1 Tuesday, 12 June 2007

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 2.15 p.m.

6 JUDGE ANTONETTI: [Interpretation] Registrar, could you please call

7 the case.

8 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to

9 everyone in the courtroom. This is case number IT-04-74-T, the Prosecutor

10 versus Prlic et al. Thank you.

11 JUDGE ANTONETTI: [Interpretation] Fine, thank you. This is the

12 12th day of June, 2007. I greet everyone from the Prosecution, Defence

13 counsel, and the accused and all others.

14 As you know, I noticed the parties this morning that we will stop

15 at 5.30 -- 5.25 tonight, this afternoon because there's a Plenary Session

16 at 5.30 for Judges, and this Plenary has to do with administrative matters

17 of this Tribunal and all Judges need to be there. So we will shorten this

18 hearing by an hour. Since we gave six hours to Defence altogether for the

19 two and a half hours -- two and a half days to come, Defence will have

20 plenty of time for their cross. Prosecution has already spent one hour

21 and 35 minutes. Ideally, it would be best if you stop before the break

22 we'll have for this hearing.

23 Ms. Gillett, you have the floor.

24 MS. GILLETT: Thank you, Your Honour. Good afternoon.

25 WITNESS: ZLATAN BULJKO [Resumed]

1 [Witness answered through interpreter]

2 Examination by Ms. Gillett: [Continued]

3 Q. Mr. Buljko, you recall yesterday evening just before we adjourned

4 for the evening I was trying to clarify a particular matter with you and I

5 would like to revisit that matter now.

6 A. Yes.

7 MS. GILLETT: Could Mr. Buljko be provided with the -- with his

8 statements and the binder as well from yesterday, please.

9 Q. Mr. Buljko, your statements that are not in the binder, they're in

10 front of you. If you could turn to your statement from the year 2000,

11 which is numbered Exhibit 10069. And if you turn to page 11 in the

12 English or page 18 in the B/C/S, whichever you'd prefer to look at.

13 For my purposes, starting on page 11 of the English, you state

14 that you were a member of the ABiH delegation negotiating with the HVO to

15 allow the first humanitarian aid convoy to enter East Mostar since the

16 beginning of the conflict in Mostar between the HVO and the ABiH in May

17 1993.

18 Now, what I would like to ask you in relation to that specific

19 part of the statement, where did that meeting that you attended, where did

20 that take place?

21 A. The meeting took place in East Mostar, in premises there. It was

22 just a delegation of the BH army and the commission for the exchange, and

23 I said that it was Mr. Sulejman Budakovic and Mr. Alikadic, and the

24 mediator was Mr. Albert Benabou on behalf of the civil police. And on the

25 Croatian side, as far as I remember, I think it was Mr. Thornberry who

1 talked to them on the other side.

2 Q. You said in your statement --

3 JUDGE PRANDLER: Excuse me.

4 MS. GILLETT: Sorry, Your Honour. Yes.

5 JUDGE PRANDLER: Excuse me, Ms. Gillett, for interrupting you. I

6 believe it was a technical mistake in the translation. When the witness

7 answered to you, he said according to the transcript, "And on the Croatian

8 side, as far as I remember, I think it was Mr. Thornberry ... " But

9 Mr. Thornberry should have been from the UN side, UNHCR side, et cetera.

10 So I believe that it was a mistake in translation. Thank you.

11 MS. GILLETT: Thank you, Your Honour. It had confused me

12 somewhat. I was about to ask the witness.

13 Q. Who did attend for the Croatian side at that particular meeting

14 that you attended?

15 A. On behalf of the Croatian side, I have to say the following: This

16 paragraph is part of a broader statement by me, and I have to tell the

17 Trial Chamber that there's a slight mistake that was made. I was at a

18 meeting led by Mr. Albert Benabou with the representative of the BH army

19 and the commission for the exchanges, and I took notes which I have

20 submitted to the Trial Chamber.

21 Now, as far as the Croatian side is concerned, I think that

22 Mr. Thornberry was the mediator and dealt with the entry of the convoy

23 with them for East Mostar. I know that because Mr. Thornberry wrote a

24 book in which he talks about those difficult negotiations which took

25 place. It's called, "the Peace Forces, Humanitarian Aid, and Conflict."

1 That's a book of his. And he talks about East Mostar and negotiations

2 that were very difficult and that Croatia should be included,

3 Mr. Mate Granic, and then he also speaks about the conditions set for the

4 entry of the first convoy of humanitarian aid.

5 On the 31st of August, that is to say, right after the convoy

6 entered, this humanitarian aid convoy, we had a meeting with

7 Mr. Thornberry, who had as the topic of discussion the evacuation of the

8 wounded, and at that meeting, which was attended by Alija Alikadic,

9 Dr. Milavic, and I think Mr. Humo as well and myself, Mr. Thornberry said

10 that for the evacuation of the wounded, the next day, that is to say, the

11 1st of September we would have an a meeting in Medjugorje. We asked who

12 with and he said with Bruno Stojic and that the meeting would enable us to

13 implement the agreement. So that is why I said what I said. I said that

14 Mr. Bruno Stojic was the person who at that point in time was involved in

15 the negotiations with the international community with respect to the

16 entry of the humanitarian aid convoy into Mostar.

17 JUDGE ANTONETTI: [Interpretation] Mr. Murphy, excuse me, because I

18 see you are on your feet, but I wanted to -- no, you have the floor. You

19 have the floor. I just wanted the witness to continue and finish with his

20 speech.

21 MR. MURPHY: Yes. Thank you, Mr. President. Good afternoon,

22 Your Honours.

23 Your Honour, I think the time has come, with all due respect, when

24 the Trial Chamber should intervene and ask this witness directly,

25 reminding him that he has stated under oath that he was present at a

1 meeting of all the parties, to challenge him as to whether he was actually

2 present at such a meeting, and to find out who was present. We've now

3 been discussing this for a considerable time, and I think it's very

4 obvious that this witness has not yet volunteered the truth on this

5 subject.

6 JUDGE ANTONETTI: [Interpretation] Witness, you were under oath,

7 you made a solemn declaration saying that you would only tell the truth,

8 and of course, there are duties, and in case of perjury you could be

9 prosecuted.

10 But this is not the question. What you're saying might be -- is

11 probably the truth, but there are things that are not very specific, and

12 imprecise. When you said you attended a meeting, it means that you were

13 there. Then when you mention the fact that Mr. Bruno Stojic was at a

14 meeting, does it mean that you were also there and you saw him with your

15 own eyes, or is it something that you actually inferred? Of course,

16 answering questions on things that happened 14 years ago is difficult.

17 Myself, I would -- it would be very difficult for me to say whether I

18 actually attended a meeting, yes or no. And my only -- the only way out

19 would be to look at documents to be sure. So if you're absolutely sure,

20 please say so. If you're not absolutely sure, say that you don't

21 remember, because everything you're saying is noted in the transcript.

22 And later when we will have to rule and make a judgement, we will look at

23 the transcript, and this will probably be an instrument that we use in our

24 decision-making process. So you have to be very specific. If you're

25 absolutely sure that Mr. Stojic was present at a meeting, say so and

1 say -- say why. And if you're not sure, say so.

2 THE WITNESS: [Interpretation] Your Honour, I explained a moment

3 ago what the situation was exactly with respect to this, and I said that

4 there was a mistake, and I said it was a paragraph from my statement which

5 probably referred to the talks. And I attended the talks where the

6 mediator was Mr. Albert Benabou with the BH army and the exchange

7 commission. I don't know about the Croatian side. I explained what

8 Mr. Thornberry said on the 31st of August, 1993.

9 JUDGE ANTONETTI: [Interpretation] So if I understand you

10 correctly, and I think I have understood you correctly, there was a

11 meeting that you attended. You were present with Mr. Benabou and members

12 of the ABiH. This meeting is devoted on the topic of the convoy and

13 humanitarian aid, but you're also saying that on the Croatian side there

14 must have been some other meeting with Mr. Thornberry. And according to

15 what you're saying, Mr. Stojic may have attended this meeting. And you

16 seem to be drawing this conclusion from the book written by Mr. Thornberry

17 on the matter, but aren't you just mixing up things? Because there's

18 hearsay, what you actually know, and Mr. Thornberry's book.

19 We see that you're using a piece ever paper.

20 THE WITNESS: [Interpretation] I took notes from all the meetings.

21 The meeting with Mr. Thornberry on the 31st of August was held in

22 East Mostar, and at that meeting Mr. Thornberry said that the next day,

23 that is to say the 1st of September, 1993, a meeting would be held in

24 Medjugorje, and we asked who with, and he said with Mr. Bruno Stojic. I

25 have that written down in my notes.

1 MS. NOZICA: [Interpretation] Your Honour, I do apologise, but it

2 seems to me that the witness has those very notes in front of him now. We

3 have not received the notes. I don't know if the Prosecutor has seen

4 them, and I'd like to mention that in the witness statement he didn't say

5 any of this, so it's all new to us.

6 JUDGE ANTONETTI: [Interpretation] These -- this paper that you

7 just took out of your pocket, they're your notes. Did you give them to

8 Prosecution, or does Prosecution not know about them and you've been

9 holding on to these preciously for a number of years?

10 THE WITNESS: [Interpretation] I did not hand them over to the

11 Prosecution. The Prosecution does not know about them. I had these

12 notes -- in fact, I have a lot of those documents that I wasn't able to

13 provide at that time because I probably didn't know but they cropped up

14 recently, I found them quite recently, I saw them. And I have them in the

15 original where it says at that particular meeting the following day, that

16 is to say, in September, that -- that Mr. Bruno Stojic was to meet with

17 Mr. Thornberry.

18 JUDGE ANTONETTI: [Interpretation] So if I understood you well, in

19 those notes that you have, there is proof that a meeting was held on

20 August 31st and that the day after, on September 1st, in Medjugorje, there

21 was supposed to be a meeting which should have been attended by

22 Mr. Stojic. Should have been. It's just an assumption. So actually, you

23 don't know whether on September 1st Mr. Stojic actually attended this

24 meeting.

25 THE WITNESS: [Interpretation] I don't know whether he was. That's

1 the information we received from Mr. Thornberry.

2 JUDGE ANTONETTI: [Interpretation] Fine. Thank you.

3 MR. KARNAVAS: Mr. President, at this point it would appear that

4 we would be entitled to these notes, irrespective of whether the

5 Prosecution wishes to see them or not. Obviously, they were not aware of

6 these notes. But now since the gentleman seems to be looking at the

7 notes, at least he must have looked at them overnight. He must have them

8 here. We are entitled to them. And I suggest that until we see them that

9 any further questioning be suspended.

10 JUDGE ANTONETTI: [Interpretation] Sir, do you see a problem in

11 giving us your notes? This piece of paper that you were toying with

12 earlier.

13 MR. KARNAVAS: I want all of his notes, Your Honour, everything,

14 and all the documents that the gentleman has, everything.

15 THE WITNESS: [Interpretation] All I have is this.

16 JUDGE ANTONETTI: [Interpretation] You're not going to ask him for

17 his wallet, Mr. Karnavas, are you?

18 MR. KARNAVAS: Well, if there are notes in the wallet, I guess I

19 would. But I find it difficult to believe that he has one sheet of paper

20 that are his notes that just coincidentally answer the very same questions

21 that were being posed to him yesterday. It's rather incredulous. So he

22 must have --

23 JUDGE ANTONETTI: [Interpretation] Sir. Sir, this paper, these are

24 the notes that come from the meeting of August 31st?

25 THE WITNESS: [Interpretation] Correct.

1 JUDGE ANTONETTI: [Interpretation] Fine. Do you agree with giving

2 us these -- with disclosing this paper right away to us?

3 THE WITNESS: [Interpretation] Yes.

4 JUDGE ANTONETTI: [Interpretation] You don't mind giving it; right?

5 THE WITNESS: [Interpretation] Yes. Why not.

6 JUDGE ANTONETTI: [Interpretation] Fine. Then we'll take it, and

7 we'll show it to Defence. Usher, would you please get this paper, and we

8 will also like to look at it at the Bench.

9 JUDGE TRECHSEL: But I think that the Chamber is seized by a

10 request to hand all the notes over. This must be specified.

