officers on that route that we were monitoring,

9 dialing any call himself. This was always done for him by his

10 subordinate, who would then connect him to the collocutor.

11 I don't want to repeat myself again. I explained the way in which

12 they worked and which helped us in our work a lot.

13 JUDGE AGIUS: I thank you.

14 Mr. Krgovic.

15 MR. KRGOVIC: [Interpretation]

16 Q. This last part of your answer, when you said that probably there

17 was a conversation that preceded the one we are talking about, it's an

18 assumption of yours because you didn't record it?

19 A. From this time period, I mean I don't recall everything. We would

20 need to have the actual conversation and then go back. I mean we never

21 really did anything like this for this particular purpose. What we were

22 doing was trying to compile as much information as possible.

23 Q. When I asked you the Friday before last that if a conversation was

24 not heard or recorded from the beginning and was not transcribed right

25 away, you would indicate that at the top. Do you recall that that was the

Page 7275

1 practice; if you don't hear the conversation or if you don't record it

2 from the very beginning, you would indicate that with a particular mark.

3 Do you recall telling me that?

4 A. Yes, yes, yes.

5 Q. And in these two specific intercepts, there is no such indication

6 that the conversation was not recorded or heard right from the beginning;

7 is that correct?

8 A. This conversation between these two collocutors was recorded from

9 the beginning. It was recorded from the beginning.

10 MR. KRGOVIC: [Interpretation] Thank you, Your Honours, I have no

11 further questions.

12 JUDGE AGIUS: On my list, we need to update it. Who is going --

13 who is going next? Mr. Zivanovic, are you cross-examining the witness?

14 MR. ZIVANOVIC: Thank you.

15 JUDGE AGIUS: You had indicated about 30 minutes. Do you stick to

16 that?

17 MR. ZIVANOVIC: 20 minutes, I believe.

18 JUDGE AGIUS: All right. We'll have a break at half past 10.00.

19 MR. ZIVANOVIC: Thank you.

20 Cross-examination by Mr. Zivanovic:

21 Q. [Interpretation] Good morning, Witness.

22 A. Good morning.

23 Q. Can you please tell me, we have information that other than

24 yourself, a military unit worked at the same facility and that premises

25 where you worked and the premises where this military unit was were

Page 7276

1 separated by a kind of panel, so that it was actually -- you were not in

2 the same room. Is that correct?

3 A. Yes, yes [as interpreted].

4 MR. ZIVANOVIC: He said "no," but it was translated as "yes."

5 JUDGE AGIUS: I can't confirm either way. What was your answer to

6 Mr. Zivanovic's question?

7 THE WITNESS: [No interpretation]

8 JUDGE AGIUS: So the transcript is accordingly corrected. Thank

9 you for your cooperation, both of you.

10 MR. ZIVANOVIC: [Interpretation]

11 Q. To clarify this, does that mean that the rooms where you worked,

12 it was possible to enter directly into the rooms of this military unit

13 that was at the same facility? Is that correct?

14 A. Yes.

15 Q. Thank you.

16 MR. ZIVANOVIC: There is no interpretation.

17 JUDGE AGIUS: Yes. Again, I just refer to the part of the

18 transcript that starts on line 17 of the previous page, and ending with my

19 intervention, line 22. Unfortunately, the most important part of the

20 whole conversation; namely, the witness's reiteration that he had answered

21 in the negative to your question before, again, does not show up.

22 So for the record, the witness had answered "No" to your question.

23 Thank you. And I thank Judge Prost for drawing my attention to it.

24 MR. ZIVANOVIC: [Interpretation]

25 Q. You told us that amongst other things, one of your tasks was to

Page 7277

1 record these conversations into the computer. Is that correct?

2 A. Yes.

3 Q. And I see from your statement that you entered the dates manually

4 when you did that?

5 A. Yes.

6 THE INTERPRETER: Microphone.

7 MR. ZIVANOVIC: [Interpretation]

8 Q. I also see from your statement that each conversation had its

9 serial number, so I am asking you now if this serial number was assigned

10 automatically by the computer, it was programmed to add it automatically,

11 or the serial number was entered manually, too?

12 A. We entered the ordinal number, actually, not the serial number,

13 manually.

14 Q. Thank you. You also explained that sometimes you would put into

15 your reports what you received from the listeners belonging to the Bosnian

16 Muslim army. Is that correct?

17 A. Yes.

18 Q. Can you please tell us what form were these reports received in?

19 A. You mean whether it was text or whether it was a kind of recording

20 or other kind of entry?

21 Q. Yes. How did you receive these reports in order to be able to

22 enter them into the computer?

23 A. We did that, we received the text on diskettes, the old-fashioned

24 diskettes used by 286 computers. I don't know how many inches they are

25 now.

Page 7278

1 Q. Were they encoded?

2 A. When we received them, they were not protected; when we received

3 them from them.

4 Q. Do you know if you received the texts before they were sent off,

5 or did you receive them after they had already been sent off to their

6 command?

7 A. I don't know that. I really couldn't say. If something was very

8 urgent to them, they would probably send it off first and then give it to

9 us.

10 Q. In any case, you received texts on diskettes that were not coded?

11 A. Yes, that is correct.

12 Q. In your statement, you identified a number of conversations where

13 there was a mistake in the date. You recall that in your statement to the

14 Prosecution?

15 A. Yes, yes.

16 Q. I would like to show you a specific transcribed conversation that

17 you had. It is on the Prosecutor's list, 1190.

18 THE REGISTRAR: Could the counsel please specify if it is 1190A or

19 C, please.

20 MR. ZIVANOVIC: Just a moment. [Interpretation] I have 1190. I

21 don't have anything else on this list.

22 JUDGE AGIUS: What's the problem, Madam Registrar? I think

23 Mr. Zivanovic, if he is going to show it to the witness, we need the

24 Bosnian or Serbo-Croat one.

25 MR. THAYER: Mr. President, the B/C/S version is 1190C.

Page 7279

1 JUDGE AGIUS: Do you have it, Madam Registrar? It's not in the

2 system, so I think we need to find a hard copy of it and put it on the


4 Yes, Madam Usher, could you kindly assist? And it's only the top.

5 Yes, yes. The part on the top, at the top. Yes, stop there, and this.

6 Yes, Mr. Thayer.

7 MR. THAYER: Your Honour, the 1190C is a typo; that should be

8 1190B. That is in e-court.

9 JUDGE AGIUS: Thank you.

10 Are you ready with your question? Can we proceed, Mr. Zivanovic?

11 MR. ZIVANOVIC: [Interpretation]

12 Q. Do you recall this conversation that you see on the monitor here?

13 A. You mean the first one or the one underneath?

14 Q. The first one.

15 A. I cannot recall it just by looking at it like this. I cannot

16 recall it by the content either. There is no way.

17 Q. Can you look at the bottom of the document to see if it's your

18 mark there at the bottom?

19 A. Yes, yes, yes.

20 JUDGE AGIUS: Madam Registrar, I just want to make sure that this

21 is not being broadcast.

22 THE REGISTRAR: It is not being broadcasted.

23 JUDGE AGIUS: All right. Thank you.

24 MR. ZIVANOVIC: [Interpretation]

25 Q. Can you please tell me, if you can please tell me, since this is

Page 7280

1 not a conversation that is transcribed word for word, so it is not the

2 whole text of the conversation, this is just a summary of the

3 conversation?

4 A. You mean the one at the top? Can you please scroll up again, so I

5 can see it?

6 Q. I am only asking you about the first intercept; the others are not

7 the topic of this cross-examination.

8 A. Yes, yes. And it is written, "We have learned the following

9 information from the conversation."

10 Q. And, now, can you tell me here in parentheses, there are the

11 following words, "Command in Vlasenica." Are those words actually words

12 spoken by the interlocutors, or is that your conclusion?

13 A. The words spoken by the interlocutors because at the top it says,

14 "We learned the following information from the conversation." One of

15 those pieces of information is mentioned, so this is the information we

16 learned from the conversation. We noted down the information that we

17 learned from the conversation.

18 Q. Can you please tell me why you put this in parentheses?

19 A. Well, you could separate it with commas, you could use

20 parentheses, you could use slashes. It's just for the sentence to make

21 sense. There is no particular reason.

22 Q. Are you trying to say that one of the speakers said that the

23 secret name "Zlatar" indicates the command in Vlasenica and that you heard

24 that?

25 A. Well, I -- I cannot remember word for word what was said; but for

Page 7281

1 sake of clarification, all of these routes, it's not the way you think and

2 assume that we just worked off the top of our heads. We had diaries where

3 we recorded the routes, we would survey electronically those routes, and

4 we would write down all the information that was of interest in relation

5 to a specific route. If we said that Zlatar was the command in Vlasenica

6 in the diary, then we acquired this information that the security chief at

7 Zlatar was Lieutenant-Colonel Popovic; that would be that.

8 Q. I'm only asking you about --

9 JUDGE AGIUS: We'll have to take this up again after the break.

10 We'll have a 25-minute break starting from now. Thank you.

11 --- Recess taken at 10.31 a.m.

12 --- On resuming at 11.01 a.m.

13 JUDGE AGIUS: Yes, Mr. Zivanovic.

14 MR. ZIVANOVIC: [Interpretation] Thank you, Your Honour.

15 Q. Witness, let me remind you, you answered my question by saying

16 that you certainly didn't write this down without any basis, but rather

17 that in various notes and diaries you had various names. I just wish to

18 ask you this: Whether this statement of yours about the command being in

19 Vlasenica, was it something that came from your previous notes or from the

20 content on the conversation between these two persons?

21 A. Most likely, this was previous knowledge that we had.

22 JUDGE AGIUS: Actually, one can rephrase the question in a

23 different manner.

24 Was this the first time, as far as you are concerned, that you

25 heard of the name "Zlatar," or had you heard of the word "Zlatar" before,

Page 7282

1 and were you aware of its connotation, its meaning, since it was obviously

2 a code-name? Were you aware of the code-name significance of that word,

3 "Zlatar," before this particular intercept?

4 THE WITNESS: [Interpretation] Yes. Yes, I knew that. I can see

5 that based on the date. And we also had such information, as I've told

6 you, in our diaries.

7 JUDGE AGIUS: Thank you.

8 I think that's clear enough, Mr. Zivanovic.

9 MR. ZIVANOVIC: [Interpretation]

10 Q. Now, tell me, if that is the case, did your immediate command know

11 what the term "Zlatar" stood for?

12 A. They definitely did know. Because all information we received, we

13 thought it wouldn't hurt if we put additional information in parentheses.

14 Q. Thank you. Did you do this in other conversations as well, or was

15 it done on in this particular conversation?

