Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11949

1 Tuesday, 3 September 2002

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.20 p.m.

5 JUDGE MUMBA: Yes. Please call the case.

6 THE REGISTRAR: Good afternoon, Your Honours. Case IT-95-9-T, the

7 Prosecutor versus Blagoje Simic, Miroslav Tadic, and Simo Zaric. Thank

8 you.

9 JUDGE MUMBA: Yes. The Prosecution.

10 MR. DI FAZIO: Yes. There's just a few last-minute matters to

11 attend to, if Your Honours please. As I said yesterday, there's some

12 documentation relating to exchange lists. Ms. Reidy will address you on

13 that and then I have a few other matters to deal with and then I'll go

14 after her. Thank you.

15 JUDGE MUMBA: Very well.

16 Yes, Ms. Reidy.

17 MS. REIDY: Your Honours, the situation with exchange lists is

18 that on the exhibit list, the Prosecutor's Exhibit list filed with their

19 pre-trial brief on the 9th of April last year, at E1 and E2 of that list

20 were a number of -- two sets of exchange records running into several

21 hundred pages each, one set, E1, was a set of records that the Office of

22 the Prosecutor had received from a Croat source, and E2 were a set of

23 exchange records received from Serb sources.

24 What we are seeking to do now is to have entered into evidence

25 several of those lists from what was E2 on the exhibit list, that is a

Page 11950

1 Serb-sourced exchange list, but not all of them. And the reason that

2 we're not seeking to have the whole of them entered into evidence is that

3 we have sat with Defence counsel and gone through some of the documents.

4 Some are illegible, so they would have little probative value, and others

5 lack a signature or clear identification of authorship, and those we've

6 agreed would not at this stage be entered fully into evidence.

7 So these were documents which in fact are covered by

8 Judge Robinson's pre-trial order on admission of documents, and they do

9 fall in the Prosecutor's Exhibit list. What they are, it's 102 pages, and

10 that consists of 41 exchange lists, dating -- the first one dates from the

11 25th of June, 1992, and the last list chronologically we have is the 15th

12 of September, 1993.

13 The lists do cover exchanges from a wider area than just Bosanski

14 Samac, but they do form part of the Prosecution evidence to show for the

15 Prosecution to establish the context and general pattern into which these

16 exchanges fell.

17 So I would like to move to have these entered fully into evidence.

18 As I said, they amount to 41 lists and just over a hundred pages. I don't

19 know how one would propose to have them numbered, whether to give the

20 whole batch what used to be E2 a single exhibit number and then

21 subnumbers, depending on the dates for each list.

22 JUDGE MUMBA: Yes, I think so.

23 MS. REIDY: Okay. And would Your Honours like me to submit all 40

24 lists then individually or en masse and then I can submit to the registry

25 an index just of each date that we have?

Page 11951

1 JUDGE MUMBA: Yes, I think it would be easier.

2 MS. REIDY: I think that's probably --

3 JUDGE MUMBA: Yes. Much easier.

4 MS. REIDY: The best way to proceed.

5 JUDGE MUMBA: Yes. It will take less time, yes.

6 MS. REIDY: Would Your Honour like me to give to the registry now

7 the set of --

8 JUDGE MUMBA: Yes.

9 MS. REIDY: Okay.

10 JUDGE MUMBA: So that we can have the common number dictated and

11 then the sublisting can be done later.

12 MS. REIDY: Your Honours, I've provided five sets. The other sets

13 of these documents for Defence counsel I will place in Defence counsel's

14 locker. I approached them before this and explained that in court I only

15 have five at the moment.

16 JUDGE MUMBA: Yes.

17 Yes, Mr. Lukic.

18 MR. LUKIC: [Interpretation] Your Honours, I wanted to take

19 advantage of this bit of time while the usher was distributing these

20 documents to say that we do not object to these documents being

21 introduced. In fact, these documents were provided to us during the

22 pre-trial period. We verified these documents and compared them with the

23 Prosecution, and we accept that they be admitted as -- that they be

24 admitted into evidence.

25 JUDGE MUMBA: Thank you.

Page 11952

1 Can we have the number?

2 THE REGISTRAR: Yes, Your Honours. It will be P146. Thank you.

3 JUDGE MUMBA: And then the subdivisions will be done by the

4 Prosecution as already explained?

5 MS. REIDY: Absolutely. I'll file that this afternoon once we've

6 risen, the index. Thank you.

7 JUDGE MUMBA: All right.

8 Yes. Then the next batch, if any?

9 MS. REIDY: Your Honour, I have one more matter that perhaps I

10 should address. It's the filing of the redacted version of Witness O's 92

11 bis statement.

12 JUDGE MUMBA: Yes.

13 MS. REIDY: And again, I have copies. Your Honours, just for the

14 record, what has been passed to the usher is the version of Witness O's 92

15 bis statement that appeared as annex B to the confidential motion. It is

16 in the English language, and the redaction of the B/C/S version is just

17 being verified with the translators at the moment, and I hope it could be

18 filed also by the time we rise from this session. But that is the

19 motion -- that is the statement as was filed as annex B.

20 JUDGE MUMBA: Yes. All right. It already has a number, I think.

21 MS. REIDY: Yes.

22 JUDGE MUMBA: Yes. Any other documents? That's all.

23 Yes, Mr. Di Fazio.

24 MR. DI FAZIO: Thank you. If Your Honours please, there remain

25 some documents that are still only marked for identification, and if I

Page 11953

1 may, I'd like to deal with some of those. Registry very helpfully gave me

2 a list of those documents.

