1 Tuesday, 9 September 2008
2 [Open session]
3 [The accused entered court]
4 [The accused Popovic not present]
5 [The witness entered court]
6 --- Upon commencing at 9.08 a.m.
7 JUDGE AGIUS: So good morning, Madam Registrar. If you could
8 call the case, please.
9 THE REGISTRAR: Good morning, Your Honours. Good morning,
10 everyone. This is case number IT-05-88-T, The Prosecutor versus Vujadin
11 Popovic, et al.
12 JUDGE AGIUS: Thank you. Good morning to the rest of you.
13 General Miletic is back. Hope he is feeling well. You are all right
14 now? Yeah, okay. Thank you. But we have accused Popovic absent. He
15 had given prior notice of that, and we are in possession, also, of the
17 Prosecution, same situation as yesterday: Mr. McCloskey Mr.
18 Nicholls and Mr. Elderkin. And Defence teams, also same as yesterday:
19 Mr. Nikolic and Mr. Haynes absent, and Mr. Lazarevic.
20 Good morning to you, Professor.
21 THE WITNESS: Good morning.
22 JUDGE AGIUS: Welcome back. I'm confident we will finish with
23 your testimony today, and in any case I will need about ten minutes
24 towards the end to, again, deal with some housekeeping matters in case we
25 -- so we have to accelerate, then, your cross-examination, okay? Mr.
2 MR. NICHOLLS: Thank you.
3 WITNESS: WILLEM WAGENAAR [Resumed]
4 Cross-examination by Mr. Nicholls: [Continued]
5 Q. Good morning again, Professor.
6 A. Good morning.
7 Q. What I'm going to do now is just ask you a couple questions about
8 how the report was actually created and drafted and the summaries and
9 then try to go right into the guts of the report. Could we have 3696 up,
10 please, on e-court. Those are the summaries, but the first page should
11 not be broadcast. If we go right to page 7, that should be Major
12 Boering, then there should be no problem. The first page has the names
13 of protected witnesses.
14 Thank you. Now, very simply and briefly, Professor, these are
15 the summaries that we were talking about that were created in preparation
16 for the report, correct?
17 A. Yes, that's correct.
18 Q. Okay. And these were written, you said, with a colleague from
19 the Defence?
20 A. Yes, Mr. Philip De Man --
21 Q. Philip De Man.
22 A. -- who was the case manager.
23 Q. Can you just very briefly help me understand how these were
24 created, sitting down talking, who typed them up, that kind of thing.
25 Just give us an idea.
1 A. As I explained, the first step was that I asked for parts of the
2 case file that were relevant to a number of topics, like familiarity,
3 meeting people, possible recognition and identification tests. We went
4 together through those sheets and marked the passages that I thought were
5 relevant, and these passages were summarized in these summaries.
6 Q. Okay.
7 A. These summaries were then collected. I made already made my own
8 notes that you also have --
9 Q. Yes.
10 A. -- received, which are, again, abstract from these summaries,
11 and then in the report you find a table, which is, again, an abstract
12 from these notes. The business of scientific analysis is to a large
13 extent data reduction and further data reduction, so usually there are a
14 number of steps where you make the things smaller and smaller, and this
15 is one of the intermediate products that you see.
16 Q. Thank you. I'm done with that, and if we could have your report
17 up, which is 2D574, page 9. We don't necessarily need to bring it up,
18 but I'm discussing now the table which you just talked about, and I think
19 you said, I don't have the cite here, that you also created this --
20 that's not the correct page. It's page 9 in my copy. That's right.
21 Sorry, at 25182 in the transcript you said that this table was made with
22 a colleague. Could you just tell me how that was done, who entered the
23 data into this table, that kind of thing?
24 A. This table was made by me.
25 Q. Just by you?
1 A. Just by me.
2 Q. Okay. And you typed --
3 A. On the basis of the notes that I transferred yesterday.
4 Q. Okay, so all these the typing we see here, you physically put
5 that in yourself?
6 A. Comes from my machine, yes.
7 Q. Okay. Thank you. I'm done with that. I'm now going to ask you
8 about part 2 of your report, which is the part where after giving us the
9 rules you then begin to analyse the specifics of this case. And you
10 analyse the situation for 12 witnesses. You went through this yesterday,
11 but I'll just quickly summarize it so we can see where I'm going. 3 of
12 the 12 witnesses were classified as familiar with Mr. Beara, therefore
13 should not have been given lineup tests, and those are Milorad
14 Bircakovic, Mr. Celanovic, and PW 161, correct?
15 A. Yeah. That's -- they are classified by me.
16 Q. Yes, I understand.
17 A. Right. By no one else.
18 Q. I understand. I'm not suggesting otherwise. Two witnesses you
19 explained very well yesterday according to the material provided to you
20 may have seen Mr. Beara after the encounter in question, therefore,
21 should not have been tested, PW 162 and Mr. Peric, correct?
22 A. Yes, that's correct.
23 Q. So we are left with seven witnesses, which as you state in your
24 report you did not find in the materials made available to you "any
25 indication why it was impossible, undesirable, or unnecessary to test the
1 claims of the witnesses that they saw Mr. Beara in the various situations
2 described by them." That's from Section 2(C) of your report.
3 A. Yes, that's correct.
4 Q. 2(2), excuse me. And just so we're clear, I'm going to go
5 through those seven now. Those are Mr. Babic, Mr. Erdemovic, PW 165,
6 Major Boering, Mr. Egbers, Milosevic, and PW 104, correct?
7 A. Yes, that's correct.
8 Q. All right. I'm going to now start talking about those witnesses
9 in the order they appear in your table, meaning that the first one is PW
10 165. He is the first one on your table.
11 A. Yes.
12 Q. He testified on the 3rd and 4th of April, 2007, and as you will
13 know from the materials provided to you by the Defence, you had his
14 interview - coincidentally done by me - and he was interviewed on the
15 26th of November, 2005. You've got in your table -- or sorry, not in
16 your table, but beside saying he's one of the ones who could or should
17 have been tested, you say in the last paragraph of your report that
18 "because he did not describe Beara as wearing glasses, there was all the
19 more reason to do a lineup."
20 A. Yes, that's correct.
21 Q. Now, I want to look at what PW 165 said in this trial about his
22 encounter with Mr. Beara. Says 4th of April, 2007, at page 9962.
23 "Question: Did you see any security officer standard at the
24 Zvornik brigade headquarters that evening?
25 "Answer: Well, that evening when I arrived, when I arrived to
1 the premises of our company, up the stairs there were a few people walking
2 around, and they were wearing camouflage uniforms, and I saw their backs,
3 and I asked who that was, and one of them said, well, the commander has a
4 meeting with Popovic and Beara."
5 And you've put that in your Column 3 that PW 165 saw him
6 maybe once. This is what else it says in the transcripts provided to you
7 by the Defence, page 9965:
8 "Question: Okay, and you said he was with somebody named
9 Beara. Did you know this person Beara in that time in July 1995?
10 "Answer: No, never, nor did I ever see him. Never."
11 Again, 9979, cross-examination. You state that you never saw
12 him before, and the person you were referencing there is Mr. Beara,
13 correct? You never saw him before during that purported visit or after
14 that visit; is that correct?
15 "Answer: Yes, that's correct. I never saw him.
16 "Neither before or afterwards nor during the purported meeting at
17 the Zvornik brigade headquarters, correct?
18 "I've already said that. Yes, that is correct."
19 THE INTERPRETER: Counsel is kindly asked to slow down a little
20 bit for interpretation.
21 MR. NICHOLLS: Thank you.
22 Q. And I'm going to -- I'm not just reading this. I'm going to ask
23 you a question in a minute. This is what the witness says about his
24 exposure to the media regarding ICTY Srebrenica defendants after the 15
25 July 1995 encounter at the Zvornik brigade headquarters. At 9967, do you
1 remember that saying that he saw Vujadin Popovic on TV in a television
2 programme? He said he heard about the warrant for Vujadin Popovic who
3 shares this indictment with Mr. Beara. And you were given, it's in your
4 materials, a copy of PW 165's second statement. That's dated 22nd of
5 March, 2007. That's 65 ter number 3662. If we could bring that up,
6 please, on page 2.
7 Now, here, paragraph 4.
8 THE INTERPRETER: Could you please read slowly, please.
9 MR. NICHOLLS: Yes, I will.
10 Q. Here -- I am sorry that shouldn't be broadcast. I'll read it to
11 you, Professor, paragraph 4, and here Mr. PW 165 is correcting or
12 commenting on his first statement, and he says regarding paragraph 12 of
13 the statement, his first statement: "I want to emphasize that I did not
14 personally see Vinko Pandurevic at standard that day." I'll skip a
15 sentence or two. "I was only told that he was meeting with Vujadin
16 Popovic and Beara. Also, I would not say that I knew Vujadin Popovic
17 'very well' as it says in the statement. I saw [sic] him by sight as the
18 corps security officer from seeing him during my duties as a shoulder and
19 MP. I also recognised him immediately on the ICTY wanted posters after
20 the war."
21 Now, Professor PW 165 has been entirely consistent in stating
22 that although he was told Beara was present with Popovic in a meeting at
23 the Zvornik brigade headquarters that he never saw or -- that Beara and
24 Popovic, that he never saw Beara other than from the back. He never saw
25 Beara's face, he says. Furthermore, he saw Popovic on TV as an accused.
1 He saw Popovic on wanted posters and recognised him. Mr. Beara is on
2 those same posters.
3 Now, the first sentence of Rule 3 is: "The suspect and all
4 others in the lineup must fit the description given by the witness at an
5 earlier occasion." The last sentence of Rule 3 in your report:
6 "Obviously, it is also useless to let the witness partake in a
7 multiperson identity test when in fact the perpetrator, his face was
8 never seen by the witness." And Rule 2, unconscious transference: "A
9 lineup test would be invalid and should not be conducted if there's any
10 chance that the witness may have seen the accused after the event." You
11 said that very well yesterday at 25319. "One condition for a photo board
12 photo board -- photo lineup testing it that it must be absolutely certain
13 that there is no other possible place where the witness could have seen
14 the accused apart from that one encounter at the scene of the crime as
15 described in the indictment."
16 So would it not - this man was interviewed in 2005 - been a gross
17 violation of Rules 2 and 3 to conduct a lineup of this suspect when he
18 says he's never seen the suspect's face and there's a very good chance
19 that he saw the suspect's face after the encounter on a wanted poster for
20 the same crime? So do you still maintain that there's no indication why
21 it was impossible, undesirable, or unnecessary to test the claims of PW
22 165 in the situation described by him of seeing Beara only from the back?
23 A. May I answer, Mr. President?
24 JUDGE AGIUS: Yes, by all means.
25 THE WITNESS: In principle, I think you've given me a number of
1 very good arguments why it would be unwise to test this witness in a
2 photo lineup. There are a few comments I would like to make. In the
3 material I have received, the way I read it, it is not a hundred-percent
4 clear that he consistently told he never saw Mr. Beara. In the statement
5 I have in the witness testimony of the 26th of November, he says he
6 probably never really saw Beara, which is not the same as I definitely
7 never saw him. And also, at the transcript page 9962, he was told by
8 some unknown person at the time of the alleged encounter that one of the
9 persons he saw was Beara. That doesn't make it abundantly clear to me
10 that actually he never saw anyone, and if you want to make sure whether
11 he saw anyone, you might try an identification test. And, of course, you
12 are quite right; you immediately run into the problem that then first you
13 need a description of the person he saw, and that might be a good reason
14 in the end not to do that. But it is not clear from the statement I have
15 that it is attempted to the full to try to get a description of the
16 person he saw. Even if he saw only a person from the back, that does not
17 mean necessarily that you cannot do an identification attempt, only the
18 photo board lineup should show peoples seen from the back. I've done
19 that before, and there are sometimes in trials also witnesses who claim
20 they could recognise a person from the back, which is not rejected as
21 evidence in principle. It only means you cannot do an identification
22 with faces.
23 Another statement that you make is -- made is new for me, which
24 is that the face of Mr. Beara was widely publicized through posters. I
25 have he not seen those posters. I have not been made aware of these
2 Q. I'm going to show them to you in a little while.
3 A. Yeah. But in general, of course, if Mr. Beara's face has been
4 all over the country, then the same could be said about all witnesses,
5 that they could have seen those pictures, which leads me to the general
6 comment -- two general comments, which is if you do that as an
7 investigation organisation, you should be aware that maybe that where you
8 find witnesses, at the same time you have already destroyed the
9 opportunities for testing their memories with respect to the outer
10 appearance of the people wanted.
11 And my second remark is that in view of these possibly widely
12 publicized posters, it surprises me that some other witnesses were tested
13 with videos and snapshots and so on because that then also would, of
14 course, be totally meaningless.
15 Q. You'll see, I think, that some of this depends on the timing of
16 then those posters went out. Now, let me ask you this. I don't want to
17 stay too long on this, but when the witness says, I only saw him from the
18 back, and he's clear on that, the witness is adamant that I didn't see
19 him, I didn't see him on cross-examination and which he's been consistent
20 with, what kind of description are we going to get if we want to do a
21 photo lineup of the face rather than the back of the head? How do we get
22 a description if the witness says I didn't see him, which is required.
23 A. Yeah. Sure, and I don't really want to oppose you, but I should
24 point out a number of things. I'm not a finder of fact. I'm not to
25 determine if there are statements by witnesses which change during the
1 time. I'm not to determine which of those statements is the best
2 representation of the truth. So my task is to look at, are there
3 possible questions marks here, and could these question marks been
4 resolved by further testing? That's all I do. If at cross-examination
5 here in this Tribunal it finally is established by the finder of fact -
6 but that's not me - that he actually never saw Mr. Beara, that's okay
7 with me.
8 Q. Yeah. That's not my question. The only thing I'm focusing on is
9 your universe was the materials provided to you and your conclusions in
10 your report, which in this case for this witness was that there was no
11 indication why it was impossible, undesirable, or unnecessary, and that's
12 what I am questioning you about. So the question of glasses, you make
13 special mention that this witness did not describe glasses. You fault us
14 for not doing a lineup for a witness who didn't describe glasses on a
15 face he didn't see. Do I have that right?
16 A. That's not the way I would present it, but what I said in my
17 table is - and I think I'm not misleading anyone by presenting it in this
18 way - that this witness maybe saw Mr. Beara once from behind.
19 Q. Exactly.
20 A. Maybe. It's not even sure, and if he saw him, he saw him from
21 behind. I think I made that abundantly clear in my table that that is
22 the most he could have seen of him and possibly not, so I don't think
23 there's any need to change, say, the way this witness was entered into my
25 Q. Okay. Once you read that the witness stated that he had seen
1 Popovic on wanted posters, you know, you said yesterday nothing was
2 refused to you, did -- you know, knowing this is a genocide trial, the
3 ICTY, you're familiar with the ICTY, the Srebrenica case, a big case, did
4 you ask Mr. Ostojic or anybody on that team, hey, I need to know about
5 whether your client was on wanted posters and, if so, the dates so I can
6 match that up when tests were done or interviews were done?
7 A. No, I did not, and I don't think I've been informed about those
8 posters, and neither have I seen pictures of those posters.
9 Q. Now, first of all, I don't want to testify, but we don't have a
10 photograph of the back of Mr. Beara's head. But honestly, if that was a
11 description we could get, which just what he looked like from the back,
12 and we did a lineup of the backs of people's heads, and what -- and
13 Mr. Ostojic called you, what probative value what would you say that
14 identification had? Even if he picked out the correct back of the head,
15 would that be an identification?