16 A. You mean what exactly?

17 Q. I mean the words in parentheses, only that. What it says in

18 parentheses, "Command in Vlasenica."

19 A. Yes. As I've told you earlier, we put information in parentheses

20 that was supposed to clarify something in a conversation.

21 Q. In other words, you thought it was necessary to note down for your

22 superiors that the term "Zlatar" stood for the Command in Vlasenica?

23 A. This is something that was routinely written down. I don't know

24 whether I thought it was necessary. I simply had that information, and I

25 put it in parentheses. I can't remember that it was precisely for this

Page 7283

1 reason or for that reason. We generally had that information for some

2 time before this conversation.

3 Q. Thank you. Now, this term, "Command in Vlasenica," was there just

4 one command headquarters, to your knowledge?

5 A. I can't remember now exactly. If we wrote this down, then there

6 was command headquarters there, because we wrote down the information that

7 was in our possession, and I can't remember that now. But since I wrote

8 this down then, yes, there was such a headquarters there and we knew about

9 it.

10 Q. Thank you for your answer, but it seems that you didn't quite

11 understand my question. I didn't ask you whether there was command

12 headquarters in Vlasenica; I asked you whether there was just one in

13 Vlasenica. Did you know about that?

14 A. I don't know whether there were several headquarters in Vlasenica.

15 I don't know about that.

16 Q. Thank you. Now, would you look at the second paragraph, please.

17 It says there, "Secret code for Rudo is Cetinar" Was it something that

18 was uttered by the speakers in this conversation, or was it something you

19 arrived at by way of inference?

20 A. Most likely, it says here as a new piece of information. This is

21 how it's presented, that the secret code-name for Rudo is Cetinar, and

22 then the rest of the sentence. I'm sure this is what we learned in this

23 conversation. We learned about the secret code.

24 Q. You are trying to say that one of the speakers said to the other

25 speaker or utter these words, that the secret name for Rudo is Cetinar?

Page 7284

1 A. Well, such things would happen. It's not like they never

2 happened. I am sure that it came from the speakers.

3 Q. Finally, here in the continuation, it says, that through Palma,

4 and in parentheses, it says, "Zvornik." Was this again uttered in the

5 conversation that Palma stands for Zvornik, or is this something you knew

6 prior to this and then you put this in this notation.

7 A. This is based on our old information. What we learned in this

8 conversation that was new is that they inquired about Popovic; and as for

9 Palma, we knew about that earlier than this conversation.

10 Q. When you say you that knew about Palma, are you trying to say that

11 the secret code-name for Zvornik was Palma?

12 A. Yes, the secret code-name for the route, for radio relay route,

13 yes. The secret name for this radio relay route was this. This was the

14 route used by Zvornik. I'm sorry. I got it all muddled up a bit.

15 Q. You mean the town of Zvornik?

16 A. Not the town, but the location, the location where the command

17 headquarters in Zvornik was located.

18 Q. Thank you.

19 JUDGE AGIUS: I thank you, Mr. Zivanovic.

20 Defence team for Mr. Beara. Yes, go ahead.

21 Cross-examination by Mr. Mrkic:

22 MR. MRKIC: [Interpretation] By your leave, I would like to put

23 several questions to the witness.

24 Q. Good morning, sir.

25 A. Good morning.

Page 7285

1 Q. In the statement you gave to the OTP, you wrote down that you

2 found employment when one of your friends, whose name I'm not going to

3 mention, interceded on your behalf. I would like it know whether before

4 you started working, you went to some sort of training, any kind of

5 training?

6 A. No. Just a second to let me clarify. Are you referring to these

7 particular assignments and duties?

8 Q. Any type of training regardless of whether it was for this type of

9 work or some other type of work, any kind of training?

10 A. What do you mean "any kind of training?" Do you see as training

11 the fact that I completed secondary school for electrical engineering, or

12 do you think that being a member of ham operators' club since 1978

13 represents training as well? Are you referring to these particular types

14 of duties that I had at the northern location?

15 Q. Precisely that.

16 A. No, I had no training prior to that.

17 MR. MRKIC: [Interpretation] Could we show the witness 1380? A is

18 the English version, and B is the Serbian version, so could we have it on

19 the split screen, please. This is the 65 ter number that I gave you.

20 Q. When answering questions put by my colleagues, you said that you

21 drew conclusions on the basis of analyses. My first question pertaining

22 to that is this: Did other operators employed in those locations also

23 conduct these types of analyses?

24 A. Yes. As I've told you, the main analysis, which was the first one

25 to be done, is to decide what was important and what wasn't.

Page 7286

1 Q. If you look at the conversation, which is shown on the screen now,

2 tell me, please, is there a tape with this conversation? Did anybody from

3 the OTP, when proofing you for this testimony, give you a tape or play you

4 a tape?

5 A. I have to look at this first. Could you please scroll down so

6 that I can see the rest of it? Yes, yes. I didn't listen to the

7 conversation, but I read this now.

8 Q. Since you've read it, read the conversation, my question will have

9 to do with the mark entered at the right side at the top. In the English

10 version, it says only "state secret;" but in the Serbian version, in

11 addition to "state secret," it also says "very urgent."

12 MR. MRKIC: [Interpretation] Could you please scroll up?

13 A. Yes, I can see that.

14 Q. You basically recorded this conversation, at least judging by the

15 code given here. Now I'd like to know whether, after analysing this

16 conversation, you concluded that this was something that could be termed a

17 state secret and was very urgent, or whether you drew this conclusion on

18 the basis of some other parameters; and if so, which ones?

19 A. Every document we sent was a state secret, and this is what should

20 be -- should have been placed on every document. As for "very urgent," we

21 used that to denote the urgent nature of a document. And since this

22 document has a certain content, has a certain urgency, we sent it with

23 this mark, but it's true that it was us who conducted the analysis of

24 urgency of a certain document.

25 Q. I went over all intercepts in this notebook, and it doesn't say

Page 7287

1 "state secret" on any other conversation except for this one. So none

2 are denoted as "state secret" except for this one, and then there are some

3 other conversations which have "very urgent," which are marked as very

4 urgent. So I wouldn't agree with you that every document said "state

5 secret." But now that you have read this conversation, I'd like to ask

6 you, on the basis of what did you establish that speakers in this

7 conversation, Ljubisa Beara and Stevo from the army Republika Srpska, as

8 you say, Main Staff, on the other side. Would you please read this

9 conversation and tell me on the basis of what did you identify them as

10 such.

11 A. First of all, you have the identification of Stevo himself, who

12 addresses Ljubo by his first name.

13 Q. If I may interrupt you there, Stevo identifies Ljubo by his first

14 name?

15 A. Yes.

16 Q. Would you please tell me where it says "Beara" then?

17 A. What I said earlier, that the conversations that preceded

18 intercepts, when they were making the connection, I explained that process

19 earlier to you. And I explained why we were sure that it's precisely

20 these particular speakers. Normally, at the beginning of a conversation

21 when the link was made, when they were connected, their subordinates would

22 give certain identifications and then they would connect the senior

23 officers, and then the intercept that follows would begin.

24 Q. I'm going to try to prove to you that that wasn't on the basis of

25 that, in this particular document, that you did it.

Page 7288

1 MR. MRKIC: [Interpretation] Now, could we please see page 2 of

2 this document?

3 JUDGE AGIUS: Yes, Mr. Meek.

4 MR. MEEK: Your Honour, I don't know. I'm sorry to object. At

5 line 41, 1, we've stopped getting LiveNote, and Ms. Condon as well.

6 Nobody has LiveNote.

7 JUDGE AGIUS: We do. So we need to address that. Thank you for

8 pointing that out to us, Mr. Meek, because we wouldn't have been able to

9 be aware of it. So I think we need to stop here for the time being.

10 Mr. Zivanovic, do you -- do you have the LiveNote transcript or

11 not.

12 MR. ZIVANOVIC: [Microphone not activated]

13 MS. CONDON: Your Honour, we do in the centre, but my individual

14 terminal is gone.

15 JUDGE AGIUS: I see. All right. Do you think we could follow --

16 do you think we can follow -- we can proceed by following the transcript

17 mode on the main monitor or not?

18 MR. MEEK: That's possible, but right now we have two documents on

19 the centre screen. So that causes --

20 JUDGE AGIUS: I understand, Mr. Meek. We will address the problem

21 straight away.

22 In the meantime, Madam Fauveau, the Registrar has communicated to

23 us that it is possible to transfer the 26th February sitting from the

24 morning to the afternoon, as per our recommendation to them. So please

25 take note of it, all of you. On that day, we will be sitting in the

Page 7289

1 afternoon rather than the morning.

2 Yes, Madam Fauveau.

3 MS. FAUVEAU: [Interpretation] Thank you very much, Mr. President.

4 JUDGE AGIUS: Thank you. And in the meantime, while we are

5 waiting for this to be adjusted, Mr. Bourgon and the others, I had asked

6 you, if possible, to come back with your position on the Prosecution --

7 last Friday's Prosecution motion to amend the 65 ter exhibit list, only

8 insofar as it relates to this witness. Yes, Mr. Bourgon.

9 MR. BOURGON: Thank you, Mr. President. We are of the view that

10 we would like to respond to both for Witness 145 as well as for Witness

11 105 together, because they were put in the same motion. And we are ready

12 to do so, but there is an argument I would like to make in this respect,

13 Mr. President, after this witness testifies. Thank you, Mr. President.

14 JUDGE AGIUS: All right. Thank you.

15 Now, is it scrolling now or -- Mr. Meek?

16 MR. MEEK: Your Honour, I do have LiveNote now, and it started

17 at -- well, with Ms. Fauveau saying, "Thank you" at page 1. So,

18 apparently, the LiveNote is working.

19 JUDGE AGIUS: All right. And Ms. Condon.

20 MS. CONDON: Your Honour, I can follow with the monitor in the

21 centre. Thank you.

22 JUDGE AGIUS: I appreciate that. I thank you so much for your

23 cooperation.

24 So Mr. Mrkic, I think you can continue with your questions, with

25 your cross-examination.

Page 7290

1 MR. MRKIC: [Interpretation] Can we look at page 2 of both versions

2 of this document, please?

3 JUDGE AGIUS: Witness, you only need to bother about the first

4 half of that page in the B/C/S version, so we don't need to read the

5 bottom part or the second half.

6 MR. MRKIC: [Interpretation]

7 Q. Can you please read the part beginning with the word, "They are

8 taking." Do you see that?

9 A. Yes, yes.

10 Q. Can you please read that section aloud so that we can clarify

11 that?