3 First is P30 ID. That is an architectural drawing of the primary

4 school. It was a drawing produced by Mr. Zecevic, and it was referred to

5 during the evidence of one of the Bicic brothers, Muhamed. Mr. Weiner

6 produced the drawing to the witness. The witness went on -- placed the

7 document on the ELMO and then, if you read the transcript, went on to

8 describe various aspects of the situation in the primary school by

9 reference to the drawing. It seems that, for whatever reason, it wasn't

10 fully entered into evidence at that stage, but I can see no reason why,

11 having seen the transcript, that it should not be fully admitted into

12 evidence, and I'd ask that it be given that status, that it be fully

13 admitted into evidence. That's P 30.

14 JUDGE MUMBA: I see no objection from the Defence. Yes.

15 MR. LUKIC: No.

16 JUDGE MUMBA: Yes. There's no objection. Can we have it

17 confirmed that it will retain the same numbers as an exhibit?

18 THE REGISTRAR: Yes, Your Honours. This will be P30 and P30 ter.

19 Thank you.

20 MR. DI FAZIO: Thank you. The next item is P33 ID and the

21 corresponding B/C/S exhibit. That is a statement of Ibrahim Salkic. It

22 arose in this way: He was -- it was produced in re-examination. He had

23 been cross-examined extensively by Mr. Zecevic and Mr. Pantelic regarding

24 previous statements that he had made and other documents that were, for

25 want of a better description, unsigned statements that he had made. I was

Page 11954

1 attempting to establish which statements were his signed, adopted, fully

2 completed, official statements, and I therefore, in re-examination

3 produced to him a 1995 statement, which was his fully adopted, fully

4 signed statement, the English statement. The purpose of producing that

5 was merely to establish which of his statements were adopted and signed by

6 him and which weren't, and that is the only purpose of that particular

7 document.

8 So I would seek to produce it fully into evidence merely to

9 establish that limited point, not to establish the contents of it or

10 anything like that.

11 JUDGE MUMBA: Very well. Any objection from the Defence? I can

12 see none.

13 Can we have confirmation of the number?

14 THE REGISTRAR: Yes, Your Honours. It will be P33 and P33 ter.

15 Thank you.

16 MR. DI FAZIO: The next document, I wonder if I might have an

17 opportunity to just briefly look at it. It's P47. It should be a Red

18 Cross document, Red Cross card. It arose in the evidence of Esad Dagovic.

19 Yes. That document was relevant to showing his movements out of

20 Croatia to Europe, long after his release from the camps in Bosanski

21 Samac. I can see no reason why it should not be fully admitted into

22 evidence. There's no translation requirements because the document is

23 already translated. It's got both B/C/S and English side by side, so it's

24 understandable at a glance and doesn't needed translation. And if you're

25 to understand his evidence fully, then it seems to me that it should go

Page 11955

1 into evidence fully.

2 JUDGE MUMBA: Very well. Can we have confirmation of the number,

3 please, as an exhibit.

4 THE REGISTRAR: Yes, Your Honour. It will be P47 ter and P47.

5 Thank you.

6 MR. DI FAZIO: Next document that is only identified as P59 ID.

7 This was an extensive list of Croat and Muslim names of people from

8 Bosanski Samac. It's been marked for identification at this stage.

9 Having read the transcript, there were concerns from the Bench, and indeed

10 from the Prosecution, regarding the ability to prove its authenticity.

11 Nothing has changed since that time, and I would ask that it remain merely

12 identified at this stage. Nothing has changed since the document was

13 first produced in court to improve its status as an ID document, so that

14 should simply remain. It may be that further evidence will arise in the

15 course of the Defence case that may shed further light on it.

16 JUDGE MUMBA: Very well. If it's just marked for identification,

17 then it doesn't form part of the evidence.

18 MR. DI FAZIO: I appreciate that, but I would ask that it remain

19 marked for identification.

20 There is a further document, P84 ID. This was a document that

21 arose during the course of the evidence of Mr. Todorovic. It's a document

22 that he could not read because the copy was so bad. I indicated that I

23 did not intend to produce it into evidence. It was marked for

24 identification merely to -- for an abundance of caution. It should remain

25 merely marked for identification at this stage.

Page 11956

1 JUDGE MUMBA: Very well.

2 MR. DI FAZIO: And the same applies to P128 ID. There is again

3 nothing that has changed in evidential terms since that document was first

4 produced warranting its full admission, so I ask that that remain as is,

5 namely, simply marked for identification.

6 JUDGE MUMBA: Yes.

7 MR. DI FAZIO: As far as P67 is concerned, issues were raised

8 yesterday regarding that particular document. I persist in my application

9 to have P67 fully admitted. It is, in fact, as far as I can tell, an

10 exact copy of the same document as P13 and P13 ter. That was admitted

11 during the evidence of Sulejman Tihic early on in the case. He commented

12 upon that particular document. It is the same document, as I can see, as

13 D50/3, which was produced by the Defence. So P13 and D50/3 --

14 JUDGE MUMBA: Yes.

15 MR. DI FAZIO: Are, as far as I can tell, one and the same

16 document essentially. We introduced it first through the evidence of

17 Sulejman Tihic. The Defence later introduced it again as D50/3. Then

18 Mr. Fitozovic gave evidence and produced another document, which is

19 essentially the same document but differs in several respects in that it

20 has stamps on it and a signature.

21 JUDGE MUMBA: What is the one marked --

22 MR. DI FAZIO: Sorry. My apologies. My apologies. My apologies.

23 It differs in the sense that it has handwritten numbers on it, no

24 signature, and no stamp, unlike P13 and D50/3. So P67 is, to that extent,

25 a different document, and he also commented on its authenticity. You

Page 11957

1 recall that he produced it, as Ms. Reidy pointed out to you yesterday. So

2 it's a document that should go into evidence, in my submission, P67,

3 because it differs from the other two, P13 and D50/3, and because he

4 provided that commentary regarding P67.