11 Mr. Karnavas, I would suggest that you want the notes within the time

12 frame covered by the indictment, for instance.

13 MR. KARNAVAS: Yes. Yes. At least with respect to what the

14 gentleman intends to be testifying about.

15 JUDGE TRECHSEL: Yes.

16 MR. KARNAVAS: And I think that I would like to have -- I think he

17 needs to produce the original.

18 JUDGE ANTONETTI: [Interpretation] So I will disclose these notes.

19 It's two photocopies. Obviously these are handwritten notes. One

20 dates -- bears the date August 31, 1993, there's mentions of names, and it

21 seems that there is what these persons said at the time, the persons who

22 actually took the floor. So we have two documents, but the second sheet

23 is absolutely identical to the first one. So I could give one each, one

24 to Defence, one to Prosecution since it's the same sheet. So one for

25 Mr. Karnavas. Mr. Karnavas, unfortunately, cannot speak B/C/S.

1 MR. KARNAVAS: I have my colleague who is --

2 JUDGE ANTONETTI: [Interpretation] You will have to give it to your

3 colleague.

4 MR. KARNAVAS: I should point out, Your Honours, and I don't mean

5 to be disputatious although it may seem that way at times, that yesterday

6 we were shown a document by the Prosecution, it was 4479, where the

7 gentleman appears to have provided notes to the Prosecution and it would

8 appear that were in his own handwriting. Now today he says that he just

9 came across these notes recently. And I find it hard to believe that that

10 is the case. But assuming that is the case, we have a copy here of one

11 particular page. It would appear that, at least when you're looking at

12 it, there are some lines so it must have been from a notebook.

13 So the only logical conclusion that I can come up with is that

14 perhaps the gentleman before coming here today, while he was at his hotel

15 or someplace else, made copies of this particular sheet of -- made a copy

16 of one -- one page from his notes. And then if I were to put two and two

17 together, it would seem to me that his notebook would be with him, perhaps

18 with his possessions here in The Hague.

19 So, one, I would like the Trial Chamber to ask if that is the

20 case. If indeed that is the case, I certainly would like, and I'm moving

21 for that notebook and any other notes that he may have or any other papers

22 that he may have that might be relevant, because I now question the

23 gentleman's integrity and his credibility as a witness. So that's why I

24 think it's necessary for us to look at, and I think we may need some time

25 to examine them. I don't know whether the Prosecution wishes to go

1 forward with their direct, but at least before doing any cross, we may, we

2 may, need some time. But I'm asking for his notebook.

3 MR. MURPHY: Your Honour, I would join in that -- in that motion.

4 I reserve any -- any comment at this time on the credibility of the

5 witness, but I do join Mr. Karnavas's motion. I think we are entitled to

6 see whatever documents the witness may have that are relevant to the

7 indictment which have not so far been produced before we cross-examine.

8 MR. KOVACIC: [Interpretation] Your Honour, just for the record, my

9 Defence would like to join in the request. It is an official request. We

10 don't always have to have the same opinion, but I consider that the notes

11 that the witness had and used must be disclosed regardless whether they've

12 been disclosed to the Prosecution or not.

13 JUDGE ANTONETTI: [Interpretation] Fine.

14 MS. NOZICA: [Interpretation] I'd just like to say one sentence,

15 not to get lost in everything that has gone by. I'd like to ask the

16 Trial Chamber to bear in mind that the statement by the gentleman, which

17 was supposed to be tendered under 92 ter, was provided on the 16th of May

18 and the 10th and 11th of June and in July 2000. Now, in that statement

19 the witness mentions Bruno Stojic linked to the meeting and negotiations

20 with respect to the entry of the convoy on the 24th or, rather, 25th of

21 August.

22 Now, the gentleman said expressly that he -- that Bruno Stojic did

23 attend some of those meetings and gave the okay for the convoys to enter.

24 Now he's telling us about a meeting held on the 31st of August where he

25 indirectly learnt that Mr. Thornberry would be having a meeting with

1 Mr. Bruno Stojic.

2 Now, I should like for the record to draw your attention, to draw

3 the attention of the Trial Chamber to the fact that this gentleman, after

4 having made the statement, made two other statements and had a meeting

5 with the Prosecutor before these proceedings in court here. At no point

6 did this same gentleman put right what he thought might have been a

7 mistake where he says that he learnt about and knew that Bruno Stojic was

8 at that meeting. He didn't correct that at all. So let's just put aside

9 the meeting of the 31st of August, which in the light of these events with

10 respect to the convoy is not essential. He talked about a meeting on the

11 30th of August or 31st of August, but did not make any mention of names

12 there, whereas with the other proposals I'd like to join in my colleagues.

13 But for the record, I'd like to state what I just said.

14 JUDGE ANTONETTI: [Interpretation] Sir -- I will give you the floor

15 in a minute, Mr. Scott, to try not to waste time.

16 So, Witness, the document that you gave us earlier, one sheet of

17 which is with Prosecution and the other sheet with the Defence, I'd like

18 to know whether this sheet comes from a whole notebook, whether it's just

19 a single sheet that you kept with you. So is it a notebook or just one

20 sheet of paper?

21 THE WITNESS: [Interpretation] It's a notebook which stayed behind.

22 I wasn't able to provide it to the Tribunal because I didn't have it in my

23 possession. I found it later on. And it is there that the notes are to

24 be found from some of the meetings that were held in East Mostar and

25 possibly somewhere in Medjugorje during that period of time.

1 JUDGE ANTONETTI: [Interpretation] Fine. So this notebook, is it

2 in your hotel and you only brought with you one sheet of paper, or do you

3 have here in the Tribunal the entire notebook with you?

4 THE WITNESS: [Interpretation] Yes, yes, I have the notebook with

5 me.

6 JUDGE ANTONETTI: [Interpretation] So you have the notebook with

7 you.

8 THE WITNESS: [Interpretation] Not on me. Not on me now.

9 JUDGE ANTONETTI: [Interpretation] Where is it exactly?

10 THE WITNESS: [Interpretation] I left it -- well, I can bring it to

11 you quickly.

12 JUDGE ANTONETTI: [Interpretation] Where do you leave it, in the

13 hotel, at the office?

14 THE WITNESS: [Interpretation] [Previous translation continues]...

15 room.

16 JUDGE ANTONETTI: [Interpretation] Next door. It's obviously next

17 door.

18 Second question: When you met with the Prosecutor, did you talk

19 about this notebook with him? Did you show him the notebook, or did you

20 just stay silent about it? When you met with the Prosecutor before the

21 hearing yesterday.

22 THE WITNESS: [Interpretation] Well, yes, but I didn't think that

23 they needed the notebook. But when I looked through it more carefully and

24 saw what it contained, then last night I sat down and dealt with this and

25 saw that it had quite a number of elements which had to do with all these

1 issues. But, no, I did not manage to read it before.

2 JUDGE ANTONETTI: [Interpretation] Ms. Nozica mentioned earlier

3 that in your statement at page 11, when you're talking about the meeting,

4 you say: "On August 24, 1993, I was a member of the ABiH delegation," et

5 cetera, but there is no mention whatsoever of the meeting of August 31st,

6 1993, in your written statement.

7 When you saw the Prosecutor and the Prosecutor showed you this

8 statement, why didn't you make a correction then, saying this paragraph

9 was ambiguous, because on August 31st there had been a meeting, a meeting

10 that you attended? Because when we see that document, that sheet of

11 paper, you are actually writing down what people that were attending this

12 meeting said. So why didn't you make a correction telling the Prosecutor

13 what is written on page 11 is not really exact?

14 THE WITNESS: [Interpretation] As I gave a lengthy statement,

15 Your Honour, I was not able to look at each and every sentence to review

16 it when I met with the Prosecution. And I really do apologise, and a

17 moment ago I explained that there was a misunderstanding, and I explained

18 why this occurred. I told you that I didn't have the notebook at the

19 time, that is to say when I had a meeting with the Prosecution, but that I

20 subsequently found it quite recently, and I just read it last night

21 because I was intrigued to see what it said -- or, rather, I was intrigued

22 by yesterday's discussion concerning Mr. Stojic, and I know that he was

23 mentioned, and that is why in my statements I mentioned Mr. Stojic, saying

24 that he was asked about the entry of the humanitarian aid convoy and now

25 we see about the evacuation of the sick and wounded as well.

1 MS. NOZICA: [Interpretation] Your Honour, I have to intervene once

2 again to test the credibility of this witness. The witness said today

3 during the day so far that on the 31st, as we can see on the piece of

4 paper, those of us who can understand the language, we can read it, he had

5 a meeting and that Mr. Thornberry told him that the next day he would have

6 a meeting with Mr. Stojic to discuss the wounded. That's what it says on

7 that little note, piece of paper. Now the witness says that it was on the

8 basis of that conversation that he concluded that Mr. Stojic had

9 authorisation and powers with respect to the entry of food and the

10 humanitarian convoy linked to food supplies.

11 It is beyond all logic that at a meeting -- that he links up the

12 31st of August meeting with the convoy of the 25th of August. It was a

13 food convoy which entered East Mostar.

14 Quite obviously the witness is not telling the truth here before

15 us, because he's drawing conclusions from impossible situations.

16 JUDGE ANTONETTI: [Interpretation] Mr. Murphy.

17 MR. MURPHY: There is a more serious problem than that if I may

18 say so. Yesterday -- this is a witness who has been tendered under Rule

19 92 ter, and yesterday in response to questions from the Prosecutor said

20 that he had read his statements and that if he were to be asked questions

21 about the subject matters contained in those statements they would be

22 reflected by the contents. Now he's telling us he didn't have the

23 opportunity to read each sentence of the statement that is being tendered.

24 Your Honour, one has to ask how much more of this statement that

25 the Prosecution wishes to place into evidence is not reliable because the

1 witness did not read it and is unable to confirm it. It raises a very

2 serious issue about the propriety of offering this witness under Rule 92

3 ter.

4 JUDGE ANTONETTI: [Interpretation] I believe there is another

5 Defence counsel that would like to intervene. You have the document in

6 hand, I believe. I'm all ears.

7 MS. TOMASEGOVIC TOMIC: [Interpretation] Thank you, Your Honour.

8 I'm looking at this document quickly, and I find the handwriting to be

9 illegible, but as far as I see in relation to Mr. Thornberry and this

10 entire document has to do with the evacuation of seriously wounded people

11 from Nova Bila --

12 THE WITNESS: [Interpretation] No. It has to do with talks with

13 the Croatian side.

14 JUDGE TRECHSEL: Witness. I'm sorry. Witness. You are not

15 allowed to interrupt anybody here. You speak when you are asked a

16 question and otherwise you wait, and we -- as to the Judges and everyone

17 else, we listen to the person who has the floor, please.

18 JUDGE ANTONETTI: [Interpretation] So please wait for her to

19 finish.

20 MS. TOMASEGOVIC TOMIC: [Interpretation] I don't know how important

21 that is. I don't know how important that is. I mean, I've just seen the

22 document this instant, but Nova Bila is on this document, and those who

23 know what the situation was knew that that's where there was a hospital

24 and seriously wounded persons who belonged to the Croatian Defence Council

25 were at that hospital in Nova Bila.

1 JUDGE ANTONETTI: [Interpretation] So we shall ask Mr. Scott what

2 his position is.

3 MR. SCOTT: Your Honour, there is clearly need for some

4 clarification here, but at the same time I also think again there has to

5 be a dose of reality and I feel that many people in the courtroom are

6 running far ahead and jumping to conclusions unnecessarily and unfairly.

7 There is nothing to indicate, there's nothing to indicate substantially at

8 this point that the witness has been intentionally misleading and

9 certainly not perjurious. There is apparently now a reference to two

10 different meetings but all this jumping to conclusions about what's been

11 said or not said and lying and all is just not fair. There's simply no

12 basis for that kind of suggestion.

13 As this Court has observed many times, and I think just in --

14 either today or yesterday, these are matters that took place some years

15 ago. The witness has looked over at times approximately 38 pages worth of

16 statements. I think that anyone who is intellectually honest would

17 understand that if you read a statement you might read it three or four

18 times and on the fourth time you might see something that you didn't see

19 before, or something might click in your mind that you didn't see the

20 first time you read it. I suspect that's happened to everyone in this

21 room at various times in their lives including Your Honours. You read a

22 document for the fourth or fifth time, I never noticed that part before.

