1 Monday, 9 September 2002
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 9.04 a.m.
6 JUDGE MAY: Yes, Mr. Ryneveld. We're going on with the evidence
7 of Mr. Zdrilic. We'd started it Monday last week, so of course the
8 witness remains under the declaration.
9 MR. RYNEVELD: Thank you, Your Honour.
10 WITNESS: JOHN ZDRILIC [Resumed]
11 Examined by Mr. Ryneveld: [Continued]
12 Q. Mr. Zdrilic, if I recall correctly, at the conclusion of last day
13 when your evidence was adjourned, you had been discussing with us a
14 document that you had prepared under title Annexure JZ-1, and I believe
15 you had indicated to us at that time that these were the names of a
16 particular family, and you had described for us basically how this
17 annexure sort of represented a family tree. You also mentioned, I
18 believe, the purpose of the legend. The crosses meant that those people
19 were reported missing or dead; is that correct?
20 A. That's correct.
21 Q. And the shaded or highlighted names, what did that represent
23 A. The persons that as a result of the DNA comparison that was
24 conducted in the Madrid labs in Spain had now been identified with remains
25 located in the Batajnica exhumation site in Serbia.
1 Q. All right. Now, you've provided four of those attachments or
2 annexures. I just want to deal with one more, if I may. That is number
3 Annexure JZ-2. Do you have that with you? And can you put that on the
4 ELMO for us, please.
5 Very briefly, Investigator Zdrilic, would you mind indicating to
6 the Court what this particular document represents.
7 A. Again, JZ-2 is another family chart, the head of the family being
8 Vesel and Hava Berisha, all persons on the chart being Berisha unless
9 otherwise known. And it depicts their children and their children's
11 Again there are certain names that are highlighted, which are
12 highlighted, and that can be seen, and these again are persons that have
13 been identified as a result of DNA comparisons conducted by the Madrid
14 labs in Spain.
15 Q. And again, the cross beside the name indicates that these persons
16 are dead or believed dead; is that correct?
17 A. That's correct. There are crosses beside the names of those
18 persons believed to have been killed in the Suva Reka cafe incident on the
19 26th of March. There is also the addition of a star beside some of the
20 names, as denoted in the legend, and that star is the -- there were
21 several bodies that were recovered in Suva Reka in 1999 as part of the
22 exhumation process. Those persons that were recovered and identified have
23 stars next to their names.
24 Q. All right. There also appears to be two names that are
25 underlined. What are those?
1 A. The two names that are underlined, as I'm indicating here, the
2 first being Vjollca Berisha, 36 years of age, and her son Gramoz, eight
3 years old, are both survivors of the incident in the Suva Reka cafe.
4 Q. I see. Finally, perhaps you could turn to JZ-3 very, very
5 briefly. Again for the sake of brevity, this is again another family tree
6 that you have provided; is that correct? Same legend, denotes the same
7 indicators, the cross and the stars; is that correct?
8 A. That's correct. This is the family tree of the family of Faik and
9 Bahrije Berisha.
10 Q. In particular, I'm interested in the name in the centre that's
11 underlined as a child or as a -- I'm sorry, is that -- can you tell us --
12 the one that's underlined, who is that?
13 A. I believe you're talking about Shyhrete Berisha, 37 years of age.
14 She was the wife of Nexhat Berisha, who is a son of Faik and Bahrije.
15 Shyhrete is highlighted and underlined, who was also a survivor of the
16 cafe incident in Suva Reka in 1999.
17 Q. And in your capacity as an investigator, are you aware of whether
18 or not that individual has given evidence in these proceedings?
19 A. That's correct, Shyhrete Berisha gave evidence in these
21 Q. Now, sir, just to bring that --
22 JUDGE KWON: Mr. Ryneveld, is Shyhrete Berisha a witness to --
23 MR. RYNEVELD: Yes.
24 JUDGE KWON: She was here as a witness.
25 MR. RYNEVELD: Yes, Your Honour. That was the purpose of the last
2 JUDGE KWON: Thank you.
3 MR. RYNEVELD: Might those annexures perhaps be marked as exhibits
4 in these proceedings, Your Honours?
5 JUDGE MAY: Yes.
6 THE REGISTRAR: They will be marked Prosecutor's Exhibit 314.
7 MR. RYNEVELD: Thank you.
8 Q. Now, very briefly again, and I apologise if I'm repeating some
9 part of your evidence from last day, but just by way of summary, sir,
10 we've already marked the Spanish report as an exhibit in these
11 proceedings. As a result of receiving the Spanish report and as a result
12 of your knowledge of the investigations to date, were you able to indicate
13 to date how many of the people from the cafe have now been positively
14 identified in the Batajnica gravesite in Serbia?
15 A. To date, with the inclusion of the unnamed foetus, there has been
16 11 persons identified.
17 Q. 11 of approximately how many people that we know to have been in
18 the Suva Reka cafe, approximately?
19 A. Approximately 44 to 48 persons.
20 Q. Now, sir, two other areas. The first area that I want to ask you
21 about is the -- during the course of your employment with the Office of
22 the Prosecutor, have you become -- have you had an opportunity to see
23 certain documents that outline some of the correspondence between the
24 Office of the Prosecutor or the Tribunal with Serb authorities in the
25 Federal Republic of former Yugoslavia?
1 A. Yes, I have.
2 Q. And in particular, sir, perhaps with the assistance of the usher,
3 I'm going to show you a packet of some ten documents which are
4 highlighted. And if I can hand you the whole package, we perhaps can take
5 them one at a time and put them on the ELMO.
6 MR. RYNEVELD: Your Honours, I have provided a very brief summary,
7 but I wanted to perhaps show the document on the ELMO and ask the witness
8 about these documents.
9 If you could put -- I'm sorry. We have additional copies.
10 Now, Your Honours --
11 JUDGE MAY: Where is this in the statement, Mr. Ryneveld?
12 MR. RYNEVELD: This document is not in the statement, Your Honour.
13 You will recall that during a discussion about whether or not the
14 Prosecution would be asking whether Kevin Curtis would be called it was
15 suggested that there were some documents that would otherwise have been
16 introduced through Mr. Curtis that might be just as conveniently tendered
17 through Mr. Zdrilic, and it was this method whereby we thought would be
18 the most convenient way to simply introduce these documents into evidence.
19 JUDGE MAY: Well, you can explain, if you would, what the
20 relevance of these documents is to this trial.
21 MR. RYNEVELD: Well, Your Honour, yes. Part of the relevance is
22 that it's -- it is incumbent on us to show as part of the ingredient of
23 the offence that the accused has been on notice, and these documents set
24 out very clearly from 17th of March, 1998 on right through to the, I
25 believe it was the 25th of March or 26th of March, 1999, letters from the
1 Prosecutor Louise Arbour, indicating to then President Milosevic that the
2 conduct that has been noted to date causes grave concern that serious
3 violations of international law continue to be committed and then warns
4 the then president of the former republic of Yugoslavia that it was her
5 intention to investigate, cautions that everything must be done to deter
6 the commission of future crimes, looks to Mr. Milosevic to exercise his
7 authority over his subordinates, to exercise his leadership in order to
8 prevent the commission of further crimes and take all necessary steps to
9 punish any of his subordinates who commit serious violations of
10 international humanitarian law in Kosovo.