12 A. To read that aloud, "They're taking their names but that doesn't

13 matter. We can, you know how, request that the ICRC ..." --

14 Q. Can I just interrupt you there? Can you please clarify what

15 "ICRC" is?

16 A. International Committee of the Red Cross. "... escort them to us

17 and they can be exchanged here as written in the contract. We had no

18 plans to kill them, the mother-fuckers, but to exchange them."

19 MR. MRKIC: [Interpretation] If we can now look at document 1381

20 on the 65 ter list. The English version is A, and the Serbian version is

21 B. It's a short conversation. The Serbian version does not correspond to

22 the -- yes. That's it.

23 Q. My question practically is the same as the one for the previous

24 conversation. Can you try or can you at least say that you -- can you say

25 that you can come to the same conclusion as in the previous case on the

Page 7291

1 basis of reading the conversation, that you -- that was how you identified

2 the speakers?

3 JUDGE AGIUS: Mr. Thayer.

4 MR. THAYER: Your Honour, the question as phrased contains an

5 assumption that is not made explicit in the question. I just ask that it

6 be rephrased because it's referring to something that's not specified at

7 all. He says, "Same conclusion as in the previous case on the basis of

8 reading the conversation." If we could just have some more clarity the on

9 the question, I think that would be more helpful. Thank you.

10 JUDGE AGIUS: I can rephrase it myself. Sticking to this

11 particular intercept, Witness. On what basis did you come to the

12 conclusion that again once more this was a conversation between Beara and

13 Stevo?

14 THE WITNESS: [Interpretation] Based on -- we wrote down here that

15 we registered, again, or recorded a conversation between Beara and Stevo.

16 Based on the previous communication, since it's been written here again,

17 it means another conversation by the same speakers. It's the same

18 channel. So, again, I don't want to repeat myself too much. But if I can

19 be specific, if we're talking about the previous conversation and then the

20 following conversation, it's very easy to identify the speakers by their

21 voice modulation; that can also be another reason. Right now I can't

22 recall whether this conversation was preceded again by them being

23 connected by their subordinates, who were listening to the conversation

24 and then who were connecting them.

25 MR. MRKIC: [Interpretation]

Page 7292

1 Q. If I understood you correctly now, you are leaving open the

2 possibility that while analysing the previous conversation and comparing

3 the frequencies and the channel of that conversation and the topic of that

4 conversation, you came to the conclusion that it was Ljubisa Beara?

5 A. Well, amongst other things, there are more parameters and

6 indicators that would lead us to be sure that they were the same speakers.

7 Q. Could you please read this intercept aloud, so that we can clarify

8 some things?

9 A. The complete conversation? "Hello, here I am. I've just called

10 the boss. You have to talk over there and I will send a request to those

11 up there in the ministry, and you can draft a request and hand it over to

12 them on the spot. Only in the morning, I can't do anything now. In the

13 morning, yes. For those and all others who are and you explain why, I'll

14 mention the signed agreement this and that, and I will send it to them in

15 the morning.

16 "But who should I deliver it to? To the one over there. Well, I

17 don't know at all whether I should go, because this one says, 'Colleague

18 you came for nothing. I can neither help you nor can you solve it because

19 the order'"-- then I cannot see to the extreme right whether it says "is",

20 "as such." From whom? He says, "from the highest. " And, you know, I

21 don't see anything behind the comma, probably says, "their highest is

22 okay."

23 "I'll ask them tomorrow to give us a list of those who were

24 caught, and to turn them over according to the list with UNPROFOR escort

25 and whoever else, because we need them to exchange for captured Serbs. Is

Page 7293

1 that right? Okay."

2 Q. You said the UNHCR, so can you please tell us what the

3 abbreviation is?

4 A. I don't know each word literally, but it's the organisation of the

5 United Nations that was in the region and that cared for the prisoners. I

6 cannot be sure exactly what the abbreviation stands for, but the idea was

7 for them to assist; that detained persons be freed or released or

8 exchanged.

9 THE INTERPRETER: Interpreters note: There is a discrepancy in

10 the original where it does say the "UNHCR" and the translation which says


12 MR. MRKIC: [Interpretation]

13 Q. We would like to show you a document now.

14 JUDGE AGIUS: I don't know, Mr. Mrkic whether you were following,

15 obviously you couldn't. But our attention has been drawn by the

16 interpreters that there is a discrepancy between what appears in the

17 fourth -- fifth line before the bottom in the B/C/S version, which is

18 "UNHCR," and what appears in the fourth line from the bottom in the

19 English version, which is "UNPROFOR." So the two are not the same.

20 I don't think it's going to make much difference in any case

21 because the question related to UNHCR in any case. But for the record, we

22 need to point out that the English translation is not -- varies from the

23 B/C/S text. And I thank the interpreters for pointing that out.

24 MR. MRKIC: [Interpretation] Can we now look at document 1378,

25 that's the 65 ter list. The English version is A, and the Serbian version

Page 7294

1 is B.

2 Q. Could you please read this intercept. If you read it, you will

3 see that actually that's an introduction -- actually, rather, can you try

4 to read it and then I will see if you agree with me that this conversation

5 is actually the introduction to the conversations that we processed

6 before, from which it is evident that Stevo and Ljubisa Beara are the

7 speakers.

8 A. Shall we continue?

9 MR. MRKIC: [Interpretation] Can we look at page 2 of the Serbian

10 version, please?

11 Q. Do you see anywhere here, sir, Ljubisa Beara introducing himself,

12 and do you see that Stevo from the Main Staff of the army of Republika

13 Srpska directed him to Jeftic? Do you see that?

14 A. Yes, yes.

15 Q. Since you've read all three intercepts, can you agree with me that

16 the intercepts actually comprise one whole? By entity, I mean one

17 processed topic.

18 A. Yes, yes. Well, we know what it's about.

19 Q. Since you know what this about, then can you please tell us what

20 it's about?

21 A. From the contents, you can see that it's pertaining to people who

22 are escaping through Jezero, or actually from the lake or reservoir

23 supplying the hydroelectric power station in Bajna Basta called called

24 Perusac. And they're trying to escape to Serbia from Bosnia. They're

25 fleeing the war, actually. Let me put it that way.

Page 7295

1 Q. Would I be right in saying that the topic here is the exchange of

2 prisoners of war with the assistance of international organisations, such

3 as ICRC and UNHCR?

4 A. Among other things, that's the topic as well. So this is the

5 topic, and the other thing is the topic. I will agree with you that this

6 is the topic discussed as well.

7 Q. Would you agree with me that this has to do with the exchange of

8 prisoners of war, pursuant to lists that were supposed to be drawn by the

9 ICRC with the assistance of the UNHCR?

10 A. That's how it should have been.

11 MR. MRKIC: [Interpretation] I have no further questions.

12 JUDGE AGIUS: Yes. I thank you, Mr. Mrkic. Madam Nikolic.

13 MS. NIKOLIC: [Interpretation] Thank you, Your Honours. As most of

14 the questions have been put, I have no questions for this Witness.

15 JUDGE AGIUS: I thank you.

16 Mr. Stojanovic.

17 MR. STOJANOVIC: [Interpretation] Your Honours, could we see in

18 e-court Exhibit 1158A from the 65 ter list. A is the English version, and

19 B is the B/C/S version. We would like to be able to follow this

20 simultaneously, and I will have only a couple of questions to the witness.

21 Could we scroll down, the B/C/S version, all the way down to see -- yes,

22 that's the conversation. Thank you.

23 Cross-examination by Mr. Stojanovic:

24 Q. [Interpretation] Sir, do you see this intercept?

25 A. Can you turn off your mic, please?

Page 7296

1 Q. Do you see the B/C/S version?

2 A. Would you please turn off your microphone. Yes, I can see the

3 intercept. Would you give me some time, please, to go over it.

4 I have read it, and as I said the other time, I even remember some

5 of the details from this conversation.

6 Q. Will you agree with me that this is the intercept that you

7 recorded yourself; you didn't receive it from the BH Army unit, which was

8 at the same location?

9 A. Yes.

10 Q. Now, let us turn to a portion of this conversation where the

11 speaker marked with the letter M says - this is somewhere two-thirds into

12 the conversation - he says, "We have to inform Mane up there." It says

13 that "Mane is an employee of MUP, most likely an official." Do you see

14 that portion?

15 A. Yes, yes.

16 Q. Would you please read the next question and answer, and then

17 answer my question. And my question is: Did you write down this notation

18 in parentheses that Mane is an employee of MUP?

19 A. Yes.

20 Q. Based on what did you note down that "Mane is an employee of MUP,

21 most likely a high official?"

22 A. The fact that he was a MUP employee came from the following of

23 what Milenko Zivanovic said, because he himself said that this had to do

24 with the Public Security Centre in Zvornik. Now, as to why I wrote this

25 down that he was most likely a high official, is that I concluded that he

Page 7297

1 wasn't going to inform somebody who was not important; a beat officer,

2 say.

3 Q. In the next question and answer, it says the person marked with M,

4 when he says, "Who should I inform?" And the answer is, "The Public

5 Security Centre in Zvornik." Based on which you concluded, as you said,

6 that Mane was a MUP employee and most likely a high official. My question

7 is: Was your conclusion that Mane was an employee of Public Security

8 Centre of Zvornik?

9 A. Yes, it's based on the conversation. You can see that. It says

10 there that Mane has police in Konjevic Polje and in Zvornik.

11 Q. Thank you. That was the objective. There is another man here

12 also named Mane, so I wanted to round this off. And to conclude, in the

13 penultimate answer, once again, the person marked with M says, "Mane needs

14 to do this for you because Mane has police in Konjevic Polje and Zvornik".

15 Can we conclude that these were employees of police of the Public

16 Security Centre, and that Mane was a high official who had power over them

17 and could issue an order.

18 A. Yes. Yes, you know what they say.

19 JUDGE AGIUS: I think you shouldn't belabour this any further. I

20 think he's told you, Mr. Stojanovic, on what basis he came to the

21 conclusion as to who Mane was and he referred to this last paragraph

22 before you even asked.

23 MR. STOJANOVIC: [Interpretation] Yes, Your Honours. There was

24 just supplemental information here that he had police in Konjevic Polje;

25 and since the answer to that was yes, I have no further questions for this

Page 7298

1 witness.

2 JUDGE AGIUS: I thank you.

3 Madam Fauveau.

4 Cross-examination by Ms. Fauveau:

5 Q. [Interpretation] Sir, since you have this document in front of

6 you, I would like to ask you how you could conclude that one of the

7 speakers was General Zivanovic.

8 A. I will answer in the same way as I did earlier. Milenko

9 Zivanovic, just as other senior officers of the then army of Republika

10 Srpska, did not call the other person, did not dial the other person

11 himself. They would have other people do that for them.