16 A. The value of that identification if done with the back of the
17 heads would at least be as good as any other identification, and if the
18 witness would have been given, say, a fair lineup and the proper
19 instructions which discouraged him from guessing, in my universe, as you
20 call it, that would be significant evidence.
21 Q. Have you ever testified in any of the thousand trials you
22 testified in -- well, first of all, was there ever a lineup of the backs
23 of heads presented to Court and have you ever -- second question is have
24 you testified, yeah, that's a fair lineup, that's a good idea of the
1 A. Sir, I have seen the strangest lineups of people with Mickey
2 Mouse masks on because that's what the suspect saw. The only thing you
3 try to do in a lineup is present the accused in exactly the way he was
4 seen by witnesses, and you make sure the foils in the lineup match that
5 description. So it could be that the witness is asked to recognise the
6 build or the gait of a person with a Mickey Mouse mask on, so anything
7 can be used, and sometimes that is successful. There's no particular
8 reason why the back of the head would be -- should be excluded from
9 lineups, although, we know, of course, that it's easier to recognise a
10 person by the face than by the back. But if witnesses claim they have
11 seen only the back and later claim they recognise someone by the back of
12 his head, then there's a good reason to test that, just in the same
13 manner as which happens quite regularly, that people claim to recognise
14 the posture of a person or the build or the way he walks.
15 Q. My question was, though - thank you - is has that ever happened
16 in any of the thousand trials you testified at, that the Prosecutor's
17 presented a lineup of backs of heads and it's been used and you've said
18 that's okay? Has that ever actually happened? I'm not talking about
20 A. Yeah, yeah. No, with the back of the head has not happened.
21 Q. Okay.
22 A. But with the heads covered, with fake moustaches, Mickey Mouse
23 mask. Anything can be done. There's no particular reason why lineups
24 should be restricted to the typical facial photographs that you usually
1 Q. Okay. Now, given I've informed you about the wanted posters and
2 I've -- and we've discussed the -- what the witness saw with a little
3 more depth, do you still maintain that there's no indication why it was
4 impossible, undesirable, or unnecessary to do a lineup test for PW 165,
5 or do you think that there might be reasons not to?
6 A. Well, the case is if the lineup -- if the posters show the face,
7 which he claims he'd never seen, anyway, because he says I saw -- maybe
8 saw the back, then showing the face of Mr. Beara on posters would not be
9 a reason not to test his ability to recognise the back of a person
10 because seeing the face would not be helpful in that lineup at all.
11 Q. But we couldn't do a face lineup is what I mean.
12 A. You couldn't do that face lineup. You couldn't do that, anyway,
13 if he never saw that face.
14 Q. Okay. Thank you. Okay. Now, we have agreed and you explained
15 quite well yesterday in a question about using video stills to make photo
16 boards, you need a reasonably good quality of the suspect to make a fair,
17 probative photo board, correct?
18 A. Yes, that's correct.
19 Q. Now, I'd like to bring -- first of all, here's for more
20 information than context for you. Up until March of 1997, we did not
21 have photos of Mr. Beara, and I'll show you the photo we've had, which I
22 think you've seen, 65 ter 1983. And I shouldn't say photos; I should say
23 images because the first thing we got was the video clip, which you've
24 seen, I'll show you a still from that.
25 Now, our position is that Mr. Beara is the gentleman on the left
1 with the glasses and no hat. Clearly, that still is not suitable for a
2 lineup, correct?
3 A. Yeah, I agree.
4 Q. Thank you. The next -- I want to show you 3656 now, please.
5 This is a passport photo of Mr. Beara, which we got on September 2002.
6 So until September 2002 all we had was that still, and then we got this
7 photo. That's a reasonable photo for a lineup, I take it, or you tell
8 me. Sorry.
9 A. The quality of that photo is better, but there's one problem,
10 which is that in this photograph --
11 Q. I see, yeah.
12 A. -- his appearance might have changed compared to what witnesses
13 might have seen in 1995.
14 Q. Yes, because it's --
15 A. And the problem is that preferably, of course, you would have a
16 good photograph, not a recent photograph, but a photograph representing
17 the accused's appearance in 1995.
18 Q. Yeah. Exactly, because this is seven years later.
19 3636, please. This is one you've seen. This is the next and
20 third image we get of Beara in fall 2005, and so I just wanted to show
21 you this is what we had at various times.
22 A. Yeah. This would be a very good picture, I think, because I
23 estimate it that it comes from about that period of time.
24 Q. During the war, clearly.
25 A. During -- yeah, I can't say that, but it's suggestive of war
1 conditions, and I think that the face is clearly enough to be used in a
2 photo lineup. There's nothing wrong about the cap. It only means that
3 the foils also should wear caps, but that's done before by the Tribunal.
4 Q. All right.
5 A. And if you want to use the entire picture in order, also, to show
6 his build, then the only thing you need to do is remove the insignia.
7 Q. Okay. Now, could we go -- which, actually, I'll do that now.
8 You made a slight error in your testimony yesterday. You said that one
9 of the problems in showing this photo to Erdemovic was insignia, but in
10 fact - and I think my friend will agree with me; it's in the stipulation
11 - the insignia were blacked out in the photos shown to Mr. Erdemovic.
12 That's just for your information.
13 Okay. Now, I want to talk to you about those wanted posters that
14 I referenced, that I think we agreed if a witness had seen a wanted
15 poster with Mr. Beara's face on it subsequent to the incident but before
16 the test it would invalidate the test because of possible unconscious
17 transference or conscious transference.
18 A. Yeah. It would invalidate a test that makes use of faces.
19 Q. Yes.
20 A. Not of anything else.
21 Q. Right. Let's go through these, if I can, and let me give you
22 some dates first that are I think beyond dispute. 21st of October, 2002,
23 is when Mr. Beara's indictment was unsealed, and that means made public.
24 Everybody in the world knows about it, can read about it. 10th of
25 October, 2004, is when Mr. Beara was taken into custody in The Hague
1 that is also the time frame you'll see of the wanted posters because he
2 is not on posters before the indictment is unsealed, obviously, and once
3 he has been arrested then there's no need to keep putting him on further
4 printings of the posters, although old posters may still be around.
5 And could we bring up 65 ter 3637, please. This is a series of
6 wanted posters. I'll run through them quickly. If you need to see the
7 hard copy, if it's too small, I'll give you one, Professor. This first
8 one -- that's fine. We can see the date 30th, October 2002, meaning a
9 few days, ten days after the indictment was unsealed, and you'll see that
10 Mr. Beara is the first person on the poster because of the spelling of
11 his name. Do you see that?
12 A. Yes, I do.
13 Q. Okay. Can we go to the next page. The next printing. A little
14 bit bigger, please. Thank you. 20th of January, 2003, it's the same,
15 and you may notice, too, that the photo of Mr. Beara is the same one as
16 the passport photo that we received at just about that same time.
17 A. Yes.
18 Q. Next one, please. Thank you. And if we could just scroll down
19 to the bottom because the date's on the bottom for some reason. 15 of
20 August 2003. This is all while the window between the unsealing of the
21 indictment and the arrest. Next one, please. Maybe we have -- oh, I
22 missed one. We don't need to go -- no, this is right. I'm sorry. This
23 is 26 November 2003
24 which we can just scroll through quickly, which are 10th March, 2004, and
25 19 July 2004
1 So just to save time, I won't comment on those, but what we've
2 seen are -- during this window, which I've outlined, five separate
3 printings of this photo where Beara is always the first one.
4 Now, if we could have 65 ter 3645, please. I got to say the
5 redactions are just the names in the field offices. I can show that to
6 my friend if he wants to see them, but we just redacted the names. This
7 is just an example, a distribution of the -- one of the posters showing
8 the printing and how many were sent out, and we can see at the bottom how
9 many there were, 1135 in English, 85 in French, 495 in Cyrillic, and the
10 different places where these were distributed, and the second page is
12 Now, you may not have been to the region, but I think we can
13 agree that the point of a wanted poster is to be seen by people, correct?
14 A. Yes.
15 Q. Yeah. So these are widely distributed in the areas Zvornik,
16 Bratunac, post offices, police stations, municipality buildings, all
17 boarder crosses between Zvornik and Serbia where many of our witnesses
18 have testified they crossed frequently, offices of international
19 organizations, billboards sometimes, and they were also all over the
20 internet, but they're prevalent where our witnesses live.
21 Let me show you a 65 ter 3664, if I can. Turn that around. In
22 addition, Interpol has posters for him. I'm not sure how useful that
23 particular one would be. For -- not for us, for other reasons, so he's
24 also on other posters, and I'm showing you these. You agree -- well, let
25 me continue, and then I'll ask you the question because I want to go
1 through the media and the press. Can we look at 3643, please, and let me
2 just ask you this before we look at these. Did you ask or inquire of the
3 Beara Defence about images of Beara that may have been in the local press
4 in the former Yugoslavia
5 these interviews you were analyzing were being conducted? Did you ask
6 about that kind of image distribution?
7 A. We discussed possible images that could have been seen. I did
8 not ask specifically for posters because I was unaware that he ever
9 appeared on a poster.
10 Q. Okay. Well, this is just a sample I'll show you of --
11 A. The date of this?
12 Q. Is the 20th of October --
13 A. 2004.
14 Q. Yes, 20th of October, 2004, and you remember Mr. Babic. Mr. 165
15 we just talked about was interviewed in 2005 for the first time. If we
16 go to 3644, please. That's 14 October 2004
17 more questions about that photo a little later. About Mr. -- this
18 article, I don't have a translation, but it's about Mr. Beara being
19 transferred to this Tribunal after his arrest. 3668. And this is Vreme,
20 a local paper.
21 Glas-javnosti, another one, 14 October 2004. And I'm not going
22 to -- let's skip to 3670, if we can, to save time. 12 October 2004, same
23 passport photo. This one in English just to show that it's also in the
24 international press.
25 3671. Wanted persons from the poster are also shown on -- you
1 can see here on international websites, this one from the US Department
2 of State. We can skip 3672. We can skip 3673 just to save time.
3 Now, you've acknowledged this problem of witnesses possibly
4 seeing the image or the person afterwards in your report - that was with
5 Witness PW 162 and Peric - and you say that lineups wouldn't be
6 appropriate for these witnesses because they said they may have seen
7 Beara on TV or in the press. Now that you've seen that distribution of
8 images, press, internet, TV, and physically placed wanted posters, that
9 would also be true for anybody interviewed in your table who was
10 interviewed after those -- after that distribution of his image, correct?
11 They shouldn't be tested?
12 A. That's your question?
13 Q. Yes.
14 A. Yes, of course, exactly the same reasoning applies to all
15 witnesses who might have seen pictures of Mr. Beara. In the awareness
16 that such pictures have been distributed, it would of course have been
17 also necessary to always ask witnesses whether they have seen those
18 pictures or not. I saw those references in two of the statements where
19 it was asked, and they said, yes, indeed, I have. The reason why I did
20 not group other witnesses with the two you mentioned, PW 162 and Peric,
21 is that such statements I did not find in the files of the other
23 Q. Yeah. Now, though --
24 A. But logically, of course, you are completely correct. If they
25 were interviewed after the publication of these witnesses, they should
1 have been asked about seeing these witnesses, and if there is even a
2 slight possibility even if they had not been aware of it, that they could
3 have seen them, that would make it -- that would be a good reason not to
4 submit him to further tests.
5 Q. Thank you. Now, I'm looking at your Rule 2 from your report,
6 which is on page 4, and you -- and that's what I call the after rule,
7 can't have seen the witness after the encounter. And here's what you say
8 there: "If there has been such an extra exposure to the outer appearance
9 of the suspect, a lineup test would be invalid and should, therefore, not
10 be conducted. It does not matter whether the witness testifies that he
11 was not influenced by this encounter or that he did not pay attention
12 during this other encounter" --
13 THE INTERPRETER: Counsel is kindly asked to slow down when
15 MR. NICHOLLS: I apologise. -- "that he does not remember this
16 other encounter or that he did not even recognise the suspect at this
17 other encounter because it is unconscious."
18 So -- and as I said, Professor, I was in Limaj for your
19 testimony, and I paid attention, and what I got from it is if you got a
20 witness from a place like Zvornik or Bratunac, when I go there there's
21 wanted posters everywhere, I would say -- or you tell me. Doesn't matter
22 if the witness says, I've never seen a wanted poster. It's -- what could
23 be more dangerous than seeing the photo of the person on a wanted poster
24 even if you don't remember it or -- I mean, isn't that just a flat-out
25 reason why you should not test a person if there's the possibility, a
1 reasonable possibility that they saw that poster?
2 A. Yeah, absolutely. We don't have to dispute that.
3 Q. Thank you.
4 A. It's clearly stated in my report. There's no reason to change
5 that statement.
6 Q. Okay. Now, that will shorten some of my cross. I'm going to go
7 to Rajko Babic, another witness in your table. He's the second in your
8 table. This is a -- he testified here on 18 of April, 2007, interviewed
9 for the first time in September 2005 when Mr. Beara was already in
10 custody. And he had a face-to-face discussion with a lieutenant-colonel
11 - that's at TR10237 to 10240 - in broad daylight. So in principle, no
12 observation problems there, correct? Face-to-face discussion during
14 A. Yes.
15 Q. And he gives a description at -- I won't bother reading it at
16 10240. It's not in your report, I don't think, but in 65 ter 2D0011,
17 page 5, paragraph 8, he also -- which is --
18 THE INTERPRETER: Thank you for slowing down.
19 MR. NICHOLLS: I'm sorry.
20 Q. -- which was provided to you, he also described the colonel in
21 his 50s. Now, in your report you talk about the photos shown to Mr.
22 Babic. This is on page 10 of your report --
23 A. Yes.
24 Q. -- in the second paragraph. And you say, It's even more
25 surprising as none of -- as they contained no image of Mr. Beara, all the
1 photos shown to Mr. Babic, but now the discussion we've just had about
2 the exposure this witness to Bratunac might have had to Mr. Beara's image
3 as an ICTY accused, now that you know that, it's not surprising, is it,
4 that the investigators didn't show him images of Mr. Beara?
5 A. Well, to me it was surprising that in an interrogation about
6 Mr. Beara where you show pictures and ask whether he recognised someone,
7 you show him pictures where he could not possibly recognise Mr. Beara
8 because he was not in the pictures. If it's meant as a test to see
9 whether he would make a false positive, then in principle that could have
10 been arranged in such a way, although that's not a usual thing to do and
11 could also be considered a somewhat misleading way of teaching witnesses.
12 Q. Yeah, but --
13 A. So I don't think that was the intention. So I really do not
14 understand what the meaning was of showing these pictures. That was why
15 I was surprised to see that it had been done.
16 Q. Okay, but let me say, you're an expert in your field, but you are
17 not a criminal investigator.
18 A. No.
19 Q. And I don't mean that to be flippant, but that's not your
20 expertise, correct?
21 A. Yes, that's correct.
22 Q. And I put it to you that there are reasons to show witnesses
23 photo, lots of photos of other people, not to identify so -- just to get
24 leads. Can you accept that?