11 JUDGE MAY: These are letters written by the Prosecutor.
12 MR. RYNEVELD: That is correct. That is by Louise Arbour to Mr.
13 Milosevic on the 26th of March, 1999. In other words, part of what we are
14 trying to show is that not only have other international representatives
15 been warning this accused of conduct which is totally unacceptable and may
16 constitute war crimes but the Prosecutor herself warned throughout these
17 proceedings. That is the relevance of this documentation.
18 JUDGE MAY: All right. We'll consider the matter.
19 MR. RYNEVELD: Thank you.
20 [Trial Chamber confers]
21 JUDGE MAY: We will admit this documentation as part of the
22 record, part of the history of the matter. Yes.
23 MR. RYNEVELD: Thank you. I would propose very, very briefly,
24 Your Honours, to put each of those documents on the ELMO and just
25 highlight some of the letters, for the convenience of the Court if nothing
2 JUDGE MAY: Yes. Let us do this as expeditiously as possible.
3 Whether we need it on the ELMO is a matter of doubt. Perhaps you could
4 just refer us to the -- we have the documents. Refer us to the important
6 MR. RYNEVELD: Thank you. And I'll do it through the witness by
7 asking whether he concurs, if I may.
8 Q. Witness, the first document you have before you is the 17th of
9 March, 1998 letter from the Prosecutor Louise Arbour to then President
10 Milosevic. Would you agree, sir, that in that letter she's advising that
11 she's gathering information to determine if there are grounds to believe
12 that crimes have been committed or are being committed in Kosovo and
13 advises that the Tribunal has authority to prosecute incidents in Kosovo
14 and requests a report by the 25th of March, 1998, regarding names of
15 people killed, injured, arrested, sexually assaulted, deprived of liberty,
16 deported or forcibly transferred from Kosovo? Is that what that letter
17 sets out?
18 THE INTERPRETER: Could the speakers please slow down. The
19 interpreters cannot keep up.
20 MR. RYNEVELD: Yes. I've just been cautioned to slow down.
21 That's the danger, of course, in trying to hurry.
22 Q. Sir, I'd like you to look at the second document, which appears to
23 be dated the 14th of October, 1998, which purports to be a statement from
24 the federal government's meeting, chaired by Prime Minister Momir
25 Bulatovic. Does that document confirm the federal government's support of
1 the Milosevic-Holbrooke agreement?
2 A. Yes, it does.
3 Q. And does it also set out that it approves the implementation of
4 the Security Council's Resolution 1199 concerning "Observing flights in
6 A. Yes, it does.
7 Q. The third document. This one is dated the 15th of October, 1998.
8 Is that as well a letter from Louise Arbour to then President Milosevic in
9 which, inter alia, she advises she intends to resume investigations into
10 Kosovo at the earliest opportunity and to lead a team of OTP members on an
11 investigative mission, meet with government and other officials, gather
12 evidence, and interview potential witnesses, and seeks assurance that the
13 visas will be provided in response to applications at the FRY embassy in
14 The Hague? Is that what that letter basically sets out?
15 A. Yes, it does.
16 Q. The next document, Your Honours, is slightly out of order in the
17 pile that was given to you. I've tried to go chronologically. The next
18 document is actually the fifth in your binder. That is a 4 November 1998
19 letter from Zoran Knezevic, the then federal Minister of Justice of the
20 FRY to Louise Arbour, Prosecutor of the ICTY.
21 JUDGE MAY: I'm not sure I have that.
22 MR. RYNEVELD: You do, but it's in different order, I'm sorry.
23 JUDGE MAY: Yes. I have it.
24 MR. RYNEVELD: Thank you.
25 Q. Now, Mr. Zdrilic, to your knowledge, does this document respond to
1 Ms. Arbour's letter of the 15th of October and the FRY gives reasons why
2 it does not accept the ICTY's jurisdiction over events in Kosovo,
3 indicating that it's because there was no war there, and advises that
4 competent state bodies were investigating all crimes committed, and
5 indicates international forensics experts were being invited to assist
6 their experts and of course expresses readiness to continue their
7 cooperation with the Tribunal?
8 A. That's correct. And it appears in both English and Serbian.
9 Q. Both English and Serbian. Thank you.
10 MR. RYNEVELD: Now, Your Honours, the next document would then be
11 document 4 in your -- in the order of materials, and then we'll go in
13 Q. The next document, sir, is dated the 6th of November, 1998. It's
14 a letter from the president of the Tribunal, Gabrielle Kirk McDonald, to
15 Ambassador Peter Burleigh, president of the Security Council of the United
16 Nations in New York. Do you see that document?
17 A. Yes, I have it before me.
18 Q. And does this document, in summary, report the continuing refusal
19 of the FRY to cooperate with the Tribunal by failing to issue visas to
20 investigators of the OTP to conduct investigations in Kosovo and advise
21 the position of the FRY not accepting any investigation by the ICTY in
22 Kosovo to be in contravention of the decision of the Security Council?
23 And also does that letter set out that the Prosecutor Louise Arbour had
24 written a letter of the 15th of October, 1998, of her intention to
25 investigate and request visas, and points out that this was the fourth
1 time the president had brought instances of non-compliance by the FRY to
2 the attention of the Security Council? Is that a fair summary of that
4 A. Yes, it is.
5 Q. Next document is also dated the 6th of November, 1998, and that's
6 a letter from Louise Arbour to Zoran Knezevic, again the Minister of
7 Justice of the FRY. That acknowledges receipt of Mr. Knezevic's letter of
8 the 4th of November in response to her correspondence of the 15th of
9 October. She advises that the FRY's non-acceptance of the Tribunal's
10 jurisdiction over Kosovo is not consistent with international law. It
11 sets out the Prosecutor's mandate and jurisdiction and advises that, in
12 light of protracted armed violence in Kosovo, investigations are clearly
13 required, and advises that the issue of jurisdiction is not for a state to
14 determine but for the Tribunal itself formally in court. Is that a
15 reasonable summary of what that document provides, sir?
16 A. Yes, that's an accurate summary.
17 Q. Turning to the seventh of 10 documents. The next one is 18th of
18 January, 1999, again a statement from the federal government of the FRY
19 meeting. Does this document denounce what they determine the "groundless,
20 false, and malevolent assertions" on events that took place in Racak? It
21 complains about activities of William Walker and pronounces him to be
22 persona non grata and that he has to leave the Yugoslav territory within
23 48 hours? This document also reiterates that The Hague Tribunal has no
24 jurisdiction in Kosovo, indicates that representatives of the Tribunal may
25 come into their country to negotiate on the agreement but cannot inspect
1 and investigate in Kosovo, and reaffirms readiness to continue cooperation
2 with the KVM and the OSCE.