23 I wonder about that. So it's just simply not fair to jump to these sorts

24 of conclusions absent very compelling evidence to the contrary, and we do

25 not have that evidence in front of us at this time.

1 I suggest that if the witness wants to make the notebook

2 available, it's up to him. And I suggest, again, that we back up, take a

3 deep breath and put this in the proper context. This is not the first

4 time that the question of notes and notebooks have come up and many

5 witnesses have referred to them and they have not been produced. The

6 Chamber has not required them to be produced even though they were used

7 and referred to by the witness, and I cite as one example, one recent

8 example, Mr. Finlayson. The Chamber specifically ruled that his notebook

9 did not, did not have to be turned over.

10 So let's step back, take a deep breath and apply the rules of the

11 Tribunal and the reality and facts, not innuendo and second guessing.

12 That's all we have so far. Now, if the witness would like and I think

13 it's entirely his personal choice, the Prosecution has not seen it; I

14 think that's been made clear. It's entirely the witness's personal choice

15 if he wants to make the notebook available. I think he can do that to all

16 sides, and of course to the Chamber. But that would be his choice, just

17 like any other witness, including other witnesses who have come before

18 this Chamber. But slow down.

19 MR. KOVACIC: [Interpretation] Your Honours.

20 JUDGE ANTONETTI: [Interpretation] Mr. Kovacic, just a minute

21 please. Mr. Scott, you are a professional lawyer. I'm a professional

22 judge. The 92 ter Rule is designed in such a way that to avoid this kind

23 of problem. When a witness comes to the proofing session, the Prosecution

24 should ask him or her do you have any personal notes? Do you have them

25 with you? If you have them with you, do you wish to show them to us? And

1 after that when you make your presentation, you indicate to the Chamber

2 and to all the people present that the witness does have notes, that he

3 does not wish to disclose or discloses at the last minute so that we are

4 not taken by surprise because he is not the first witness. Other

5 witnesses pull out notes from their pockets or their satchels and

6 everybody is faced with the fact.

7 So, in professional terms, we do have a particular technique here,

8 we ask the witness, do you have any documents and so on and so forth.

9 Which avoids this kind of difficulty occurring. I don't know whether this

10 has been done or not because I wasn't there. Maybe you have -- can

11 provide us with an answer.

12 MR. SCOTT: Your Honour, it is routinely done with witnesses and

13 it was -- this witness was just seen again most recently by Mr. Spork in

14 Mostar, in the Mostar area just some weeks ago and the documents were once

15 again confirmed and his statements were once again confirmed and not only

16 in the presence of Mr. Spork but also the presence of the Registry. Now,

17 to say once again to say that the witness has read his statement and

18 studied it further and saw something that in light of -- cross-examination

19 does have a way of focusing the mind, and I don't think it would be

20 surprising to anyone if a witness were to go home at the end of the day

21 and think more about the questions that were put to him in the course of

22 the day. That is human nature. I suspect there's not a single witness

23 who has come to court who hasn't done that.

24 So if the witness then thinks about it further and thinks there's

25 some clarification that can be added, then there's nothing wrong with

1 that. We do ask. Coming back to the question, of course we do ask. But

2 that doesn't mean we always get everything and of course, obviously, we

3 don't have that notebook. Now, for whatever reason - but there again

4 let's not jump to some, oh, there's something sinister here.

5 Unfortunately, it's for better or worse, it's not the first time, it won't

6 be the last time in this case or other cases. Things come up. I forgot

7 that I had this. I found this in the attic. Whatever, it happens. It

8 happened before. It will happen again. Let's not jump to conclusions.

9 JUDGE TRECHSEL: Thank you, Mr. Scott. I think we are in a

10 slightly difficult situation here because we are talking about substantive

11 and procedural matters a bit in a medley and I suggest that we first

12 clarify the issue of whether the Chamber will receive, and the parties,

13 this notebook. And then we will deliberate on what we'll do with it, and

14 then in the end we will come back on the issues Mr. Scott and others have

15 discussed.

16 Witness, you have said already that you are prepared to let the

17 Court have the two pages that are photocopies from your book. I now ask

18 you, would you also be prepared to make available to us the entire

19 notebook?

20 THE WITNESS: [Interpretation] I am ready to make available to the

21 Honourable Trial Chamber the entire notebook, but I have to point out that

22 this notebook contains a description of events that I did not testify

23 about, and I want that to be known.

24 JUDGE TRECHSEL: Thank you. That's a very valid answer. Now, I

25 want to know whether the Prosecution has any objection to this notebook

1 being made available. I think it is not the case, but I would just like

2 to be absolutely sure.

3 MR. SCOTT: No, Your Honour. If the witness is willing, then the

4 Prosecution has no objection.

5 JUDGE TRECHSEL: Okay. Then the Chamber will decide whether it

6 wants to accept it, I think.

7 [Trial Chamber confers]

8 JUDGE TRECHSEL: I think --

9 JUDGE ANTONETTI: [Interpretation] What we will do, we shall

10 withdraw for a few minutes to deliberate. Please stay in the courtroom.

11 We shall be back in a few minutes' time.

12 MS. ALABURIC: [Interpretation] Your Honours, Your Honours.

13 JUDGE ANTONETTI: [Interpretation] Ms. Alaburic has something

14 important to say to us.

15 MS. ALABURIC: [Interpretation] I believe it is important. And in

16 view of what Mr. Murphy mentioned as a key problem, and I fully subscribe

17 to that, Mr. Scott said we have to be intellectually honest and admit that

18 everyone of us when we read a statement for the fourth time will find

19 something in it that we did not see the first time. As far as I

20 understand it, this was the Prosecution's explanation of the fact that

21 this witness spoke differently now than in the statement that we were

22 supposed to admit here according to Rule 92 ter.

23 In view of the fact that the witness confirmed today something

24 that differs from what that statement says, I believe that it would be

25 proper to look into whether this witness is supposed to testify in

1 accordance with Rule 92 ter at all, just as Mr. Murphy said in his

2 remarks. Thank you.

3 MR. SCOTT: Excuse me, Your Honour, but -- and I allow for

4 translation errors because I know we constantly have to do that so I

5 certainly allow for that possibility. Your Honour, it's not what I said.

6 I think the correct characterisation is the witness has added something

7 not in his previous statement, not that he has said something contrary to

8 his previous statement. Let's again be clear.

9 JUDGE ANTONETTI: [Interpretation] We shall withdraw for a few

10 minutes.

11 --- Break taken at 2.58 p.m.

12 --- On resuming at 3.04 p.m.

13 JUDGE ANTONETTI: [Interpretation] Very well. We have resumed our

14 hearing. This is a procedure which the Bench has adopted. Witness, you

15 will answer a series of questions on this particular document. After

16 that, we shall give you the document which you will read in your own

17 language so that we understand what this document contains, and then you

18 can go and fetch your document, and we will give it to the Defence teams

19 and the Prosecution. During the break, both parties will be able to look

20 at the document. After the break we shall resume our hearing and either

21 the Defence teams will wish to pursue their cross-examination, in which

22 case if they do they will let us know, and in they don't, they will also

23 let us know.

24 Witness, this document of which we have seen one page is a

25 personal document of yours. When the Prosecution, together with the

1 investigators heard you on three occasions in July 2000, in June -- and in

2 June, did you have the document with you at the time?

3 THE WITNESS: [Interpretation] No, I did not have the document.

4 JUDGE ANTONETTI: [Interpretation] Very well. The investigator who

5 at the time was Mr. Spork, did he ask you when he conducted the interview

6 on the 16th of May, 2000, whether you had any personal documents with you

7 on the facts or relating to the time when you worked as an interpreter for

8 the 41st Brigade? Did he put the question to you, yes or no.

9 THE WITNESS: [Interpretation] Yes, he asked me and at the time I

10 gave him all the documents I had. However, this document was lost

11 somewhere, mislaid. I was moving. Your Honour, I had been expelled. I

12 lived in somebody else's apartment. I lived in seven different places. I

13 spent lots and lots of money as a tenant, and my documentation was in 10

14 different places. I managed to get all these documents a few days ago

15 only when I told you.

16 JUDGE ANTONETTI: [Interpretation] This document which you

17 discovered recently, when did you come across it again? What time of year

18 was it?

19 THE WITNESS: [Interpretation] [Previous translation continues]...

20 Going to The Hague.

21 JUDGE ANTONETTI: [Interpretation] In other words, a few days ago.

22 THE WITNESS: [Interpretation] Five or six days ago.

23 JUDGE ANTONETTI: [Interpretation] Very well. When you get to

24 The Hague, before yesterday's hearing, you met Ms. Gillett. Did you meet

25 Ms. Gillett or didn't you?

1 THE WITNESS: [Interpretation] Yes.

2 JUDGE ANTONETTI: [Interpretation] And did you tell her that you

3 had found this notebook again, that you'd found it a few days ago? Did

4 you tell her?

5 THE WITNESS: [No interpretation]

6 JUDGE ANTONETTI: [Interpretation] In other words, you didn't tell

7 her. So please look at this document which we are going to give you. As

8 this document is written in B/C/S, could you read it out to us so that we

9 understand what it contains.

10 Usher, please retrieve the document from Ms. Gillett. We shall

11 put it on the ELMO. Could you, as far as possible, read out to us what's

12 written on this document. Read it out slowly, please, so that the

13 interpreters can translate it.

14 JUDGE TRECHSEL: [Previous translation continues] ... It would be

15 easier if the document that is somewhere with the Defence could also be

16 given to the witness so that he can read normally and does not have to do

17 gymnastic exercises. Ms. Nozica, I'm talking about the paper in your

18 hand. Thank you.

19 THE WITNESS: [Interpretation] Your Honours --

20 JUDGE ANTONETTI: [Interpretation] Now please read this out aloud.

21 THE WITNESS: [Interpretation] Your Honours, the 31st of August,

22 1993.

23 MR. KARNAVAS: From the beginning. From the beginning, on top.

24 THE WITNESS: [Interpretation] This is a telephone number,

25 Vesna Zeco's telephone number. She lived in London. This is her

1 telephone number, 9944819071785. What is her new number? Give in order

2 to call --

3 JUDGE ANTONETTI: [Interpretation] Witness, don't read so fast,

4 please. In the first paragraph we have the telephone number of someone

5 who lives in London. Perhaps Mr. Murphy or Mr. Stewart will be able to

6 identify the country code.

7 THE WITNESS: [Interpretation] In London. That's Great Britain. I

8 have a notebook where I wrote down quite a few things, and among other

9 things there is this telephone number of this Vesna Zeco, to check her

10 telephone number because we went to meetings in Medjugorje. So sometimes

11 we'd had the opportunity to call elsewhere. So that's how this happened

12 to be there.

13 Further on: "The 31st of August, 1993. Thornberry, evacuation of

14 seriously wounded persons/N. Bila and our people plus transfer to better

15 places for sure.

16 "Technical, move on and carry through. Tomorrow meeting in

17 Medjugorje (Stojic), the 1st of September, 1993. Make possible

18 realisation, list of persons/wounded. Cakan. This is Alija Alikadic. 40

19 to 50 wounded persons for evacuation, children. So, Cakan --

20 JUDGE ANTONETTI: [Interpretation] Witness, read this slowly,

21 please. Please --

22 THE WITNESS: [Interpretation] Yes.

23 JUDGE ANTONETTI: [Interpretation] Start again with Cakan.

24 THE WITNESS: [Interpretation] "40 to 50 wounded persons for

25 evacuation, women, children, adults. Dr. Milavic aware of cases. Outside

1 Bosnia-Herzegovina. Opinion.

2 "Dr. Milavic, 50 persons at minimum. We have no vehicles. We are

3 seeking assistance from UNPROFOR. Destination.

4 "Thornberry, tomorrow at meeting in Medjugorje in the morning.

5 Meeting in Sarajevo, agreement general joint committee with UN to reach

6 agreement.

7 "Dr. Milavic, number of people and final site of evacuation and

8 vehicles for evacuation.

9 "Thornberry, five children three go to MASH," I think that's an

10 American hospital, "Zagreb and two to Germany or as it says up here

11 American medical field hospital, AMFH.

12 "Dr. Milavic, aid in medicaments. 80 per cent of the medicaments

13 are not for use.