25 A. Yes, that's possible.
1 Q. So the investigators very well with the witness may say, all
2 right, we're going to show you a bunch of photos. Just tell us if you
3 see any of these people regardless of whether they are meant to be
4 indicted or not or a suspect, but just who are they, do you know them,
5 and purposefully remove the photo for Mr. Beara so they don't say, oh, I
6 know that guy, and then you would come in and say, well, that's -- that
7 doesn't mean anything, that's an inappropriate identification --
8 A. Yeah.
9 Q. -- correct?
10 A. Yeah, although some comment can be made about that method of
11 investigation. If you show photographs of people to witnesses to find
12 out whether they can give you a lead, at the same time that means, as you
13 already suggest, that these witnesses cannot be used later on to identify
14 those people.
15 Q. Correct.
16 A. And I'm always surprised if I say how easily and how quickly
17 during early investigation stages photographs are shown to witnesses
18 without the realization that that way you lost the witnesses for later
19 identification purposes, which is not a problem if you have lots and lots
20 of witnesses, but which can be very problematic if there is a scarcity of
21 witnesses. And that is why I always recommend that you show photographs
22 to witnesses in order to find a lead if you are desperate because there's
23 no other way of getting leads.
24 Q. But there --
25 A. So that practice of showing photographs to get a lead in the
1 investigation is a technique that really surprises me.
2 Q. Okay. Because, see, what we need to do is find people and
3 interview them to get more information; and occasionally, Professor, can
4 you see that it might be worthwhile showing photos to generate those
5 leads, to get information even if we accept we'll never be able to do a
6 photo lineup of this person with the individual who pointed him out to
7 us. Is that reasonable?
8 A. Yeah. That situation can happen, and I'm not an investigator, as
9 you said. But as an expert I've seen numerous cases where later on it
10 was realized that there weren't -- were not so many witnesses and that it
11 was still attempted to do identifications with witnesses who provided
12 leads on the basis of photographs. And that's why -- and also in my
13 publications I sometimes warned against that practice explaining that you
14 should do that only if you have many witnesses and you can easily lose a
15 few or if you are desperate. In one of my publications out of 2005, I
16 spent a whole chapter to that problem where in the robbery of a station
17 office in their other station, all suspects were first shown photographs
18 to get a lead, and that way they lost six witnesses and had no witnesses
19 left for a conviction.
20 Q. Okay. Just to correct the record, a small -- I think small
21 mistake you made yesterday in your testimony at 25333 discussing Mr.
22 Babic. You talked about how showing the pictures to Mr. Babic meant that
23 he could not be tested in a photo lineup anymore, and then you said that
24 he did not recognise anyone in the pictures because whether he should
25 have recognised Mr. Beara in these pictures if he really met him, it all
1 also depends on the quality of the pictures, implying that Mr. Beara was
2 included in those pictures, but I just want to point out to you that --
3 A. That he was not.
4 Q. -- that he was not. Your report is correct.
5 A. Yeah.
6 Q. So I think we can agree now, just to keep it straight, that there
7 were reasons not to do a photo lineup of Mr. Babic considering his
8 exposure to the images of Mr. Beara?
9 A. If he was, and I can't see that in my report, if the first time
10 he was interrogated after the publication of these photos.
11 Q. Yes, September 2005, so we can agree. We can agree he shouldn't
12 have been tested with a lineup?
13 A. Yes.
14 Q. Thank you. I'm moving on now to Mr. Boering. He's a -- Major
15 Boering, the fourth witness on your table, and as you state there in your
16 Column 3, here there are two encounters, twice, and you've got it just
17 right, first in dusk for 15 to 30 minutes, and the second during lunch
18 for 30 to 60 minutes. And that second meeting you'll see was at the
19 Hotel Fontana in Bratunac. You refer in para 2 of Section 2 -- or
20 Section 2 of Section 2 of your report, the poor lighting conditions.
21 Now, I took that to mean you were talking about the first encounter that
22 Major Boering had with who we say was Mr. Beara, correct? Because I
23 didn't see anywhere else where there were poor lighting conditions, but
24 you correct me if I'm wrong.
25 A. I've described lighting conditions in general. It's a general
1 factor that should always be considered. It's not limited to this
2 witnesses -- to this particular witness. You should ask about all
3 witnesses, what were the lighting conditions? I'm not quite certain - I
4 should just review all the cases - whether Mr. Boering is the only one
5 who described poor lighting conditions, but my statement in the report is
6 a general statement about lighting conditions.
7 Q. I see. All right. Well, you don't need to stop now and do that,
8 but if you think of any of the others -- here, we describe dusk, so
9 that's what I thought you were referring to.
10 Still, even at dusk a 15- to 30-minute face-to-face conversation
11 is not bad for exposure time, correct?
12 A. No, and I never said that lighting conditions are an absolute
13 obstacle to seeing faces, but if there is a question about how well could
14 he see him, and lighting conditions might be one reason --
15 Q. Okay.
16 A. -- then the answer to that question can be obtained from an
17 identification test.
18 Q. Okay. And the second one, I think we'll agree, the second
19 meeting, lunchtime, 30 to 60 minutes, daylight, no observation problems
21 A. No.
22 Q. Now, I'll try to shorten this, but I want to quickly go through
23 these two encounters. The first one according to Major Boering's
24 testimony is sometime in March or April 1995. He describes this at page
25 5 of his 1998 statement, which is 4000025, and he says that Momir Nikolic
1 introduced me to a VRS officer named Colonel Beara, and then he describes
2 their conversation. In the same statement at page 6, he talks about one
3 month later approximately after that first meeting, he again meets with
4 Momir Nikolic and Colonel Beara, this time at the Hotel Fontana in
5 Bratunac for lunch, and they discuss the same topic at both meetings, the
6 problem of Naser Oric. And I won't go through it, but there's a lot of
7 description in there about their lunch and their conversation at both.
8 Now, let me just read you a little bit of the cross-examination
9 of Major Boering that was conducted by counsel for Mr. Beara by his
10 Defence. He is asking Boering about this lunch. This is at 2109 in the
11 transcript: "Okay. And let me refresh your recollection if I can. Do
12 you recall that on that meeting it was a luncheon meeting and that you
13 had food, and you had drinks, you had meat, lamb, and fish. Do you
14 remember that?" And then Major Boering continues on: "I'm not sure I
15 remember exactly what we ate.
16 "Question: Do you recall that it was a luncheon-type meeting
17 where you met Mr. Beara at the Hotel Fontana, sir?
18 "Answer: Yes.
19 "Question: Do you remember there were two black soldiers there
20 that were going to sit at another table until Mr. Beara said, no, come
21 sit with us, and you put a separate table at the end so the black
22 soldiers could sit with you and eat lunch?"
23 And then Mr. Meeks continues to ask Mr. Beara at 2111 about the
24 conversation regarding Naser Oric. So from that material provided to
25 you, it's clear that Defence counsel for Mr. Beara do not contest the
1 lunch meeting with Mr. Beara. They have accepted that; he is there; it
2 is their case that he is at that second meeting. That's clear from the
3 transcript, correct?
4 A. I don't think I should make conclusions about that because it's
5 something I should conclude, right? It's not something I can read in the
6 transcript. It's not Defence counsel saying that --
7 Q. Well --
8 A. -- we do not contest that ourself.
9 Q. Well, he is. He says, let me remind you what you had for lunch
10 here and who you ate with, the witness says, well, I remember this, I
11 remember that. They are both agreeing about this lunch, but I'll move on
12 if you feel you can't --
13 A. But to my mind, it also could mean, let me remind you to what you
14 told about it without the explicit statement of Defence that they agreed
15 that is the truth, so it's not for me to determine whether --
16 Q. Okay.
17 A. -- in truth the Defence already conceded that this meeting had
18 taken place.
19 Q. I'm not talking about in truth. I'm talking about as the fact
20 pattern of --
21 A. Yeah.
22 Q. -- the science of whether tests should be --
23 A. I can see what the logical implication is of what you because
24 you're --
25 Q. You can see where I'm going?
1 A. But I don't think I should make logical conclusions. That's not
2 my job.
3 Q. Okay. Well, I'll -- just a couple of things. This is the
4 cross-examination of Major Boering about the first meeting, the prior
5 meeting. Mr. Meeks: "I want to talk to you briefly about your alleged
6 meeting, first meeting with Mr. Beara."
7 A. You mean in the dusk?
8 Q. Yes, as in 2117.
9 A. The one -- yeah.
10 Q. Clear they contest that meeting. And then later on, 2117, Mr.
11 Meeks says: "I want to know, do you have a specific recollection of who
12 it was that contacted you about this purported meeting?"
13 And later at 2121, Mr. Meeks says: "What was the subject
14 specifically of this conversation you purportedly had at Checkpoint Jovo,
15 first meeting with Mr. Beara?"
16 So Rule 2, it seems quite simple to me. We just talked about it.
17 If there has been such an extra exposure to the outer appearance of the
18 suspect, a lineup test would be invalid, and therefore, it should not be
19 conducted, a second exposure. Now, just as a -- we'll make it a
20 hypothetical, if all parties agree that Mr. Beara and Major Boering were
21 at the second meeting, a lineup test wouldn't tell us anything about the
22 first meeting, correct?
23 A. That's correct.
24 Q. Thank you.
25 A. And if you accept that hypothesis, which is not mine, then a
1 positive identification, it only means he knows that person, and you can
2 only interpret that as having met at a certain occasion if there's only
3 one possible occasion.
4 Q. Right.
5 A. That's the logic of it.
6 Q. And here we've got these -- under my fact pattern, we'll -- he
7 should not -- so if my hypothesis is correct, then Major Boering, as
8 well, should not have been tested in a formal lineup, correct?
9 A. Yes, that's correct.
10 Q. Thank you. Now I'm going to move to Mr. Egbers, the fourth one
11 on your witness table, and his statements and testimony, which you've
12 read. He talks about first a meeting, Major Zoran Malinic, and the
13 transcript's provided to you at TR2670. Mr. Egbers testified about how
14 he was told by Malinic that Malinic needed to contact Colonel Beara to
15 solve the problem, and he testifies that the next day Colonel Beara
16 arrived, and Egbers testifies that he spoke with him.
17 Now, I'd like to bring up 65 ter number 2D00024. I'd like to go
18 to page 6. Well, page 1 first, excuse me. All right. We can see here
19 this is a Royal Netherlands Army Srebrenica debriefing, and that's not
20 what I'm most interested in. What I'm interested in is the attachment to
21 that meeting, which is at page 6, the report which is attached.
22 A. Excuse me. What's the date of this debriefing? Okay.
23 Q. I think this one, Professor, unfortunately is undated, but the
24 document I'm going to show you does have a date. On page 6, this is a
25 report which Egbers drafted on the 15th of July, 1995, which according to
1 him was the day after he met with Colonel Beara at Nova Kasaba, and he
2 describes this encounter at paragraphs 8 to 10. "As a large group of BiH
3 fighters was assembling, several BSA units advanced." And that is how
4 they wrote the Bosnian-Serb army at that time, the VRS. "Our safety
5 could not be guaranteed because Major Zoran had no contact with them.
6 His commanding officer Colonel Beara would look into the matter."
7 Paragraph 9: "I made the acquaintance of the Colonel. He wore the
8 insignia of his rank and drove an expensive car." Paragraph 10: "I gave
9 an account of what happened to us, which was written down. Colonel Beara
10 has the original, and there was a copy in the possession of Section 2/3."
11 Now, that doesn't have a description of Colonel Beara, but we
12 talked a bit earlier about refreshing and remembering names, and that's a
13 perfect way to refresh or remember a name, isn't it, to write the name
14 down very soon after the incident or after you learn it, correct?
15 A. Yeah, I would not even call it refreshing. This is committing it
16 to memory. When you write down, it is committed to memory.
17 Q. Okay. Thank you. Now, Egbers testified here in October 2006,
18 and he described his meeting with Colonel Beara, a person introduced to
19 him as Colonel Beara at Nova Kasaba. And he says this:
20 "Question" -- reading his report -- "Now, it proceeds to say I
21 contacted Colonel Beara in the morning. Do you see that?
22 "Answer: Yes.
23 "Question: How did you make contact with him? Did you call him?
24 "Answer: He got out of his car. I went to him. I even saluted
25 him, and I told him who I was, and he told me who he was. He didn't say
1 much, but that's, I think, the answer to your question."
2 A little bit further down, this is on page 2821: "I walked
3 towards him, and I saluted him, and then he saluted me back.
4 "Question: Now, in the statement it never states that Mr. Beara
5 ever introduced himself to you. He goes on the next four lines to state
6 the interpreter told me his name. Do you see that?
7 "Answer: That's correct."
8 THE INTERPRETER: Counsel is kindly asked to slow down.
9 MR. NICHOLLS:
10 Q. I apologise again.
11 "Question: Is it your recollection now that he introduced
12 himself to you?
13 "Answer: Well, I told my name to him and explained who I was,
14 and he didn't speak English very well that time, but he mentioned his
15 name, and the interpreter, he translated everything in English to me, and
16 he told me that he was Colonel Beara." And then he goes on to say this
17 was around 10 to 15 minutes outside the school.
18 So I think we can agree no observation problems there,
19 face-to-face, short conversation in daylight.
20 A. Yes, that's correct.
21 Q. Okay. And no problems what the name we just said writing it
22 down. And could we have 65 ter number 2D00019 up, please. This is from
23 a 24 October 1995
24 statement. If we could go to page 7, please, of the English.
25 A. You said 2005. I saw on the page 1995. Is that correct?
1 Q. It's -- I'm sorry. Yeah, it's 1995. I don't know if I said it
2 wrong or it was the transcript, but you're correct. Thank you.
3 A. The transcript says 2005.
4 Q. No, it's 1995.
5 A. I think it's 1995.
6 Q. Correct. And again, in this statement made in 1995, Egbers
7 writes: "On Friday, 14 July 1995, I contacted Colonel Beara in the
8 morning. I spoke to him. He read the statement, and nothing was
9 discussed. This man wore badges denoting that he was a colonel. He wore
10 a camouflage uniform. He was 45 to 50 years old. He was about 1.9
11 metres tall. His hair was grey. I saw that he drove in a luxurious car.
12 I believe it was an Opel Omega. The interpreter told me his name."
13 So he's told that the person that's going to resolve the
14 situation is Colonel Beara. He is expecting to meet Colonel Beara. The
15 next day, he meets Colonel Beara, has a short conversation. The day
16 after that or that night, he writes down the name Colonel Beara. And in
17 October 1995, he gives a description. That's all - isn't it - at the
18 beginning a decent way of - you tell me - processing and beginning to
19 retain a memory of meeting a person?
20 A. Yes. The conditions as they are described in this document allow
21 an adequate representation of things in memory.
22 Q. Thank you. And the last question before the break, just to
23 remind you, at that point we didn't have a photo at all of Mr. Beara, so
24 you agree with me, it's plain common sense, we can't do a photo lineup
25 without a decent photo, correct?
1 A. In 1995?
2 Q. Yeah, when this statement was taken.
3 A. If it is so that you didn't have a photograph at that moment, but
4 I'm not -- I cannot verify that fact.
5 Q. But if you accept that we were not at fault?
6 A. If you have not a photograph, you cannot do a lineup.
7 MR. NICHOLLS: Thank you. Can we take a break now?
8 JUDGE AGIUS: Yes, Mr. Nicholls. We'll have a 25-minute break.
9 How much longer do you have?
10 MR. NICHOLLS: I can try to speed up, but I hope I can finish in
11 the next session, Judge. I'm going to proceed in the same way. I have
12 specific questions about specific witnesses that I think I need to go
14 JUDGE AGIUS: I just wanted to know how long. Thank you.
15 --- Recess taken at 10.29 a.m.
16 --- On resuming at 11.03 a.m.