12 Well, all right. In this case, the Major identifies himself, and

13 I'm sure that the identification was made after their subordinates had

14 talked to each other. As I've already explained to you, this is how they

15 worked.

16 Q. So if I understand you properly, you say that in one part of the

17 conversation that was not recorded or at least transcribed, somebody

18 mentioned the name of General Ivanovic [as interpreted]. Is that so?

19 A. I have said this to you. And what I said earlier, the telephones

20 that were operational in this route, senior officials never directly

21 answered the phone. No. Their subordinates would answer the phone and

22 then they would be asked to put a certain person on the line, and we

23 didn't note this down. We didn't record it, because sometimes these

24 conversations would take a long time.

25 MS. FAUVEAU: [Interpretation] Mr. President, I'd like to correct

Page 7299

1 the transcript, line 16. It's General Zivanovic, not Ivanovic.

2 JUDGE AGIUS: I thank you, Madam Fauveau, for that. It will be

3 accordingly corrected.

4 MS. FAUVEAU: [Interpretation]

5 Q. Sir, just above the transcript of this conversation you said that

6 this was General Zivanovic. You also noted that he was the commander of

7 the Drina Corps. Earlier on you said that you remembered bits of the

8 conversation. Do you remember whether, in this conversation, you heard

9 that General Zivanovic was the commander of the Drina Corps or is this an

10 assumption that you made?

11 A. This was not an assumption because General Milenko Zivanovic was

12 the commander of the Drina Corps and we knew about that.

13 MS. FAUVEAU: [Interpretation] Can the witness be shown page 1 of

14 this document in B/C/S?

15 Q. Sir, can you see the date? The date is the 14th of July, 1995.

16 Is that correct?

17 A. Yes.

18 Q. As to the conversation in which allegedly General Zivanovic

19 participated was recorded on that very date. Is that so?

20 A. If the date is not indicated in the explanations, all of the

21 conversations that follow below were made on that date. I didn't pay

22 attention to that earlier. I didn't pay attention to whether there was a

23 date or not.

24 Q. You are absolutely sure that on the 14th of July, 1995, General

25 Zivanovic was the Drina Corps commander on the basis of the conversation

Page 7300

1 you were able to hear?

2 A. No one did not hear that in the conversation. However, based on

3 the information that we had at the time, most likely it was recorded

4 then -- it was, rather, noted down then that he was the commander of the

5 Drina Corps.

6 MS. FAUVEAU: [Interpretation] Can the witness be shown Exhibit

7 P2377; A for the English version and B for the B/C/S version. I'm indeed

8 interested in the first conversation that was not translated into

9 English. It's conversation 737 or 537. I don't think it exists in

10 English.

11 Q. Sir, can you please have a look at this conversation that was

12 recorded on the 11th of July, 1995? I'll give you enough time to read it.

13 JUDGE AGIUS: While the witness is reading the text, if questions

14 are -- on the substance of this intercept are going to be made, on the

15 assumption that it will also be tendered, we will need to have an English

16 translation of it. Thank you.

17 When you have finished reading it, Witness, please tell us. Okay.

18 The witness is completed.

19 Madam Fauveau, you may proceed.

20 MS. FAUVEAU: [Interpretation]

21 Q. Sir, is it fair to say that in this conversation you heard that

22 the two Dutch F-16 planes by mistake launched two bombs on the Muslims

23 column?

24 A. Yes, yes. That was the content of the conversation.

25 Q. Earlier on you stated on page 23 of today's transcript, that there

Page 7301

1 were often mistakes, typos, as to dates in the work you did. Do you agree

2 that today it's very hard to say which of the conversation is the fair

3 translation of what you heard, what is the -- or what conversation

4 contains mistakes?

5 JUDGE AGIUS: I feel very uncomfortable with the way the question

6 has been phrased, at least basing myself on the interpretation. So if you

7 could rephrase it again, I think it's not clear enough as it has been put

8 to us in English anyway.

9 MS. FAUVEAU: [Interpretation] Yes, yes. I'm going to reformulate.

10 It's not the interpreter's fault; I think it is mine.

11 Q. Previously, you stated that there were mistakes made, errors, as

12 to dates or typos, that sort of thing. Would you agree to say that today,

13 11 years or nearly 12 years after this conversation was recorded and

14 transcribed, it is very hard to say which are the conversations where

15 there are no errors to make a distinction between those and the

16 conversation in which there are errors?

17 A. I didn't say earlier that we made mistakes frequently; and as for

18 the rest, yes, I would agree with you. It would be very difficult because

19 one would need now to listen to all of the tapes and check to see perhaps

20 there were some typing errors and erroneous dates, but I would fully agree

21 with you that this is something that it would be very, very difficult to

22 establish now. But, yes, it's possible, one could go over those

23 conversations again.

24 Q. [Previous translation continues] ... it is possible to listen to

25 the conversations again. So according to you, it is possible to establish

Page 7302

1 which of the conversations are perfectly correct and without mistakes by

2 listening to the tapes. Is that so?

3 JUDGE AGIUS: Yes, Mr. Thayer.

4 MR. THAYER: Your Honour, my translation is missing the first part

5 of the answer [sic] at page 54, line 20, so there is no misunderstanding.

6 I don't know if that's the case with anybody else's.

7 JUDGE AGIUS: [Microphone not activated] What we have here is a

8 problem with -- if you look at line 21, you see that the previous

9 translation continues. So I take it that it should be read, but yes it's

10 possible one could go over these conversations again.

11 And line 21, "It is possible to listen to the conversations

12 again. So according to you, it is possible to establish which of the

13 conversations are perfectly correct and without mistakes by listening to

14 the tapes. Is that so?"

15 I think it's clear enough. I don't -- although there is this

16 indication that the previous translation continues, sort of indicating

17 that there is an interruption, I don't really think there is an

18 interruption. That's -- that's how I read it. If I am not correct,

19 please, I stand to be corrected.

20 Does my explanation satisfy you, Mr. Thayer, or not? If you think

21 there is still something missing, please speak out.

22 MR. THAYER: My only concern, Your Honour, is whether the question

23 as intended refers to tape recordings of all the conversations or just

24 some of the conversations. Because of that missing portion, I'm not sure

25 if that was expressed or intended or not.

Page 7303

1 There is an issue as to whether all of the conversation were

2 record or not or whether we have in our possession tape recordings of all

3 the conversations. I just didn't want that to be clear.

4 JUDGE AGIUS: I appreciate that.

5 Madam Fauveau, could you address that, please? Thank you.

6 MS. FAUVEAU: [Interpretation] Yes, of course, Mr. President.

7 Q. Sir, did you mean to say that indeed it is today possible to

8 establish the accuracy of the conversations only by listening to the tape

9 recordings?

10 A. As for the listening of the recordings, it is my belief that it is

11 possible to establish the accuracy of these conversations that were

12 transcribed. Yes, that can be established. As for the other things we

13 noted down, the information about the speakers, I don't know whether

14 recordings of that still exist. And it is possible that they exist, but

15 have not been transcribed.

16 JUDGE AGIUS: But the question, I don't think you address the most

17 important word or phrase in Madam Fauveau's question; namely, that the

18 only way, the only way of establishing the accuracy of the conversations

19 of the intercepts is by listening to tape recordings.

20 My question is: If there are no tape recordings but there are

21 records of intercepts, would it follow that the absence of tape recordings

22 one cannot establish the accuracy of those recorded intercepts?

23 THE WITNESS: [Interpretation] Yes, naturally, if we have the

24 recording.

25 JUDGE AGIUS: Yes. But if you don't have a recording, can you

Page 7304

1 still establish the accuracy of an intercept or not?

2 THE WITNESS: [Interpretation] It can be established if there is no

3 recording based on the events that transpired on the ground later on. I

4 think that all of us are aware of what happened afterwards. All of these

5 events that took place showed. When I said that it is impossible to

6 establish precisely, I was referring to mistakes in certain words, not to

7 the topic in general; the topic of the conversations.

8 JUDGE AGIUS: Thank you, Madam Fauveau.

9 MS. FAUVEAU: [Interpretation]

10 Q. Sir, I do understand that what you are refer to. But say if the

11 name of the speaker or the date is not accurate, would you agree with me

12 in saying that this could change the meaning of the conversations

13 totally -- of a conversation totally?

14 JUDGE AGIUS: I don't think we need the witness to affirm or deny

15 that. We all know it, Madam Fauveau.

16 MS. FAUVEAU: [Interpretation] Thank you very much, Witness. No

17 further questions.

18 JUDGE AGIUS: I thank you, Madam Fauveau.

19 The Pandurevic team had indicated that you have no

20 cross-examination, do you?

21 MR. SARAPA: We have no questions.

22 JUDGE AGIUS: We have covered everyone.

23 Is there re-examination, Mr. Thayer?

24 MR. THAYER: Your Honour, there is just very briefly.

25 JUDGE AGIUS: Go ahead.

Page 7305

1 Re-examination by Mr. Thayer:

2 Q. Good afternoon, sir.

3 A. Hello.

4 MR. THAYER: If we have P02377 displayed, I believe that is the

5 intercept dated July 11th, 1995, that my learned colleague, Madam Fauveau,

6 displayed a few moments ago.

7 Q. Sir, we don't an English translation available, so I just ask you

8 if you could read what the introductory portion of that intercept says

9 underneath where it says "Report Number 537."

10 A. Shall I read it out loud?

11 Q. If you would, please.

12 A. "On the said day following or monitoring the radio relay route

13 Pale, frequency 836, at 1555 hours, we registered the conversation between

14 journalist Bora, from the Serbska Vojska magazine and a certain journalist

15 Milan from Serbia. We heard only Bora whose interesting comments were as

16 follows."

17 Q. Thank you, sir. I just had one other question, and this came up

18 as a result of the question that the Honourable Judge Kwon had the other

19 day. You and I haven't had a chance to discuss this, so I am just going

20 to ask you whether you can describe for the Trial Chamber the method by

21 which your reports were physically transmitted to your command once they

22 were transcribed, encoded, and sent off.

23 And I understand that you were working with one agency, and there

24 were other agencies at your site; but if you could first speak to what

25 your agency's procedure was and, if you know, the procedure for the other

Page 7306

1 entities, if you could describe that as well. I don't want to you

2 speculate. But if you have that knowledge, could you share that with the

3 Trial Chamber while you are here, please.

4 JUDGE AGIUS: Yes, Mr. Bourgon, and then, Madam Fauveau.

5 MR. BOURGON: Thank you, Mr. President. Can my colleague give us

6 a reference as to when this question was asked by Judge Kwon, because I am

7 not sure that exactly this question refers to something that was

8 mentioned. I think it goes beyond the scope of what was mentioned in the

9 question. Thank you.