14 "Sally Baker, role in terms of working for non-governmental

15 organisation. Thursday operation of transferring the wounded. SpaBat

16 and" -- I cannot read this. "Organs of UNPROFOR. Transport."

17 I think that this is Humo: "One, treatment of civilians,

18 prisoners, attack by HVO every time it comes.

19 "Thornberry, one cease-fire conditions laid by the HVO. Two, use

20 of civilians for military targets. Three, list of persons - wounded.

21 "Thornberry, medical assessment. So this is doctor's opinion.

22 Tomorrow at 11.00, a meeting on the 1st of September, 1993.

23 That's the end.

24 JUDGE ANTONETTI: [Interpretation] Fine. You just read this

25 document. I thank you for this. But the impression we get is the

1 following: When you're writing names, you know, Thornberry and two dots.

2 The sentence that comes right after "Thornberry," does it mean that these

3 are the words that he actually said?

4 THE WITNESS: [Interpretation] Yes.

5 JUDGE ANTONETTI: [Interpretation] Fine. So all the people

6 mentioned on this sheet said what you actually wrote down?

7 THE WITNESS: [Interpretation] Yes. That's how I always take

8 notes, as people speak, as much as I can jot down during meetings.

9 JUDGE ANTONETTI: [Interpretation] So back to Mr. Stojic. In what

10 you just said, there is no mention of the fact that Mr. Stojic will attend

11 the meeting of September 1st. Where is this mentioned?

12 THE WITNESS: [Interpretation] It's mentioned right at the

13 beginning. Mr. Thornberry -- Mr. Thornberry you have under the date the

14 31st of August, 1993, in the first paragraph. And in the second paragraph

15 it says: "Tomorrow, meeting in Medjugorje," and then in brackets it

16 says, "Stojic," and then it says, "01993, will make it possible to

17 implement everything."

18 JUDGE ANTONETTI: [Interpretation] Yes, but the way the sentence is

19 written, it can be interpreted in two ways, either that Mr. Stojic will be

20 at the meeting or that Mr. Stojic will be the person that will make all

21 this possible. There are two options here.

22 MS. NOZICA: [Interpretation] Your Honours, by your leave, in the

23 binder for the witness we do have a document referring to all this. It

24 was provided by the Prosecutor. It's P4857 and refers to both of these

25 meetings. I believe the Prosecutor would have got to this but he didn't.

1 We've moved ahead because the witness has now moved on to events that the

2 Prosecutor has not asked questions about, but it's stated quite clearly

3 why this meeting was held, who was there, what they said, and so on. The

4 document is P04857.

5 THE WITNESS: [Interpretation] I do apologise. I don't have the

6 document that Ms. Nozica is talking about.

7 JUDGE ANTONETTI: [Interpretation] Well -- so before the break and

8 before the witness fetches his document and shows it to everyone.

9 Ms. Gillett, what do you have to say on this item.

10 MS. GILLETT: Regarding the item that Ms. Nozica just mentioned, I

11 was about to get to that exhibit. I have another few questions before I

12 would get to that exhibit, but it's on the Prosecution's exhibit list.

13 Sorry, Your Honour, I don't follow.

14 JUDGE ANTONETTI: [Interpretation] Well, if you have any questions

15 in connection to the document that was just read, please go ahead.

16 MS. GILLETT: No, Your Honour I don't have questions with the

17 document that was just read. I think there was a misunderstanding. I

18 perhaps misunderstood what Your Honour was asking me. I was responding to

19 the witness having a copy in the bundle of the document that Ms. Nozica

20 just referred to, not to do with the document he's just read. My

21 apologies.

22 JUDGE ANTONETTI: [Interpretation] Fine. So if I understood you,

23 Ms. Gillett, regarding the meeting of August 31st and September 1st, the

24 topic is closed and you want to move to something else.

25 MS. GILLETT: Your Honour, I, in the first place, wasn't dealing

1 with anything to do with the 31st of August or the 1st of September. My

2 questions were regarding a meeting on the 24th of August, 1993 and the

3 issue has become confused and developed into this witness now producing

4 notes regarding a meeting that I had not heard of before this afternoon.

5 So my questions regarding the 24th of August have not yet finished, no.

6 There are still some uncertainties and inconsistencies I need to clear up,

7 and then some substantive matters that I hope to eventually get to.

8 JUDGE ANTONETTI: [Interpretation] Fine. I think we'll have a

9 20-minute break first. Mr. Witness, you will go get your notebook with

10 the usher. You will give it to the usher. The usher will then turn it

11 over to Defence and to Prosecution. During the 20-minute break, both

12 parties can look at it, and then we'll know what your positions are, as we

13 resume.

14 --- Recess taken at 3.20 p.m.

15 --- On resuming at 3.44 p.m.

16 JUDGE ANTONETTI: [Interpretation] During the break the document

17 was photocopied and distributed to everyone. It is a 27-page document.

18 It is a handwritten document. Before giving the floor to the parties, I

19 note that as of September 1st, 1993, at that date there's mention of a

20 meeting where obviously the person hand-wrote Briquemont, Morales and a

21 name that I cannot decipher. I think I decipher Petkovic also, Delic.

22 This is what we can read on the document. However, I see no mention of

23 Stojic. This document, as such, cannot be used by Judges who do not read

24 B/C/S. So we do not know yet whether the document will be useful or not.

25 Can we know exactly what is the position of the Defence as of now?

1 Ms. Nozica, you looked at the document. What do you have to say?

2 MS. NOZICA: [Interpretation] Thank you, Your Honour. I have the

3 document in the binder together with its translation into English, but by

4 your leave this document is quite important and we will deal with it in

5 our cross-examination depending on the witness's further replies during

6 the direct examination. However, there are two points I wish to make. We

7 have now received the photocopy of this notebook handed over by the

8 witness, and the first thing I have to say is that when we look at the

9 original of the notebook, I don't know where it is at present, in whose

10 hands, we see that this is in fact a part of a notebook that there were

11 many pages in that notebook, and that some pages have been torn out, the

12 pages the witness gave when he first spoke to the OTP. The first of the

13 pages that we have received bear the date the 25th of August, 1993.

14 For the sake of the record, I have to say that it's rather odd

15 that the witness was not in possession of this notebook when he provided

16 the first part which the Prosecutor received and disclosed to us because

17 these are evidently pages that preceded those pages of the notebook that

18 the witness supplied today. The witness provided those pages referring to

19 the talks of the 24th of August, 1993, and the first page that we see from

20 the notebook today bears the next date, the 25th of August, 1993.

21 I don't know to what extent this portion of the notebook can be

22 useful for the Defence as a whole, but on behalf of Mr. Stojic's Defence,

23 and I don't know whether the other Defence teams will support me, I

24 propose that the Prosecutor continue the direct examination but that the

25 cross-examination be postponed, that it be delayed, because we have a new

1 situation now. We don't have the 92 ter statement because the witness has

2 departed from it substantially, so we will need time for additional

3 preparation for cross-examination to deal with the new elements provided

4 by the witness today.

5 Therefore, I propose that my learned friend continue her

6 examination. It would be much better for all of us were it to be

7 concluded today, and that the cross-examination of the witness be

8 postponed because the Defence of Mr. Stojic at least will not be ready to

9 begin the cross-examination without checking all the statements made in

10 this notebook and the new statements made by the witness today during his

11 examination-in-chief. Thank you.

12 JUDGE ANTONETTI: [Interpretation] Next Defence, please.

13 Mr. Karnavas.

14 MR. KARNAVAS: Thank you, Your Honours. Now, if I understood

15 Ms. Nozica, she has indicated that it's her belief that what was provided

16 to us before through the Prosecution came from the same notebook, and if

17 that is indeed the case then obviously it would contradict the gentleman's

18 statement today. I don't know, but perhaps that's something that the

19 gentleman could -- could answer. He's shaking his head. I assume that

20 this is from another notebook. Is that correct, sir?

21 JUDGE ANTONETTI: [Interpretation] I'll ask him the question,

22 Mr. Karnavas.

23 Witness, please, I think you heard what Ms. Nozica said.

24 According to her, before August 25, 1993, which is the first sheet in this

25 notebook, there must have been other pages that you handed to Mr. Spork,

1 and you didn't hand this one and the rest. Is this what happened?

2 THE WITNESS: [Interpretation] No. This is a notebook containing

3 all the pages it had from beginning to end. It's a separate notebook

4 which I found, as I told the Court. The -- whatever else I had I handed

5 over to Mr. Spork. This is the original notebook. There are no pages

6 torn out. It follows a logical sequence. Everything else I have handed

7 over to the OTP.

8 MR. KARNAVAS: Perhaps we could look at the notebook one more

9 time. If I could have the assistance of the usher. The gentleman has it

10 with him, the original notebook, not that I don't take him at his word,

11 but I just like to look at it myself.

12 THE WITNESS: Am I correct?

13 MR. KARNAVAS: It would appear that no pages are missing from this

14 particular notebook, so -- in any event.

15 THE WITNESS: So I am correct.

16 MR. KARNAVAS: Well, this is the first time ...

17 JUDGE ANTONETTI: [Interpretation] The Bench would like to see it

18 too. Ms. Nozica wants to see it also. Obviously she spoke without having

19 seen it.

20 MR. KARNAVAS: While Ms. Nozica is looking at the notebook, I

21 would -- first of all, we need to look at this more thoroughly over the

22 course of the night. We are prepared to going forward with our

23 cross-examination. So barring something that's in there that's something

24 that needs to be explored we will be ready to continue tomorrow assuming

25 the Prosecution finishes their direct. We don't know what their position

1 is, whether they're going to need time. If that is the case, in any

2 event, we think that since the gentleman is under oath that they are not

3 to have any contact with the gentleman with respect to the notes.

4 JUDGE ANTONETTI: [Interpretation] Next Defence counsel, please.

5 MR. STEWART: Your Honours, as far as the Petkovic Defence is

6 concerned, we completely support what our learned friends and particularly

7 Ms. Nozica said. Obviously, Your Honours are considering the position on

8 the notebook, but the present situation we're in does make it most

9 unsatisfactory to proceed with cross-examination immediately after the

10 conclusion of examination-in-chief, and the course proposed by Ms. Nozica

11 is the obviously sensible course.

12 JUDGE ANTONETTI: [Interpretation] Mr. Kovacic?

13 MR. KOVACIC: [Interpretation] I agree with the proposal of my

14 colleague, Mr. Stewart. Of course we have to read this and check it. At

15 first glance, and really at first glance, it does seem to me that we might

16 continue with our planned cross-examination, but I will look at this later

17 tonight and by tomorrow I will know whether it contains anything new.

18 MS. TOMASEGOVIC TOMIC: [Interpretation] I support what my

19 colleague Ms. Nozica said. Thank you.

20 JUDGE ANTONETTI: [Interpretation] Mr. Ibrisimovic.

21 MR. IBRISIMOVIC: [Interpretation] Your Honour, I always have

22 reservations when notes of any kind are to be used, but that's my personal

23 standpoint. There's something else I wish to raise. In the

24 Hadzihasanovic/Kubura case we had a similar situation. I will not mention

25 the name of the witness because the witness testified in closed session.

1 The witness had a diary that he brought with him and it contained some

2 observations of his. At that time you allowed the Defence to retain the

3 right, after studying the diary, to recall the witness if need be and

4 cross-examine concerning the contents of the diary. Of course it's in

5 your hands, Your Honour.

6 MS. NOZICA: [Interpretation] Your Honour, by your leave, I wish to

7 clarify one point. When I said that we wished the cross-examination to be

8 postponed, I wasn't basing my request only on the notes in the diary but

9 on the changes introduced by the witness into his statement and the

10 introduction of new elements that the witness did not mention before when

11 making the 92 ter statement, and that would also make it possible for us

12 to study this diary in detail and carefully so as not to miss anything.

13 JUDGE ANTONETTI: [Interpretation] Thank you. I will give the

14 floor to the Prosecution, but first I sum up what has just been said and

15 the Defence can check this. Part of the counsels believe that they could

16 proceed with the cross-examination as of tomorrow since there's only 27

17 pages to this document, some of which are irrelevant. And, for example,

18 when I see the page where there's the name of the deputies in the Italian

19 Assembly, I don't see what the relevance can be here. So there are

20 probably interesting pages and others that are totally irrelevant.