3 A. Yes, that's an accurate summary.
4 Q. Number 8. This is a 2nd of February, 1999 letter from Deputy
5 Prosecutor Graham Blewitt to Zoran Knezevic, the federal Minister of
6 Justice for the FRY. It refers to conversations had with the Prosecutor
7 and forwards a request under Rule 7 bis (B) that the president notify the
8 Security Council of failure by the FRY to comply with its obligations
9 under Article 29 of the Statute, indicates that if the FRY wish to argue
10 the question in open court, the Prosecutor would not oppose such an
11 application, and then attaches the 1 February request by the Prosecutor of
12 the president of the Tribunal. And this --
13 THE INTERPRETER: Could you please slow down, please, sir.
14 MR. RYNEVELD: Yes. Sorry again. I will repeat myself.
15 Q. Attaches the 1st of February request by the Prosecutor to the
16 president of the Tribunal, which appears to be about a 25-page document,
17 court-filed document. Do you see that?
18 A. Yes, that's all correct.
19 Q. Two more to go through, if I may. 25th of March, 1999, statement
20 from the FRY government's meeting. This notes a decision by the FRY to
21 sever diplomatic relations with the governments of the United States,
22 Great Britain, France, and Germany for reasons of aggression and use of
23 enormous military and killing potentials. It decides to consider
24 diplomatic and overall relations with other countries that directly or
25 indirectly took part in that aggression, gives credit to those governments
1 and countries that expressed support and solidarity with the FRY's people,
2 and then declares the imposition of further taxes to finance defence
3 expenses; is that right?
4 A. It's an accurate summary.
5 Q. Finally - and Your Honours, I've already made reference to this in
6 my explanation as to why these are relevant - this is a cover letter from
7 Louise Arbour to Ambassador Grubic of the FRY embassy in The Hague, and I
8 believe this is the 26th of March, 1999. It requests that the attached
9 letters be conveyed urgently to President Milosevic and other listed
10 officials and advises that the letters are being -- that the fact that the
11 letters are being sent is being made public, and then it attaches her 26th
12 of March, 1999 letter to then President Milosevic advising - and there are
13 about eight points here - (A), the FRY's failure to cooperate with her
14 office regarding the investigation of war crimes in Kosovo has been
15 reported by the Tribunal's president to the Security Council of the United
16 Nations; (B), advises that current reports of escalating violence in
17 Kosovo cause grave concern that serious violations of international law
18 continue to be committed; (C), provides as an attachment a copy of the
19 salient portions of the Statute of the International Tribunal in both
20 English and B/C/S lest there be any doubt by Mr. Milosevic as to the
21 relevant law; warns that it is her intention to investigate all serious
22 violations of humanitarian law that merit prosecution in the international
23 forum, particularly those involving attacks on the civilian population;
24 cautions that everything must be done to deter the commission of future
25 crimes; looks to Milosevic to exercise his authority over his
1 subordinates, to exercise his leadership in order to prevent the
2 commission of further crimes and take all necessary steps to punish any of
3 his subordinates who commit serious violations of international
4 humanitarian law in Kosovo.
5 Would that also be a reasonable summary of what is contained in
6 that document, sir?
7 A. That is an accurate summary and that also is contained in the
8 documents in Serbian, with the attached Articles of the Tribunal.
9 Q. And you're able to read Serbian as well, are you not, sir?
10 A. That's correct.
11 MR. RYNEVELD: Your Honour, those are my questions with respect to
12 that. Might that bundle of documents be marked as an exhibit for its
13 historical value that the Court has permitted its admission.
14 THE REGISTRAR: Your Honours, that will be marked Prosecutor's
15 Exhibit 315.
16 MR. RYNEVELD: One --
17 JUDGE MAY: Mr. Ryneveld, before we go on, normally these clips
18 are in tab form where there are a number of documents referred to, but I
19 see that in this case we do have a number attached to each. So in future,
20 the documents can be referred to by the exhibit number together with the
21 number of the document.
22 MR. RYNEVELD: We'll certainly keep that in mind. Yes, thank you,
23 Your Honour.
24 Your Honours, that was intended to be my examination-in-chief of
25 this witness. However, it occurs to me that there is one other area that
1 I might ask this witness a couple of questions about in light of the
2 previous witness's evidence on Friday.
3 Q. Mr. Zdrilic, on Friday, a witness testified with the pseudonym
4 K41, and during cross-examination, that witness was asked if he knew the
5 name of the investigator who took his -- took his statement. He was
6 unable to recall the name of that investigator. Do you happen to know who
7 that was?
8 A. Yes. That was me. I took the statement of K41.
9 Q. All right. And could you also indicate, sir, to your knowledge
10 how K41 came to the Tribunal's attention.
11 A. K41 had approached another person who was -- who had been
12 interviewed by the OTP, approached that person and expressed to him his
13 intention to -- or his willingness to speak to an investigator from the
14 Tribunal. As a result of receiving that information, I then made contact
15 with K41 and obtained his statement.
16 Q. This other person that K41 approached to indicate that he wanted
17 to make a statement, was that in fact the witness known as K32?
18 A. That's correct.
19 MR. RYNEVELD: I have no further questions. Thank you.
20 JUDGE MAY: Yes, Mr. Milosevic.
21 THE ACCUSED: [Interpretation] [No translation]
22 MR. RYNEVELD: Am I the only one not getting translation?
23 JUDGE MAY: We're not getting the B/C/S.
24 THE INTERPRETER: Can you hear the English?
25 JUDGE MAY: We can hear the English now.
1 Mr. Milosevic, would you try again, please, and we'll see if we
2 get it this time.
3 THE ACCUSED: [Interpretation] What I was saying was this: Before
4 I start the cross-examination of Mr. Zdrilic, I should like to object, to
5 raise an objection to this mass of paper, all these documents that have
6 just been launched and pulled out by Mr. Ryneveld and which relate to
7 correspondence between Louise Arbour, letters that she sent to the
8 Yugoslav authorities, the responses she received from them, which have
9 nothing to do with his testimony but they would have to do with the
10 testimony of Louise Arbour, were she to appear here, or some other United
11 Nations representative. And if somebody refers to the United Nations,
12 then that would be it. Or representatives of the Yugoslav authorities, by
13 the same token, who communicated with Mrs. Arbour. And I don't even see
14 any formal or official reason for which Louise Arbour should communicate
15 with a head of state and expects that head of state to supply her with an
17 And among the documents that have been provided, we see an answer
18 by the ministry -- Minister of Justice, the federal Minister of Justice to
19 boot, who clearly explains and expounds the position of Yugoslavia with
20 respect to this particular institution, and also Yugoslavia's position
21 vis-a-vis the possible crimes, because it speaks about the fact that there
22 is no doubt that any crime committed would be subject to the criminal laws
23 of Yugoslavia.
24 Therefore, this type of correspondence indicates that Yugoslavia,
25 in keeping with its laws, which are no different from the laws of other
1 countries, acts in conformity with them with respect to what is going on
2 on its territory as a sovereign state and does not consider that where he
3 clearly explains there was no war, the inclusion of any kind of illegal or
4 even legal, if it were to exist, legal institution in the -- in
5 deliberations into the subject of war crimes.