10 JUDGE AGIUS: Madam Fauveau.

11 MS. FAUVEAU: [Interpretation] I fully associate myself with what

12 Mr. Bourgon has just said.

13 JUDGE AGIUS: Mr. Meek.

14 MR. MEEK: We also believe that our colleagues are correct in this

15 objection.

16 JUDGE AGIUS: I'm almost tempted to ask Judge Kwon. But...

17 MR. THAYER: Mr. President, I have the cite here. It is on page

18 7231. The question from -- from His Honour Judge Kwon is: "I have a

19 brief question to the witness. I'm not sure whether this is an

20 appropriate question to put to you," and this was the prior witness, "but

21 I wonder if you know by any chance the method how typed versions or

22 encrypted versions of the intercepts were sent to Tusla or command?"

23 So I am just using the opportunity now that we have go somebody

24 here, so we don't need to possibly call somebody back if he has the answer

25 to ask the question.

Page 7307

1 JUDGE KWON: The question may be why you did not deal with it

2 during your direct; then maybe the question, the Defence may put.

3 MR. MEEK: Yes. It is beyond the scope of the direct, and also he

4 is talking now about a witness before this witness, so he misrepresented.

5 He said it was this witness you asked a question to a week ago Friday.

6 MR. THAYER: If it please the Court, we're simply trying to assist

7 the Court with a witness who is here. If the Court wishes not to listen

8 to the testimony, then we can call it a day. I just thought if he can

9 help.

10 [Trial Chamber confers]

11 JUDGE KWON: I appreciate Mr. Thayer's assistance. He meant to

12 assist the Chamber, so I would like to put that question as a Chamber's

13 question.

14 Mr. Witness, could you answer that question put by Mr. Thayer as

15 to the method how the typed, encrypted version actually sent to your

16 headquarters?

17 THE WITNESS: [Interpretation] Yes, I can answer that. After

18 entering the transcripts into the computer, the conversations or the

19 material was encrypted; then it was sent to our, as you call it, command.

20 It was a headquarters or a seat, but let's call it a command. In two

21 ways, we used to send it. If the telephone lines were all right with the

22 seat, we would then do it through a modem connection. After encryption

23 the communication was sent via a special programme for communication

24 between two computers. It was sent to our seat.

25 The second way was if we did not have a telephone connection,

Page 7308

1 because of various electricity cuts - sometimes the telecom or the PTT

2 system at the time would be inoperative - then we would use the packet

3 radio connection. Do I need to explain the Paket radio? I can do that,

4 but in short it's the same way of communication, but it proceeds via radio

5 equipment.

6 JUDGE KWON: Thank you. The first method would be something

7 similar to a secret e-mail, if you can say so.

8 THE WITNESS: [Interpretation] Well, no, the first method was a

9 computer modem connection. It's used today as well.

10 JUDGE AGIUS: The question was whether it was a secure question or

11 not, I suppose, what Judge Kwon wanted to ask you.

12 THE WITNESS: [Interpretation] Yes, yes, of course. If you are

13 thinking of the security of the information, of the data, yes, I emphasise

14 that. The data was encrypted; before that it was protected by a certain

15 data encryption programme.

16 JUDGE KWON: Thank you.

17 JUDGE AGIUS: Do you have any further questions on redirect,

18 Mr. Thayer?

19 MR. THAYER: No, Mr. President, thank you.

20 JUDGE AGIUS: Okay. Thank you. We don't have any further

21 questions for you, sir, which means you are free to go. Before you leave

22 the courtroom, however, I wish to thank you on behalf of the Tribunal and

23 my colleagues for having come over to give evidence in this case. You

24 will receive all the assistance you require to facilitate your return back

25 home. And before you leave we wish you a safe journey.

Page 7309

1 THE WITNESS: [Interpretation] Thank you, and best wishes to you

2 also. Thank you for inviting me and for making it possible for me to

3 present my view and to contribute to the struggle to prove the truth.

4 [The witness withdrew]

5 JUDGE AGIUS: So we come to the documents. I think we can draw

6 the curtains up again.

7 Yes, Mr. Josse.

8 MR. JOSSE: Your Honour, logically, in my submission, the Court

9 should hear Mr. Bourgon's response to the Prosecution motion.

10 JUDGE AGIUS: I'm coming to that.

11 MR. JOSSE: Because we do oppose a number of these exhibits, but

12 for different reasons to those contained in the motion, so to speak. I

13 haven't made that very clear. It will become clear in a moment after my

14 learned friend has addressed the Chamber.

15 JUDGE AGIUS: I take your advice, Mr. Josse, and we invite

16 Mr. Bourgon to address the Chamber.

17 MR. BOURGON: Thank you, Mr. President. Mr. President, in light

18 of the rulings issued thus far by the Trial Chamber in respect of

19 Prosecution requests to amend its Rule 65 ter list of proposed exhibits

20 and with a view to protecting the rights of the accused for appeal

21 purposes, we oppose the Prosecution motion, and I will endeavour to

22 explain why in as few words as possible.

23 Mr. President, the basic argument that is always put forward by

24 the Prosecution in such requests is that the material has been in the

25 possession of the Defence for some time and that, therefore, for this

Page 7310

1 reason there would be no prejudice. The fact of the matter is,

2 Mr. President, that on the EDS, the Electronic Disclosure System, there

3 are more than one million pages that have been disclosed to the Defence on

4 that system.

5 If we compare this with the Rule 65 ter list of proposed exhibits,

6 it contains 2.000 exhibits and some 10.000 pages of material. That

7 leaves, Mr. President, some 990.000 pages which the Prosecution has made

8 available to the Defence, but which the Prosecution has expressly did not

9 include as part of its case against the accused.

10 I say "made available," Mr. President, because the word

11 "disclosure" simply cannot be used here. These 990.000 pages which were

12 placed on the EDS and which was given to the Defence along with lists of

13 generic nature without any specific references to either witnesses or

14 issues in the indictment. What we respectfully submit, Mr. President, is

15 that what must be borne in mind is that those documents which are listed

16 on the list that the Defence receives, they're not readily available.

17 Each of these documents must literally be found on the electronic

18 disclosure system. And sometimes we wonder whether anyone has actually

19 attempted to go on what is called the EDS to basically experience what we,

20 as Defence counsel, experience when we try to find this material on

21 generic lists that we receive.

22 Sometimes, we mentioned this a long time ago, it can take up to 15

23 minutes to locate one document on the Electronic Disclosure System. The

24 difference here, Mr. President, is that the Prosecution has both unlimited

25 resources at its disposal and that it has had more than 12 years and two

Page 7311

1 full trials to put its case together.

2 The Defence on the other side has both limited resources and we

3 have had limited time to try and understand the Prosecution's case and to

4 try and prepare the case for the Defence.

5 It all comes down to the purpose of Rule 65 ter, which was adopted

6 by the Honourable Judges of this Tribunal for a reason. That reason,

7 Mr. President, the Defence respectfully submits, that it is to allow the

8 accused to know the case they have to meet before trial proceedings get

9 under way.

10 There are reasons for this, Mr. President, and we feel that

11 sometimes by looking only at the timing upon which these documents have

12 been released that we fail to look at the object and purpose of Rule 65

13 ter, which includes, first of all, the need for trial proceedings to

14 proceed in accordance with the set and established rules that will be

15 respected.

16 Secondly, the need to avoid taking the accused by surprise.

17 Thirdly, the need for the accused to be able to investigate in relation to

18 documents which it is put on notice that the Prosecution will be using at

19 trial. Fourthly, the need for the accused to prepare its defence on the

20 basis of those documents which we know will be used. And fifthly, and

21 more importantly, because the Trial Chamber and this Tribunal both attach

22 a lot of importance to proceeding swiftly, it's to avoid interruptions in

23 trial proceedings by having enterless requests to add additional

24 documents.

25 We respectfully submit, Mr. President, that the position adopted

Page 7312

1 so far by the Trial Chamber does not take into account the object and

2 purpose of allowing the accused to know the case they have to meet before

3 trial proceedings get underway. The Trial Chamber has previously held

4 that the Prosecution would have to show good cause before documents could

5 be added to its Rule 65 ter list of proposed exhibits.

6 In this case, the Prosecution puts in its motion that these

7 documents are the result of an oversight. First, of course, they say that

8 the documents have been in the possession of the Defence for a long time.

9 That's an argument that is reiterated in every single motion. But the

10 Prosecution motion does not say that it does -- it confirms on the other

11 hand that no notice has been given to the Defence that these documents

12 will be used in the trial; and then the Prosecution argues that they are a

13 result of an oversight.

14 Obviously, Mr. President, oversight is not the first oversight

15 from the Prosecution, nor is it the last, as it appears; but more

16 importantly, oversight, in our respectful opinion, does not meet the

17 good-cause criteria.

18 Furthermore, we submit that considering the resources available to

19 the Prosecution, considering the number of years the Prosecution has had

20 to prepare its case and that it has been working on these events, and the

21 time periods that these documents have been in its possession, that

22 oversight is simply an unacceptable justification to add and modify its

23 Rule 65 ter rule of -- list of exhibits.

24 It is a known principle, Mr. President, that the Prosecution is

25 independent and that the Prosecution is a master of its own case. We

Page 7313

1 don't discuss that. Prosecution independently decides which documents it

2 is going to use at trial and which witnesses will be called. However,

3 Mr. President, it is also a very known principle that once the Prosecution

4 makes its bed, it must sleep in it.

5 In our view, Mr. President, the Prosecution cannot keep adding

6 more documents to its list by oversight without the Trial Chamber stepping

7 in and putting an end to such request with a view to protecting the rights

8 of the accused in accordance with Article 20 of the Statute.

9 Turning to the specifics of the Prosecution motion, our position

10 is as follows: Firstly, with respect to Witness PW-105, we object to all

11 five documents. Let me address the first three, documents A, B and C.

12 Document A is a 15 July hospital records. Document C is an ICRC notice

13 along with a picture bearing number 8144. Both of these documents were

14 disclosed to the Defence for the first time on 21 November 2006.

15 Mr. President, we would have objected then, and it is not because

16 the testimony of this witness was delayed or postponed that we would not

17 object now for the exact same reason. The delay in postponing the

18 testimony of that witness does not cure the fact that this material has

19 been in the procession of the Prosecution for a long time, and it falls

20 into the oversight category.