17 JUDGE KWON: Judge Agius had to leave us due to an urgent
18 personal matter. We will be sitting pursuant to 15 bis. Mr. Nicholls,
19 please continue.
20 MR. NICHOLLS: Thank you, Your Honour.
21 Q. Professor, I apologise. I'm going to go back and ask you a
22 question about number 2 on your table, Mr. Babic, which I had forgotten
23 to ask you. Now, before I do that, the summaries that we talked about,
24 3696, were those -- who actually typed those up? Was that physically
25 typed up by you? I'm talking about the summaries now, not the table, or
1 was that typed up by the Defence when they were working with you?
2 A. Yeah, these were typed up by the Defence when they were working
3 -- I think when I was working with Mr. Philip De Man. At least it was
4 produced on their machine, not my machine.
5 Q. All right. Now, if we can look at your table in your report -
6 for the record again, 2D574, page 9, that is - for Mr. Babic who we
7 discussed earlier in the third column, "saw him how," you've written,
8 "Probably never." Now, isn't that doing exactly what you said was not
9 your role, deciding on whether the witness did or did not in reality
10 actually see Mr. Beara? Isn't that the Trial Chamber's job?
11 A. Yeah, you are correct. I should have said that there is a
12 question mark about whom he saw and how he saw him.
13 Q. Okay. Thank you for that and -- because I think we can agree, of
14 course, you have no idea --
15 A. But it is my wording, as you see in my original notes, the
16 handwritten notes.
17 Q. I accept that. I accept that. But you have no idea whether Mr.
18 Babic met with or saw Beara that day on the 15th July, 1995?
19 A. In fact, I have no opinion who ever met anyone at all in this
20 case. I only discuss how it could have been tested.
21 Q. Thank you. Back, now, to Mr. Egbers, I still want to look at
22 your table here. Again, Column 3, "saw him how," and with all the
23 statements, transcripts, some of which we've covered and many more that
24 were available to you, you've written, "saw him how," "once, was
25 introduced to him, did not pay much attention." And you, again, said
1 yesterday in your testimony at transcript 25322 that Egbers said that he
2 did not pay much attention at this meeting.
3 Now -- and the last paragraph of your report, you say that Egbers
4 denied seeing Beara wear glasses. Now, correct me if I'm wrong, but the
5 total of the analysis in your report which you've provided to the Trial
6 Chamber about Egbers is those two things I've read out to you; is that
8 A. What I quote in my report what I guess is --
9 Q. Yes.
10 A. -- what you say, that of course does not mean that I pretend to
11 have given there a complete representation of Egbers' statements. It's
12 only -- the table is meant as a reminder for the Court, but of course I
13 am aware that the Court has read all Egbers' statements.
14 Q. Okay. In any event, if we could look at 65 ter 3696 at page 10.
15 That is the summary for Mr. Egbers and, again, we should only broadcast
16 page 10, not the first page. There we have the citation to this portion
17 of your report. It's a little bit down on the first section: "Witness
18 allegedly met and spoke to Beara in a parking place. He didn't pay much
19 attention to the appearance of the person he had allegedly seen." And we
20 see the transcript reference at page 2824, line 16.
21 Now, what I want to do is read out a bit of that transcript page
22 where line 16 comes in. This was on cross-examination.
23 "Question: Right. How about eyewear, sir? When you describe
24 someone, would you say someone if they wear glasses, wouldn't you
25 describe them by saying they wear glasses, or if you don't mention
1 glasses, can I presume that Mr. Beara on 14 July 1995 was not wearing
2 glasses given your immediately recent testimony? If you saw, you would
3 have written it down, et cetera, if he had it.
4 "Answer: Well, I haven't wrote that down. I don't recall
5 whether he wears glasses. He did wear glasses at that time, but I didn't
6 write it up. He stepped out of a car. I don't know whether he had
7 glasses or not."
8 "Question: How about facial features like eyes, the shape of his
9 eyes, the colour of his eyes? Do you recall that at all?"
10 "Answer: Well, I've got to explain the situation. We were there
11 with 12 Dutch peacekeepers. There were -- there were terrible things
12 going on. We were concerned about the safety of us and all the others in
13 the surroundings. The one who was in charge of -- was capable to get us
14 back was this Colonel Beara. That's what they told me. That's what this
15 major told me and the translator told me. And when I met him, I was only
16 focusing on getting the things done I wanted to be done, so I didn't
17 focus on the colour of his eyes. There are a lot of impressions -- other
18 impressions at that day, of course, as you can imagine. So instead of
19 going to all these facial remarks or his eyes, did he have a scar or not,
20 it's just a minor detail in my story. Of course, for you it's an
21 important one, but I've described him as I described him as being a tall,
22 1.90 metres, a colonel of the Bosnian/Serb army, who came out of a car, a
23 luxurious car, who I saluted, who saluted back. We talked about it.
24 This was the Colonel Beara, the interpreter said. This is what I
1 Now, from that answer, the only information you provide the Court
2 citing here for your analysis is that Egbers "did not pay much
3 attention." Is that fair? Is that accurate?
4 A. It's not -- what I say is not a total representation of Egbers'
5 experiences on that particular day. It's the essential thing when it
6 comes to Egbers' storing information about the outer appearance of the
7 person he met, and to me, my discipline, it's essential to say he states
8 he did not pay much attention because the whole perception and memory
9 process as I explained the other day starts with paying attention. When
10 you don't pay attention there it stops, so to me, that's a crucial piece
11 of information. And I never pretended that my table is a complete
12 representation of Egbers testimony. There's no way it could have been.
13 Q. No, but my point is this, Professor. He doesn't say anywhere
14 here that he didn't pay attention. I think a fair reading of this is
15 that all of his attention was focused on this Beara who he saw as his
16 only way out of this difficult situation. He says he didn't pay
17 attention to whether he was wearing glasses or the shape or colour of his
18 eyes. He doesn't say he wasn't paying attention during this encounter,
19 does he?
20 A. Well, he's saying he does not pay much attention to his outer
22 Q. Where does he say that? He says he described him, 1.9, a
24 A. Yeah, but not to facial marks. He says remarks, but it's facial
25 marks and his ability to identify him later so that we can be a little
1 bit more certain about who he met. It's probably not based on the length
2 of person because the length of a person is not such a unique descriptor
3 that you may recognise someone on the basis of that. For me, for
4 recognition, say, the most relevant thing would be, the most useful thing
5 would be if he had stored the face itself, but he says he did not, which
6 - and let me be clear about that - does not mean that he does not
7 remember the face. To me, it means there is some uncertainty there
8 because he said that he paid attention to other things and that
9 uncertainty can be removed by a test. That's the only thing I'm saying.
10 Q. Okay. Now, you also said in your report he denied that Beara
11 wore glasses, and you made a distinction yesterday between witnesses who
12 don't remember glasses and witness who deny. But your report's not quite
13 accurate on that point, correct? He says here he doesn't remember, not
14 that he denies.
15 A. He does not remember wearing glasses.
16 Q. Yeah. But my point is that in your report you state that he --
17 that Egbers said is one of the people who denied that.
18 A. Let me check this because in my summary statement, it states
19 correctly, witness does not remember if Beara was wearing glasses.
20 Q. Right.
21 A. That's what my summary statement says.
22 Q. All right.
23 A. Let me check in the report.
24 Q. Well, if you look at the last sentence of your report, it says:
25 "For Witnesses 135 and number 21, the denial of having seen any glasses
1 constitutes all the more reasons why they should have been tested." And
2 Egbers is number 21 in your table.
3 A. Yeah, yeah. You're right, but it should read the denial of
4 remembering any glasses.
5 Q. Right. Now, the fact -- now, you talked on your direct
6 examination about the showing of the video to Egbers, and you stated, and
7 I agree, that according to your rules, showing that video is not a proper
8 lineup. However, the fact that that video is not a proper lineup doesn't
9 in any way diminish his recollection of the event and his testimony. If
10 he sees a video and says however many times he watches it, yeah, that's
11 Colonel Beara, the fact that that wasn't a proper test doesn't detract in
12 any way from his testimony and his statements, does it? It just means
13 the test isn't valid?
14 A. I'm not quite sure what you're asking me. I'm not denying that
15 he said what he said.
16 Q. Know what? That was a bad question. I'm sorry. My point is, in
17 the situation with Mr. Egbers in 2000, I believe it was, he was shown
18 that video after he has made various statements and all of this, the fact
19 that that video was shown to him and was an improper test means that the
20 test isn't valid as an identification, correct?
21 A. Yes, that's what I --
22 Q. But it doesn't detract from his statements and his testimony
23 about what he saw and remembered? You can't say, because the test wasn't
24 performed properly, you should discount anything from his testimony.
25 A. No, no. He said what he said before he was shown the video, so
1 the video could not have affected what he said. That's a logical point.
2 But after he was shown a video, there is, of course, a problem because
3 what he says further can be influenced by seeing the video, probably not
4 on the events of that particular day, but if later on he describes the
5 person he saw again, that description might be affected by seeing the
7 Q. But the video, the description I showed you from 1995, of course,
8 that's not affected negatively in any way, is it?
9 A. No, because that came before seeing the video.
10 Q. Right. Let's go now -- and again, you have no criticism of his
11 memory of the name and rank of the Colonel Beara that he met and wrote
12 down the next day, as a memory expert?
13 A. No, although, of course, I'm not aware of the particular
14 circumstances in which he did that, but I did not report on that aspect
15 of his testimony.
16 Q. Now, number 151 out of your table, Erdemovic, Witness number 151.
17 He's number 8 on your table. I'm not going to go over this in detail
18 because it's the subject of stipulations which have been filed, and those
19 are agreements between the parties. I just want to correct one point in
20 your report for the record. A mistake, I believe, was made there. You
21 state in paragraph 3 of Section 2 of your report that the presentation of
22 photographs -- let me just check that, sorry. Yeah, sorry, that's right.
23 Page 10, paragraph 3. "The presentation of photographs to Witnesses 122
24 and 151" - 151 is Erdemovic - "was even more surprising as they contain
25 no image of Mr. Beara." Now, we don't need to bring the photo up again,
1 but I think you'll agree with me, that's a mistake. He was phone a photo
2 of Mr. Beara, correct?
3 A. He was shown -- he was also shown a photo, and that's where this
4 comment came from on which Mr. Beara was not present. He was also shown
5 a --
6 Q. But --
7 A. -- but some photos contain pictures of -- at least that's what
8 I've been told.
9 Q. Yeah. So -- and shown in the stipulation which was provided to
11 A. Yeah.
12 Q. Yeah. And so that sentence of the report needs to be corrected
13 because he was shown an image of Mr. Beara. It says he was not in your
15 A. Yeah, but he was also shown an image without Mr. Beara. He was
16 shown several photos. One of these photos --
17 Q. Okay.
18 A. -- was what I know came from the Krstic exhibit 28/15, which did
19 not contain a picture of Mr. Beara.
20 Q. Okay. But my point is reading the plain language of your report.
21 A. Yeah, yeah. You're right. That could be misinterpreted.
22 Q. Now, how did that happen? I mean, do you know how you got that
23 wrong or how that came in?
24 A. You say it's wrong, but that's the way you read it.
25 Q. I'm sorry. Let me read it again. "The presentation of
1 photographs to Witnesses 122 and 151" - Erdemovic, that is - "was even
2 more surprising as they contained no image of Mr. Beara." Now, the way I
3 read that is that all the photographs shown to him contained no image of
4 Mr. Beara.
5 A. Yeah.
6 Q. That's not correct, is it?
7 A. No, it should read: "As some of them contained no image of
8 Mr. Beara." That's what I meant.
9 Q. Okay. Fine. Could I have 3704 up, please. I'll skip that.
10 That's all right. Before we get to the next witness, let me ask you
11 about something you said in the Limaj trial. This was at 7151 to 7152.
12 You were asked a question and you answered -- or you stated -- sorry, let
13 me strike that. 7157 to 7158. That's 65 ter number 3666 in e-court.
14 And you were asked this question:
15 "Question: The point I'm trying to ask you about with this study
16 is the effect of increased exposure time on accuracy of indications" --
17 "of identifications." And as I say, that should be page 7157 in e-court,
18 so we need to go ahead ten pages -- one page, sorry. "And its fair to
19 say all things being equal, an increase in exposure time is going to lead
20 to -- is -- correlates with increased accuracy in identification. Is
21 that a statement you would agree with?"
22 And you answered: "Yeah, there's no doubt about it."
23 "Question" - it's not really a question - "Okay."
24 Then on page 7158, you say: "If you would have asked me what's
25 the minimum exposure that you do need, I would say 300 milliseconds.
1 Above that, it becomes quite good." Now, do you stand -- is that correct
2 still today?
3 A. Yes.
4 Q. Thank you. I want to ask you now about Witness 126, Milosevic.
5 This concerns a 14 July encounter. He's number 10 on your table. He was
6 interviewed in 2002 and testified here in June 2007. Now, this is the
7 witness, you may remember, who was ordered by his commander to deliver a
8 message to Colonel Beara at the school, and he testified at TR1302: "And
9 later in the day, did you receive some instructions from your commander?
10 "Answer: Well, yes. Sometime in the afternoon, he was also
11 called from the brigade, or at least that's what he told me, and he asked
12 me to look for Mr. Beara near the elementary school and to convey a
13 message to him to report to the brigade command, and this is exactly what
14 I did."
15 Now, thinking here about refreshing and names, if you have to
16 deliver a message to somebody who you don't know or haven't met named
17 Beara, then you have to remember that name, perhaps even refresh it as
18 you go along to do the task you were ordered, correct, so the process of
19 imprinting that name Beara would begin even before the encounter?
20 A. That's one possibility, and I really am not to judge that exact
21 situation. It's also possible that he would be sent and saying, go there
22 and there, there is the colonel, tell him this or that.
23 Q. No, but if we accept his testimony that he was told to look for
24 Mr. Beara, then he needs to remember that name in order to deliver it to
25 the correct person. I mean, if you tell me, you've got to find my
1 student Ms. So-and-so in Leiden
2 to remember that name when I'm going to Leiden, correct?
3 A. No, not necessarily. That's why I try to explain. You need to
4 know a lot more about the situation. If I'm told, you will be examined
5 by the Prosecutor Mr. Nicholls, well, there's one person examining me, so
6 I don't need to know your name. I just assume that's Mr. Nicholls, and I
7 don't have to remember the name. If I'm told, go there and there in that
8 office, Ms. So-and-so will give you something, if there's only one person
9 in the office, I need especially to remember where the office is and not
10 what the name of Ms. So-and-so is.
11 Q. No, but --
12 A. So it depends on the situation. If this person is sent to a
13 certain place where someone is in charge, he needs to find a person in
14 charge as it goes in the army, and if there's someone else who's the
15 highest rank, you go to that person. In his recollection later on, but
16 that's already -- that's why I'm saying this, the danger is that he's now
17 reconstructing that he was sent to meet certain Mr. Beara, whereas in
18 fact he was just looking for the highest in rank or the only colonel. So
19 I don't know exactly what's going on in his mind, and in order to make
20 any -- from a scientific point of view -- and in that respect my
21 discipline is different from yours, from a scientific point of view, this
22 is not sufficient for me to make a fair interpretation of what probably
23 has gone on in his -- what probably was conveyed into his memory.