6 So I don't see the connection between the testimony of an
7 investigator, that is to say an employee of this Prosecution, and this
8 huge amount of correspondence which has been provided here. I think that
9 it is absolutely untenable that we now delve into matters of this kind and
10 all these allegations made here, all of which can be refuted one by one.
11 We now have 27 pages of a letter or, rather, a statement or whatever you
12 like to call it, by Louise Arbour, and that is something that is quite
13 outside the frameworks of what you wish to represent here.
14 And if you wish us to discuss this matter, then go ahead and bring
15 in Louise Arbour and hear her as a witness, and then you can also enable
16 me to ask her questions in that regard, because I can't see how I can ask
17 these questions of Mr. Zdrilic pertaining to a letter by Louise Arbour and
18 the stance and positions, of course, untenable which were put forward and
19 which we have nothing to do with. By the same token, you could have asked
20 the usher, the court usher to take the stand and say that he had this kind
21 of letter in his hands. He has nothing to do with those letters, nor is
22 he an interlocutor on the letters of Louise Arbour in my
23 cross-examination. That is the objection and the comments I have to make.
24 JUDGE MAY: If it's an objection, no doubt you'll want us to rule
25 on it. If it's a mere comment, you shouldn't be making it at this stage.
1 But we take it as an objection.
2 The point that you make is one which we note. The reason that
3 these documents are admissible through this witness is because he's a
4 representative of the Office of the Prosecutor. He may well be the only
5 one who we've allowed at this stage to be called and, therefore, he is in
6 a position to produce these documents. As you know, we have rules which
7 allow documents to be produced on the grounds that they largely speak for
8 themselves, as these documents do.
9 So therefore, they are admissible through this witness. You can
10 examine him if you wish to. If you wish to apply for somebody more senior
11 to be called so that you can cross-examine them, we will hear that
12 application. No doubt the Prosecution, too, have heard what you've said
13 about it. But for the moment, these documents are admissible. As I say,
14 they speak for themselves, and this witness can produce them.
16 THE ACCUSED: [Interpretation] Mr. May, that's precisely what all
17 this is about, and I don't see how the details of Louise Arbour's letter
18 is something that I could question Mr. Zdrilic about. He didn't write
19 them, nor was he consulted by anyone as to what should be put in those
20 letters. So it is just correspondence between the federal government and
21 Louise Arbour herself.
22 [Trial Chamber confers]
23 JUDGE MAY: Mr. Milosevic, you must cross-examine this witness. I
24 have told you why the documents are admissible. If, at the end of
25 cross-examining this witness, there are matters which you wish to put to a
1 more senior member of the Office of the Prosecutor which we consider
2 relevant -- and just remember that you're dealing with cross-examination,
3 not argument. If you want to argue with somebody or make points to us,
4 you can do that in due course. But if you've got genuine questions which
5 you want to ask, then we'll consider what better way to deal with this.
6 But meanwhile, if you have any questions of this witness, you should ask
7 them now so that we can get on.
8 THE ACCUSED: [Interpretation] Very well, Mr. May. I'll begin with
9 the cross-examination of this witness now.
10 Cross-examined by Mr. Milosevic:
11 Q. [Interpretation] From your statement, Mr. Zdrilic, we can see that
12 you work as an investigator of the Office of the Prosecutor and that you
13 have been doing so sometime from the end of March 1999 and that, before
14 that, you were for a number of years at different police posts - a
15 policeman, a police officer, a detective and so forth - so your profession
16 is a policeman and you are now working as an investigator; is that
18 A. That's correct.
19 Q. I should like you to answer this question: As an investigator,
20 are you duty-bound to gather as truthfully as possible all the facts
21 relevant to the events that you are reporting and investigating, or is it
22 your duty, as you are employed, as you are an employee of the OTP, is it
23 your duty to select the facts in such a way as to endeavour to amass
24 elements which would bear out this false indictment, confirm the false
1 A. That's quite an extensive question you've asked, but certainly as
2 an investigator it would be my role to strive and to work towards
3 establishing the truth of any given incident or events that have occurred,
4 and that's certainly what I've endeavoured to do as an employee of the
6 Q. All right. Then try and answer my questions more specifically, in
7 more concrete terms. Taking the example that was mentioned a moment ago
8 by Mr. Ryneveld, Mr. Ryneveld mentioned the example of Witness K41 who
9 testified here, and your name appears in his statement -- on his
10 statement. Now, does the contents of his statement represent, for the
11 most part, contents to -- that is to say, are they answers to questions
12 that you yourself asked him?
13 A. The statement itself is his statement. Certainly my role there is
14 to assist him to record his information and to record in a chronological
15 and logical way the events that occurred as he tells them to me.
16 Q. All right. I assume that when you take -- when you took his
17 statement, that it was also part of your job to ask him questions that you
18 considered to be relevant for the collection of facts which relate to the
19 events he describes. Is that correct or not?
20 A. In part that would be correct. Where he outlines events to me or
21 describes events, then in the course of recording that, I may ask him
22 clarification questions or questions that require answers of greater
23 detail so as to record those within his statement.
24 Q. All right. Let's take an example. In his statement, for
25 instance, and he was questioned about this -- I don't know why we're
1 hearing this interference. But he was questioned about it by the opposite
2 party. And he was speaking about the event that took place in the village
3 of Jeskovo. And on that occasion, he explained that civilians had died
4 there and so on. Is that right?
5 A. I would need to see his statement again, but from the best of my
6 recollection, yes.
7 Q. Yes. That brings me to the following point: You are an
8 investigator, and I assume that you gather all the facts related to a
9 particular event. According to my own information and facts, the event in
10 this village of Jeskovo was also attended by the representatives of the
11 Regional Centre of Prizren of the Verification Mission of the OSCE, and it
12 was verified that there were nine terrorists killed in that particular
13 event and that they were wearing uniforms and had weapons on them. And
14 this is very different from what your witness says, Witness K41, whose
15 statement was put forward here.
16 Now, I'm asking you as it was your official duty as an employee
17 and investigator to learn of the events that took part -- place, and as
18 you had at your disposal members of the Verification Mission, when you
19 have this witness talking about the Jeskovo event, did you ask him
20 questions on the basis of the documents you received from the Verification
21 Mission and which testify to something quite different, completely
22 opposite to what he himself was saying? Yes or no.
23 A. In response to the last part of your question -- you've actually
24 asked me a lot there: In response to your last part, no, I did not have
25 the benefit of any documentation from the Kosovo Verification Mission of
1 the OSCE.
2 If you would like me to respond to the rest of what you've asked,
3 I can do that as well.
4 Q. Yes, yes.
5 JUDGE MAY: If there's something you want to add, Mr. Zdrilic, you
7 THE WITNESS: [Interpretation] Your Honour, I was asked numerous
8 things in the question there --
9 JUDGE MAY: No. The point which he was making was that there's a
10 discrepancy, he says, between what the OSCE said happened in Jeskovo and
11 what the witness said happened. Now, whether that's right or not is a
12 matter we're going to have to determine when we've looked at all the
13 evidence, and we can't re-litigate it now, but if there's something you'd
14 like to say about your role, of course you can.