21 Document B, same arguments hold for these -- for this document;

22 in addition to the fact that it was not even disclosed to us on 21

23 November, as were documents A and C.

24 As for document D, which is a montage of four family photos, which

25 was given to the Prosecution by the witness. First of all, the

Page 7314

1 Prosecution has had the opportunity of meeting with this witness on many

2 occasions. There is no reason why this material could not be made

3 available sooner to the Defence. Moreover, this material, the four family

4 pictures, the Defence fails to see how this is relevant or it can add any

5 probative value to the testimony of Witness 101. And, of course, this

6 begs the question once again: How long has this material been in the

7 possession of the Defence [sic], which is not mentioned in the motion.

8 As for the photography of the wounds, these refer to documents

9 bearing number 8713 to 8717. These documents were disclosed with the

10 motion on Friday. Again, the question is: How long have these documents

11 been in the possession of the Prosecution, and the motion itself at

12 paragraph 6 specifies and confirms that the Prosecution decided this week

13 to add new documents to its list because of the level of contestation or

14 degree to which its case is being contested by the Defence.

15 There are ways in the rules for the Prosecution to improve its

16 case or to do a rebuttal if it believes that we are contesting more than

17 what was anticipated. But the question is, these documents were not

18 disclosed previously and it was the Prosecution's choice whether to

19 disclose or not to disclose these documents.

20 With respect to Witness PW-145, there are three intercepts. The

21 first two dates from 11 July and from 12 July. According to the

22 Prosecution motion, they believe that these documents were included in the

23 authentification binder of witness Stefanie Frease, but they realise this

24 week that they are not; another oversight. To use the words of my

25 colleague on the other side, intercepts have been around forever. That is

Page 7315

1 what my colleague likes to use whenever we raise any arguments in respect

2 to intercepts.

3 The Prosecution will then argue that they are adding intercepts

4 because or as a result of the Trial Chamber decision. We respectfully

5 submit, Mr. President, that the Trial Chamber's decision, which goes back

6 to -- I don't have the exact date, I think it's September or October,

7 cannot be a blanket authorisation to keep adding intercepts until the end

8 of the trial. At some point this has got to stop. Once again, the

9 oversight of not adding these documents, we believe must be sanctioned in

10 order to protect the rights of the accused.

11 As for the 10th of July intercept, the third document, the

12 Prosecution adds that because this document was already used with Witness

13 PW-144, that this would be sufficient to say, Well, let's use it again.

14 We submit, Mr. Prosecutor [sic], that this is not an additional reason why

15 this document should be added to the Rule 65 ter list of exhibits.

16 In conclusion, Mr. President, we ask you to deny the Prosecution

17 motion; and moreover with respect to avoiding any further delays which can

18 be attributed to Prosecution motions to amend its Rule 65 ter list of

19 proposed exhibits, we believe that the time limit should be imposed and it

20 should not be longer than 14 days for the Prosecution to cure and correct

21 its case and to stop filing motions due to oversight to add documents over

22 and over again.

23 We reiterate, Mr. President, that this case has been prepared on

24 the basis of some 2.000 exhibits which were put in the Prosecution's list.

25 If we simply look at the number -- the numbering of the list today, we

Page 7316

1 believe we are at 2.244 documents. Now, they are not all due to changes

2 in the Rule 65 ter list, some of these documents are simply pseudonym

3 sheets, that is recognised.

4 But it just shows the extent to which we are constantly being

5 faced, being presented with new documents which constantly keeps the

6 Defence off balance and does not allow us to protect the rights of the

7 accused. At some point, Mr. President, a stop must be put to the

8 Prosecution so they can present their case and we can proceed and go

9 swiftly with this trial. Respectfully submitted. Thank you,

10 Mr. President.

11 JUDGE AGIUS: I thank you, Mr. Bourgon. I just would like you to

12 make one thing clear. Is it your suggestion that if there has been an

13 oversight on the part of the Prosecution, then the door is completely

14 closed for further discussion or whether there is or there can be a good

15 cause for allowing these documents to be included in the list? Is this

16 what you mean?

17 MR. BOURGON: In part, yes, Mr. President. But we go back to what

18 we said previously. It is not -- there are -- there can be exceptions or

19 there can be instances in which a document will be so relevant which has

20 such a high probative value that the oversight can be cured by the fact

21 that this is something that really must be added to the case. The case

22 cannot proceed because it is a document that will make a difference

23 between guilty and not guilty. And we argued this previously. The

24 probative value is important, and why is it that this oversight was

25 committed?

Page 7317

1 Now, we use the word "oversight," but it goes beyond oversight.

2 The real reason is they have these documents, they have the resources,

3 they have the time, they have the personnel, and they keep adding these

4 documents on and on. We figure that this, Mr. President, at this point,

5 unless they can come up with a document that is absolutely critical to its

6 case, then these motions must be denied. Thank you, Mr. President.

7 Mr. President, I have -- my colleagues my want to add that these

8 submissions which are specifically addressed on behalf of the accused

9 Nikolic, but my colleagues may want to intervene. Thank you,

10 Mr. President.

11 [Trial Chamber confers]

12 JUDGE AGIUS: We should have had our break five minutes ago. So

13 my suggestion that we will have the break now and then any further

14 submissions from the Defence teams and reply or response from Mr. Thayer

15 and we can decide the matter. 25 minutes.

16 --- Recess taken at 12.36 p.m.

17 --- On resuming at 1.04 p.m.

18 JUDGE AGIUS: So, Mr. Zivanovic. I understand, because I had

19 notice, Mr. Meek is standing up, wishing to address the Trial Chamber on

20 the issues that we were dealing with before. I think Mr. Dunjic can wait.

21 You will introduce him when appropriate, and we can proceed with the

22 submissions.

23 Mr. Meek.

24 MR. MEEK: Thank you, Mr. President. Just very briefly, I want to

25 adopt of course the arguments made by Mr. Bourgon. Further, I would just

Page 7318

1 point out to the Court that we believe oversight never equates to good

2 cause, and it never should in any court, let alone a criminal court -- a

3 criminal trial like this, if we keep allowing or if Your Honours keep

4 allowing the OTP to continue in this manner, and I've said it before and

5 God willing, I wouldn't have to say it again, but this is turning into a

6 trial by ambush.

7 We can see on the horizon by motions, submissions filed by the

8 Prosecution, that there will shortly be this issue arising over some six

9 witnesses that by oversight they forgot to add to their list. We just ask

10 that this stop. It is not proper, and it is prejudicing our clients and

11 our case. Thank you.

12 JUDGE AGIUS: I thank you, Mr. Meek.

13 Does anyone else wish to make further submissions? Mr. Josse.

14 MR. JOSSE: Your Honour, we also oppose the Prosecution motion.

15 When the Court has determined whether to allow the motion or not -- let me

16 start again. If the Court allows the motion, then we have further

17 submissions in relation to exhibits pertaining to the last witness, but

18 they are is separate matter to this motion.

19 JUDGE AGIUS: Exactly, but we are coming to those as well,

20 basically.

21 Any further submissions? Mr. Zivanovic.

22 MR. ZIVANOVIC: I would also like to tell the Chamber that we join

23 the submissions of Mr. Bourgon, and I would like to inform the Chamber

24 that Mr. Dunjic is present and he is on my right. Thank you.

25 JUDGE AGIUS: Thank you.

Page 7319

1 Madam Fauveau.

2 MS. FAUVEAU: [No interpretation]

3 JUDGE AGIUS: I need to slow you down, even stop you, because we

4 are not receiving interpretation. Can you start again, please?

5 MS. FAUVEAU: [No interpretation]

6 JUDGE AGIUS: We still don't have interpretation. Basically, I'm

7 almost going to interpret myself. She said that the Defence for General

8 Miletic doesn't have any particular objection or problems with admitting

9 the documents which the Prosecution is seeking to admit -- not admit, to

10 have included in the -- yes, go ahead.

11 MS. FAUVEAU: If I can just correct you slightly, Mr. President.

12 We didn't have any particular position, but we are joining the very

13 persuasive ...

14 JUDGE AGIUS: Out of sympathy, sympathy support. Yes.

15 MS. FAUVEAU: It's a little bit more. It is a matter of

16 principle, and we are joining the arguments of Nikolic and Beara Defence.

17 JUDGE AGIUS: Okay. Thank you. Any further remarks? None.

18 MR. HAYNES: Well, I was just going to say the documents are of no

19 concern to us, but we do support the matters-- principle advanced by

20 Mr. Bourgon.

21 JUDGE AGIUS: Thank you, pretty much the same position as Madam

22 Fauveau.

23 Yes, Mr. Stojanovic.

24 MR. STOJANOVIC: [Interpretation] Yes, Your Honours. Likewise,

25 given what Mr. Bourgon said, we join in and the other Defence teams have

Page 7320

1 supported the argument as well.

2 JUDGE AGIUS: Okay, thank you.

3 Mr. Thayer, are you in a position to respond?

4 MR. THAYER: Thank you, Mr. President, Your Honours. Let me begin

5 by focusing directly on the exhibits that are at issue with respect to the

6 witness who just finished testifying. What we are talking about are two

7 intercepts, which were included in the packet that Defence counsel has had

8 for some time now. There is no surprise, no ambush, no 999.000 other

9 documents that my learned colleagues have to fish through to find these

10 documents.

11 They have been made available through the procedure that we have

12 been pursuing since we began the testimony of the intercept operators by

13 providing each and every intercept that we intend to use to Defence

14 counsel well in advance of their testimony. That is what was done in this

15 case, Your Honours, with respect to the intercepts at issue.

16 The only problem we had was we were under the mistaken

17 understanding that two of these intercepts, which were provided in great

18 detail to Defence counsel, did not have the 65 ter number we thought they

19 did. We explained that in the motion - I won't belabour that point with

20 the Trial Chamber - but that is what we are talking about. This is not a

21 case of new evidence, a changing theory, or anything else that Defence

22 counsel has not been aware of with respect to this particular witness and

23 these particular intercepts for some time. I just want to make that clear

24 so we understand that is not about ambushing or this not about trial by

25 surprise.

Page 7321

1 We have supplied in addition to those actual intercepts a summary

2 of the intercepts, the users of the intercepts. All of this information

3 is provided pursuant to the mechanism that the Trial Chamber has set up

4 and that we have been pursuing, and there will be mistakes. There will be

5 oversights. These were oversights. I can't promise, and I would never

6 promise that there not be oversights in the future. I think I can almost

7 promise that there will be oversights in the future, as one can naturally

8 expect in a multi-defendant, complex case like the one in which we are

9 involved now.

10 These seven accused --

11 JUDGE AGIUS: That's nice music for Mr. Bourgon's ears.

12 MR. THAYER: I just want to be as up front as I can on that larger

13 issue, Your Honour. However, these seven accused have not stood trial

14 before. This is not the same case that has been prosecuted previously in

15 terms of the Srebrenica events. There is new evidence that has been

16 developed in the course of this particular investigation.