5 JUDGE MUMBA: Very well. Any objection? Yes, Mr. Lukic.

6 MR. LUKIC: [Interpretation] Your Honours, I said that I would give

7 you a clarification today, and I think that the Prosecution will agree

8 with me. We can agree on some things. What I can tell you right away is

9 that the document D67, which was an ID so far, should be admitted into

10 evidence, based on the --

11 JUDGE MUMBA: P.

12 MR. LUKIC: [Interpretation] So on behalf of the Defence, I can

13 hereby inform you that all of us agree for that document to be fully

14 admitted.

15 What further complicates the issue is the relationship between the

16 documents D -- P53 [As interpreted] and P13. Those are not identical

17 documents. They're not identical to P67.

18 JUDGE MUMBA: Can we have the correct numbers? Are you discussing

19 D50/3?

20 MR. LUKIC: [Interpretation] Yes.

21 JUDGE MUMBA: Yes. All right.

22 MR. LUKIC: [Interpretation] And I would ask the registry to assist

23 us and provide the original of the document P67, the original of D50/3,

24 and document P13. At a first glance, they look like identical documents,

25 but they are not, and this is where the problem lies.

Page 11958

1 Let me first tell you something about P67. This is a

2 non-contentious document. Mr. Fitozovic said, regarding this document,

3 that it was his document, that he had it on him when he swam across Sava

4 River, and that that document, if you remember, that was not signed. When

5 I showed to Mr. Fitozovic document D50/3, which was also an original, it

6 was not a photocopy, it was an original with a signature - so when I

7 showed this document to him, he said that that document was a forgery

8 because he had an original of that document. And that is why this

9 document which we identified as D50/3 had an ID designation so that we

10 could, during the Defence case, be able to provide that that document was

11 an authentic one. By conducting further verification, I was able to

12 establish that this document, D50/3 ter, had been previously introduced

13 and admitted as the Prosecution's document and was marked as P13. That

14 document had a seal and a signature.

15 Mr. Tihic, on the 17th of September, when asked by Mr. Di Fazio,

16 on pages 1355 to 1357, confirmed that that document was an authentic one

17 and that it had been signed by an authorised person from the SDA party.

18 So we don't have a problem with P67 any more. However, the problem is

19 that document P13 is in fact a copy of D50/3 ter, and this is why I am now

20 asking that the document D50/3 be admitted into evidence and not exist as

21 an ID document, so that we now have a unified designation for this

22 document, because, as I am saying, documents P13 and document D50/3 are

23 identical ones. P13 was introduced by the Prosecution and was provided to

24 the Prosecution by the Defence of Mr. Zaric. This is the same document

25 offered by the Defence as the document D50/3. I hope I was clear enough.

Page 11959

1 And let me just give another clarification so that there are no

2 misunderstandings. It was very frequent in the administrative proceedings

3 in those times that there were several copies of the same documents, and

4 this was confirmed by Mr. Tihic during his testimony, on page 1357. He,

5 Mr. Tihic, at that time confirmed that Mr. Fitozovic was the author of

6 that document, and I don't think that this is a contentious issue at all.

7 MR. DI FAZIO: If Your Honours please, just may I briefly reply?

8 I've got no problem with D50/3 being given a full evidentiary --

9 JUDGE MUMBA: Exhibit number.

10 MR. DI FAZIO: Full exhibit number, but that's as far as I go.

11 JUDGE MUMBA: Yes.

12 MR. DI FAZIO: There are a lot of other matters, factual

13 allegations raised by my learned friend that I don't want to be seen to be

14 agreeing to simply because I don't object to D50/3 going fully into

15 evidence. For example, the assertion that Tihic agreed that Fitozovic was

16 the author. He said it was probably Alija Fitozovic or somebody else.

17 Whoever made it did it in the spirit of the policy that we are pursuing.

18 So there's a lot of unclarity about that.

19 JUDGE MUMBA: But in any case, as far as admission is concerned,

20 we can have them admitted. It will remain up to the Trial Chamber as to

21 how much weight it attaches to each of these documents when analysing the

22 evidence.

23 MR. DI FAZIO: Yes, exactly. May I just confer briefly with my

24 colleague, please?

25 [Prosecution counsel confer]

Page 11960

1 MR. DI FAZIO: Mr. Weiner suggests - I don't know if it will help

2 the Court and registry - that there be some sort of cross-reference in the

3 exhibit list so that we can easily see that D50/3, P13, and P67 are said

4 to be essentially one and the same document.

5 JUDGE MUMBA: No, I don't think that should be done. They should

6 just retain their numbers as they are.

7 MR. DI FAZIO: Very well, Your Honours.

8 JUDGE MUMBA: And then each party can discuss them and demonstrate

9 how useful they are and persuade the Trial Chamber to accept their own

10 interpretation of the contents or the status of the document.

11 So could we just have confirmation that P67 will retain its number

12 and D50/3 will be an exhibit.

13 THE REGISTRAR: Yes, Your Honours. Both P67 and P67 ter will be

14 admitted into evidence, and D50/3 and D50/3 ter will be admitted into

15 evidence. Thank you.

16 JUDGE MUMBA: Very well. Any other matters?

17 Yes, Mr. Lukic.

18 MR. LUKIC: [Interpretation] Your Honours, I would like to tender

19 certain translations of the exhibits that had already been admitted. I'm

20 now referring to five exhibits. The first one is D15/3. I have received

21 an official translation into English, and now I would like to ask the

22 usher to distribute this document. The witness during whose testimony

23 this document was offered I think was Witness L, if I'm not mistaken. It

24 should probably be under seal.

25 JUDGE MUMBA: The Prosecution is aware of this -- [Microphone not

Page 11961

1 activated].

2 MR. DI FAZIO: Well, I haven't had a chance to examine the

3 documents carefully, if Your Honours please, but if these are translations

4 of exhibits then --

5 JUDGE MUMBA: From what Mr. Lukic says, maybe we can confirm with

6 the registry whether we have D15/3.