24 Q. Okay. But if from your scientific discipline, if we accept that
25 what he says he remembers that he was told to look for Mr. Beara and
1 there were several people at the scene when he arrives, normally if you
2 were asked to deliver a message to somebody where there may be several
3 people you need to remember -- you don't want to show up and say, does
4 somebody want this? I mean, you need to remember who you're taking it
5 to. That's basic. Forget about this situation.
6 A. That might be logical for a finder of fact. This is not a
7 scientific fact I can confirm for you.
8 Q. Now, this witness knew, was familiar with the accused Drago
9 Nikolic who is in this trial. He is sitting next to Mr. Beara, and
10 according to this witness's testimony, when he arrives at the school
11 Colonel [sic] Drago Nikolic, who he knows, points out Beara to the
12 witness as the person he needs to talk to. And the witness then speaks
13 face-to-face, he says, with Mr. Beara for two or three minutes.
14 No exposure problem there. This is daylight, two- to
15 three-minute conversation, face to face, correct, if that's the way it
17 A. What's the question?
18 Q. Two to three minutes face-to-face conversation is adequate
19 exposure time?
20 A. Sure.
21 Q. Okay.
22 JUDGE KWON: Just for record, line 3, I take it Nikolic is not a
24 MR. NICHOLLS: No, that's my mistake if I said that. Sorry.
25 THE WITNESS: But that is an important detail.
1 MR. NICHOLLS:
2 Q. Yeah. Let me read what the witness actually said. This is at
3 TR1303 to 1304. "I went to the school" -- and this was provided to you.
4 "I went to the school, and since I did not know Beara, I had learned the
5 name for the first time. At the crossroads of the roads leading to the
6 school, I came across Drago Nikolic, and since I had been his assistant,
7 i.e., his security officer in his battalion, we had known each other. I
8 asked him whether anybody by the name of Beara was there, and he pointed
9 a person to me. I approached the man. We greeted each other, and I
10 conveyed the message to him, and the message was that he should contact
11 the brigade. And after that I returned to the battalion, and I briefed
12 my commander, Ostoja Stanisic, as to what had happened. In other words,
13 I was a courier on that occasion, and having done what I did my mission
14 was accomplished."
15 And I don't need to read any more where he describes where this
16 took place. He also described this similarly in his testimony in
17 Blagojevic. I don't know if you were given that. I don't remember.
18 That's 3665, and there he says: "I addressed Drago Nikolic, and he told
19 me that this was, indeed, Beara."
20 So my question is, if we accept this testimony under this fact
21 pattern, without observation problems we've agreed, the witness has had a
22 good opportunity to imprint and remember the name Beara. He's looking
23 for Beara. He's introduced to Beara.
24 A. I didn't say good. You asked me would that be sufficient. That
25 would be sufficient. That doesn't mean it's also guaranteed. So if --
1 where any party in this trial it is challenged that he actually saw
2 Mr. Beara or challenged that he stored an adequate image of the person he
3 saw, then two to three minutes is also short enough to say there might be
4 some doubt in two to three minutes. That's not a lifetime. And so to
5 resolve that question, that's whole point of my report, I think. If
6 there is such a question, and I'm not saying there is such a question,
7 but if there is such a question about whom he actually met, one way to
8 get better information about it is a lineup test.
9 Q. Okay. Now, Drago Nikolic's attorneys did not challenge this
10 encounter - it's at TR13345 - and asked the witness simply to mark where
11 this took place and asked him questions. You've seen security officer
12 Momir Nikolic introduce Beara to Boering. Here we have security officer
13 Drago Nikolic introducing Beara to Milosevic. He is told Beara is the
14 person he needs to see. His recollection, then, of meeting this person
15 Beara by name is adequate.
16 A. Sir, I cannot confirm whether anyone's recollection is adequate.
17 Q. No, the fact pattern. Not -- that's up to the Court.
18 A. Absolutely.
19 Q. Okay.
20 A. What I'm only saying is -- and that refers --
21 JUDGE KWON: Professor. One minute, please. Mr. Bourgon.
22 MR. BOURGON: Thank you, Mr. President. Just to make things
23 clear that my colleague said that the Nikolic team had not contested the
24 fact that Drago Nikolic had done something. The fact that we did not
25 contest the identity of the man to whom he was referred does not mean
1 that we accept in any way or that we recognise in any way who Drago
2 Nikolic might have sent this man if he was seen, if he was seen by Marko
3 Milosevic. So there is no absolutely no acquiescence on our part that
4 Beara was ever there at that moment, and there's no, either, any
5 recognition on our part that Drago Nikolic was ever there. We simply
6 asked the man, was the man that you -- that encounter, that Marko
7 Milosevic spoke about, where did it take place? Nothing else. There's
8 no -- absolutely no acceptance on our part of any of that evidence.
9 Thank you, Mr. President.
10 MR. NICHOLLS: Well, it was certainly not put to the witness in
11 cross-examination that Drago Nikolic was not there.
12 JUDGE KWON: That was the point I was asking my colleagues about,
13 but we have noted the position of the each parties. Let us proceed.
14 MR. NICHOLLS:
15 Q. Now, again, you have no idea whether Milosevic met Colonel Beara
16 that day?
17 A. No, I have no opinion on that, and as I was saying, and this
18 reflects -- relates to all witnesses, the only thing I'm saying, that if
19 there is a question about encounters either because it is challenged by
20 one of the parties or even without challenging, if the Court doubts such
21 an encounter, in that case it is -- the table explains in which way
22 certain witnesses could have testified further. That's all. I'm not
23 taking any position on whether encounters took place or not.
24 Q. Okay. Now, I think we're to the last one of the seven who you
25 say could have been tested, and that is PW 104, the last one on your
2 A. Yes.
3 Q. Interviewed on the 7th and 9th of April, 2006. Now, we've
4 discussed wanted posters, media exposure, et cetera. At this point
5 Mr. Beara is in custody here, so without belabouring it that would be a
6 reason not to test this witness who resides in a region and could have
7 been exposed?
8 A. Yeah. If that was the first time that this witness was found, it
9 was too late to test him further.
10 Q. Thank you. Now, this is another witness where you say that there
11 is all the more reason to test this witness because of the denial of
12 having seen any glasses and that this invokes questions about the
13 accuracy of their observations.
14 MR. NICHOLLS: And I suppose just to be safe, can we go into
15 private session for a minute?
16 JUDGE KWON: Yes.
17 [Private session]
24 [Open session]
25 JUDGE KWON: Yes. Proceed.
1 MR. NICHOLLS:
2 Q. And he testified in this case of his meeting with Beara and the
3 Zvornik brigade command. At 7941, he said: "I know that I was there as
4 well as the officer who introduced himself as Colonel Beara." That
5 recollection of Beara introducing himself is also in the interview 2466,
6 which I've referenced at page 2.
7 Now, I think I can do this in open session. In 65 ter number
8 2466 under seal, his 9th of April interview on page 3, he was asked
9 whether Beara wore glasses. His answer was: "I do not remember." He
10 did not deny that Beara wore glasses. He couldn't remember 11 years
12 Now, again, why does your report say that he denied that Beara
13 wore glasses when he said he couldn't recall?
14 A. Yeah, I think it's the same question you've asked before, that
15 sentence you've read. He denied remembering glasses.
16 Q. Okay. And you've testified and said a couple of times, I think,
17 that you have no way of knowing whether Mr. Beara always wore glasses?
18 A. No, that's not within my field of expertise.
19 Q. Okay. Well, may not be within your field of expertise, but you
20 are also saying that you weren't -- you don't have that information?
21 A. No.
22 Q. Okay.
23 A. What I said is the only pictures that I have seen were pictures
24 where he was wearing glasses.
25 Q. Until today?
1 A. Until an hour ago.
2 Q. Yeah. Now, the witness here, PW 104, he said -- as I've read out
3 said: "He did not look the same as the guy in The Hague. He was bigger,
4 well built." That is 9 April interview, 2466 under seal at page 3. And
5 he described that meeting, as I've said, as one standing up. So how does
6 that affect the memory, Professor, face to face with Mr. Beara in a very
7 disturbing meeting, this colonel standing over him? That can create the
8 appearance of remembering somebody as big if you are face-to-face with
9 him in a standing meeting and they are much larger than you, correct?
10 Would that be one of the significant things you would remember, you
11 talked about, you know, hair and things like that?
12 A. I'm afraid you're asking -- you're referring to a few different
13 problems. One is the impression a person makes at a disturbing meeting,
14 and the other question seems to be whether you would recognise a person
15 after so many years when he changed considerably.
16 Q. No, that's not it. Let me break it down and make it simpler.
17 Forget the disturbing or the nature of the meeting. You talked yesterday
18 - I think my colleague Mr. Bourgon asked you; I can't remember who -
19 well, if someone was asked to remember you what would they remember, and
20 you described, you know, your hair and somewhat your age, things like
21 that. You're not too big, you're not too small, things like that. If a
22 person is meeting somebody face to face standing up who is bigger than
23 them, would that be one of those characteristics that would likely be
25 A. I think we must make a breakdown between things you store in
1 memory at the moment and things that will be recalled after a long
2 interval. There's a difference between the two.
3 Q. Okay. Well, you can explain that.
4 A. That's why I try to explain, what is your question about? Is it
5 what will a person store in memory at that moment or what will a person
6 remember of all those memories stored after 12 years?
7 Q. I mean later because he can't remember it later unless you store
8 it in the first place, so what I'm saying is -- I see your point. When
9 you store the memory that this person was a lot bigger than you, and if
10 you did, is that in the category of things that you might recall years
11 later in describing the person?
12 A. Yeah. That depends on the person who is doing the storage. If
13 you are yourself not a very tall person, you will have the experience
14 that many people you meet are taller than you. That's not so special.
15 So a shorter person would store the memory of a person taller than me
16 especially if there is just a very large remarkable difference. A very
17 tall person, if he meets someone who is really much taller than himself,
18 would notice that immediately because that doesn't happen so often. So
19 it depends a lot on who is doing the storing.
20 Q. Okay. And I'm talking now the fact that I'm a smaller person
21 with a taller person.
22 A. Yeah. It if the witness is a smaller person, he would not have
23 been so surprised that others are taller than himself, and that might not
24 have been a very special feature that he would remember. If the person
25 he met is much, much longer than others, his smaller posture would not
1 make it difficult for him as for anyone else to notice that he's meeting
2 an especially tall person.
3 Q. Yeah. And other people have described Mr. Beara as big as part
4 of their descriptions.
5 A. Right, and that's what this witness also says, so there's no
6 discrepancy there.
7 Q. Yeah. And in his testimony, which is at 8014, on
8 cross-examination he was asked to describe the Mr. Beara, the Colonel
9 Beara who introduced himself to him in this meeting, and he said tall,
10 camouflage uniform, well built, grey hair, age around 50, 55. Now,
11 here's another interesting point I want to ask you about. At transcript
12 reference 8015, the witness in this transcript was provided to you, he
13 said that he saw Beara on television at the time of his transfer to The
14 Hague, which is before we interviewed him. So even there with the
15 information provided to you, you could have concluded that it would
16 violate Rule 1 to have conducted a lineup test?
17 A. To have conducted a lineup test at that moment, yeah. A lineup
18 test should have been conducted before he saw pictures of Mr. Beara.
19 Q. Right. So we can agree that a lineup test should not have been
20 conducted of this witness considering the time he was interviewed?
21 A. At that moment not, right.
22 Q. Yeah. Now, I'd like to look at a short video. That's 3660. And
23 this is video of Mr. Beara at some stage. It's a news report of his
24 transfer to The Hague
25 Mr. Beara coming to The Hague
1 it's footage of that event.
2 [Videotape played]
3 MR. NICHOLLS: Stop.
4 Q. Now, isn't it true that the time to the witness that he saw
5 Mr. Beara in July 1995, Beara in his camouflage uniform in this
6 face-to-face meeting did appear to him bigger, well built than the man he
7 saw nine, ten years later coming to The Hague in a suit?
8 A. I'm not certain what you're actually asking. The witness said he
9 looked different.
10 Q. Yeah. So --
11 A. There's no way I can contradict that if he says that's what --
12 that's his feeling.
13 Q. No, but my point is, that can be a witness in his testimony being
14 scrupulously honest when he says the 56-year-old man he saw and spoke
15 with in 1995 in the flesh in this meeting did not look the same to him as
16 the approximately 65-year-old man he saw on TV in a suit.
17 A. Yeah.
18 Q. That could be just purely straight, honest testimony: He looked
19 different. It doesn't mean that there's a problem, correct?
20 A. Well, it's not clear from this testimony what he's actually
21 saying. Is he saying, I see it's the same man but he has changed, which
22 is possible psychologically, that you can recognise someone after 12
23 years and also see that someone has changed; or is he saying, he looks so
24 different from me, I wouldn't have noticed it's the same person. It's
25 not clear to me exactly what he's saying. I only know what he says,
1 which is he looks different.
2 Q. And that he can't say is that man --
3 A. And I can see good reasons why he's saying that because he also
4 looks different to me.
5 Q. Okay. Thank you. Let's show a quick video now, 3638. This is
6 the clip you've seen before.
7 [Videotape played]
8 MR. NICHOLLS: Thank you.
9 Q. And again, that's an image from much earlier. They do look
10 different, don't they?
11 A. I take it you are proposing that the person we saw is Mr. Beara
12 because, of course, I have no knowledge.
13 Q. All right. Let me continue then.
14 Now, I am talking now about glasses. We saw the video clip of
15 Mr. Beara coming to The Hague
16 when he was in the room walking around, talking to people, hugging
17 people, then climbing the steps to the plane, he wasn't wearing glasses,
18 was he?
19 A. No, he wasn't.
20 Q. Okay. Let me show you again 3644. All right, now. That's the
21 picture we saw before. Looks like it's from the video of Mr. Beara not
22 wearing glasses. You've testified several times you had no way of
23 knowing whether Beara wore glasses - constantly, at least, constantly -
24 and that you hadn't seen him in pictures without glasses in the family
25 pictures provided by the Defence. So they didn't show you this photo.
1 I'd like to look at 3695, please. We are waiting for that to come up.
2 This is that photo of Mr. Beara without glasses that came up while I was
3 preparing your testimony, Professor. This is a Google screen print.
4 That photo's there on the top right, Mr. Beara without glasses. It's
5 also on the second row. That's actually there three times. So you can
6 see this was searched on Google images under the phrase "Ljubisa Beara."
7 It took .02 seconds to come up. That's the time. So --
8 A. And when was this consulted, this Google? You always need dates
9 when you get things from the internet.
10 Q. I don't have the date on it, but this was last week.
11 A. The date is essential. There's no way to know what was available
12 on Google, say, the month before.
13 Q. No, that's true, but the news story that is coming up is a 2004
14 story, so if it wasn't available it was taken off and then somehow put
15 back up. But my point is, did anybody from the Defence or you take that
16 less than a second to check for other images to see whether Beara might
17 -- there might be photos of him not wearing glasses?
18 A. The reason why I asked for the date is that, in fact, I did.
19 Although it's not part of my report, I did, and I do not not remember,
20 but I can only draw from my memory what I saw because I did not make a
21 print because if I had made a print I would have supplied it to you as
22 part of my notes. But I did do that, and I do not remember it, so -- but
23 my memory can be wrong, so that's why I was interested in the exact date.
24 Q. Okay. Well, actually, this one, for the record, Ms. Stewart has
25 helpfully checked the myth when this was printed. It was put in our
1 records. It was 4th September. Very quickly, let's go back --
2 A. Of course, I started to work on this report in 2007.
3 Q. Yeah. Let's got to 3 --
4 A. And I would be very pleased if you could improve my memory by
5 showing the thing I've seen in 2007.