15 THE WITNESS: Thank you, Your Honour. Certainly, in brief, is
16 that I -- any questions that you had in relation to the Kosovo
17 Verification Mission and where they tendered and what reports they made
18 would need to be addressed to someone from that organisation.
19 Specifically in relation to this statement here, is I recorded the
20 information as given to me by this witness. The information that he
21 provided to me in relation to the Jeskovo incident is as recorded in his
23 MR. MILOSEVIC: [Interpretation]
24 Q. All right, Mr. Zdrilic. But you must have known that the alleged
25 incident in Jeskovo, at least judging by the date, coincides with the time
1 when on that territory the Kosovo Verification Mission was active. In
2 specific terms, that part of the territory was under the Regional Centre
3 in Prizren, and that was led by General Maisonneuve. So you must have
4 been aware of that fact. You must have known about that. Is that right
5 or not?
6 A. Undoubtedly so. I certainly was aware of the presence, that they
7 had an active presence in the region of Kosovo in that time.
8 Q. Well, fine. And that's why I'm asking you. Now, if you were
9 fulfilling your role of investigator conscientiously, with the aim of
10 gathering information and facts and reports relevant to what you were
11 dealing in, what you were investigating, do you consider it to be your
12 duty to hear or gather information from that centre, the -- which relates
13 to their own work, their own competence about the same event that you are
14 taking a statement from a Witness about? Yes or no.
15 A. That would be correct. If it was an incident or an area of
16 investigation on which -- on which we were focused, and an example, of
17 course, would be incidents as mentioned in the indictment, and that was
18 mentioned by a witness and he offered a line of inquiry to corroborate or
19 to obtain further information, or a line of inquiry which I knew that I
20 could obtain further information, then I would pursue that line of
22 Q. All right. Do you then deny that you knew that during the events
23 the Verification Mission was there and that therefore --
24 JUDGE MAY: He's dealt with this. He's dealt with this. Now,
25 there's no point arguing with the witness about what you say are
1 discrepancies. He's told you his job was, and what he did was, to take
2 the statement from the witness who we heard from, and he's described that.
3 Now, you make a point that there was a discrepancy, and he's given an
4 answer. Now, we cannot waste further time arguing about whether he knew
5 or didn't know and whether it was relevant or not. He's answered you.
6 THE ACCUSED: [Interpretation] Mr. May, I am trying to ascertain
7 here the way in which an investigator conducts -- does his job, because we
8 don't challenge the fact that this investigator knew of the existence of
9 the Verification Mission, so my question to him is why he failed in
10 investigating the event getting from the Verification Mission reports
11 which are quite certainly relevant. So why didn't he collect up that
12 information and the facts and compare them to what he was talking about
13 and investigating? May we then conclude that he wasn't performing his job
14 the way in which he should have been?
15 JUDGE MAY: No. We'll allow the witness to answer that final
16 contention and then we'll move on to something else.
17 Mr. Zdrilic, do you think you can answer that question, the final
18 point that's made?
19 THE WITNESS: Certainly, Your Honour. In short, seeing that we're
20 specifically dealing with K41 and the time frame in which that statement
21 was taken, that you will notice that it was taken not so long ago, that it
22 was quite a short time ago. And then the -- speaking to that witness,
23 even if I wanted to pursue further inquiries as a result of taking that
24 statement, time certainly would not have allowed for that to have
1 You will notice from earlier statements that I've taken, in early
2 1999 and certainly in 2000, where information has arisen in the taking of
3 a statement, then of course we have pursued that line of inquiry.
4 MR. MILOSEVIC: [Interpretation]
5 Q. All right. Tell me, then, Mr. Zdrilic, in view of the fact that
6 in your statement it says that from the 28th of March, 1999 you were
7 working in the OTP as an investigator, did you have occasion to talk to,
8 in view of the fact that you investigated the area, to talk to General
9 Maisonneuve himself, who was the head of the Regional Centre in Pristina?
10 Did you ever talk to him?
11 A. I have had cause to speak to members of the KVM, but General
12 Maisonneuve was not one that I'd spoken to personally. So no.
13 Q. And did you talk to, as the Regional Centre was a large centre in
14 Prizren, did you talk to anybody else, any other member? Because there
15 was Pyoter Snetovkovski [phoen] there from Poland, for instance, and you
16 had Osman Haakinem [phoen] from Finland, Andre Barodjin [phoen] from
17 Russia, Antonio Lamusta [phoen] and Roberto Brunetti from Italy. Did you
18 talk to any of those representatives who made up the team, General
19 Maisonneuve's team in the area? Did you talk to any one of them and -- in
20 the desire to establish some facts relevant to the job in hand that you
21 were doing?
22 A. In answer to the question whether I personally spoke to any of the
23 persons you've mentioned, the answer would be no. But as to whether
24 colleagues of mine had spoken to those very same persons, for the same
25 reasons that you've outlined, then the answer would be yes.
1 Q. Well, how come, then, their activities had no bearing and no place
2 in your activity when you were engaged in taking a statement from a
3 witness talking about an event that they verified in their course of duty
4 and recorded and wrote down and could tell you something about that?
5 A. It's certainly not the case that an investigator would live in his
6 own shell; that if I take a statement, then that is made available to and
7 would be reviewed by my colleagues, certainly those working in the areas
8 to which that statement is relevant. And in the same way, that if a
9 colleague of mine was to take a statement from a person relevant to the
10 area of operation where I was working, then I would make myself familiar
11 with that statement and what it contained.
12 Q. Fine, Mr. Zdrilic. But if, for example -- let's take an example
13 with respect to Jeskovo. There is a report by the Verification Mission
14 which says that nine terrorists were killed, for instance.
15 JUDGE MAY: I'm going to find a reference to this to check out
16 what you say. What is the reference, Mr. Milosevic, in the report to this
17 allegation which you make? If you don't have it, you can let us have it
18 tomorrow, but we need the reference.
19 THE ACCUSED: [Interpretation] Mr. May, I take it that the opposing
20 party, including all its employees and staff, must consult the report of
21 the OSCE mission in the regular course of its duties.
22 JUDGE MAY: Just give us the reference. That's all I'm asking
23 for. Give us the reference and we'll check it out. You may well be
24 right, for all I know. But there doesn't seem any point going on arguing
25 about the -- with this witness about it. Listen for a moment.
1 The duty of a Prosecution is to put in front of the Court all the
2 available information. If they have a witness who gives important
3 evidence, then it's their duty to put that evidence before the Court in
4 the form in which it is. It's not their duty to change the evidence or
5 anything of the sort.
6 If there's evidence which contradicts what the witness says, as
7 you allege in this case, then it's their duty to put that information
8 before the Court, as they have done. They've provided you and the Court
9 with this document from the OSCE.