7 THE REGISTRAR: Yes, Your Honour, it is correct. D15/3 ter was

8 admitted under the testimony of Witness L and is under seal.

9 JUDGE MUMBA: Very well.

10 MR. LUKIC: [Interpretation] The next document is D18/3, also

11 marked as an ID document, and it is also a document written by Witness L

12 and sent to the Prosecution.

13 MR. DI FAZIO: If Your Honours please.

14 JUDGE MUMBA: Yes.

15 MR. DI FAZIO: Might I ask that we conduct this exercise on some

16 other occasion? I'm almost a hundred per cent certain that what Mr. Lukic

17 says about the admissibility of these documents is true and correct. I

18 would just like an opportunity to look at the documents myself and examine

19 them and make sure that there is just nothing more than a translation

20 issue. We could deal with it on the next occasion that we meet. That

21 will give me an opportunity to go through them and I can say -- save time

22 by simply saying that I've looked at all of this. We have no objection.

23 They can simply be admitted and fully exhibited. Would that not be a

24 quicker way of doing it.

25 JUDGE MUMBA: When you talk of when we next meet, when do you

Page 11962

1 mean?

2 MR. DI FAZIO: Well, I propose to go on and close the Prosecution

3 case today.

4 JUDGE MUMBA: Yes. So I was thinking that maybe what you needed

5 was -- is a break.

6 MR. DI FAZIO: Well, we could -- if you were minded to give us a

7 break, we could check through these documents fairly quickly.

8 JUDGE MUMBA: Yes. Mr. Lukic, you didn't give the translated

9 copies to the Prosecution before now?

10 MR. LUKIC: [Interpretation] That's right, Your Honours. It is my

11 mistake. I've had these translations on me for quite a long time and I

12 was looking for a good opportunity to tender them. These are simply

13 translations, and I believe that nothing was contentious regarding them.

14 And we can tell you now which documents they are, and then perhaps the

15 Prosecution can, after the break, give their position as to whether they

16 oppose this or not.

17 JUDGE MUMBA: Yes. Perhaps you go through and then we'll have a

18 break and allow the Prosecution to state their position. But the Trial

19 Chamber has always given instructions that please, as early as possible,

20 do serve copies of documents to the other party so we don't have this type

21 of problem. All right. You can run through them, then.

22 MR. LUKIC: [Interpretation] The next document is D18/3. It's a

23 letter written by Witness L to this Tribunal.

24 The following document is D49/3. It's an exchange list dated 18

25 September 1992.

Page 11963

1 The next document is D51/3 ter, marked as an ID document. It's a

2 letter dated 4th of June, 1992, a letter written by Marko Bozovic,

3 commander of the newly established Territorial Defence of Samac. And this

4 document was also tendered during the testimony of Mr. Fitozovic.

5 Another document that has been marked as an ID document, but not

6 only due to the lack of translation but also because authenticity was

7 brought into question. I now have a translation of this document, but I'm

8 not going to ask that it be admitted fully into evidence right now. The

9 document I'm speaking of is D66/3 ter ID. We had it only partially

10 translated, and now I have a full translation. It was a letter of

11 guarantee, and this was brought out during the testimony of Jelena

12 Kapetanovic. She claimed not to know anything about this document. I'm

13 now providing just the translation of this document.

14 THE REGISTRAR: [Previous translation continues] ... the

15 translation that you mentioned, it's on the record letter dated 4th of

16 June, 1992. It's actually -- the document I received is dated 16th of

17 April, 1992.

18 MR. LUKIC: [Interpretation] I will verify what is stated in the

19 transcript, but the date should be the 16th of April, because that was

20 when the TO was established, Territorial Defence, and this is when the

21 letter was written and sent to Sarajevo.

22 Your Honours, I have two more questions that I wanted to bring up.

23 One of them relates to a request of Defence to allow them to have access

24 to documentation used by Mrs. Ewa Tabeau when preparing her report. When

25 I approached you with this request, pursuant to Rule 67 of the Rules of

Page 11964

1 Evidence, you instructed us to resolve this matter with the other side,

2 with the Prosecution. Following your instructions, the Defence and the

3 Prosecution held the meeting, at which time Defence asked that our expert

4 be given access to the database used by Mrs. Tabeau.

5 I will remind you that during her testimony she had told us that

6 she had used two databases. One was the one obtained from the statistics

7 bureau of Sarajevo, relating to the census of population in 1991, and the

8 other database was the one given to her by the OSCE, and it pertains to

9 the list of voters in 1997. And this issue came up, if you remember, when

10 we spoke about identification.

11 After obtaining general permission to verify this, we were

12 informed by the Prosecution that they were unable to give these documents

13 to us because, as they told us, they were confidential documents,

14 documents obtained from both of the sources I mentioned. I have to tell

15 you that not only for the Defence, but for this case in its entirety,

16 these facts are very important, because the entire expert report of

17 Mrs. Tabeau was based on this information, and this is something that can

18 be also important for the work of our expert witness.

19 What is of a special importance to the Defence is that based on

20 the law on census which was in force in 1991, the census and all of the

21 documents relating to the census are considered confidential and can only

22 be used for the purposes of the census. We are unable to obtain this

23 information because this is not public information. However, in the

24 interests of Defence, this is something that we need to verify, this

25 information, and we are of the opinion that if the Prosecution is able to

Page 11965

1 obtain this information, then there must be a way that this information,

2 if necessary, pursuant to the Court's order, could be put at the disposal

3 of the Defence.

4 So this is the database used by the computer software, as was

5 explained to us by Mrs. Tabeau, and this is something that the Prosecution

6 has. So we just wanted to inform the Trial Chamber that the parties were

7 unable to reach an agreement and have this information delivered to the

8 Defence. We believe that this is not something -- this is not the

9 material that can be considered in the light of Rule 70, and if this

10 information is withheld from the Defence, then this would severely impede

11 our work.