21 So part of Defence counsels believe that they could start

22 cross-examination as of tomorrow, but other counsels believe that it would

23 be best to postpone to a later date the cross-examination for two reasons.

24 First because of this new document, and second, because the witness

25 differed slightly in his testimony from what he said in the statement. So

1 I believe that these are the two options that the Bench is confronted with

2 when it -- before deliberating. But we'd like first to hear Mr. Scott.

3 Maybe he will provide us with a third option.

4 MR. SCOTT: I wish I could, Your Honour. It seems to me, as I

5 said to Ms. Gillett a few minutes ago, it's kind of the old saying, if

6 you're in for a penny, you're in for a pound. And given this situation,

7 the Prosecution should not be put at a disadvantage by not having the

8 ability to know what's in the document more than anyone else in the

9 courtroom. Therefore, I see no alternative but to call the examination on

10 all sides to an end. The witness will have to come back on a future

11 occasion after the document's been translated. But most of the

12 Prosecution, certainly those sitting here do not work -- regrettably do

13 not work and write in B/C/S and we would have to translate and study the

14 document and it would be completely unfair to put us to a disadvantage

15 more than anyone else. So I guess we're at an end and the witness will

16 have to be rescheduled.

17 MR. KARNAVAS: Your Honour, if I may be heard for a second. They

18 have staff. They have staff that translate. We're talking about a rather

19 small document. Certainly they can do it overnight, and they can

20 certainly continue with the planned direct examination right now and then

21 if need be, they can go into areas which are in the document tomorrow, but

22 I don't see the sense of wasting the rest of the week. I'm just being

23 practical about it.

24 MR. SCOTT: Well, Your Honour --

25 JUDGE ANTONETTI: [Interpretation] I think that -- Mr. Stewart,

1 first.

2 MR. STEWART: Your Honour, this is one of those occasions and

3 perhaps it does emphasise the point that we are dealing with six Defences

4 here. This is one of those occasions on which this Defence team does take

5 a different stance from the position of the Prlic Defence team, and it's

6 perhaps important for Your Honours to appreciate that from time to time,

7 both in our private discussions but also in court, that this does happen,

8 because we each represent our own individual clients. And the Petkovic

9 Defence position is, Your Honour, in the light of what Mr. Scott says, it

10 would be fair then to call the examination to a halt completely. And if

11 the Prosecution feel conscientiously and professionally that they are

12 faced with a similar difficulty, whether they're less or more, we needn't

13 debate, some similar difficulty to the difficulty we're in, then we

14 certainly wouldn't resist that. So there's that difference, Your Honour.

15 It's bound to happen once in awhile.

16 JUDGE ANTONETTI: [Interpretation] I will give the floor to my

17 colleague.

18 JUDGE TRECHSEL: Perhaps, ladies and gentlemen, one could have an

19 intermediate solution. That would be the following one: The Prosecution

20 continues direct but will not finish direct. We postpone

21 cross-examination but also reserve some time for the Prosecution to

22 complete direct examination in view of the new situation. I think that

23 could be regarded as fair to all. I wonder what the Prosecution thinks

24 about it.

25 MR. SCOTT: Thank you, Your Honour, for being creative. I'm

1 afraid that doesn't really help us because, I mean, speaking for

2 Ms. Gillett, and really for the -- what is the sense of possibly putting

3 questions to the witness which -- which will then, having been studying

4 the document, to be shown by the document that the questions are not well

5 put? It's professionally embarrassing, and inappropriate. So as I said,

6 Your Honour, look, this has developed. The Defence have insisted on this.

7 And as I said, if you're in for a penny, you're in for a pound. So if

8 we're going to do it, we're going to do it the right way. And it will be

9 translated and we will have a chance to study the document and go forward.

10 And not to divide it up. We have to finish now, but they get to come back

11 later. No, we don't agree could that.

12 JUDGE TRECHSEL: Mr. Karnavas was first, actually.

13 MR. KARNAVAS: Go ahead.

14 MS. NOZICA: [Interpretation] Your Honours. Your Honours, I fully

15 agree with the proposal put forward by Judge Trechsel. I think it's quite

16 logical in this situation, and we must not forget a very important point.

17 The witness here is being heard under Rule 92 ter. The Prosecutor should

18 continue examining the witness about the circumstances contained in the

19 statement, and if new circumstances arise, if new information has been

20 obtained, let the Prosecutor question the witness about them.

21 Were the witness a viva voce witness, then Mr. Scott's proposal

22 would be quite reasonable, but as they wanted to put in a 92 ter

23 statement, let them complete their examination according to that rule.

24 JUDGE PRANDLER: Thank you. I would like to state the following,

25 that I regret very much even now in the Bench we have not yet the

1 opportunity to deliberate on that issue before and then to -- to speak

2 about our options and about our proposals. So therefore I would like to

3 urge ourselves and the Presiding Judge to deliberate on that question and

4 not to rush to the conclusion, because I believe that unless the Defence

5 teams are not -- are ready to continue, then I see a great number of

6 strong arguments in Mr. Scott's statement, and there I believe that we

7 have to talk about it.

8 MR. KARNAVAS: Very well. But before you deliberate,

9 Your Honours, if I may also be heard. First and foremost, I agree with

10 Judge Trechsel's proposal for the following reason: One, as was pointed

11 out by Ms. Nozica, this is a 92 ter. The Prosecution has met with this

12 witness on several occasions. Now, whatever's contained in the notes that

13 we received from the gentleman, either will provide further information

14 that will be helpful to the Prosecution, or it may have information that

15 may be -- they may find themselves in the regrettable position of having

16 to impeach their own witness or it may be that there's nothing really in

17 the notes other than some phone numbers and some innocuous notes of

18 meetings but nothing necessarily terribly important.

19 They have planned a direct examination, and we're trying to save

20 time and we're trying to move forward. So I find it rather ironic that it

21 is the Defence trying to urge the Prosecution to put on their case as

22 they're required to do so. Now, they came here prepared. They should ask

23 the questions. And Judge Trechsel did allow for the possibility for them

24 to supplement, to supplement, and therefore I -- you know, I would think,

25 I would think that they would welcome that opportunity. So -- and of

1 course, the Defence is not going to be put at an advantage because, again,

2 should the Prosecution wish to supplement their direct, we will be hearing

3 it fresh and we will need to react right on the spot. So I don't see what

4 the problem is, and I frankly find it difficult that the Prosecution is

5 fighting at this point, having met with the gentleman for so many times,

6 having their investigator write the statement for the gentleman,

7 incorporating their documents into the statement and making it appear as

8 if the gentleman was giving the narration. So now I find it ironic,

9 supremely ironic indeed, that they're here fighting to delay the

10 proceedings. Thank you.

11 MR. SCOTT: Your Honour, this is absurd. Once again, it's very

12 interesting to listen to this discussion and how it shifted in the course

13 of the afternoon. About an hour ago, it was critically important that

14 this document be turned over. It was critically important that the

15 document be made available to everyone, and there was great noise being

16 made from this side about how important it was. It was a disadvantage not

17 to have the document and et cetera.

18 Now, when the disadvantage comes on the Prosecution's side, it's

19 all very different, it's all very different. Now, that's just completely

20 unfair. It's completely, absolutely unfair. It's Mr. Karnavas not being

21 noble. He's just simply saying, we'll put the Prosecution to a

22 disadvantage. We'll have more time. We'll do -- all of us counsel who

23 speak and work in B/C/S can certainly go home and read this tonight and be

24 prepared to deal with it. Sure they can. Let's have a chance to put the

25 Prosecution at a disadvantage.

1 It is fundamentally unfair. And it's interesting again how the

2 dynamics have shifted from what they were an hour ago until now. It's

3 fundamental fairness. And it's -- this very document -- it's like the

4 suggestion now is the Prosecution can go forward. The document's not that

5 important. Well, if it's not that important why did we just spend the

6 last hour and a half debating about it, and taking the time? You're in

7 for a penny, you're in for a pound. The Prosecution wants to be treated

8 fairly, to have a chance to study the document, translate the document and

9 then go forward. And that's where we are and we do not agree to any other

10 proposal.

11 JUDGE ANTONETTI: [Interpretation] I would like to reassure my

12 colleague Judge Prandler we shall withdraw to deliberate, and so far we

13 have taken no decision whatsoever. We shall withdraw for a few minutes

14 and will return in a few minutes and let you know what the Bench has

15 decided.

16 --- Recess taken at 4.08 p.m.

17 --- On resuming at 4.11 p.m.

18 JUDGE ANTONETTI: [Interpretation] Very well. The Chamber has

19 deliberated on the matter. The Trial Chamber felt that the Prosecution

20 wanted the document to be translated into English to be able to continue

21 with its examination-in-chief. The Trial Chamber acknowledge the position

22 of Defence counsel. Some wish to have more time to prepare their

23 cross-examination, and some were prepared to cross-examine as of tomorrow

24 onwards.

25 Bearing in mind all of this, the Trial Chamber has decided to

1 postpone sine die the testimony of this witness who will be called again

2 by the Witness and Victims Unit to come to testify in the future again.

3 The Trial Chamber will by then have a translation of the document, an

4 English translation, which will be provided by CLSS, the translation

5 services of the Tribunal.

6 On a personal note, I should like to make a remark, and I shall

7 give the floor to my colleagues if they so wish.

8 On a personal note, in the future to avoid this kind of situation

9 occurring again, I would like to ask the Prosecution, when it is proofing

10 its witnesses, to automatically check with their witnesses whether the

11 latter have any documents with them. If the witness does have any

12 documents, make sure that you look at these documents and make sure that

13 you let the Defence -- that you let them know about this so that this

14 situation does not occur again. In certain cases, the witnesses don't say

15 anything and don't say to the Prosecution, in my shoes or in my socks or

16 in my satchel I don't have any documents, and this is something that comes

17 up during the hearing. But if the Prosecution automatically puts the

18 question to its witnesses then this problem would not arise. So much for

19 this.

20 I would also like to let the witness know that you will be asked

21 to come again, but as you are now -- but as you have taken the solemn

22 declaration, you are a witness of the Chamber, and you are no longer a

23 Prosecution witness and you are not to contact the Prosecution and you are

24 not to contact the Defence teams and you are not to contact the Bench

25 either. So you are going to go back home, and you should expect to come

1 back again in the near future.

2 Also, as far as the time allotment is concerned, we will see what

3 the Prosecution has to tell us once the document has been translated.

4 I don't know if my colleagues wish to take the floor.

5 JUDGE TRECHSEL: I want to make the observation, but it's not on a

6 personal line but quite objective. Having looked at this document, I

7 cannot help noticing that there is certainly at least one piece of paper

8 missing. Of course I cannot say whether it was torn out after the

9 document was written and contained words or whether it was thrown out

10 because there was some mis -- miswriting or whatever. Probably when we

11 have a translation of the text we will perhaps see that something is

12 obviously missing or that something is not missing.

13 Witness, are you -- can you remember that you have torn a page,

14 maybe an empty page, out of this -- of this piece of -- of paper?

15 JUDGE ANTONETTI: [Interpretation] Just a minute, Witness. Before

16 answering this question, what I have realised is quite different from what

17 my colleague has just said, and this is objective.

18 We -- we have here a sheet of paper which is still part of the

19 notepad but could easily be torn off, but it's practically loose, and I

20 don't see that a piece of paper has been torn out. On the second page

21 there's a piece missing. It has been cut here. So that is what you can

22 see. There is a sheet of paper, and number two -- the sheet of paper

23 number two has been torn off or part of it has been torn off but there's

24 nothing missing before that.

25 Witness, on the face of the varying positions of the Judges, what

1 do you have to say to that?

2 THE WITNESS: [Interpretation] [Previous translation continues]...

3 Book which I have. Over the past few days I did not take anything out of

4 it. Perhaps when I was writing it I used a piece of clean paper that I

5 needed for some other note-taking. So that's that.

6 JUDGE ANTONETTI: [Interpretation] One of my colleagues would like

7 to take the floor.