17 We are dealing with that new evidence. We have, I think, done as

18 good a job as humanly possible thus far. Have we fallen short? We have

19 fallen short of that goal of perfection and no oversights, absolutely. Do

20 we like it? No. Does providing this relevant evidence to the Court, be

21 it these intercepts on which the Defence counsel and the accused have been

22 on notice for some time or photographs of a survivor's victims or of his

23 family members about which we expect there to be testimony, or himself

24 which shows the age of which these events occurred. Are those relevant?

25 Are they ultimately in pursuit of the truth-finding mission of this

Page 7322

1 Tribunal? Yes, Your Honours.

2 Again, we are doing our best with respect to making these

3 materials available. With respect to the medical records, for example to

4 which my learned colleague referred, those specific medical records

5 identified by ERN were placed on the exhibit list for the Prosecution's

6 list of witnesses back in October, actually, when we thought these two

7 witnesses, PW-101 and 105, were scheduled to testify at that time.

8 The actual documents were subsequently disclosed, that was some

9 months ago. Those two witnesses' testimony was thereafter postponed at

10 the request of Defence counsel, and then we entered the intercept heaven

11 that we've been in for the last several months. Now that we are again

12 enjoined in preparing for these two witnesses' testimony, we realised that

13 these documents, which the Defence counsel already had notice of, did not

14 have 65 ter numbers.

15 With respect to the two remaining items, Your Honours, that did

16 not -- that were not disclosed to Defence counsel, again, one is a montage

17 of photographs that I believe were mistakenly left off the initial exhibit

18 list back in November because it looked like it was a duplicate exhibit.

19 The montage actually includes one of the photographs that was disclosed

20 and listed on the exhibit list back in November. I believe that is why

21 the montage didn't make it on to the list. Again, it is an oversight, but

22 is far from trial by ambush. It is evidence that is consistent with the

23 OTP witness statement that the Defence was also provided some months ago.

24 Finally, Your Honours, with respect to the wound photographs, as

25 we explained, these are photographs that we've only recently decided need

Page 7323

1 to be brought to the Trial Chamber's attention. We would prefer that they

2 not be. I have endeavoured to secure a stipulation. I have heard back

3 from a couple of my learned colleagues, and I'm optimistic so far,

4 although I need to touch base with everyone else. Again, these are

5 photographs that are referred to in the witness' OTP statements, which was

6 disclosed to the Defence some months ago.

7 Again, this is not a matter of surprise. It is a matter of

8 oversight? It is a matter of time consuming argument? Absolutely.

9 Again, though, it is a matter of providing this relevant evidence to the

10 Trial Chamber to present the fullest picture, the most complete accounting

11 we can of these crimes in pursuit of the truth in this Tribunal, Your

12 Honours.

13 JUDGE AGIUS: Thank you.

14 Does anyone wish to add anything? Mr. Bourgon.

15 MR. BOURGON: Very quickly, Mr. President. Simply to say the

16 Prosecution has decided to lead some witnesses in this case. One of those

17 witnesses is a victim who was injured in a particular way and, of course,

18 we've been aware that this witness was coming to testify. Now, I don't

19 know if the Prosecution expected the Defence to simply sit down and not to

20 say anything, and just listen to the testimony and not contest the

21 testimony. But in our view, Mr. President, it is a basic procedure that--

22 if you're going to lead a victim that was hurt in a particular way, you

23 think about medical records, you think about pictures of wounds, and that

24 is simply part of the basic package that goes with leading a victim as

25 witness.

Page 7324

1 Now, to decide this at this point in time because they suddenly

2 face more opposition than they expected, simply it defeats the purpose of

3 the Rule 65 ter. That's my conclusion. It all comes down to: Is there

4 an object and a purpose behind this rule when this rule was put together

5 by the Judges? We don't have access to the discussions that took place

6 amongst the Plenary of Judges when this rule was put together, but there

7 was an object and a purpose. There was a reason, and we believe that we

8 are defeating the object and purpose of this rule by allowing continuous

9 requests for additional documents. Thank you, Mr. President.

10 JUDGE AGIUS: I thank you.

11 Yes, Mr. Ostojic.

12 MR. OSTOJIC: Good afternoon, Mr. President, Your Honours. I do

13 have comments two make, if I could just make in response to, in reply to

14 what my learned friend said must moments ago. On page 74, lines 2 and 3,

15 he states that "these seven accused have not stood trial before." We are

16 contesting that, as we have in our opening statements. In the Blagojevic

17 case, the Prosecution defended Mr. Beara, and now they are taking an

18 inconsistent position. We will be filing a motion in due course, when it

19 is right, on the substantive and procedural aspects that, so they cannot

20 take such inconsistent theories. I just don't want that to be left

21 without a comment from our side.

22 On the second point, the Prosecution somewhat refreshingly tells

23 us on the next line on the same page 74, lines 3 and 4, that this is not

24 the same case. It is the same facts, Your Honour. But if it's not the

25 same case, then perhaps the Prosecutor will refrain from always relying on

Page 7325

1 those judgements on issue, such as whether the intercepts should be

2 admissable or not.

3 And my point is they are again taking an inconsistent position.

4 What we are looking for is guidance from the Trial Chamber. I disagree

5 with him that it is not trial by ambush. When they bring new evidence in,

6 regardless of whether it is directly against our client or my accused or

7 against any of the others, they are prohibited by the rules to do so

8 without leave of Court.

9 To say that it is an oversight, is certainly not just cause in any

10 courtroom, in my view, respectfully. To suggest that they're going bring

11 in six other witnesses that they now deem to be as, Mr. Meek State stated,

12 "important," that should have been done years before. It's not a

13 question of whether you're trying one accused; it's a question of the

14 facts. The Srebrenica facts, as we've seen from the multiple witnesses if

15 not 90 per cent of the witnesses, they've testified previously.

16 If we're going to try the case in a vacuum, then that should be

17 the Court's ruling. Now, we can shortcut this case, but I know that that

18 is not the intent of this Tribunal, I know that it is not the intent of

19 this Trial Chamber to do so. We request and submit that the Prosecutor's

20 motion be rejected.

21 JUDGE AGIUS: I thank you. Just for clarification, in respect to

22 the three intercepts -- two intercepts relating to the last witness that

23 we had, am I right in stating that these are not included as yet in the

24 list of Prosecution exhibits or are they?

25 MR. THAYER: Mr. President, they are included in the exhibits.

Page 7326

1 JUDGE AGIUS: Can you indicate them, please.

2 MR. THAYER: Yes. They are exhibit -- the exhibit located at tab

3 number 3, it was a given the 65 ter number of 1074; that is the 11 July

4 1995 conversation at 1645 on about which the witness was questioned at

5 length by Defence counsel.

6 The second one is at tab 10; that is a 12 July 1995 conversation

7 recorded at 1845 hours. We did not lead any evidence concerning that

8 intercept, Your Honour.

9 And if I may just add one minor point, Mr. President. As I just

10 answered the Court's question, I think one thing we also need to look at,

11 and this has been one of the touch stones of the Court's decisions thus

12 far with respect to the 65 ter applications, is when the Court conducts

13 its balance, it has been very careful to weigh very heavily the rights of

14 the accused in making its determination.

15 And I think what we've seen time and again with any of these

16 exhibits, which have been the subject of the 65 ter motions, is that

17 counsel has ample opportunity to prepare. They do obviously prepare

18 because as we just saw with on of these two exhibits, there was

19 substantial cross-examination of the witness concerning one of them. And

20 I think that we are proceeding along the very deliberate course, time

21 consuming perhaps, but it is one that ultimately preserves the rights of

22 the accused and moves forward in pursuit of the truth.

23 JUDGE AGIUS: I thank you.

24 Now, gentlemen, as regards the rest of the Prosecution exhibits,

25 and, of course, without prejudice to what has been submitted in relation

Page 7327

1 to those two that have already been dealt with, are there any objections?

2 Yes, Mr. Josse.

3 MR. JOSSE: Yes, Your Honour, we object to the intercept that is

4 found in tab 2, as well as the intercept that is found in tab 3. And just

5 to reiterate, the one in tab 3 is the one that is problematical in any

6 event, that has apparently been given 65 ter number 1074; but that, it

7 turns out, is some sort of phantom number and hasn't yet been given a

8 number, subject to a decision on the motion that the Court has just heard

9 argument about.

10 Your Honour, the reason we oppose the admission into evidence of

11 these two intercepts is we contend that they do not reflect what is

12 actually contained on the tape, which is the best evidence that is

13 available. In a few moments' time, we're going to invite the Court to

14 admit into evidence 6D14 and 6D15, which are the transcripts prepared by

15 the Prosecution of the actual tapes of those two conversations.

16 And we submit that the Court should introduce into evidence 6D14

17 and 6D15 really on the best evidence principle, because those are the

18 tapes. The tapes exist in this particular case. They have been played

19 for the Court. The witness accepted their veracity. It is a transcript

20 of the tapes, rather than the other two documents, the two in the tabs,

21 that we submit should be admitted into evidence. That's our contention.

22 JUDGE AGIUS: I thank you, Mr. Josse.

23 Any further objections to the admissibility or admission of the

24 other documents which the Prosecution is seeking to tender? So there are

25 none.

Page 7328

1 Yes, Mr. Thayer.

2 MR. THAYER: Your Honour, just two points. One is the -- I think

3 the practice with these particular operators from this particular unit has

4 been to place the intercepts under seal because there are code identifiers

5 on the documents, and we just ask that that be done with respect to all of

6 the intercept exhibits that are listed here.

7 I also would like to correct a typographical error at Exhibit

8 1190C; again, that should be 1190B, for the record.

9 If I might briefly respond to my learned colleague's objection to

10 tabs 2 and 3. We would welcome the introduction of the those tape

11 recordings as well as the transcript. But they should come in so that the

12 Court can compare them with the printout about which this witness

13 testified, so that in making its assessment of the reliability and

14 authenticity of these intercepts, which is a great part of the effort that

15 we're undertaking here, the Court has all that information and can compare

16 them side by side and see how accurately these intercept operators got

17 their job.

18 JUDGE AGIUS: Okay. So the position is, as I see it, is the

19 following, and correct me if I'm wrong: The intercept behind tab 3 and

20 the intercept behind tab 10, the decision on those two intercepts arising

21 or in the wake of the Prosecution motion of last Friday will be handed

22 down by us tomorrow morning. That of course is without prejudice to your

23 further submission in relation to the first of these two.

24 Now, that leaves only the intercept behind tab 2 and potentially

25 the same intercept behind tab 3.