12 I have another question I wanted to bring up, but perhaps we

13 should discuss this matter first.

14 JUDGE MUMBA: Yes. Let's hear from the Prosecution on the

15 availability of this material.

16 MR. DI FAZIO: Perhaps Ms. Reidy should address you on this. I

17 dealt with this issue in its initial stages, but later in the month she

18 took over the matter, and I think she is probably in a better position to

19 inform you.

20 JUDGE MUMBA: Yes, Ms. Reidy.

21 MS. REIDY: Yes, Your Honours. What I can advise the Bench of is

22 my discussions with Ms. Tabeau, and yes, indeed, how the Office of the

23 Prosecutor was entitled to have access to the information contained in the

24 databases. The information is Rule 70 information insofar as it was

25 given to the Office of the Prosecutor on a confidential basis, purely for

Page 11966

1 the purposes of the Office of the Prosecutor to generate further evidence.

2 As counsel for Mr. Tadic has said, the nature of this information

3 being census information is, even in his own domestic jurisdiction, and my

4 jurisdiction, confidential. It obviously contains a lot of personal,

5 potentially sensitive information, and it's not something that we are in a

6 position to disclose to other parties, given the circumstances in which it

7 was made available to the Office of the Prosecutor. To that extent, I

8 think the information, the sort of information they're looking for, does

9 fall clearly under Rule 70.

10 I appreciate from the Defence case that they would, of course,

11 like to be able to inspect this documentation, and when I spoke with

12 Defence counsel, there may be a way around it, through special

13 protection orders, with a Court order, through -- I don't know whether

14 Defence counsel have attempted to approach the sources themselves, but we

15 cannot ourselves pass over that information, the raw data which we got,

16 which we were given on a strictly confidential basis.

17 JUDGE MUMBA: Yes. When Mr. Lukic was making his submissions, I

18 was wondering about the steps the Defence have taken, and also wondering

19 about disclosure with restrictions, protective measures and things like

20 that.

21 MS. REIDY: Would you like to hear the Defence or the Prosecution

22 respond?

23 JUDGE MUMBA: Yes. I wanted to find out from the Defence, before

24 you finish, Ms. Reidy, whether they had made any approaches to the

25 authorities who have got this information in their custody.

Page 11967

1 MR. PANTELIC: Yes, Your Honour, if I may address the Court with

2 some details with regard to this issue.

3 The Defence is of the opinion that in this particular case the

4 fact of the possession of certain materials by the Prosecution is

5 actually the subject that we have to discuss. The fact that the

6 Prosecution is in possession of software; number 2, census, some result of

7 census of 1991 in Bosnia-Herzegovina; and number 3, the voters list

8 specifically for municipality of Samac.

9 We think that it is not in accordance with the spirit of the Rule,

10 particularly Rule 70, that facts and voters list for municipality of Samac

11 has anything with the new evidence or ongoing investigation or whatever.

12 We are focused specifically on the population of municipality of Samac,

13 and Odzak as well, because that is actually the subject-matter of the

14 indictment. And specifically, for this population, we want to make

15 certain additional analysis by our expert to compare, to give her or his

16 opinion with regard to municipality of Samac and Odzak.

17 In the interests of justice, it is absolutely, I think,

18 appropriate for our expert to come here, at the premises of the

19 Prosecution, in the Office of the Prosecution, in the presence of

20 Prosecution expert Mrs. Tabeau, to discuss the matter, to check the data,

21 relevant data for this particular case, and to finish her or his expert

22 report for this Trial Chamber.

23 If we shall follow the suggestions of the Prosecution, then we

24 have to go and to waste enormous time through OSCE organisation,

25 government of Bosnia, by the way of judicial assistance of this Trial

Page 11968

1 Chamber, and then maybe we shall come into the situation not to finish

2 this case in total due to these reasons.

3 Let me respectfully remind this Trial Chamber that to some extent

4 similar situation we also got in this particular case when the Trial

5 Chamber -- I believe it was Honourable Judges Robinson, Hunt, and Bennouna

6 were in Pre-Trial stage first, with certain confidential documents in

7 possession of Prosecution, confidential agreement between Office of the

8 Prosecutor and NATO SHAPE. I think S-H-A-P-E is the abbreviation of this

9 Supreme Command of NATO in Brussels. Finally, after long discussions, the

10 Prosecution provided Defence with this confidential agreement. So based

11 on this practice, on the previous practice, in handling of confidential

12 documents, of course I think that following the protective measures,

13 obligation of our expert not to disclose to the third parties everything

14 what is done here, and all other necessary measures which this Trial

15 Chamber deems necessary is actually available to all of us.

16 So I respectfully ask this Trial Chamber to -- in also -- given

17 the fact of the principle of equality of arms and the rights of the

18 accused to a fair trial, to follow all of these principles and to grant

19 our request with regard to the specific and isolated inspection of the

20 facts of statistical data regarding municipality Bosanski Samac and Odzak.

21 Thank you very much, Your Honour.

22 JUDGE MUMBA: Very well. Thank you.

23 I doubt if the Prosecution wish to reply to that. I think it's

24 all clear from the initial submission.