8 JUDGE MINDUA: [Interpretation] I -- I regret that we have wasted

9 our time today. I'm not criticising anyone here, but this is my question:

10 I'm wondering that as far as the advice provided by the Presiding Chamber

11 to the Prosecution is concerned and the notes taken by the witness, I'm

12 wondering whether in the future the parties should not work together more

13 closely, like gentlemen, and to check whether there are any notes around

14 rather than always raising this issue before the Chamber at the last

15 minute, which means that we have to adjourn or postpone. This is just a

16 remark I wanted to share with you.

17 JUDGE ANTONETTI: [Interpretation] Just a minute, Mr. Kovacic.

18 Just -- I would like to add something to what I said previously. I did

19 say that as far as the sheet of paper that might have been torn off is

20 concerned, I did say that the first sheet of paper is part of the notepad

21 as it should be, but when you turn the first page you realise that on the

22 second page part of the page has been torn off. But if you look at it

23 closely, if you look between the two sheets of paper closely, you see that

24 a sheet of paper has been taken out, which may tally with what the witness

25 said, that a piece of paper might have been taken out.

1 So this document will be given an IC number. Registrar, please.

2 I shall give you the original, and please provide us with an IC number.

3 Just a minute we need to have the IC number and then you can have the

4 floor, Mr. Praljak.

5 THE REGISTRAR: Your Honour, this diary will become Exhibit

6 IC 603, Your Honours.

7 JUDGE ANTONETTI: [Interpretation] Mr. Praljak.

8 THE ACCUSED PRALJAK: [Interpretation] Your Honours, might we have

9 a look at the original perhaps?

10 JUDGE ANTONETTI: [Interpretation] No problem whatsoever.

11 Usher, could you kindly give this document to the accused.

12 Mr. Kovacic.

13 MR. KOVACIC: [Interpretation] Your Honour, just to avoid any

14 misunderstandings or additional discussion and debate, the proposal that

15 His Honour Judge Mindua just made, I'd like to address that. I don't know

16 how far the Chamber knows this - and I'm sure the Prosecution will confirm

17 it - the Defence regularly, as soon as we receive a proofing chart and the

18 materials and documents, well, we take out the documents that have been

19 disclosed to us, we look through them, and as soon as we see the witness

20 mentions a notebook or a document that hasn't been disclosed, we always

21 react straight away and send a letter to the Prosecution. That is regular

22 practice, and that's what we do. It usually happens on a -- between

23 Friday and Saturday. And I think we do this on a regular basis. We

24 always react. The Prosecution always responds. They say, Yes, we do have

25 it; no, we don't; we can disclose; we cannot. So I want to assure you

1 that this gentlemanly communication that was referred to without doubt

2 exists. But this is a different matter, a question here where the witness

3 told nobody anything.

4 Bearing in mind your ruling, Your Honour, I didn't want to raise

5 this issue earlier on, but since you've decided to interrupt the

6 cross-examination at this point, I would like to propose the Trial Chamber

7 consider another issue.

8 The whole sense of the institutional mechanism under 92 ter has

9 been lost in this case, and if I might be allowed to paraphrase the

10 rationale between 92 ter without entering into the whole history of how

11 the rule came about in the first place, this rationale is that we

12 introduce a statement, present the statement, and it must be, I would like

13 to say, a clear statement dealing with a particular event, not the kind of

14 statement that this witness proffered. But I don't want to go into that

15 now.

16 So 92 ter means you have a witness statement. You have the

17 witness appear in court where he confirms that that is indeed his

18 statement and that he stands by it. And the third stage is to give the

19 Defence and opportunity to challenge the statement through

20 cross-examination and possibly to put forward its own documents through

21 the witness.

22 Now, at the beginning, Your Honours, you limited 92 ter witnesses

23 in that way, providing instructions and guidelines to the Prosecution.

24 That was how we worked. Now we're faced with a situation like this for

25 the first time, where we have an altered 92 ter. We have not one

1 statement but several statements which are very -- cover a broad area.

2 Then we, once again, have a very broad direct examination,

3 examination-in-chief, which contributes to the scope of the statement, and

4 we saw that in part it is contradictory to the statement. We might hear

5 more; we might not. And then we have the cross-examination as the third

6 segment of the story.

7 Now, I consider that the admission of the statement, which comes

8 at the end of this whole process pursuant to 92 ter, in its spirit, will

9 not be in conformity with Rule 92 ter if we proceed along those lines.

10 That is why I'd like to move this issue straight away without waiting for

11 the next time we meet to give the Prosecution food for thought. Perhaps

12 they will change their approach.

13 And secondly, I'd like to ask the Trial Chamber to think about

14 this: When the witness appears a second time, whether he can be treated

15 as being a 92 ter witness, and it is my modest opinion that that would not

16 be proper. Thank you.

17 MR. STEWART: Your Honour, I did ride a different horse from

18 Mr. Karnavas earlier, but I'm going to ride the same horse as Mr. Kovacic

19 this afternoon on this point. I'd maybe just add - I don't want to

20 reiterate what he said, which I support - but one of the problems about 92

21 ter and the way it's applied is that, in our submission, 92 ter is saying

22 that the Trial Chamber may admit in whole or in part the evidence of a

23 witness in the form of a written statement. It contemplates that a

24 discrete part should be admitted at times, if not the whole statement, and

25 there may be other parts of the statement which are inappropriate to be

1 admitted.

2 The problem that we have is that the practice has developed where

3 instead of - and I hope this comes across in whatever

4 translations/interpretations ensue - that instead of statements being

5 admitted in part, they're admitted partly, so the whole statement is

6 admitted but it isn't the 92 ter statement. It's not the complete

7 in-chief evidence that we have to deal with.

8 So summarising, really, without wishing to repeat what Mr. Kovacic

9 says, we don't know where we are because we're faced, apparently, with a

10 92 ter statement but in fact we get this untidy, very difficult

11 combination of 92 ter with supplementary oral and sometimes the

12 supplementary oral goes on for a long time. It's extremely difficult to

13 prepare. It's extremely difficult to avoid, with all the goodwill in the

14 world - and I regard my lead counsel as the perfect English gentleman,

15 apart from the obvious fact that she's a Croat lady - we all try to be

16 gentlemanly and lady-like in dealing with these matters and we are

17 cooperative. But that situation faces us all. The Defence is faced, no

18 doubt, with a quite impossible situation in practice.

19 JUDGE ANTONETTI: [Interpretation] Mr. Scott, you have --

20 MR. SCOTT: Your Honour, this is not an -- this is not an issue

21 about 92 ter. The same issues would have -- if this had been a viva voce

22 witness and the same exact thing would have happened, of course the viva

23 voce testimony may have come out, information may have come out, that

24 there was a notebook that had been turned over before and we would have

25 been in exactly - exactly - the same situation. So this is not -- this

1 has nothing to do with whether it's 92 ter or viva voce. Point number

2 one: A completely false issue.

3 Number two, just so the record is clear and I can provide the -- I

4 can pull out the correspondence, if necessary, what was said to the

5 Defence last week and what was said to the Chamber is, again, that this

6 would be a mixed viva voce 92/92 ter witness. If everyone wants to be

7 accurate - and I'll bring my letter next time we come to court if we need

8 to - but I'm sure it said exactly that: Some would be 92 ter; some would

9 be viva voce.

10 Now, I know from talking to other Prosecution teams, Your Honour,

11 that in other Chambers, the 92 ter procedure seems to work quite well,

12 seems to be quite productive. I don't know why it's only in this Chamber,

13 apparently, that it doesn't seem to work. I don't know why that is, but

14 hopefully we can still get it figured out before the case is -- before the

15 trial is over.

16 It is a situation -- it is simply a situation, as I have said

17 before, where you have a statement and some of it can come in in writing

18 and some parts of it can be taken viva voce. And it's a mystery to me why

19 that becomes so complicated. There are certain paragraphs of the

20 statement which the Prosecution does not think require additional time.

21 It's on crime base areas that perhaps there's been an abundance of

22 evidence on. We don't want to present any more evidence on that

23 particular point, so we put it in writing. There are other paragraphs

24 that are more important, may talk about some of the accused. We take it

25 viva voce. There's no mystery about it and it works perfectly well in

1 other Chambers. So, again, I don't know why in this particular Chamber it

2 doesn't seem to work as well as it should.

3 Your Honour, again, let's come back to reality. I think some -- I

4 get the impression sometimes, listening to some of the comments that have

5 been made, that trials and evidence-taking and evidence collection somehow

6 takes place in laboratory conditions, which it does not. We're talking

7 about gathering material that's been in various places. The witness told

8 us very direct and was easy to understand: Some of these documents have

9 been spread all over the countryside as he was expelled from his home, and

10 he's only just recently been able to collect some of them just days ago -

11 just days ago - but that's a perfectly understandable answer.

12 It's no different with a viva voce witness. Again, it wouldn't

13 have mattered. If it was a viva voce witness, the situation would be

14 exactly the same. And you know, sometimes viva voce witnesses, in my

15 experience over the last 30 years, they might have remembered something

16 different when they're on the stand that they didn't say before. And when

17 they go home and they're in Mostar a week from now, they'll think of

18 something, I wish I had said that because now I remember something I

19 forgot. Boy, I wish when I was in The Hague, I wish I would have

20 remembered that because that would have been really important.

21 This is human -- we're dealing with human situations here. None

22 of this takes place in laboratory conditions. And I hear some of the

23 comments that are being made and it's just nonsense, absolute nonsense.

24 I hope that the Rule -- in terms of Rule 92 ter, it is a

25 productive rule and practice that I think should be usable. I don't know

1 why, again, it seems to be so difficult in this particular courtroom, but

2 hopefully we can get it sorted out.

3 MR. STEWART: Your Honour, I would like an opportunity just

4 briefly to answer that, because I do have some experience of quite a long

5 trial in which -- it wasn't 92 ter, but it's basically the same idea, 92

6 bis, the same operation in the Krajisnik trial. Now, Your Honour, I'm

7 going far from dewy-eyed about the Krajisnik trial. At the time we made

8 many submissions in the course of that trial as to what the Defence said

9 was unfair and Mr. Krajisnik is appealing. So I want to leave that

10 alone. It's not some long lost model of a trial that I'm putting

11 forward.

12 But in relation to this matter, the difference was this, on the

13 use of 92 bis which now embraces 92 ter for practical purposes, that

14 limited supplemental questioning was generally permitted by the

15 Prosecution just to explain some of the things, which on examination of

16 the statement really are too bare if they're just left as the written

17 statement. That's very different from the Prosecution identifying -- and

18 this is how I understand it, identifying particularly important

19 paragraphs, and then having the opportunity to develop those fully in oral

20 examination-in-chief, because I think we have to remind yourselves,

21 notwithstanding the human nature which we all accept and Mr. Scott refers

22 to, that 92 ter (A)(iii) requires the condition that the witness attests

23 that the written statement or transcript accurately reflects that

24 witness's declaration and what the witness would say if examined. And

25 when the witness turns up because he's being cross-examined under 92 ter,

1 when the witness turns up, that's what he is to say.

2 Now, of course we accept that in the course of proofing of a

3 witness with a long statement - and this is where, of course, human nature

4 and the real world comes in - of course there are going to be some

5 modifications and changes. That's natural. That has been allowed, as far

6 as I'm aware, in any trial where this procedure is adopted. No Defence is

7 going to have a problem with that.

8 But what's happened here, Your Honour - and Mr. Scott talks as if

9 it's got nothing to do with the Prosecution - the Prosecution, to a

10 considerable extent, makes the choice to do this. They have the

11 opportunity rigorously to stick to 92 ter, with those mild modifications

12 that I've indicated, and make sure that the statement they wish to adduce

13 under 92 ter - they always try 92 bis in the first place, but we end up

14 usually under 92 ter - that that statement does represent for all

15 practical purposes the evidence in-chief that we know we are going to have

16 to meet and we are going to have to cross-examine on.

17 MR. KARNAVAS: If I may be briefly heard, Your Honour.

18 The problem with this particular witness was the statement and

19 that's why I started yesterday by raising the way the statement was

20 constructed. It wasn't the gentleman's statement. They met with him on

21 three different occasions. On one of those occasions he provided the

22 Prosecution investigator with several documents. They then came back on

23 10 July 2000. The contents of the documents were put in and injected into

24 the statement as if the gentleman had given a narration, narrating what

25 was in the document and putting somewhat of a spin on it.