6 Q. Okay. Let's go to 3644, please, back there again for one minute.
7 I'll see if I can help. Okay. This is from the internet. I don't know
8 exactly when we found it, but it's from a news site. It comes up if you
9 search "Ljubisa Beara." Can we go up to the top. This is an archive
10 from Vreme, I probably pronounced that wrong, Vreme, 14 October 2004. So
11 I can't prove it, but my guess is this didn't disappear for just that
12 minute of time -- that portion of time and come back up, so that would
13 have been available to you and to the Defence, correct?
14 A. I have no way of checking whether this was available on Google or
15 not. The only thing I can affirm is that, indeed, I looked at Google,
16 and I don't remember seeing pictures of Mr. Beara without glasses.
17 Q. Okay. Now, let me now move to the -- continuing on the glasses,
18 I want to show you the interview of witness Celanovic. This was in your
19 binder of material. It was made available to you. You discussed
20 Celanovic's meeting with Beara in Bratunac, and you say he should not be
21 tested because he was familiar with Mr. Beara. In fact, he was very
23 Can we have 65 ter 3694 up, please, at page 15. It talks a bit
24 about his familiarity there, and actually, this is from your binders. I
25 don't need to put it on ELMO. I don't think -- this section is actually
1 highlighted in the materials you have. And on page 15, Mr. Celanovic
2 says, speaking of Beara: "I knew him from before because he visited the
3 brigade several times, so he came -- he mainly came for Major Nikolic,
4 because he was a security body higher than him, and he would come -- he
5 came to me, to my office, and he came -- both of them came several times
6 being interested in how many criminal reports there are, how many cases
7 have been solved or processed by the Bijeljina corps, and that was the
8 reason they would come to me." That's probably why he found him familiar
9 and, therefore, should not be tested with a photo lineup.
10 Let's go to page 25, please. And if you want to look, Professor,
11 in your binders or take my word for it, if you prefer, this section is
13 A. Yes. I know that, yeah.
14 Q. Okay. And here the investigator, Allistair Graham has some more
15 questions ten pages later about Mr. Beara. Mr. Graham says: "Okay.
16 Just getting back to Beara. To make sure we're talking about the same
17 person, can you just describe him to me?" No leading questions there.
18 "Answer: Ljubisa Beara, lieutenant-colonel, I have the
19 information he was in the Main Staff, the main officer for security.
20 "Can you describe him for me?
21 "Answer: A strong built, tall man. He was -- had a receding
22 hair, or had receding hair, greyish or grey hair. Sometimes he had
23 glasses, sometimes not."
24 You had available to you clear, unambiguous information from a
25 recognition witness that Colonel Beara sometimes wore glasses and
1 sometimes he didn't. Let me look at your 65 ter summary 3696 at page 8.
2 Please don't broadcast the first page. Let's wait for that to come up.
3 Bottom section, "glasses": "Says Beara only wore glasses sometimes, and
4 sometimes he did not."
5 Can I have 3704 up, please. Those are your handwritten notes
6 that you've been reading from in your testimony. This should not be
7 broadcast. Should not be broadcast. Number 5, "Celanovic. Familiar,
8 receding greyish hair, sometimes glasses." You have had that information
9 in front of you while you're testifying here. You've had it in your
10 summaries. You've had this statement. You said you have no way of
11 knowing whether he wore glasses or not. That wasn't quite correct, is
13 A. I can't see why you're saying that. Are you saying that I should
14 accept as an authority a witness who makes a statement?
15 Q. No. What I'm saying Professor, is --
16 A. I don't -- I don't know whom to believe. If I should make an
17 assertion, accept as a scientific fact at the basis of my analyses that
18 he always wore glasses or never or sometimes, I need independent
19 information, not from 1 out of 12 witnesses who says something. That is
20 not a fact. When a witness says something, the scientific fact is that
21 the witness says something, but through that I cannot establish
22 scientifically that he wore glasses or not, and I don't think I've misled
23 anyone about that. It's in my notes. I -- nowhere have I said in my
24 report that Mr. Beara was always wearing glasses. I said I have no
25 scientific basis to assume what the actual condition is. And if this is
1 a point that is in doubt, if it is challenged by one party or another,
2 then there are means to resolve that question. Maybe identification
3 methods could be helpful there, although I'm not absolutely sure that it
4 would be helpful. I only can say if that is in doubt, and there's some
5 reason for doubt because not all witnesses say sometimes he wore glasses,
6 sometimes he didn't -- not, witnesses say all sorts of things about
7 glasses. I can only present to the Court that there is a point to be
8 resolved but not through my science and definitely not by just
9 encouraging the Court to accept one testimony instead of the others. I
10 can only note what I see.
11 Q. Are you finished?
12 A. Yes.
13 Q. Well, here's the problem, Professor, as I see it. You and the
14 Defence have made sort of a big deal about glasses in this, in your
15 report, and in your testimony. You've talked about, and you did this the
16 other day, that it can be a problem if some witnesses see the individual
17 wearing glasses and some don't, and in all those cases you're talking
18 about what you've read in the materials that were provided to you. And
19 the one piece of information that you didn't provide to the Court that
20 was material provided to you that you read was that, well, one
21 recognition witness who was very familiar says that sometimes he did wear
22 glasses and sometimes he didn't, and he provided that answer in a
23 completely non-leading way when asked to describe.
24 So my question is, you've read all these witness statements; you
25 have this in front of you; the Court doesn't have that witness statement.
1 I don't know if you know that. That hadn't been put into evidence.
2 Wouldn't it be helpful to the Court when you're discussing what all the
3 witnesses say about glasses to also mention that one witness says,
4 sometimes he wore them, sometimes he didn't? Wouldn't that when you're
5 talking about glasses add that one piece of info?
6 A. I think that piece of information is in my report.
7 Q. Where?
8 A. The last paragraph of the last page says, in a summary statement,
9 Witnesses number 135, 113 - that's Celanovic - 21, and 157 say that the
10 person they saw did not or not continually wear glasses. I'm not
11 implying here that all witnesses say exactly the same. I say this is the
12 sort of variety that was of statements about glasses that was proposed by
13 these witnesses. I'm not a Defence attorney, and I'm definitely not the
14 Court. I think this is a sufficient indication for the Court to look
15 exactly at the statements these witnesses made. 113 is in this list. If
16 you're telling me the Court has no access to the statements made by the
17 witness Celanovic, then I would be surprised. I had access to it, and I
18 can't see why the Court would not.
19 Q. Okay. Now, you say there in the sentence you've read out, the
20 next sentence says: "Especially the testimony of witnesses including 113
21 invoke questions about the accuracy of their observations." Now, what is
22 it about Mr. Celanovic saying sometimes he wore glasses, sometimes he
23 didn't that raises questions about the accuracy of his observations
24 because this is couched as that it's a problem.
25 A. I think we're -- there's a bit of confusion. You tell me that I
1 must accept as a fact that Witness 113 is very familiar with Mr. Beara.
2 Q. You've classified him as familiar.
3 A. No. I said I must classify him as familiar because that's what
4 he claims. I also said in my report quite clear that the question of
5 familiarity must be investigated carefully because there can be good
6 reasons for witnesses who are familiar to deny familiarity and witnesses
7 who are unfamiliar to claim familiarity. I stress especially the point
8 that that is a point to be investigated by the Court, and there's no way
9 for me to give answers to that question or to confirm on the basis of my
10 science that, indeed, this witness was familiar. I can only say how he
11 must be classified according to his statements. But if my table, the
12 column with unknown/familiar, would be interpreted by you as the outcome
13 of a scientific study that tells the Court the truth about familiarity, I
14 must say you are utterly mistaken.
15 Q. Okay. I'm getting towards the end. I'm moving on now. We've
16 gone through these seven ones who you initially said should have been
17 tested, and you've agreed with me that some of them perhaps should not.
18 I'm going to look now at known recognitions. These are Milorad
19 Bircakovic, Celanovic who we've just discussed, and (redacted).
20 JUDGE KWON: We'll take care of it. Proceed.
21 MR. NICHOLLS:
22 Q. They cannot be tested because of their familiarity. Now, for
23 Celanovic and PW 161, and this was a statement highlighted by my friend
24 Mr. Ostojic, he said there seems to be little -- no, actually, this is
25 the one he missed. He went to the next sentence. This is the sentence I
1 want to highlight: "There seems to be little doubt that conditions for
2 an accurate observation were present." He didn't read that sentence. He
3 read the next sentence. "However, it should be realized that without
4 such a sensitive test as a proper lineup, it cannot really be decided
5 whether their claimed recognition really took place..." which is what
6 you've just said. "They might be mistaken and they might lie about it."
7 Do you really think the judges, professional judges of this
8 Court, need an expert to tell them that a witness can make a mistake or
9 might tell a lie?
10 A. Mr. President, this is a difficult question. What I think the
11 Court needs to be informed about and whatnot -- in fact, a major part of
12 my report I think the Court doesn't need to be informed about because I
13 hope it is within the realm of professional knowledge of a Court. And if
14 I would have followed that judgement, there would be hardly any report.
15 This argument is even stronger if it's realized that I report about
16 similar matters a number of times before. So I have already accepted
17 that in these reports, 80 percent of what I say is stating the obvious,
19 This is even more true for the Prosecution because there's only
20 one office of the Prosecutor, and you cite and have cited a number of
21 times from my previous reports, which the Court will probably find more
22 difficult to do because they have not attended these other trials, but
23 you did. So for the same reason you could have asked me, why did I
24 describe the rules for the first time, and indeed, it is my feeling that
25 for this Tribunal I am more or less repeating myself a number of times
1 and really do not have a new message. So having come to the point that I
2 describe exactly the same rules again for this Tribunal, I have long
3 overcome the hesitation of stating something that, of course, is obvious
4 to this Tribunal.
5 Q. Thank you. All right. Now, I just want to talk to you a little
6 bit about Mr. Bircakovic, who is Witness number 142, the third one down
7 on your table. Only a few questions, and I'm -- you may be able to help
8 me here because I was puzzled. You'll -- and he's a familiar witness,
10 A. He says he was familiar.
11 Q. He says he was familiar. Your report states: "For the three
12 witnesses who were already familiar" -- and this is on page 10 under
13 Section 4. "For the three witnesses who are already familiar with Beara,
14 no formal identity test can be held. The only thing that can be judged
15 is whether the conditions described by them would allow a reliable
16 recognition. For Witness 142, this seems not to be the case, as he was
17 not even certain that he met Mr. Beara."
18 And you said yesterday at 25339, I quote your answer: "Well, Mr.
19 Bircakovic did not positively say he saw Mr. Beara at a certain place, a
20 person well known to him. He said he may have seen him but that's not --
21 but he's not certain who he saw." And I'm going to try to unpack this a
22 little bit and see where you get this from.
23 In your summaries, which we don't need to bring up, 65 ter 3696 -
24 we don't need to bring it up unless you want to - it also says for
25 Bircakovic, not even certain that he met with Mr. Beara. And your table
1 in your report at page 9 says may have seen him.
2 Now, in your summaries you cite to transcript reference 11097 at
3 line 12. And this is the section -- sorry, let me change that. I'm
4 sorry. I made a mistake. That's not what you cite in your summaries.
5 Let me read to you from transcript 11097.
6 "Question: Now, in the years that you were a driver for superior
7 officers, would you agree with me, sir, as a common soldier and driver
8 that it is not common that a person in your position as such a driver and
9 a common soldier would be told the reason that you were going to fetch
10 somebody or pick somebody up or bring another superior officer somewhere,
11 what the purpose of what they were going to do would be?
12 "Answer: Well, it was not an order back then. When Popovic and
13 Beara arrived at the barracks, everybody saw it. It wasn't concealed.
14 It wasn't being hidden. I was told. Of course, when there were meetings
15 held then there was no such talk."
16 So the question there was about whether he was told the reason he
17 was going to go and pick up someone, Drago Nikolic, and he says in his
18 answer everybody saw when they arrived, and he is referring to being told
19 about the meeting. Where is he saying he's not certain in that answer
20 that he saw Beara?
21 A. I think this is going too fast. I don't get the text on my
22 video, which makes it very difficult because this is about precise
23 interpretation of words.
24 Q. Okay. Can I see what we have up here?
25 A. Okay. Now I can read it. If you just allow me a second, I will
1 read that statement.
2 JUDGE KWON: By all means.
3 THE WITNESS: So what I read is: "When Popovic and Beara arrived
4 at the barracks, everybody saw it. It wasn't concealed. It wasn't being
5 hidden. I was told."
6 MR. NICHOLLS:
7 Q. Right.
8 A. I was told what? That this was Mr. Beara, or did he recognise
9 Mr. Beara then because he was a well known figure or because he knew
10 Mr. Beara personally? What exactly does that mean?
11 Q. Okay.
12 A. If it is interpreted, I was told that that was Mr. Beara or I was
13 told Mr. Beara would come and I saw someone, that's not logically
14 conclusive. Then we are still not certain whom he saw.
15 Q. Okay. If you -- do you think --
16 A. And if a number of persons arrive and I'm told Mr. Beara is one
17 of them, it's still not certain that I picked out the right one and now
18 know what Mr. Beara looks like. So this is not a logically conclusive
19 statement, and that's why I said it's possible that in fact he was told
20 it was Beara but it wasn't, or it was told it was Beara or he looked at
21 the wrong person. It cannot be, and that's why I say familiarity needs
22 to be investigated very carefully because some people claim to have seen
23 someone before, whereas in fact the person they saw was someone else and
24 they're wrong about familiarity. Easy familiarity is like in the case of
25 Tadic where people say we lived with him in the same village for 25
1 years, I was training in his sports school. But this type of encounter
2 where people are told things is less certain; and therefore, you need to
3 investigate familiarity in such cases.
4 Q. So -- last question before the break, I think. So you are not
5 taking into account the question where he's asked whether he would be
6 told about the reason to pick somebody up? That's the question about
7 being told, and he says I was told.
8 A. I was told that Mr. Beara would come. But that doesn't make sure
9 for me that the person who arrived was in fact Mr. Beara or when more
10 than one person arrived that he knew which one of those people would be
11 Mr. Beara.
12 Q. Okay. We'll look at some more of this testimony after the break.
13 MR. NICHOLLS: It won't be very much longer, Your Honours. This
14 is the last chapter.
15 JUDGE KWON: How much longer do you have in mind?
16 MR. NICHOLLS: Maybe 15 minutes. 10, 15 minutes. Depends on the
17 answers a little bit.
18 [Trial Chamber confers]
19 JUDGE KWON: How long, Mr. Ostojic, do you plan to re-examine?
20 MR. OSTOJIC: I would hope to conclude today, but I would need
21 about a half hour, and I would also ask the Court if the times are
22 accurate if we should release the witness that's been waiting since 11, I
23 think, or so.
24 JUDGE KWON: Let's do that. Thank you, we'll be adjourned for 25
1 --- Recess taken at 12.29 p.m.
2 --- On resuming at 12.59 p.m.
3 JUDGE KWON: Yes, Mr. Nicholls.
4 MR. NICHOLLS: Thank you.
5 Q. Could we have 3696 up, please. Those are the summaries at page
6 6. Thanks. Now, just so we can see that, Professor, that's your summary
7 where you cite through your -- the portions you used for the Bircakovic
8 analysis, and we just went through the first one, transcript reference
9 11097, the one we were discussing as one of your cites.