25 MS. REIDY: With respect, I would like to reply, because in that

Page 11969

1 five-minute submission on the history of this case, Mr. Pantelic didn't

2 actually advise us whether or not any steps were taken just to see whether

3 or not they would be allowed access to that documentation, and he talks

4 about fair trial, et cetera. I'm afraid that in the discussions that I

5 had, particularly with Mr. Lukic, we made clear that this material is Rule

6 70, and we are bound by that Rule, as is the Chamber, which says that if

7 we are in possession of information which has been provided to the

8 Prosecutor on a confidential basis and which has been used solely for the

9 purpose of generating new evidence, the initial information and its origin

10 shall not be disclosed by the Prosecutor without the consent of the person

11 or entity providing the initial information and shall, in any event, not

12 be given in evidence without prior disclosure to the accused. And the

13 second part of that involves disclosure and evidence. But we are not in a

14 position off our own bat to disclose that evidence. We are, of

15 course, happy to enter into discussions about what sort of protective

16 measures could be provided for the information to go back to the

17 source-giver and try to elicit their consent in the context of the Defence

18 case and what sort of access they need and how that information would be

19 used. But our position was that we cannot give that permission because,

20 as Rule 70 information, it is the source provider who is the Guardian of

21 that confidential information who has that right. So as I said, I

22 don't -- the other -- when this -- this has arisen in other cases with

23 confidential sources. I believe, for example, there had been ECMM

24 reports, which are confidential, which the Office of the Prosecutor has

25 had access to, and there have been possibly - I'm not so sure of this -

Page 11970

1 potentially Red Cross documentation that there has been access to which is

2 confidential. And on each occasion, I believe the Defence has approached

3 those organisations initially of their own initiative, and if there has

4 then been a problem, we try to find some negotiation. So I don't think

5 that Mr. Pantelic's approach is necessarily very helpful. We will try to

6 resolve this problem within the confines of Rule 70, and it would be

7 helpful to know whether the Defence have taken any steps to know if they

8 could get access to the sources quoted in Ms. Tabeau's expert report.

9 Thank you.

10 JUDGE MUMBA: I think this is a matter which is quite separate

11 from the course of the proceedings, because it relates to the preparation

12 of the expert -- the evidence which the Defence wish to produce for their

13 case, in support of their case. So let's go back to the Prosecution case.

14 Are there any other matters, any documents outstanding? On this matter

15 which has been raised, the Trial Chamber will give its ruling later.

16 MR. DI FAZIO: No, there aren't any other matters.

17 JUDGE MUMBA: So we have these documents which have just been

18 given in which the Prosecution wish to look at during the break.

19 MR. DI FAZIO: The Defence documents.

20 JUDGE MUMBA: The Defence documents, yes.

21 MR. DI FAZIO: Yes, we can look at those during the break.

22 JUDGE MUMBA: During the break, and then be able to state their

23 position.

24 I just want to go back to the matter that was raised in July, just

25 the last day before our break, dealing with the evidence which the

Page 11971

1 Prosecution decided to exclude. Mr. Pantelic made submissions which

2 amounted to a motion. In fact, he did say that. He wanted to have the

3 witnesses called for cross-examination, notwithstanding the fact that

4 their evidence was no longer required by the Prosecution and that it

5 wouldn't be on record. I just want to make it clear that the Trial

6 Chamber did decide that these witnesses wouldn't be called for

7 cross-examination because the transcripts of their evidence have been

8 excluded from the record, so there is no basis for cross-examination. And

9 also to advise the Defence that if they wished to call any of these

10 witnesses who are no longer required by the Prosecution, they can go ahead

11 and do so.

12 The other matter I wanted to raise was that since the fifth

13 indictment was served, we haven't had a formal plea to the charges in the

14 fifth amended indictment. So I just wanted to confirm with the accused

15 persons that they retain their pleas of not guilty on all the charges.

16 [Trial Chamber confers]

17 JUDGE MUMBA: I think we will give time to the Defence counsel to

18 confer, and also, just as much time as the Prosecution wish to look at the

19 documents, and then when we come back we can finalise that and perhaps the

20 Prosecution can decide whether or not to close their case.

21 Yes, Mr. Pantelic.

22 MR. PANTELIC: Your Honour, if I understand, we shall take a short

23 break now. Yes?

24 JUDGE MUMBA: Yes.

25 MR. PANTELIC: Okay. Then, if you allow me, Your Honours, I would

Page 11972

1 like to submit one oral motion to this Trial Chamber which we could deal

2 during the break. It's appropriate time.

3 There is a quite -- well, I cannot say whether it's with grounds

4 or not, certain impressions of the Defence during the -- this trial

5 proceedings that a certain number of Prosecution witnesses, whilst in The

6 Hague, in groups of two, three, or four, following the transcripts and

7 after the analysis of transcripts, we think that there are quite strange

8 similarities with certain details in their testimonies, and therefore I

9 respectfully move this Trial Chamber with the following motion:

10 I would like, on behalf of Defence, and also in the presence of

11 one of the members of our learned friends from the Prosecution, and also

12 in assistance with Mr. Usher or the other person designated by this Trial

13 Chamber, to inspect, very shortly inspect, in one minute or so, room 1002,

14 which is just behind this courtroom, to see whether there are equipments,

15 video or TV equipments there, where normally the Prosecution witnesses

16 are, so to see whether they're able to follow the proceedings and to see

17 what are the topics in proceedings. If we could do that, and to cover

18 that matter during the break.

19 [Trial Chamber and registrar confer]

20 JUDGE MUMBA: Yes, Mr. Pantelic. You are through with your oral

21 motion?

22 MR. PANTELIC: Yes, I'm finished with my submission.

23 JUDGE MUMBA: Is there any response from the Prosecution?

24 MR. DI FAZIO: Well, I'm not aware of there being any video

25 equipment in there, but -- and as far as the Prosecution is concerned,

Page 11973

1 we've got no problem with that. But the only thing is it seems to be the

2 province of the Victims and Witnesses Unit. I don't know if we would be

3 treading on toes, on their toes, if we simply said yes, go in and inspect

4 the room.

5 JUDGE MUMBA: No, no, no. I just wanted to know whether or not

6 they have anything -- the Prosecution have anything to say about that.