10 Now, what happens next is that during the course of the trial, you
11 are able, as you have done, to put the discrepancy, as you allege, to the
12 witness. You can then refer us to it in due course in argument when we
13 come to consider the witness's evidence and the totality of the evidence,
14 but there is no point going on arguing with an investigator about it. No
15 doubt you want to make the point over and over again, but there's no point
16 and you won't be allowed to.
17 Now, unless you've got something new for this witness, we're not
18 going on with this particular line of cross-examination. We will have
19 from you, please, the reference to the Jeskovo incident, or if you don't
20 give it to us, we will have to assume that it doesn't exist. That will be
21 relevant, of course, when we come to consider all the evidence, but
22 there's no point -- the witness has told you what he did. He's told you
23 the inquiries which he carried out. And I've explained to you what the
24 duties are vis-a-vis the Court and what the Court's duties are. Now, I
25 don't think there's really much point going on unless you've got something
1 new. Is there anything else you want to ask the witness? We will see
2 about the correspondence if you want to ask anything about it.
3 Mr. Nice, I don't know if you -- or Mr. Ryneveld, I'm sorry.
4 Mr. Ryneveld, you've heard the argument about the correspondence. The
5 accused may well have a point. There's not much point asking this
6 particular witness about the correspondence in which he wasn't involved.
7 It may be the sensible course would be to tender somebody of seniority.
8 MR. RYNEVELD: If -- that microphone is not working.
9 JUDGE MAY: It was working. I had my finger on it.
10 MR. RYNEVELD: Yes, Your Honour. Our view is, of course, that
11 this documentation was part of the original supporting materials. It's
12 been in the accused's possession for I don't know how long. Obviously
13 since the indictment back in 1999. It's been available since then. Our
14 point is simply that it's relevant, it's before the Court. If in the
15 course of perhaps the continuation of our case it becomes necessary, we
16 may seek leave of the Court to ask a more senior official to speak to
17 those documents. But with respect to the Kosovo part of the case, of
18 course, that would have to be an application for special leave by us in
19 order to produce someone.
20 JUDGE MAY: Well, we may well order that that be done.
21 MR. RYNEVELD: Thank you, Your Honour.
22 JUDGE MAY: Now, Mr. Milosevic, do you have anything else for this
23 particular witness about the evidence which he gave?
24 THE ACCUSED: [Interpretation] I have just started, Mr. May, and I
25 think that we are wasting time, it seems to me, because many other things
1 have been introduced here, many things which are not actually contained in
2 his statement. Nevertheless, I shall go on.
3 Q. I just wanted to establish whether it was normal -- actually, I'm
4 talking about an investigator, his duties, the way he carries them out,
5 the way he works, because that is important for assessing the value of
6 what is obtained here. Was it reasonable to assume that in terms of
7 Witness K41, in view of the information that exists and the knowledge that
8 exists with regard to that, were you duty-bound to put questions to him
9 pertaining to that particular knowledge that was available?
10 A. Certainly the case would be, when asking clarification questions
11 to a witness and obtaining a statement, then yes, I would draw from my own
12 knowledge of the events that he's discussing.
13 Q. So this knowledge that I refer to just now is something that you
14 did not bear in mind or, rather, you did not know about it. It was not
15 available to you.
16 THE INTERPRETER: Microphone for Judge May, please. Your
17 microphone, sir.
18 JUDGE MAY: If you've got some other matter you want to address,
19 you can, but we're not going over this point which we've canvassed
21 THE ACCUSED: [Interpretation] All right.
22 MR. MILOSEVIC: [Interpretation]
23 Q. In your statement, already in the second paragraph, you say that
24 what you did included several missions of yours in Albania in 1999, and
25 you say there: "I spoke to numerous persons relevant to the Kosovo
1 investigation, numerous displaced persons."
2 Here we heard the testimony of a journalist, Jacky Rowland, only
3 recently, and she showed in her report that what they said in Albania is
4 considerably different from Kosovo reality. Did you bear that in mind or
5 not? Or did you just take for granted anything anyone would say to you
6 when you interviewed them in Albania?
7 A. Certainly when interviewing a person, that once -- while there in
8 front of the person, there is really no way of confirming the information
9 being given to you. Rather, that you interview that person as effectively
10 and professionally as you can, obtaining their information and recording
11 that in the way of a statement. Upon having taken that statement, and at
12 a later stage, what you strive to do then is confirm the information.
13 Certainly any statements that I've been involved in that were taken in
14 Albania and were then later used or relied upon, those statements were
15 certainly confirmed by other information.
16 Q. All right. I'm talking about differences, you are talking about
17 confirmations and affirmations, and that's only logical because you have
18 the role of witness here and also employee of the OTP.
19 Tell me, since you're already referring to this killing of the
20 Berisha family in Suva Reka, did you have any information as to Marjan
21 Krasniqi's testimony, Witness Marjan Krasniqi's testimony, who says that
22 this killing in Suva Reka was committed by some local crime group or do
23 you not have that information? And that is what is indicated.
24 A. In answer to your question, Marjan Krasniqi, which I believe is
25 the name you're saying, the -- from the best of my recollection, I in fact
1 took his statement, Mr. Krasniqi. And if I recall correctly, I took his
2 statement in Albania in 1999.
3 As to whether he asserts that a local crime group were the
4 instigators of the incident, that I don't recall, but I'd be happy to
5 review the statement if it was handed to me, then maybe I could answer
6 that a bit better for you. But I don't have an independent recollection
7 of him saying that a local crime group committed the offence.
8 Q. All right. All right, Mr. Zdrilic, let us move on. Let us look
9 at these questions.
10 In your statement, practically the bulk of your statement pertains
11 to individual investigations, designations, and expert examinations,
12 forensic examinations in the field of medicine. That is what you've been
13 referring to, right?
14 A. Mr. Milosevic, I wouldn't have exactly worded it that way, but I
15 think what I've done in my statement is to summarise the results of such
16 persons, persons with medical or forensic expertise, have reviewed those
17 results and summarised them in a plain English fashion in my statement.
18 Q. All right. Regardless of whether they are in plain English
19 language or not, these are undoubtedly analyses that you're not an expert
20 for and neither am I; is that right?
21 A. I would tend to think I have possibly more expertise than
22 yourself, Mr. Milosevic, but I would agree that I'm not an expert at
23 physically doing DNA comparisons myself.
24 Q. All right. And doesn't it seem to you that such a long portion of
25 this text about DNA and comparisons and figures, about that and the expert
1 work conducted by the teams that you are referring to, does push into the
2 background some of the previous questions that I assume a policeman, an
3 investigator, would have to have answers to first and foremost and only
4 then can he follow up with DNA analyses and things like that. Isn't that
6 A. Yes, I would agree with that. Yes.
7 Q. Could you please then tell me whether you have a clear answer in
8 response to the question how these people had lost their lives?