1 Now, that is not a statement. That is Mr. Spork's statement.

2 That's what -- and then they say that they read it to him in B/C/S, of

3 course. The gentleman can read it in English and could have read it in

4 English and should have read it in English. There was no need for them to

5 read it back to him in B/C/S to see whether it was accurate.

6 But what I'm trying to suggest is that in this particular case, it

7 wasn't the gentleman's statement; it was the investigator's statement.

8 And by trying to do 92 ter with this particular witness, they're trying to

9 have it both ways. And what we have -- the problem that we have in this

10 particular courtroom is because the Trial Chamber is rather strict with

11 the time it allows the Defence for cross-examination purposes.

12 This statement, part and parcel of it are all the documents

13 contained either in the statement or attached to it. In addition, they

14 want to have virtually a full-blown cross-examination and introduce

15 perhaps other documents. And then we have limited time for

16 cross-examination.

17 I think that the practice has become such that the Prosecution has

18 two bites at the apple. They want the entire statement and then at times

19 on direct examination they go into areas that are not necessarily part of

20 the statement. And I would suggest that if they have another witness such

21 as this person, with a statement that was constructed and devised and

22 designed by their own investigator, that perhaps they simply take viva

23 voce testimony and keep it clean, and that's the end of the story. And I

24 don't think that I'm misstating anything.

25 Yes, he's going to come up with some new stuff. We found out that

1 he had notes. But as Your Honour pointed out, had they asked him, "Do you

2 have any other notes" when he first arrived, we wouldn't be in this

3 situation. And I'm rather surprised that Mr. Spork didn't ask him, given

4 that the gentleman seemed to be showing up with all sorts of documents.

5 And I find it rather ironic, because when I was reading it some light

6 bulbs were going off. I found it ironic that the gentleman just happened

7 to have access to certain documents in his private archive, certain

8 copies, unsigned copies, but yet he couldn't find his own notebook that he

9 supposedly found several days ago, at least that's what he wants us to

10 believe. I don't know, and we haven't asked the gentleman, when was the

11 last time he moved, because he claims that somehow it's not until 2007

12 that he finally got his own place and was able to relocate his

13 possessions. And I dare say that back in 2000 he had access to documents,

14 he had access to notes, he had access to his notebooks, because he gave

15 them to Mr. Spork.

16 JUDGE TRECHSEL: I think, Mr. Karnavas, that the witness can be

17 asked when he comes back.

18 MR. KARNAVAS: Very well.

19 JUDGE ANTONETTI: [Interpretation] Mr. Praljak, we haven't heard

20 you for a long time. It's a bit exceptional, so I will now give you the

21 floor.

22 THE ACCUSED PRALJAK: [Interpretation] Well, I could meddle into

23 all these matters with the witness and so on. I'd just like to say a few

24 words about this little booklet.

25 I counted that 11 pages have been torn out. I think there might

1 be more. But anyway, it could be confirmed -- you could compare it to the

2 outside of the book, the cover, and then you could count how thick it was

3 and how many pages it had if you look at the binding. But at least 11

4 pages are missing.

5 MR. KOVACIC: [Interpretation] Your Honour, I really do hate to

6 waste time, but just one detail referring to my learned friend of the

7 Prosecution.

8 He touched upon the question of comparing the live testimony with

9 92 ter testimony. There is just one difference which my colleague seems

10 to forget persistently. When we have live testimony, although the Trial

11 Chamber does receive witness statements beforehand for them to be able to

12 better follow the testimony of the witness, the statement does not become

13 an exhibit. That's the vital difference. So what we hear in court from

14 the witness is what is recorded in the transcript and what becomes

15 evidence. That is the essential difference. So if I can use the

16 word "pure" in relation to 92 ter, pure 92 ter when the rationale of 92

17 ter is used and when the witness speaks of one single event, and I

18 asked -- I inquired about this with my colleagues who are dealing with the

19 amendments to the rule, it is when one event is addressed. "They burnt my

20 house" or "I saw when so-and-so did such-and-such in a village." Then the

21 statement is tendered and admitted, but the witness is brought on -- in

22 for the Defence to be able to cross-examine that piece of evidence.

23 So you can't compare classical testimony, viva voce testimony, and

24 92 ter testimony. 92 ter testimony was taken by all Trial Chambers very

25 warily because there are always additions and conditions which, with the

1 development of this institution which is new, I have to admit, in this

2 court, in this Tribunal, compared to other legislation and so on and

3 practice, the Trial Chambers were very cautious in approaching. And I

4 know that you were very cautious, too, and always acted cautiously.

5 So we must be very wary when dealing with 92 ter. We cannot have

6 92 ter used or the mechanisms of 92 ter used with witnesses such as this

7 one here, who addresses a series of events which I might say are a very

8 important events and then even mentions some of the accused. That is just

9 not a good example for 92 ter. And we aren't finding our way here.

10 The Defence teams don't seem to find our way when we're given 92

11 ter because we base the cross-examination on the basis of his statement,

12 because the statement becomes an exhibit and is admitted. So then I

13 challenge that. Whereas I get a whole new block of issues in this

14 specific case and we have to challenge that, too. And it's difficult to

15 differentiate afterwards and make the proper analysis of what is the same

16 and what was different. Thank you.

17 JUDGE ANTONETTI: [Interpretation] I want to add something to

18 answer Mr. Scott. 92 ter procedure is -- the interpretation given by

19 Prosecution is not my interpretation of it. I was at the Plenary Assembly

20 of the Judges who adopted this procedure. Article 92 ter is for witnesses

21 that make statements that are very straightforward, and it's for

22 statements that require no additional question. The only question to be

23 asked is: Do you confirm what you said in your statement, period. And to

24 my mind, I must say that you shouldn't even allow for documents being

25 admitted in this respect.

1 But it's true that Chambers have taken different paths, and you

2 have invented, and you said so yourself, a new procedure. It's a mixed

3 procedure, mixed viva voce and 92 ter, which we can't make heads or tails

4 of anymore. I think that this comes from the Prosecution. And as Judges,

5 the Bench notes that there are problems when the witness is answering

6 questions, and we notice that there is a problem then.

7 I'm sure that you'll answer, Mr. Scott, and I'll give you the

8 floor, but I think that this is very relevant, because on page 12 of the

9 witness's written statement, I noted that he mentions that the Croatian

10 army was present in August 1993. And this, if the statement is admitted,

11 could be used by the Judges in the judgement itself. Maybe Defence won't

12 have to cross on this, because Prosecution will have said nothing. But

13 when a 92 ter statement is admitted, it is admitted from line 1 to the

14 very last line. You admit everything in the statement. And because of

15 this, the Defence has to read it completely.

16 So as a conclusion, I agree with what's been said, but I note that

17 the 92 ter procedure here in this Chamber has taken a turn that is not in

18 keeping with its spirit.

19 Mr. Scott, what do you have to answer?

20 JUDGE TRECHSEL: I'm sorry, are we having a seminar here? We have

21 a witness who is sitting here and we're talking above his head. I think

22 this is not very desirable. Could we dismiss the witness perhaps?

23 JUDGE ANTONETTI: [Interpretation] So as you see, there's a

24 divergence between Judges. I don't think we need the witness here because

25 we're talking procedure.

1 Sir, as I said, you will now leave the courtroom, and you will

2 come back when -- at a later date, a date that will be given by the

3 section of -- the witnesses and victims section. Unless Mr. Murphy has to

4 say something.

5 MR. MURPHY: Your Honour, just so that we can avoid any -- any

6 further waste of time when the witness comes back, would the Trial Chamber

7 inquire from him whether there are any other relevant documents that he

8 has and has not given to the Prosecution so that we don't have to go

9 through this hopefully a second time?

10 JUDGE ANTONETTI: [Interpretation] Absolutely. So, Witness, when

11 you come back, if you come back with new binders or folders you found in

12 one of the apartments you left, tell us. So do you have any other

13 documents identical to the one we just saw?

14 THE WITNESS: [Interpretation] Not for the moment I don't have any

15 documents. So I won't be presenting anything else to this Court. Not in

16 my possession.

17 JUDGE ANTONETTI: [Interpretation] But if you by chance run into

18 another of these notebooks, do you undertake to disclose it immediately

19 through the Victims and Witnesses Section to the party involved?

20 THE WITNESS: [Interpretation] Yes, certainly.

21 JUDGE ANTONETTI: [Interpretation] Fine. I will now ask the court

22 usher to escort the witness out of the courtroom.

23 THE WITNESS: [Interpretation] Thank you, Your Honour.

24 [The witness withdrew]

25 JUDGE ANTONETTI: [Interpretation] Mr. Scott, on Article 92 ter

1 with all the observations made, could you tell us the position of the

2 Prosecution?

3 MR. SCOTT: Sorry, Your Honour. I'll try to be very brief. To be

4 perfectly honest I'm of half a mind not to say anything further because

5 I'm sure that once I say something then somebody else will be up and it's

6 never-ending but be that as it may, some very specific things have been

7 said towards the Prosecution so I think it's only fair that the

8 Prosecution at least give a brief response to those things.

9 I want to assure the Chamber that the Prosecution routinely asks

10 witnesses if they have materials. The Chamber shouldn't presume

11 incompetence or negligence on behalf of the Office of the Prosecutor, and

12 we routinely do ask that question. That doesn't prevent situations from

13 arising just as we've seen today and as I said about an hour and a half

14 ago, it's happened before and it'll happen again. And one of the Defence

15 counsel, just a few minutes ago, indicated it happened in another case.

16 And we don't work in a perfect system and we never will, but I can assure

17 the Chamber and let me say it again very, very clearly, we routinely ask

18 witnesses those questions. So it's not something that we never thought of

19 before, number one.

20 Number two, as I said sometime previously, 92 ter was not -- not

21 created by the Prosecution. It was adopted by the Judges in Plenary

22 Session and the Judges have said that you're about to have a Plenary this

23 afternoon. The Judges of this Tribunal came together and adopted that

24 rule, and they adopted that rule, as an efficiency measure - let's be very

25 honest about it - because this Tribunal doesn't have enough time to

1 conduct all of its proceedings in a different way. If you did, you

2 wouldn't have limited the Prosecution to 293 hours to present its case.

3 So the institution cannot have it both ways. You cannot limit our ability

4 to present our case and then use the slowest possible methods for us to do

5 so.

6 And I don't direct that just to this Chamber, I direct it to the

7 institution as a whole. You can't say, "You only have 293 hours to

8 present your case, and by the way, not only that, we're going to make you

9 do it in the slowest possible way." And it was the Judges of this

10 Tribunal, sitting in Plenary Session, who adopted Rules like 92 bis and 92

11 ter - not the Prosecution, the Judges - to attempt to address these

12 situations. And the use of it in a mixed way is not unique to this

13 Prosecution team but has been done in other Chambers routinely. And I've

14 talked to my colleagues, I've talked to the other STAs in all the other

15 cases, and it's not something that's invented by this Prosecution team.

16 I don't see anything in the rule -- when I look at 92 ter (A), I

17 don't see anything in the rule that says something about it can only be

18 used with straightforward witnesses. I don't see that language in the

19 rule anywhere. What I do see is that a Trial Chamber may admit in whole

20 or in part the evidence of a witness in the form of a written statement,

21 and that's what the Prosecution has tried to do.

22 It doesn't limit the Defence's ability to go into their

23 cross-examination on both the -- if there is viva voce parts or on the 92

24 ter statement. Indeed, if it was viva voce, what do you think they would

25 cross-examine on in part? The prior statement. So even if it was a viva

1 voce witness, what would they go to to cross-examine the witness? The

2 statements. What would they be complaining about of the Prosecution if we

3 went out beyond the scope of the statements? "Your Honour, that wasn't in

4 the statement."

5 So, again, Your Honour, a lot of things are being said this

6 afternoon that just really do not stand up to scrutiny. I wish we had

7 more time to go through every one of the things that have been said in

8 that regard.

9 92 ter is a procedure that I think could be productive. It could

10 help everyone. I don't know if the Defence plans on using it in their

11 case or not. Perhaps they won't use it. Perhaps they'll feel that they

12 have more than adequate time to present their case without using such

13 tools as that. But I don't think it's the Prosecution being unfair and I

14 don't -- I take exception to that. Thank you.