7 You don't have to --

8 MR. DI FAZIO: No, there's no video equipment, no tracking

9 equipment, there's no TV screens. Yes. As Mr. Weiner points out, Victims

10 and Witnesses Unit people, with the witnesses at all times, it's a waiting

11 room, that place. It's a waiting room.

12 JUDGE MUMBA: Very well, then. Very well, then. We shall take a

13 half-hour break and the Trial Chamber will give its ruling to the oral

14 motion and the other matter raised, and the Trial Chamber expects the

15 Prosecution to complete their submissions on the Defence documents. We'll

16 take our break now and resume our proceedings at 10 to 4.00.

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

18 --- On resuming at 3.59 p.m.

19 JUDGE MUMBA: Yes. The Trial Chamber would like to find out from

20 the accused persons on whether or not they maintain their pleas of not

21 guilty to the fifth amended indictment.

22 We will ask Dr. Blagoje Simic. You still maintain your pleas of

23 not guilty to all the charges against you in the fifth amended indictment?

24 THE ACCUSED SIMIC: [Interpretation] Not guilty.

25 JUDGE MUMBA: Very well. Thank you.

Page 11974

1 Mr. Miroslav Tadic.

2 THE ACCUSED TADIC: [Interpretation] I believe that the Prosecution

3 has proved that I am not guilty.

4 JUDGE MUMBA: So you maintain your plea of not guilty.

5 Mr. Simo Zaric?

6 THE ACCUSED TADIC: [Interpretation] Not guilty. [Realtime

7 transcript indicated "THE ACCUSED ZARIC"]

8 JUDGE MUMBA: Very well. You can sit down.

9 Yes. I have the response from Mr. Zaric in the -- on the

10 transcript.

11 THE INTERPRETER: The interpreters note that those were the words

12 pronounced by Mr. Tadic, not Mr. Zaric.

13 MR. LAZAREVIC: Your Honours, if I could be of some assistance,

14 actually, Mr. Zaric hasn't said anything. That was actually Mr. Tadic who

15 said not guilty.

16 JUDGE MUMBA: Okay. I received it late, I think. Very well.

17 Mr. Zaric, then.

18 THE ACCUSED ZARIC: [Interpretation] Your Honours, I'm not guilty.

19 JUDGE MUMBA: Thank you. We'll maintain the pleas of not guilty

20 on all the charges in the fifth amended indictment.

21 On the matters raised by the Defence regarding the sources of

22 materials used by Dr. Tabeau, this is a separate matter which will not

23 affect whether or not the Prosecution case can close today. It is a

24 matter regarding the preparation of the Defence case for their expert

25 witness in the relevant -- on the relevant matters raised by Dr. Tabeau.

Page 11975

1 The Trial Chamber, at the moment, feels that the Defence should approach

2 the relevant authorities in Bosnia and Herzegovina and obtain the

3 materials. If that does not succeed, then the Defence can make their

4 relevant application to the Trial Chamber, and this must be done as

5 quickly as possible so that it doesn't hold up the Defence case in the

6 long run of the trial.

7 On the oral motion by Mr. Pantelic regarding the room, the status

8 of the room where the witnesses, the Prosecution witnesses, wait before

9 coming into the courtroom, the Trial Chamber finds no basis for the

10 inspection of the witness room. The fact that the evidence of Prosecution

11 witnesses is similar is no basis for such an inspection, because it is

12 clear that most of the witnesses were detained in the same places,

13 received the similar treatment, hence their evidence which, according to

14 the Defence is similar, and they haven't even given details of the

15 similarities which, in their view, may be unusual. So the motion is

16 dismissed.

17 So we go back to the Prosecution on the Defence exhibits. What is

18 their position?

19 MR. DI FAZIO: No objection, if Your Honours please, to 15/3,

20 18/3, 49/3, 51/3, and we agree that 66/3 should remain merely marked for

21 identification.

22 JUDGE MUMBA: Very well. Can we have confirmation that the said

23 documents will retain the same numbers as exhibits?

24 THE REGISTRAR: Yes, Your Honours. They will become exhibits and

25 retain the same numbers as previously given. Thank you.

Page 11976

1 JUDGE MUMBA: Very well. Back to the Prosecution.

2 MR. DI FAZIO: Yes. May the Prosecution close its case.

3 JUDGE MUMBA: Very well.

4 Now that the case for the Prosecution has closed, the Trial

5 Chamber has got a tentative schedule.

6 MR. PANTELIC: Yes, Your Honour. I do apologise myself. Maybe

7 it's appropriate moment, of course, according to your approval --

8 JUDGE MUMBA: Yes.

9 MR. PANTELIC: -- to discuss or to introduce the issue with regard

10 to the exhibits of Mr. Milan Simic. If I remember well, there was a

11 suggestion of Trial Chamber about the admitted exhibits of -- and evidence

12 on behalf of Mr. Milan Simic which might be of relevance for the other

13 three defendants to maybe be admitted as -- on behalf of one of the

14 co-accused, and maybe it's appropriate moment to have an approach and

15 ruling on that. In fact, if Ms. Registrar can confirm. According to my

16 list here, on behalf of Mr. Milan Simic, we have in total the last

17 enumeration of the exhibit is D40/2. So in total it's about 40 exhibits.

18 Following the instruction of this Trial Chamber, it was months ago, I

19 think, we decided to accept some of these exhibits, because they're

20 related to the work of municipality of Samac and all other details. So

21 maybe --

22 JUDGE MUMBA: So what you are saying is you are going to rely on

23 them?

24 MR. PANTELIC: Yes, that's correct.

25 JUDGE MUMBA: All right.

Page 11977

1 MR. PANTELIC: And the other question might be how we shall,

2 during the proceedings, make reference to them. Do we need now another

3 enumeration, numbering, or --

4 JUDGE MUMBA: No. We shall retain the same numbers, to avoid

5 confusion. Yes.