9 A. It is certainly a belief of mine that the people referred to as
10 being the victims of the Suva Reka cafe incident, as outlined in the
11 schedule of the indictment, were murdered both in two locations; at the
12 house and within the cafe, and they were murdered by Serbian police in
13 cold blood. That is certainly my assertion from the investigations that
14 I've conducted in relation to this incident from 1999 until the present
15 day, and ongoing, of course.
16 Q. All right. You say that you believe that it is so.
17 A. Most certainly.
18 Q. And do you have proof of that? And do you have an answer to the
19 question as to which circumstances were involved when these persons lost
20 their lives? Under which circumstances did they lose their lives?
21 JUDGE MAY: I'm going to stop you because this is what we've got
22 to determine. It is precisely the question that we've got to determine.
23 The witness's beliefs or views about it don't matter, with respect to him,
24 because it's ultimately what we determine on the evidence which is put
25 before us which matters.
1 And there's a more general point I want to put to you because it
2 recurs throughout the case, and since you're in person, it should be
3 explained again because it's not always easy to grasp.
4 When you have arguments about the evidence such as the one you're
5 going to launch into with this witness, no doubt, about what happened in
6 Suva Reka, those are arguments which should be addressed to us. And as
7 I've told you before, there will be a time to do that. All the witness
8 can do is tell you what he did himself. His opinion about the -- that
9 evidence doesn't matter. The fact that he considers there is a case on a
10 particular point doesn't matter, and the weight which he would give to the
11 evidence which maybe you're going to ask him about. So all of this is not
12 for the witness to deal with. It's a matter for argument and not a matter
13 for questioning the witness about how he would prove a particular case.
14 Now, as I say, you will have your opportunity to address us on all
15 these points, but meanwhile, you must cross-examine this witness on what
16 he did, not on what his beliefs or views may be.
17 THE ACCUSED: [Interpretation] I am endeavouring to put questions
18 to him with regard to what he did, Mr. May, not anything else.
19 MR. MILOSEVIC: [Interpretation]
20 Q. Did I understand this correctly, Mr. Zdrilic, this expert work,
21 professional work done by the forensic experts pertains to the mortal
22 remains that were placed at their disposal, that were made available to
23 them? That is one element. The other element is the following: All
24 analyses pertained to and were done after June 2001; is that correct? Is
25 that what comes out of your statement, report?
1 A. I just require clarification for your question in relation to the
2 forensic work. Are we talking about the forensic work as mentioned in my
3 statement, the exhumations that occurred in Kosovo in 1999 and 2000, or
4 are we referring to the DNA analysis being conducted in Spain? I'm not
5 quite sure which one you're referring to or which one you're asking me
7 Q. I'm talking everything that you're talking about in your
8 statement, Mr. Zdrilic. Do you have an answer to the question where these
9 corpses were found, where they were exhumed?
10 A. Again, Mr. Milosevic, your question's not very clear. I presume
11 we're talking about all the bodies. In answer to that, then, there were a
12 number of bodies that were recovered from Suva Reka as a result of
13 exhumations conducted in 1999 that was conducted by the British forensic
14 team working on behalf of the OTP and upon its direction. Those remains
15 were subsequently identified by relatives. And they are denoted in the
16 charts which I prepared for the Court, and they were denoted with a star.
17 The remainder of the bodies, without going through the whole
18 course of where they went and whether they were buried and exhumed and so
19 forth, it would appear to us that the final resting place of at least a
20 number of the bodies is within the 13th of May SAJ training facility in
21 Batajnica, near Serbia, and that those bodies found were located in the
22 first exhumation conducted there, which was referred to as Batajnica 1.
23 Now, by taking those -- by taking samples from those remains and
24 comparing them - or bone samples - and comparing them to blood stains
25 taken from known living relatives, to date there are 11 persons identified
1 who are believed to have been victims of the Suva Reka cafe incident and
2 whose bodies have now been located in Batajnica.
3 Q. All right, Mr. Zdrilic. Now you gave part of that answer. So to
4 -- how many persons, dead persons, does your report or your statement
5 refer to?
6 A. The statement before us -- this statement we're talking about
7 here, there's -- all I've done is summarise the results mentioned. So
8 within the body of the statement, it refers to 11 persons, but within the
9 entire statement itself, it outlines all persons who were believed to have
10 been the victims of the Suva Reka cafe incident as they are named within
11 the charts themselves which were attached to the statement.
12 Q. So your testimony pertains to 11 persons. And you mentioned just
13 now that some of these corpses were exhumed in Batajnica. When were they
14 exhumed in Batajnica?
15 A. I couldn't give you a precise date, but I do know that that
16 evidence has been presented before the Court. But the -- but to give you
17 a brief answer, it was last year these bodies were exhumed from Batajnica.
18 Q. And when did the exhumation at Batajnica start?
19 A. Again, it's -- there is information before the Court. The precise
20 date I do not recall, but it certainly, again, was last year. Throughout
21 the warmer months of 2001, the exhumation was commenced and completed at
22 Batajnica 1.
23 Q. All right. Am I right if, on the basis of what I've read out just
24 now, I can conclude that forensic experts cannot tell when these bodies
25 were brought to Batajnica, for example, how long they had been there in
2 A. Those opinions would certainly be -- be questions for those who
3 examined those bodies. That would be someone from the Belgrade forensic
4 institute as it is my understanding that they conducted the exhumations of
5 the remains that were exhumed from Batajnica 1. So certainly an expert
6 from the institute would be better asked such questions.
7 Q. Well, this is more of a police question than a forensic question,
8 because, to the best of my understanding, they can establish the length of
9 time from when the death occurred in the case of a body that was found.
10 However, I'm asking you because you are more of an expert in these matters
11 than I am, as you had put it yourself.
12 Could they establish through any method whatsoever when these
13 bodies were actually brought to Batajnica?
14 A. Appreciating the investigative techniques may be slightly
15 different in our respective countries, but certainly an investigator could
16 establish, or at least gather information leading towards establishing,
17 when certain bodies were located in a location, for example, Batajnica 1.
18 But an investigator would establish that information through the
19 interviewing of witnesses, through obtaining information, possibly
20 establishing or speaking to the person who was present when the bodies
21 were buried or speaking to the person who conveyed the bodies there.
22 So of course, Mr. Milosevic, I can only answer you in
23 hypotheticals. That isn't something that is outlined in my statement. It
24 is certainly something that would be a line of inquiry for an
25 investigative team to pursue.
1 Q. I understand, Mr. Zdrilic, but you're the one who is testifying,
2 so I wanted to establish what you know about this for sure. Because --
3 or, rather, would you agree that it is very important to establish when
4 these bodies were buried at Batajnica?
5 A. I don't know that I would necessarily agree, no. The -- whereas
6 the information is obtained that these persons were -- died in March of
7 1999 and then were exhumed from a grave in Batajnica, Serbia, in 2001, to
8 establish an exact date of when those persons were buried there, then no,
9 I wouldn't agree. I don't see that that is of overwhelming relevance.
10 Certainly no -- certainly not more important than establishing, for
11 example, the identity of the bodies or establishing the cause of death of
12 the bodies. Your question would probably come third or fourth in
13 priorities of investigative priority.