10 Let's go now, quickly, to 1107, line 5. That's the next cite in
11 the transcript, and that portion goes as follows. That line's -- there
12 the question goes -- 1107, line 5. The question is about seeing
13 Mr. Beara at the standard building early in the morning on the 14th, and
14 the answer is -- the question was whether he was seen by the school. "I
15 said no. He did not ask me anything else." Now, there the witness
16 Bircakovic says that he was asked about the school, and said he didn't
17 see Mr. Beara at the school, correct?
18 A. Yes.
19 Q. Okay. That doesn't -- I'll just continue.
20 You also cite to Mr. Bircakovic's OTP interview at page 38, lines
21 15 to 17. That's 65 ter 4D00105, and we can bring that up if we need to.
22 And the lines aren't actually on this page in the materials you were
23 given, but if you read this, Professor, the interviewer, Mr. Manning,
24 asked Bircakovic: "Were you present during the meeting?
1 "Who was president [sic]?
2 "There was Popovic and there was Beara present at the meeting.
3 "Was Trbic also present?"
4 "I do not know."
5 There, Professor, the only thing we see is Bircakovic says that
6 he was not in the meeting between Drago Nikolic, Beara, and Popovic,
8 A. Yes.
9 Q. Now, you were given a supplemental information sheet, that's 65
10 ter 3705. If we could bring that up on page 2. This is from the 6th of
11 May, 2007. It's not on your screen yet. That may be difficult for you
12 to read. I'm interested in the fourth paragraph. I'll read it out:
13 "The witness was asked if he recalled what type of uniforms Beara and
14 Popovic were wearing at the Zvornik brigade headquarters on the morning
15 of 14 July. He stated that he thought that Beara and Popovic were
16 wearing camouflage uniforms during their 14 July, 9 or 10 a.m. meeting
17 with Nikolic at the Zvornik brigade headquarters. The witness knew
18 Popovic from trips to the Drina
20 Now, there does the witness sound that he is uncertain of whether
21 he saw Beara?
22 A. Not in this document.
23 Q. Thank you. Now, let me point you to a couple of sections of the
24 cross-examination by Bircakovic by counsel for Mr. Beara. These are not
25 referenced in your report. This is at transcript page 1102 of our trial.
1 Question by Christopher Meeks: "You also stated after that when
2 again talking about whether Trbic was in the meeting, you said you didn't
3 know who was in that room because you weren't there. Isn't that
5 "Answer: I didn't go in, but in the morning when I arrived,
6 Popovic and Beara arrived, as well, so they went into the barracks and I
7 saw them go in."
8 Now, how does that "I saw them go in" get translated into your
9 testimony and your report that he was not certain?
10 A. Well, my report, of course, in a very summarily way reflects
11 various statements made by this witness, and you correctly cited that on
12 the 14th of -- that in the supplemental information sheet he had said he
13 was sure that he did not observe Beara at the Orahovac school on the 14th
14 of July. So there is a question to be resolved, which of those
15 statements actually reflects the true condition.
16 Q. Can I --
17 A. I'm not to decide which of all that are true. I can only say if
18 there is a question - and there seems to be a question because he doesn't
19 seem to be completely consistent - if there is a question, one way to
20 resolve that is through identification.
21 Q. Okay, except that he's familiar. But let me -- I think I can
22 help you. There are three issues at play here. One, there's a question
23 of whether the witness Bircakovic saw Beara arriving at the Zvornik
24 brigade headquarters, that's an army headquarters in the morning. He
25 says, yes, I saw them go in. Two is whether Mr. Bircakovic saw Beara in
1 the meeting, in a meeting after he arrived with Drago Nikolic and
2 Popovic. He there says, no, I wasn't in that meeting. The third issue
3 is later in that same day at a different place, an execution site there
4 was a question of whether -- not a execution site, sorry, a detention
5 site whether Mr. Bircakovic saw Mr. Beara at the school, and he says, no,
6 he wasn't at the school. So that may have confused it somewhat. I'm not
7 sure if it was clear from the transcript there are three separate places
8 we're talking about.
9 But the point I was drawing your attention to is that when the
10 witness says regarding arriving at the brigade headquarters, I saw them
11 go in, that doesn't raise a question about his certainty of whether he
12 saw them, which is what you said yesterday in your testimony.
13 A. Okay. I can see where there could be a confusion there. The
14 problem is, though, that this witness claims that he knew Mr. Beara from
15 before. I'm not certain to which prior encounter that is referring
16 because there's no clear statement about I knew him very well because
17 I've met him there and there. The only logical conclusion that I can
18 make is that this prior encounter, that that's the first event he
19 mentioned. And then the second encounter --
20 Q. Can I stop you for one moment because this may help. We've gone
21 through your binders. For some reason you were not given Mr.
22 Bircakovic's direct testimony, okay? This is page 11012. And in there
23 at the beginning of his testimony on direct, he is asked: "And finally,
24 Ljubisa Beara, did you know him in July 1995?" And he says: "Yes, I did
25 see him around." What was his position? He was chief of security
1 testify Main Staff. So he had -- that wasn't available to you.
2 A. No, but that also does not resolve my question. It simply says,
3 I know him, he was around. But that doesn't explain how he know him and
4 how he know that the person around was Mr. Beara.
5 Q. Well --
6 A. So I can't know whether -- what he is referring to because in
7 July 1995 as you've described, there might have been three meetings. The
8 first meeting of those might be the meeting in which he got to know him,
9 so that later on in other meetings he was familiar but not in the first
10 one. That has to be investigated how exactly it went, and a general
11 statement about I met him in July, I knew him, he was around, doesn't
12 explain how he became familiar with him.
13 Q. Okay.
14 A. So it doesn't help.
15 Q. But I'm talking to you about the certainty issue. The witness
16 has testified that he was familiar with Beara, which is why he could not
17 be tested. Transcript reference 11113, it's another part of the
18 transcript. You did have this. It's cross-examination. You didn't
19 cite. The final question by Chris Meeks:
20 "Well, sir, I'm going to suggest to you that you never saw
21 Ljubisa Beara on the 14th in the morning at the standard building as you
22 first testified about today because he was not there. He was at black
23 river on the 13th and 14th, and I put it to you, sir, that you are not
24 speaking the truth here, just like you didn't speak the truth on these
25 exhibits, on the logbooks because it means nothing to you to tell the
1 truth or to tell a lie. Isn't that correct, sir?"
2 It's been suggested to him that he couldn't have seen Mr. Beara
3 because Mr. Beara was at Main Staff headquarters on the 13th and 14th.
4 And he says: "No." He flat-out denies the charge that he didn't see
5 Beara on the 14th in the morning at standard barracks. There's
6 nowhere -- there's no uncertainty in that answer, is there?
7 A. No, there's no uncertainty about what he intends to say. The
8 uncertainty relates to whether that's a true statement or not, and that's
9 what the Court needs to investigate. I don't think there is a dispute
10 about what the witness said. The dispute is about whether that's the
11 truth or not, and I'm trying to help the Court find methods to test what
12 witnesses are saying. So I can only say that he affirms that he was
13 there. But that doesn't mean that in my work I should use that as a
14 starting point and accept that he was there and saw Mr. Beara because
15 that's accepting the thing that exactly needs to be proven in this Court.
16 Q. But let me go back to page 10 of your report, Section 4, for what
17 you wrote, what you told the Court about this witness.
18 A. Which page are you referring to?
19 Q. Page 10, bottom of the page.
20 A. Okay.
21 Q. "The only thing that can be judged is whether the conditions
22 described by them would allow a reliable recognition. For Witness 142,
23 this seems not to be the case as he was not even certain that he met with
24 Mr. Beara."
25 That line that Bircakovic, that he was not certain is not
1 supported, is it, by what we've gone through?
2 A. No, no. Then you misread what I'm saying. What I'm trying to
3 explain here is that witnesses can be accepted as being familiar with
4 Beara if it is established that there was at least one encounter,
5 hopefully more, in which they got to know Mr. Beara. What I'm saying for
6 a number 142, that is not sure because that first encounter in which
7 supposedly he became familiar with Mr. Beara, you can't actually be sure
8 whether Mr. Beara was the person he met. I'm not talking about a later
10 Q. No, no, but --
11 A. I'm talking about the first encounter, which is not at the
12 standard building or the school. I talk about the first encounter in
13 which -- which logically should have been the encounter in which he
14 became familiar with Mr. Beara unless there were also other encounters
15 even before that in which the familiarity was established, but then he
16 doesn't tell us. So there is a question there. It's not certain to me
17 that on the morning of the 14th of July he was already familiar with
18 Mr. Beara so that when he saw him he could at that point recognise him
19 instead of just perceive a person who he later could identify. That's
20 the logical problem.
21 Q. And we're supposed to get that from "he was not even certain that
22 he met Mr. Beara"?
23 A. Well, what I mean is, in his description, from his description
24 you cannot infer that there is no doubt about who he describes and who he
25 met. He talks about -- let me see. That was on the day he picked up
1 Nikolic and then he saw certain persons, but from his story, it cannot be
2 inferred by me as an absolute fact that from there on that he really met
3 Mr. Beara and from there on he could always recognise him because he now
4 was familiar with him.
5 Q. No, but there's nothing --
6 A. It is not the type of familiarity we discussed before of, like in
7 the Tadic case, living 25 years in the same village.
8 Q. No, but --
9 A. So if it is a single encounter and it's not quite established
10 what the exact condition of this encounter are, then I think the Court
11 needs to be informed as I did that this whole aspect of familiarity needs
12 to be further investigated. That's the only intention of this sentence.
13 I do not say he's familiar. I do not say he's unfamiliar because that's
14 not my position. I say for number 142, this seems not to be the case.
15 JUDGE KWON: So what you are referring to here is that the
16 conditions for familiarity are not met here?
17 THE WITNESS: I'm not so certain -- certainly establish that I
18 could use that as a starting point for my further analysis like I did in
19 the Tadic case when a large number of witnesses declared they came from
20 the same village and that was not denied. It's a different situation
22 MR. NICHOLLS:
23 Q. Okay. And I'm going to --
24 JUDGE KWON: Mr. Nicholls, do you think you can conclude very
1 MR. NICHOLLS: Yeah, very soon.
2 Q. Just this, Witness -- Mr. Professor, the first sentence of that
3 question titled "The Three Recognitions" is for the three witnesses who
4 were already familiar with Beara, no formal identification test can be
5 held. So you did categorise him as familiar, and the part of the
6 transcript not given to you by the Defence said that he did know him in
7 July 1995, and I don't think you found anywhere in any of those
8 transcripts or statements anything to suggest that the 14 July 1995 was a
9 first encounter, have you?
10 A. No. I also didn't think I said that, but what I say is that the
11 reason of his familiarity is not clear to me. He only refers to this
12 event where he had to -- he picked up Nikolic. That's what he mentioned
13 as far as I can see.
14 Q. Last question, if I may. Can we have the proofing note up again,
15 3705. Last question. Paragraph 4 again, talking about the 14 July
16 encounter, last sentence at paragraph 4: "The witness knew Popovic from
17 trips to the Drina Corps, and he also knew Beara from earlier."
18 Does that help you?
19 A. Wait a minute. Where are we on this page?
20 Q. Fourth paragraph down. I can give you a hard copy if nobody
22 A. That's not the same. If you're going to -- "type of uniforms."
23 Q. Yeah, that's the paragraph. Last line.
24 A. Yeah. It says, the witness knew Popovic from trips to Drina
25 Corps, but my testimony is not about Popovic.
1 Q. Yeah, keep reading.
2 A. And he also knew Beara from earlier.
3 Q. As in earlier than 14 July?
4 A. Yeah. But there's no statement about when that was. There are
5 no question about, say, what were the earlier events, what were the
6 conditions which you see him, how did you know then it was Beara, because
7 there's always a first time when you have to learn who someone is. So
8 this really doesn't help me whatsoever.
9 MR. NICHOLLS: Thank you.
10 THE WITNESS: Can I give these back to you?
11 JUDGE KWON: Mr. Ostojic.
12 Re-examination by Mr. Ostojic:
13 MR. OSTOJIC: Thank you, Mr. President. I just can't promise the
14 Court I'll conclude today, but we'll see how it goes. I'll make every
15 effort to do that.
16 JUDGE KWON: Very well.
17 MR. OSTOJIC: Just so the Court's aware.
18 Q. Sir, let's take, first, a look at this Google search, 3344, if we
19 may. While that's coming up -- that's the Google search that the
20 Prosecution did, I think he said the 4th of September that seems to
21 depict Mr. Beara in various instances without his glasses, but my
22 question when we get it up is whether or not that's the same picture,
23 just whether it's zoomed in or zoomed out. So in fact I'm suggesting to
24 you, sir, that if we look at that picture -- and that's not it right
25 here, but I will try to get the correct number.
1 MR. NICHOLLS: I'll stipulate it's the same picture if that helps
3 THE WITNESS: It looked to me it's the same picture. That's what
4 Google does all the time.
5 MR. OSTOJIC:
6 Q. There's a couple of other pictures of Mr. Beara there as well.
7 Now, if we can go to the video of 3600 and play that. Just -- and I'll
8 ask him when I think you should stop. I don't know if you noticed a
9 couple of things, but as it's coming up I want to ask you this. Although
10 the Prosecution shared with you some of the circumstances upon which that
11 video was taken, but I want you to play close attention to both the
12 bridge of Mr. Beara's nose, and I want you to also pay close attention to
13 his breast pocket. I don't think it's funny, but our position was,
14 Professor, and still is that in July of 1995 for a period ten years
15 prior, Mr. Beara always wore glasses. That's been our position
16 throughout, although --
17 MR. NICHOLLS: I object -- I object to that, testifying by
18 counsel. He's never called a witness to say that. He hasn't put it in,
19 and he began his direct by saying, did I ever tell you, Witness, about
20 whether Mr. Beara constantly wore glasses, the witness said, no. He can
21 call a witness. He can't testify about that himself.
22 MR. OSTOJIC: I think we have brought witnesses, but I dare
23 remind my colleague that he has the burden of proof on these issues.
24 Q. But let me go through this --
25 JUDGE KWON: The witness said that it was not for the witness to
1 testify to that. We can proceed.
2 MR. OSTOJIC:
3 Q. Fair enough. And sir, if we -- can we look at that video now,
4 3660, please.
5 [Videotape played]
6 MR. OSTOJIC: Stop it right there.
7 Q. Do you see anything in that left breast pocket that you can make
8 out possibly?
9 A. Well, actually, one second before there, you saw a flash
10 suggesting that that might be glasses or at least something that's highly
12 Q. Okay. Now, I'm sure you're familiar since you wear glasses,
13 there are circumstances someone who always wear glasses may remove them,
14 and not to be facetious, but for example --
15 JUDGE KWON: Mr. Ostojic, we said that it is not for the witness.
16 We can see the picture. You can make a submission.
17 MR. OSTOJIC: Fair enough. Fair enough, Mr. President.
18 Q. Now, help me with this, Professor. Would you agree with me that
19 there are circumstances other than getting a photograph to determine if
20 Mr. Beara actually wore glasses in 1995, and I know you don't -- you may
21 not be familiar with the names of these witness that the Prosecution
22 called, but let's just say if the Prosecution called colleagues of
23 Mr. Beara, people who sat with him during that time on the Main Staff
24 such as Peter Skrbic, Manojlo Milovanovic or even Milomir Savcic, do you
25 think that perhaps those people would know definitively whether or not
1 Mr. Beara wore glasses in July of 1995?
2 JUDGE KWON: Without having to --
3 THE WITNESS: I don't know those people.
4 JUDGE KWON: Excuse me. Without having to hear from Mr.
5 Nicholls, the same applies. Move on to another topic, please.
6 MR. OSTOJIC:
7 Q. Let's take a look, if you will, Professor, the familiar person
8 that the Prosecution shared with you, and that was Mr. Celanovic, and now
9 he claims -- I think that's the gentleman who says he sometimes wore
10 glasses, sometimes he didn't. But Mr. Celanovic, if we look at that
11 specific page that they had up -- let me just find it so I can share it
12 with you. I think it was Exhibit 3694 if I'm not mistaken. And when we
13 are talking about familiarity with a witness, that witness - I'm just
14 trying to find my notes here, but I think it won't draw an objection -
15 actually identifies Mr. Beara as being of what rank. I think it's two
16 lines, actually, before my learned friend was directing your attention to
17 that exhibit.