6 MR. PANTELIC: I made the review. There are certain -- for

7 example, sketches or some witness statements specifically related to

8 Mr. Milan Simic, and we don't want to rely to them. Just for the record,

9 maybe it's five or six these exhibits. Maybe I can make --

10 JUDGE MUMBA: Yes. Maybe you can enumerate them.

11 MR. PANTELIC: Yes. In fact, we are speaking -- Defence would not

12 like to rely on the Exhibit D5/2, then D6/2, D7/2, D10/2, D20/2, D21/2,

13 D31/2, and D41/2. And I just have a note that in fact there are 43

14 exhibits because according to the exhibit list which was updated on 31st

15 of May this year, in total I got the information that it was 40. So

16 maybe, Ms. Registrar -- I have also -- yes. And then D -- sorry. Yes.

17 D42/2. Just a confirmation from the registrar about the Exhibit D41/2 and

18 D42. Are they some kind of sketches or design?

19 JUDGE MUMBA: Yes. Perhaps the registry can help us.

20 THE REGISTRAR: Mr. Pantelic, the exhibit list is updated up to

21 the 22nd of July, 2002. D41/2 is a diagram of the gym, and has been

22 marked. It was marked by Witness N. D42/2 is another diagram, and it was

23 marked by witness Dragan Delic. And D43/2 is an affidavit of witness

24 Jankovic. Thank you.

25 MR. PANTELIC: Okay. Yes. Probably it was related to the -- yes,

Page 11978

1 I know. So to conclude, we don't want to rely on Exhibits D41/2, D42/2,

2 and D43/2. In the remaining proceedings.

3 JUDGE MUMBA: And that is common to both Mr. Lukic's and

4 Mr. Lazarevic, all three.

5 MR. PANTELIC: That is on behalf of all three of the Defence team.

6 JUDGE MUMBA: Very well.

7 MR. DI FAZIO: If Your Honours please, with respect, I don't

8 understand quite what is happening here. My friend keeps saying he

9 doesn't want to rely on them. That's fine. He doesn't have to rely on

10 them. But they're still evidence in the case, are they not? It's

11 evidence, documentary evidence, that was produced to the Tribunal in the

12 course of case number IT 95-9. I understand that they may not be of any

13 use to the Defence and the Defence may not be interested in them. The

14 Prosecution may wish to rely upon it, though, at some later stage if they

15 become relevant. Is this an application to remove them from the

16 evidentiary record? I don't --

17 JUDGE MUMBA: No. I think -- yes, you can complete.

18 MR. DI FAZIO: Our position firmly is is that it's all evidence in

19 the case. Now, if it is of no use to the Defence and they don't wish to

20 rely on it, fine. That might be the case with any number of documents.

21 But I am concerned that we don't go any further than this and that we

22 don't try to remove it from the evidentiary record.

23 JUDGE MUMBA: Yes. I think the confusion arises from the fact

24 that these cases were separated after some evidence has been led.

25 MR. DI FAZIO: Sure. I have no problem with that. Whatever

Page 11979

1 evidence was used in the case of Mr. Simic thereafter, after the

2 separation of the cases, fine, but up until that point, that was evidence

3 that you heard, evaluated, and will be in a position to evaluate at the

4 end of the case. And so for that point of view, I, as I said, I have no

5 problem at all if the Defence want to put their cards on the table, so to

6 speak, and make clear what they're relying on. However, our position

7 firmly is that evidence, once admitted, remains evidence in the case.

8 MR. PANTELIC: Which is -- sorry, Your Honour. May I reply in

9 brief?

10 JUDGE MUMBA: Yes.

11 MR. PANTELIC: Which is of course not the position of the Defence.

12 Our understanding of the ruling of this Trial Chamber was: Once the case

13 against Mr. Milan Simic was separated, after the relevant decision of this

14 Trial Chamber, all evidences, and there are, I believe, some discussion

15 that in the transcripts, all evidences related to Mr. Milan Simic were, I

16 would say, separated from the rest of proceedings against three

17 co-accused. And in addition, I think that there were certain discussions

18 and instructions of this Trial Chamber with regard of the future, I would

19 say, use of the evidences previously introduced on behalf of Mr. Milan

20 Simic, and that was the basis of our position. Because we don't see any

21 particular relevance or link of the evidences and exhibits on behalf of

22 Mr. Milan Simic with regard to the other three defendants. In order to

23 facilitate proceedings, and following the instruction of the Trial

24 Chamber, we decided to simply attach this number of Mr. Milan Simic

25 exhibits on our side. But of course that's final decision would be of

Page 11980

1 this Trial Chamber. Thank you, Your Honour. And also I have another

2 matter to discuss after your ruling. Thank you.

3 [Trial Chamber confers]

4 JUDGE MUMBA: To clear the -- what appears to be a

5 misunderstanding on this issue of whether or not exhibits can be used

6 against the three, the position is that all the evidence that was adduced

7 from the beginning of the trial, up until the separation, can be -- is

8 common to all the three accused. After the -- Mr. Milan Simic pled

9 guilty, all the contents of the plea agreement, everything that he said in

10 his statements to the Prosecution or on record, all those will not affect

11 these three accused persons. It is all right for the Defence to choose

12 which exhibits they are going to rely on or which ones they are not going

13 to rely on, but that does not affect the position of the Prosecution or

14 Trial Chamber.

15 Yes.

16 MR. PANTELIC: Yes, Your Honour. Thank you for your ruling and

17 decision.

18 Now I would like, with the permission of this Trial Chamber, to go

19 into private session, because it's a rather delicate matter with regard to

20 the -- some medical issue of one of the co-accused, and I would kindly ask

21 to go into private session. And I will explain the approach of the

22 Defence with regard to the issue.

23 JUDGE MUMBA: Very well. We'll go into private session.

24 [Private session]

25 [redacted]

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Page 11987