Page 7329

1 MR. JOSSE: It's not the same, Your Honour. They are --

2 JUDGE AGIUS: No. They are not the same. They are two different

3 ones. But what I mean to say is that, basically, we are left with the

4 intercepts behind tab 2.

5 MR. JOSSE: Yes.

6 JUDGE AGIUS: That is contested by you.

7 MR. JOSSE: Yes.

8 JUDGE AGIUS: And the same intercept we spoke of before that is --

9 MR. JOSSE: I'm sorry, I understand.

10 JUDGE AGIUS: -- behind tab 3, which is also objected on a

11 different, separate ground.

12 MR. JOSSE: Precisely. Thank you.

13 JUDGE AGIUS: I suggest to my colleagues that we leave this also

14 for tomorrow morning.

15 MR. JOSSE: Could I mention one other matter in this regard.


17 MR. JOSSE: Of course, perhaps we could turn to those exhibits the

18 Defence would like to introduce through PW-145, if I may jump to that now.

19 A list has been provided to the Registrar. The Chamber will see

20 that that includes 6D14 and 6D15. Of course, all of these documents; that

21 is, 6D14 and 6D15, tabs 2 and 3, are dependent to some extent on the

22 Court's ruling in relation to intercepts in general. I make that

23 observation because it's perhaps the first occasion that the -- a Defence

24 team have provided a rival transcript, if I can call it that.

25 JUDGE AGIUS: I thank you so much, Mr. Josse.

Page 7330

1 So we'll decide on these three intercepts tomorrow morning.

2 That's the one behind tab 2, the one behind tab 3, on a dual approach, and

3 the one behind tab 10.

4 The rest is as follows: Not having heard any objections, that's

5 premised. First off, the documents to be tendered, that's the OTP witness

6 statement dated 7 February 2007, is admitted, and will be served under

7 seal. The pseudonym will also be under seal. All the other intercepts

8 except, the ones that I referred to in regard to which our decision is

9 postponed, are marked for identification as per our previous ruling.

10 All right. Now we come to the documents that the Gvero Defence

11 team who like to tender. We'll take them one by one. The first one is

12 the Official Gazette of Republika Srpska dated the 14th March of 1995.

13 It's marked as 65 ter number 6D7. Is there any objection, Mr. Thayer?

14 MR. THAYER: No objection, Mr. President.

15 JUDGE AGIUS: So it is admitted.

16 Then there are the two transcripts from the tape, 6D14, 6D15, to

17 which Mr. Josse has referred.

18 MR. THAYER: Again, Your Honour, no objection to those

19 transcripts. I was alerted to my learned friend's reference to a rival

20 transcript. I believe it is the practice that include we the transcripts

21 of the audio tapes, along with the transcripts of the printouts; and just

22 as long as one doesn't supplant the other, that would be our position,

23 consistent with my prior position, Your Honours.

24 [Trial Chamber confers]

25 JUDGE AGIUS: So our decision on 6D14 and 15 will be taken

Page 7331

1 tomorrow when we decide on the rest. And there is an intercept, 6D21,

2 what's that?

3 MR. JOSSE: That's the one that was put to the witness by

4 Mr. Krgovic, and it is an intercept between our client and Mr. Koljevic.

5 JUDGE AGIUS: Any objection, Mr. Thayer?

6 MR. THAYER: No, Mr. President.

7 JUDGE AGIUS: So it is admitted. And, again, it will be marked

8 for identification purposes like all the other intercepts.

9 MR. JOSSE: As the Court pleases.

10 JUDGE AGIUS: And then there is another one, intercept

11 Gvero/Koljevic, 6D43.

12 MR. JOSSE: Again, it was put to the witness, and it's there for

13 similar illustrative purposes.

14 JUDGE AGIUS: We don't have a translation of it.

15 MR. JOSSE: It's not yet been translated, and it will need to be

16 marked for identification in any event.

17 MR. THAYER: No objection, Mr. President.

18 JUDGE AGIUS: Thank you. This will be marked for identification,

19 not necessarily upgraded upon translation. It will remain marked for

20 identification until we have handed our final decision on the

21 admissibility of intercepts.

22 Madam Fauveau, you had -- you made use of one transcript, it's 547

23 or something like that. Do you wish to tender it or not?

24 MS. FAUVEAU: [No interpretation]

25 JUDGE AGIUS: Okay. Translation. Again, we haven't received

Page 7332

1 interpretation. Madam Fauveau.

2 MS. FAUVEAU: I would like for the time being if the document

3 could be marked for identification.

4 JUDGE AGIUS: Let's mark it for identification and please,

5 Prosecution, procure us a translation thereof. It needs to be given a

6 number, which would be what? 5D ...

7 MS. FAUVEAU: It will be 5D188.

8 JUDGE AGIUS: Okay. I thank you. So I think we have concluded

9 this chapter, with all due apologies to Mr. Elderkin. I suggest that we

10 bring in the witness and at least we can explain to him why he has been

11 kept waiting, and we can start him off and then we will continue tomorrow.

12 [The witness enters court]

13 JUDGE AGIUS: Good afternoon to you, Dr. Clark.

14 THE WITNESS: Good afternoon.

15 JUDGE AGIUS: Welcome. You are about to start giving evidence.

16 Our rules require that you enter a solemn declaration with us that you

17 will be speaking the truth. Madam Usher is going to hand you the text of

18 the solemn declaration. Please read it out and that will be your solemn

19 undertaking with us.

20 THE WITNESS: I solemnly declare that I will speak the truth, the

21 whole truth and nothing but the truth.


23 JUDGE AGIUS: Thank you. Please take a seat and make yourself

24 comfortable. I owe you, on behalf of the Trial Chamber, an explanation

25 why you have been waiting outside to start before you could start giving

Page 7333

1 evidence. We had another witness and then we had some lengthy procedural

2 problems to -- issues to deal with, which has taken us all this time.

3 Mr. Elderkin will be examining you in chief, starting today, and

4 then we will proceed tomorrow.

5 Mr. Elderkin.

6 MR. ELDERKIN: Thank you, Mr. President. Good afternoon, good

7 afternoon, Your Honours. I only have in fact very few questions, so given

8 the time I may not succeed to put all of them today.

9 Examination by Mr. Elderkin:

10 Q. Could I first ask you to say your name, please?

11 A. John Clark.

12 Q. And, Dr. Clark, what is your profession?

13 A. I'm a forensic pathologist based in the United Kingdom.

14 Q. And how long have you been a pathologist?

15 A. I've been a forensic pathologist about 22 years.

16 Q. And could you tell us a bit about your professional qualifications

17 in that field?

18 A. Well, I'm a medical doctor, so I have basic medical

19 qualifications. I am also trained as a pathologist and have the

20 qualification in that, and I have a specialist qualification in the

21 forensic medicine.

22 Q. And where are you working at the moment?

23 A. I am based at the University of Glasgow in Scotland.

24 Q. And what does your job involve basically, day to day?

25 A. Two things. Primarily carrying out post-mortem examinations,

Page 7334

1 medical/legal post-mortem examinations for the legal authorities in that

2 region. Last year, not the current, I did 600 post-mortems, 600 autopsies

3 last year and that's about an average year.

4 I also, being -- based at the university, there is a teaching

5 commitment to undergraduate, post-graduates; and I am also, as a head of

6 the forensic pathologist services, there are administrative duties to do

7 as well.

8 Q. Thank you. If I can, I would now like to ask about the work you

9 did in Bosnia, just start by asking what -- when was that?

10 A. The main work was in 1999, 2000, 2001, when I was the chief

11 pathologist for the mortuary operations there.

12 Q. Who was that you were working for?

13 A. That was the ICTY.

14 Q. What was the purpose of your work?

15 A. This was to look at the bodies which had been taken from the grave

16 sites by the field team, to look at them and primarily to identify

17 injuries on the bodies and try and establish causes of death. In between

18 times, we also tried to assist with identification and retrieval of

19 evidence, any other evidence on the bodies, but primarily we were there to

20 establish cause of death by looking at the injuries.

21 Q. And what were your specific tasks as chief pathologist?

22 A. Well, as long as -- as well as being a pathologist carrying out

23 the post-mortems, I did as many as anyone, it was my responsibility to

24 oversee the whole operations; really oversee the whole operations of the

25 mortuary not just the pathologist, but the anthropologists, photographs,

Page 7335

1 et cetera, and make sure there was a system, correct system of working and

2 just -- and coordinate all the findings at the end.

3 Q. Can you say which were the specific grave sites that you worked on

4 during that time?

5 A. Well, the ones related to Srebrenica, because there were other

6 grave sites, but I am presuming you just want the Srebrenica sites.

7 Q. Yes, please.

8 A. Well, in 1999 we involved in Kozluk, Konjevic Polje, and Nova

9 Kasaba, and part of Glogova. The following year we did Lazete and again

10 Glogova; and the final year, 2001, Glogova, Ravnice, and Zeleni Jadar. We

11 have also done some of Ravnice in 2000, but these were the grave sites.

12 Q. And among your team, were you working only with pathologist?

13 A. No. Usually, at any one time, there were three pathologist in the

14 mortuary. There were an equal number of anthropologist, then there was

15 support staff of scenes of crime officers, photographer, radiographer,

16 secretaries. So it was quite a big team.

17 Q. And could you briefly explain the difference between the work of

18 the pathologists and the work of the anthropologists?

19 A. The pathologists' role in this work, and as at work in the normal

20 practice, is to try and establish cause of death. Their expertise is in

21 looking at soft tissues, looking for diseases, injuries, et cetera.

22 The anthropologist' expertise is related to the bones, the bony

23 skeleton, and they have no expertise in looking at the soft tissues, which

24 surround the skeleton. But they have a particular expertise in that, both

25 in terms of trying to use the skeleton to identify a person and also in

Page 7336

1 assisting in interpretation of injuries to the skeleton.

2 So because of the nature of the bodies we were dealing with, there

3 was a very close liaison between the pathologist and anthropologies, and

4 we worked closely together.

5 Q. Your Honour, I see on the clock that there is only one minute

6 remaining, and I have perhaps five more minutes worth of questions. At

7 any rate, I don't know whether you would like me to start on Dr. Clark's

8 reports or just keep that as a short block to start tomorrow morning?

9 JUDGE AGIUS: I think we can start tomorrow morning. We wouldn't

10 like to keep the other Chamber waiting.

11 So Dr. Clark we'll see you again tomorrow morning at 9.00.

12 THE WITNESS: Thank you.

13 --- Whereupon the hearing adjourned at 1.45 p.m.,

14 to be reconvened on Tuesday, the 20th day of

15 February, 2007, at 9.00 a.m.