18 A. According to my notes, he doesn't remember he was a colonel or a
20 Q. Well, he says plainly there, doesn't he, that he's a
22 A. Wait a minute. I should consult -- and you can read as well what
23 -- as I can what he says. In my notes, it said he doesn't remember
24 whether he was a colonel or a lieutenant-colonel, so there was some doubt
25 about the rank at least.
1 Q. And he says that he has information that he's on the Main Staff,
2 so let's assume for the second that Mr. Celanovic is being truthful and
3 he remembers him as being a lieutenant-colonel, although I think it's
4 pretty well stipulated that Mr. Beara was a colonel since 1985 according
5 to at least the evidence they brought forth. So ten years later, this
6 person claims to have a familiarity with Mr. Beara, this individual
7 Celanovic. He has his rank wrong, and he just has information that he
8 may be on the Main Staff. How well do you think he knows him?
9 A. Well, that's a difficult question, and I don't want to prolong
10 this procedure, but I think that the question needs to be answered.
11 Q. Okay.
12 A. For military people, ranks are extremely important. You would
13 always know the rank of -- I've been a military person myself. You would
14 always know the exact rank of people, and it would be highly surprising
15 if you made a mistake. But the question is what exactly is Mr.
16 Celanovic? Has he spent a life in military, or is he one of those person
17 who joins some army group lately and is not very familiar with ranks? If
18 you want to know what it means, if he confuses lieutenant-colonel and a
19 colonel, which have same word in it, then you must know how experienced a
20 military person Mr. Celanovic is. So I can't make --
21 THE INTERPRETER: Would counsel please switch off his microphone.
22 Thank you.
23 MR. OSTOJIC: Sorry.
24 THE WITNESS: So I cannot interpret, and I think also the Court
25 cannot interpret that confusion without knowing exactly what Mr.
1 Celanovic experienced as a military is.
2 Q. Well -- and not to belabour the point, but just so I have it. I
3 want to look at page 25 of Exhibit 3694, which is this interview with
4 him, and specifically I'm going to draw your attention to the two lines
5 prior to what my colleague asked you about, and it talks about how fair
6 the question was, just describe him and how it wasn't a leading question,
7 and then he goes on on line 8, the answer by Mr. Celanovic: "Ljubisa
8 Beara, lieutenant-colonel, I have the information that he was in the Main
9 Staff, the main officer for security." Do you see that?
10 A. Yes.
11 Q. Okay. That's all I just wanted to direct your attention to.
12 Now, let's go and continue on this line that the Prosecutor had
13 as to how fair their questions may have been to witnesses. Now, in
14 circumstances such as Mr. Egbers, he claims that he met a person that
15 we've come here to call, Major Zoran or Zoran Malinic, okay? Do you
16 think that his interview, since Captain Egbers said that he was present
17 with Major Zoran, might be relevant to whether or not Captain Zoran
18 Malinic can confirm whether Beara was there or not at Nova Kasaba?
19 JUDGE KWON: Is it for the witness to answer the question?
20 MR. OSTOJIC: I think it is, Mr. President.
21 MR. NICHOLLS: I would beg to differ. I don't think that has a
22 whole lot to do with memory and perception.
23 [Trial Chamber confers]
24 JUDGE KWON: The Chamber is of the view that it is not for the
25 witness to answer the question. Please proceed.
1 MR. OSTOJIC:
2 Q. I'm going to stick with Mr. Egbers if we can, Professor. I'm
3 suggesting to you that the Prosecution, when they had his interviews, at
4 some point he claims that he was introduced to Mr. Beara; at other points
5 in his statement, he claims that he was introduced or just -- an
6 interpreter pointed him out as he was coming out of the car. At other
7 points, he states that Mr. Beara introduced himself to him, and let me go
8 through with you if I may. Can we have 2D19, please, which is the
9 October 24, 1995
10 I just want to see how the progress of these investigations
11 occur, and we'll take this one, which is the 24th of October, 1995. Page
12 7, please. It's actually the first full paragraph which starts on
13 Friday, and it goes actually five lines down, which is the last sentence
14 in that. It says: "The interpreter told me his name." Do you see that?
15 A. Yes.
16 Q. Okay. And if we turn to Exhibit 2D20, and I apologise if we're
17 going a little too fast. And for 2D20, we would like to highlight page
18 3. I believe it should be the third full paragraph, and it's that third
19 paragraph -- full paragraph, I should say, that starts: "Next
20 morning..." It's actually the third line, which states: "The
21 interpreter told me that he was Colonel Beara." Okay? So this is a 1999
22 interview. We saw the 1995 interview.
23 Now, let's see what he says on the 30th of April, 2000, which is
24 2D21. Approximately five years after his first interview, here's what
25 Mr. Egbers says about whether the interpreter told him his name as he
1 said on the 24th of October, 1995, as well as on July 1999. On the 30th
2 of April, 2002, again with the OTP, he states -- I'm just trying to find
3 it. It's in the second paragraph, the last line, actually. There's only
4 one -- I think it's page 2. I'm sorry. That second paragraph, the last
5 line, it says: "He introduced himself as Colonel Beara." And then it
6 goes on, and then he says that his impression was -- and we won't talk
7 about that, and we'll address that with the Court later. But five years
8 after the events, now he's saying that Mr. Beara introduced himself,
9 although he gave at least two, but we'll go over it, and I'm not asking
10 -- how good is his recollection, and let's talk about memory, based on
11 this alone?
12 A. Again, Mr. President, I think the question needs to be answered,
13 but maybe it's not a short answer. Again --
14 JUDGE KWON: Please do as far as you can answer.
15 THE WITNESS: In order to interpret what's going on in the head
16 of the witness Egbers and how he uses his memory, we need to know more
17 about Mr. Egbers. One crucial question is, does he speak Serb-Croatian
18 or not? The mention of an interpreter suggests that he might not, which
19 means that if he didn't, he would never speak directly to Mr. Beara. He
20 could only speak through the interpreter. In that case, the situation
21 could easily have been Mr. Beara introduces himself, the interpreter
22 translates it, so that both statements are true. Mr. Beara introduces
23 himself, and the interpreter tells Mr. Egbers, this is Mr. Beara. The
24 interpreter should not do that. A good interpreter should say, I am
25 Mr. Beara, but that leads to confusions because the interpreter is not
1 Mr. Beara. So -- and it's also possible as you seem to suggest that,
2 first, Egbers remembers that Beara -- that interpreter says, this is
3 Mr. Beara, please speak to him, and that Mr. Beara then doesn't introduce
4 himself anymore, and that Egbers lately incorrectly remembers that Beara
5 introduced himself. That's also possible. The uncertainty about this
6 situation is due to the fact that it was never asked to Mr. Egbers, could
7 you speak directly to him, what do you mean when he said he introduced
8 himself, do you speak Serbo-Croatian, or do you mean, he did that, and
9 then the interpreter translated for you? It's a very unclear situation,
10 and I can only come to the conclusion as a scientist, for me that's not
11 sufficient information to interpret what has happened in his memory or
12 how he's used the memory. If it is sufficient for the finder of fact, I
13 have no comment on that. It's not for me.
14 Q. And, Professor, thank you, and I think I understand what you mean
15 when you say uncertainty and unclear, and I believe all of us do. But
16 let me show you one other exhibit, 2D22, if I may. And this is another
17 -- it's an interview from the ICTY conducted by the investigators and
18 whatnot, and it's of a UN peacekeeping interview questionnaire is the
19 caption. And if we can just speed along and go to page 3 of that.
20 A. We're still talking about Mr. Egbers, right?
21 Q. We are.
22 A. Yeah. Okay.
23 Q. Sorry. Now, let's look at page 3. If we could just scroll down,
24 although Mr. Beara's name is mentioned on top, and we could discuss with
25 you whether Mr. Egbers in some of his statements says he personally
1 contacted Beara, although here he says that Major Zoran was contacting
2 him, couldn't get a hold of him, but that's not really what my question
3 is. It's really below there, a pretty straightforward question to Mr.
4 Egbers: "Did you at any stage see General Mladic or any of his corps
5 commanders?" And then there's some explanation by the questionnaire
6 apparently. The answer is: "No", and then there's some space, and he
7 writes: "Perhaps Colonel Beara." Do you see that?
8 A. Yes.
9 Q. Does that go to what you just said, that uncertainty and
11 A. It's suggested at the time he answered this question that he
12 wasn't quite sure -- well, that -- even the answer is unclear because it
13 isn't -- from the answer it does not appear what the source of his
14 uncertainty is. Is he certain he met a person but he doesn't know for
15 sure that was Colonel Beara, or is he not even certain he met any
16 high-ranked officer at all? It's very short and, of course, he should
17 have asked, why do you say "perhaps"? What is exactly the source of your
18 uncertainty? What are you uncertain about? So that leaves open all
19 sorts of possibilities, also the possibility that he met with a
20 high-ranked officer, he knows that for certain, but he doesn't -- he's
21 not completely certain who that person was. That's one of the possible
23 Q. Thank you. And they're reasonable possibilities or reasonable
24 interpretations, are they not, Professor?
25 MR. NICHOLLS: Objection, leading.
1 THE WITNESS: I have no opinion about what is reasonable or not.
2 It's a possibility, and I've no way of --
3 MR. OSTOJIC:
4 Q. That's fair.
5 A. -- preferring one over the other.
6 Q. I have just a few other areas to cover with you, so I don't mean
7 to interrupt you, Professor, because -- and you've been very patient with
8 us, and thank you for that.
9 Let's talk about what my learned friend said with respect to Mr.
10 Babic today. It's one of the witnesses, and if we could just look at --
11 I don't know if you can, but page 21, line 16. He starts by saying:
12 "Witness gives a description..." and then this is what my learned friend
13 said about testimony that I want to elicit from you. He says: "I won't
14 bother reading it." Relating to Babic. I'm going to let you catch up.
15 But you can look at your summary sheet that you have on Babic, and you
16 let me know when you've caught up with me.
17 A. I have my summary sheet here.
18 Q. And we are going to get to it in the transcript. Now, I'm not
19 going to ask you why he didn't want to read that description that Mr.
20 Babic gives of this purported sighting or visit with Mr. Beara, but why
21 don't you tell us because it does bother me that this -- because I think
22 descriptions are important. Tell us what -- in the evidence you
23 reviewed, what is the description that Mr. Babic gives of purportedly
24 seeing Mr. Beara?
25 A. In my notes, it said, witness described Beara was blond with fair
1 hair, hair was not thick, was very short in the back -- the hair, he
2 meant, I think. He had a receding hairline, combed over, very neatly
3 shaved, no mustache, no glasses.
4 Q. Do you have a page citation --
5 THE INTERPRETER: Microphone, please.
6 MR. OSTOJIC:
7 Q. Sorry. Do you have a page citation for that?
8 A. That's the transcript page 10240/1.
9 MR. NICHOLLS: To help my friend, it's page 5, paragraph 8 of the
10 statement, which is what I cited.
11 MR. OSTOJIC: Thank you for that.
12 Q. Does that description -- is that a fair and accurate description
13 if we wanted to attest or assert whether someone looks like that? He --
14 strike that. I apologise. It's getting late. Is that a description
15 that we can utilize to determine whether or not the person Mr. Babic was
16 with was actually Mr. Beara if we have his characteristics or
18 A. Well, I'm not in the business of matching descriptions with
19 actual people.
20 Q. Let me ask it this way --
21 A. Can I finish my answer?
22 Q. Please, I'm sorry.
23 A. The best way -- the best way to use this description, I said, we
24 can use that as a starting point for constructing a lineup, and then if
25 the witness identifies someone from a lineup of people all fitting the
1 description, then in my science you may conclude that it's a fair
2 description of Mr. Beara whom he singled out. That's how we do it, and
3 we don't do it -- we make the -- do not make the direct jump. If you
4 would make the direct jump from a description to asserting this must have
5 been Mr. Beara, you would never need lineups in the first place. So
6 that's not how we do it.
7 Q. And the way you're suggesting is the proper way to do it,
9 A. In my science, we call that the proper way.
10 Q. Let me just ask one other quick question if --
11 THE INTERPRETER: Counsel and witness are kindly asked not to
13 MR. OSTOJIC: Thank you. May I just put one more question, Mr.
15 JUDGE KWON: You have more?
16 MR. OSTOJIC: I do, actually. And I'm sorry, and I just want --
17 also, if we could ask the witness if he is even available tomorrow, and I
18 just don't know that because I haven't spoken to him in close to a week
19 other than here in Court.
20 JUDGE KWON: Professor Wagenaar, would you be available tomorrow
22 THE WITNESS: Fortunately, you do not ask me whether I would be
23 delighted, but the answer is yes.
24 JUDGE KWON: Without delight.
25 MR. OSTOJIC: We'll try to make it delightful.
1 Q. But if I could ask this question: My learned friend of the
2 Prosecution showed us some wanted posters, and we're all familiar with
3 that from time to time, but is -- am I correct that the threshold
4 question if there are wanted posers of every witness is to determine
5 whether or not they actually viewed a photograph or a wanted poster which
6 may bear a photograph of a person they claim to have either recognised or
7 identified? Is that a threshold question?
8 A. I'm not quite sure what you mean by a threshold question. The
9 situation is that if posters are placed in such a way that witnesses have
10 possibly seen them, then asking the witnesses did you see them does not
11 really resolve the question whether they saw them. It only resolves the
12 question whether they remembered seeing them. But even if they did not
13 remember seeing them, they might still have seen them, and unconsciously
14 the information that they gained, essentially, could unconsciously be
15 used in a lineup. So establishing the logical possibility that they
16 might have seen photographs, that's the threshold question. And what
17 they remember about seeing relates to the same frailty of memory as other
18 statements of a witness. And my position is that if witness makes
19 statements about things they seem to remember, you might do well by
20 testing, finding accurate test for some of the things they claim; and
21 therefore, it should not be accepted as a fact when witnesses say, I
22 never saw those posters.
23 MR. OSTOJIC: Thank you, Professor, and again, for agreeing to
24 come back tomorrow. I'm sorry, Mr. President. Thank you.
25 JUDGE KWON: That will be it for today, and my apology to
1 Professor for not being able to keep our Presiding Judge's promise this
3 We'll meet again tomorrow morning. Our thanks go to the Prlic
4 Trial Chamber for kindly changing the courtroom time again. 9 o'clock
5 tomorrow morning.
6 --- Whereupon the hearing adjourned at 1.48 p.m.
7 to be reconvened on Wednesday, the 10th day of
8 September, 2008, at 9 a.m.