15 MS. NOZICA: [Interpretation] Your Honours, by your leave.

16 In respect of time and how we are going to use the time, we

17 certainly share this concern with the Prosecutor. Of course everyone is

18 thinking in terms of how to use the time available in the best possible

19 way. I just want to say that in the chart that we received for this

20 witness, it says that he would be heard viva voce and that his direct

21 examination will be three and a half hours. So even had he been heard

22 viva voce, nothing would have been controversial.

23 Now, what is the controversy? What the Prosecutor wanted now.

24 According to 92 ter, he wanted to introduce the statement. That is the

25 only thing that we challenge. Let's not forget where the problem arose

1 today. Not on account of the diary. That just happened by the by. At

2 one point in time the witness had a piece of paper. All of us in this

3 courtroom noticed that he had a piece of paper, whereas the witness who

4 made this statement looked at it. He said yesterday that his statement

5 was fully accurate. Today he was giving a completely different story with

6 regard to a very important matter. And then he said that last night he

7 saw that there was a mistake in what he had said.

8 That is where the problem is with 92 ter. There is one thing that

9 he says viva voce and there is another thing he says in his statement.

10 That is where the problem is, not on account of the diary. That kind of

11 mistake can always be made. However, the problem here is that the

12 statement is being brought into evidence, along with a full viva voce

13 testimony. So fully in terms of the time that this witness was given, he

14 basically gave a viva voce statement.

15 JUDGE ANTONETTI: [Interpretation] Mr. Praljak.

16 THE ACCUSED PRALJAK: [Interpretation] Your Honours, this is what

17 it looks like from our point of view: The witness says just one thing,

18 say, about electricity. He went to Croatia, and then in order to explain

19 who it was that was giving electricity to whom, a lot of papers have to be

20 prepared. He mentioned Gacice and I heard the witness mention over 40

21 different theses. So in order to refute these theses on water supply,

22 power supply, and so on, about the Croatian army, there is an abundance of

23 documents involved. So how can we refute that? What I did in the SDA

24 party, so on and so forth, five or six minutes are required at minimum to

25 question him. So now we have to prove our innocence and we don't have

1 enough time. That's what I wanted to say. Thank you.

2 JUDGE ANTONETTI: [Interpretation] All right. So there's been a

3 debate on 92 ter. Next week a witness is scheduled. The Prosecution

4 requested seven hours, and it is a witness that will be heard for four

5 days. We're already halfway through June.

6 Mr. Scott, I asked you last time for a schedule giving the time

7 that you have left and, according to our decision confirmed by the Appeals

8 Chamber, which is interesting, we would like to know the Prosecution's

9 schedule before the end of the Prosecution's case. So either you cannot

10 produce it, which I understand, or you're producing it or you haven't

11 started producing this schedule. But the Judges, the Bench, would like

12 know exactly what is in store, to know where we're going.

13 Mr. Scott, could you give us some information on this general

14 schedule for all witnesses to come?

15 MR. SCOTT: First off, Your Honour, I have to say I will continue

16 to look at it in light of today's discussion. But we anticipate that next

17 week's witness would also be a mixed 92 ter/viva voce witness. Let me

18 just say that now so there's no mistake about that.

19 As to the larger -- as to the broader schedule, Your Honour, we're

20 look -- we're actually actively looking at that. It involves a number of

21 decision. It involves a number of factors about what evidence is coming

22 in as we go and what evidence we will not -- we will forego. I can

23 absolutely assure the Chamber that we're looking at it very actively.

24 I don't think - I have to say, I have to say in fairness, I don't

25 think that it ultimately matters a whole lot in terms of whether you see

1 that next week or a month from now. The Prosecution is going to present

2 its case, the case the Prosecution wants to present, and we will present

3 it until the last hour; and if it runs out at 293 hours, then we'll be

4 finished. So we'll continue to go forward, selecting the witnesses that

5 we think are the best ones that we want to present in the Prosecution

6 case.

7 MR. KARNAVAS: Your Honour, I do have a problem with that

8 response. While I respect the Prosecution's right to put on its case and

9 to choose its witnesses and its documents and to do so at its pace,

10 nonetheless the Trial Chamber has also indicated, based on looking at the

11 initial witness list that the Prosecution had presented way back when it

12 had 400 hours that it had decided not to call certain witnesses, and the

13 Trial Chamber had indicated that it may wish to call some of those

14 witnesses at some point. And we all know, based on the rules, that the

15 point normally comes at the end of the trial.

16 Now, again - again - my concern is as follows: The Defence,

17 because the Prosecution has the burden of proof, first of all, the Defence

18 is only -- if, indeed, we end up putting on a defence, it will be based on

19 the Prosecution's case. That's why we need to know which witnesses it

20 will call. We also will need to know which witnesses the Trial Chamber

21 may wish to be called -- wish to call at the end of the trial, because

22 it's unfair to the Defence to, one, try to -- if it does put on a defence

23 to meet the Prosecution's case and then the Trial Chamber comes back and

24 calls Prosecution witnesses, albeit it will be court witnesses, but

25 nonetheless these were witnesses that the Prosecution intended to call.

1 And let's face it, the only reason that the Trial Chamber would be aware

2 of many of these witnesses is because of the 65 ter and the summaries that

3 was presented by the Prosecution.

4 So I do think that it is relevant and it's important to the Trial

5 Chamber to have, as expeditiously as possible, the Prosecution's list. It

6 should have at least within -- within some flexibility, they should know

7 more or less who are they going to call, especially when it comes to

8 important expert witnesses and what have you.

9 That would then allow the Trial Chamber to perhaps give us a

10 judicial hint, which is quite normal in the German system to get judicial

11 hints from the Bench, and perhaps at that point we may be suggesting to

12 the Trial Chamber to provide the Prosecution with some additional time to

13 put on its full case if the Trial Chamber insists on hearing from certain

14 witnesses. That way we can then make a decision if indeed we need to put

15 on a case, and, if so, we can put on a case based on the Prosecution's

16 case.

17 So I do take exception with Mr. Scott's position that it doesn't

18 make a difference and they'll proceed as they wish. I think the Court

19 issued an order; they need to live up to that order. And if they don't

20 wish to abide by it, they should be very clear about it.

21 MR. SCOTT: Well, first off, Your Honour, since it's been raised

22 several times this afternoon - and I said I would do it if necessary and I

23 want to be consistent and a man of my word - this is a letter that was

24 sent to the Defence on the 1st of June and I read it, quote, and we can

25 put it on the ELMO and everyone can read it, if necessary. It

1 says: "Although we intend to call this witness as a 92 ter/viva voce

2 witness, we disclose this additional material as part of full disclosure."

3 So if anyone doubts my word, there it is. I'll be happy to

4 provide it to the Chamber if anyone thinks I'm not reading it correctly,

5 number one.

6 On the issue of schedule, Your Honour -- I don't know about

7 judicial hints. We don't get judicial hints where I come from. But if

8 the Chamber wants to clue me in on some of the Chamber's thinking, I'll be

9 happy to receive it.

10 Your Honour, the Defence have made -- at least some of the Defence

11 have made a big issue of the fact that they think any court witnesses will

12 be called at the end of the case after all parties have presented their

13 evidence. If that's the case, if that's the case, then it makes no

14 difference whatsoever whether we tell you which witnesses we're not going

15 to call next week or we tell you that in October, because you will not

16 make the decisions on which witnesses you're going to call a year and a

17 half from now until then. And whether we tell you tomorrow or we tell you

18 in two months, it will make no difference as to when you get that

19 information as to when you're going to call those witnesses at the end of

20 the case. Once again, it's a complete disconnect with what's being said.

21 We certainly have an idea. We indicated in a filing we made with

22 the Chamber some weeks ago that a large number of witnesses had been,

23 whatever you want to say, put aside, would not be called, and we listed

24 all -- we listed all those. We also listed a number that would be called

25 and we also indicated a middle category of people who we were still

1 looking at, and we are still doing that. But I have to -- with all

2 respect to the Chamber, with utmost respect to the Chamber, I have to say

3 again: The Prosecution will present its case. It may not be the

4 Chamber's case. The Chamber might want to call other witnesses, but the

5 Prosecution will present its case until it concludes its evidence. Thank

6 you, Your Honour.

7 MR. STEWART: Your Honour, first of all, we don't doubt

8 Mr. Scott's word but of course we don't always agree with it. There's a

9 difference.

10 Secondly, although I defer to Mr. Karnavas's knowledge of the

11 German legal system, we do often receive hints where I come from.

12 Sometimes they're subtle; sometimes they smack you between the eyes. So

13 all information is gratefully received, Your Honours.

14 Thirdly, just to put down a marker and certainly not to wish to

15 open up a seminar about Chamber witnesses this afternoon, there is

16 something inherently odd about the notion that we might get to the end of

17 the Prosecution case and then the Prosecution are not given time to call

18 witnesses that they would regard as necessary and yet the Trial Chamber

19 takes the time to call the same witnesses. But, Your Honour, perhaps

20 that's a -- perhaps that's a matter that we, on the Defence side, should

21 talk about, because Mr. Karnavas has raised a point about Chamber

22 witnesses, I've raised just that marker point about Chamber witnesses.

23 It's not a straightforward issue, Your Honour. So the invitation there

24 is - I think we made it before a couple of weeks ago, really - is to

25 invite, respectfully, the Trial Chamber to proceed cautiously and to give

1 all parties a full opportunity of making full representations on all these

2 matters relating to Chamber witnesses before any final decisions are

3 taken.

4 JUDGE ANTONETTI: [Interpretation] Mr. Murphy.

5 MR. MURPHY: I agree with what Mr. Stewart has said just for one

6 technical reason that I think I've raised before, but it is one that's

7 very important.

8 At the close of the Prosecution case, we have the opportunity of

9 making a motion under Rule 98 bis, and the terms of that rule are very

10 specific, that the Trial Chamber has to consider whether a motion to

11 dismiss certain counts should be granted based on the Prosecution's case,

12 and we will be submitting that what that means is the case presented by

13 the Prosecution as distinct from any additional evidence that the Trial

14 Chamber may at a later time feel, if the case goes that far, the Trial

15 Chamber may -- may feel the need to supplement it. But we would strongly

16 urge that at the time when the Prosecution's case is over, that would be

17 the appropriate place to make our motion under Rule 98 bis. So I think it

18 does have a bearing on the timing of any possible further evidence after

19 that.

20 MR. STEWART: Your Honour, there's reciprocal support between

21 Mr. Murphy and me on these issues because what he's said is not in the

22 least inconsistent with what I said, nor is it intended to be and we fully

23 support the observation he's just made.

24 JUDGE ANTONETTI: [Interpretation] Now, as far as the Chamber

25 witnesses are concerned, I said this last time, we have not discussed this

1 among ourselves. The Trial Chamber is unable to tell you what its

2 position is because we have not discussed this. We have not deliberated

3 on the matter. We don't even know where we're going since the Prosecution

4 does not wish to give us the list of upcoming witnesses because the

5 Prosecution feels that that is their responsibility.

6 So we are unable to let you know. We hope we will be informed of

7 the upcoming witnesses. As Mr. Murphy has said at the end of the

8 Prosecution case the Defence will file its oral motion pursuant to Rule 98

9 bis, and the Trial Chamber will determine the matter pursuant to the oral

10 motion and information provided by the Prosecution. After that, the trial

11 comes to a halt if an acquittal is granted. If, on the other hand,

12 pursuant to Rule 98 bis the trial will continue, a reasonable trier of

13 fact should be informed of any additional material. So that you are as

14 familiar with this procedure as we are.

15 So we expect to get this list. Let me turn to the Prosecution and

16 say that we have already cut down on time, and if I come to notice that we

17 are wasting a lot of time, I may ask the Bench to reduce the time even

18 more.

19 It is now 10 minutes past 5.00. In a few moments, the Judges will

20 have to go and attend the Plenary Session. As we have no more witnesses

21 for this week, we shall reconvene and meet again on Monday at a quarter

22 past 2.00, which will allow both parties to get on with your job because

23 you have a lot of work to do. The Court stands adjourned.

24 --- Whereupon the hearing adjourned at 5.07 p.m.,

25 to be reconvened on Monday, the 18th day of

1 June, 2007, at 2.15 p.m.

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