14 Q. I agree that that question would probably come third or fourth,
15 provided that you do remember that I asked you a few minutes ago how these
16 persons lost their lives, under which circumstances, and then Mr. May said
17 to me that that was up to them to decide on that and that you cannot
18 assess it. So now I'm asking you these questions that come third or
19 fourth because I assume that you are in a position to answer those
20 questions as you were involved in those matters.
21 So you do not know -- on the basis of what you analysed, you do
22 not know when these bodies were brought to Batajnica.
23 A. No. I certainly couldn't tell you when they were taken to
24 Batajnica. I could review the information that we have in-house and
25 narrow down a time frame for you as to when it is.
1 As I indicated earlier, that I've been involved in the
2 investigations since at least March of 1999 and until the present day, and
3 - as I said before - and that investigation is still ongoing. So what
4 you have before you is the product of our -- is the product and result of
5 our inquiries to date. There is still more to come.
6 Q. All right. Did I understand this correctly, that these bodies had
7 first been buried at a particular location, then exhumed and subsequently
8 brought to Batajnica? Or were they perhaps thrown into the Danube first
9 and then taken out of the Danube and then taken to Batajnica? Can you at
10 least describe the fate of these bodies that you are reporting about?
11 What actually happened to these bodies?
12 A. Certainly in brief it is outlined in my statement, but to my
13 belief and as a result of my inquiries, it is certainly my belief that
14 these bodies were, once murdered within the cafe in Suva Reka, were loaded
15 onto a truck. That truck was driven to a location which was referred to
16 as the firing range, which was a disused VJ firing range. And that
17 location falls between the villages of Korisa and Ljubizda in the
18 municipality of Prizren. I certainly believe that those bodies were
19 buried there. It is certainly know that persons attended that location
20 and exhumed a large number of bodies from that location and loaded them
21 onto a truck. It is also known that the bodies of persons murdered in the
22 Suva Reka cafe were subsequently located in Batajnica 1 on the outskirts
23 of Belgrade.
24 Q. All right. Do you remember, perhaps, because here in your
25 statement you mention in the penultimate paragraph that the bodies were
1 taken out of the ground by a bulldozer and the cleaners personally boarded
2 -- loaded them onto buses. And then in parentheses, it says "statement of
3 witness Ali Gjogaj." I'm just quoting your statement. Did you take Ali
4 Gjogaj's statement yourself?
5 A. I'm certainly familiar with his statement, but no, I don't believe
6 I took it. I believe his statement was taken by a colleague.
7 Q. All right, and do you remember Ali Gjogaj's testimony?
8 A. Unfortunately, I don't. I didn't see his testimony because I was
9 out of the country at the time.
10 Q. All right. And do you remember that there was a problem there
11 concerning dates and that Ali Gjogaj first claimed that this exhumation
12 from the firing range took place in the spring of 2000?
13 A. I really don't see how you expect me to answer that. As I say,
14 I'm not familiar with his testimony so I can't help you any further with
15 the testimony of Ali Gjogaj.
16 Q. All right. Did you look into the possibility, Mr. Zdrilic, of
17 these bodies having been transferred a few months before they were
18 discovered in Batajnica rather than in 1999? Did you look into that
19 possibility at all?
20 A. Bearing in mind there's certain things I can't discuss in view of
21 ongoing investigations that we are conducting, Mr. Milosevic, there are
22 numerous possibilities that we would consider and we would continue to
23 consider and continue to have them in our minds until such time as we
24 eliminate them. That, of course, would be a possibility, that they were
25 transferred to Batajnica a short time before they were discovered. In
1 fact, that's certainly the case; there's no knowing how many times these
2 bodies may have been transferred.
3 What is known, as I expressed to you, was that the bodies were
4 buried at the location which I referred to as the firing range, and what
5 is known is that at least nine, to date, of those bodies have now been
6 identified from Batajnica 1 on the outskirts of Belgrade. They're what's
7 known are known, we're still filling in the gaps and we'll continue to do
8 that and we'll narrow it down further.
9 JUDGE MAY: We are going to adjourn now. Mr. Milosevic, you've
10 had the same time as the Prosecution. We will allow you -- since your
11 cross-examining, a certain amount of time was taken up with legal
12 argument, we will allow you another quarter of an hour with this witness,
13 if you require it.
14 THE ACCUSED: [Interpretation] That is insufficient, Mr. May,
15 highly insufficient.
16 JUDGE MAY: Twenty minutes. We will adjourn.
17 --- Recess taken at 10.30 a.m.
18 --- On resuming at 10.55 a.m.
19 JUDGE MAY: Yes, Mr. Milosevic.
20 MR. MILOSEVIC: [Interpretation]
21 Q. As far as I was able to understand, it is possible that the bodies
22 were brought to Batajnica a relatively short time prior to their being dug
23 up there. Is that right, Mr. Zdrilic?
24 A. That would be a possibility, but certainly in my view that would
25 be highly unlikely.
1 Q. Well, all right. And would it be unlikely even if the motive were
2 that evidence and proof should be fabricated to show that the authorities
3 wanted to hide crimes by allegedly transporting bodies from Kosovo to
4 other parts of Serbia?
5 A. As to whether the authorities were attempting to fabricate
6 evidence is something that I really couldn't give an opinion on, but as I
7 said to you, it would seem to date, at the stage that our investigations
8 are at, that it's highly unlikely that these bodies were transferred to
9 Batajnica a short time before but, rather, a considerable amount of time
10 before. That would further be highlighted by the condition and the
11 circumstances of the area where the exhumation was undertaken. It's
12 certainly an area which was well overgrown, well -- if I could put it this
13 way: It wasn't an area which was freshly disturbed, so that in itself
14 would indicate that that grave or that mass grave had been there for some
16 Q. For some time if you include the overgrowth, et cetera. Would it
17 be sufficient from October to November 2000 up until May, June, 2001,
18 which means the whole of the autumn and winter and practically a part of
19 spring as well? That would be quite sufficient for what you are
20 describing now, wouldn't that be so? Yes or no.
21 A. It may be so, yes. The question would be better asked of someone
22 who was engaged in the actual exhumation itself and someone who has
23 expertise of the terrain in the area in which we're talking about.
24 Q. Well, let us assume that everything is documented by photographs
25 before the exhumation began, that the location, the spot was photographed
1 so as to be able to establish, at least to a certain extent, what it was
2 all about. Do you know anything about that?
3 A. As far as I know, the photographs relating to the exhumation of
4 Batajnica 1 have been made available to this Court. And yes, you are
5 correct, that by reviewing those photographs, then you would have a visual
6 depiction of that area prior to exhumation.
7 Q. All right. The witness who towards the end of last week was here
8 and answered questions, a question in particular put to him by one of the
9 gentleman in the Trial Chamber, I think his name was Stijovic, they asked
10 him in passing or, rather, he said that there was a burial site dug up in
11 Kosovo, and he was asked what was done, and he said that the
12 identification of the bodies had taken place and that the bodies were
13 handed over to the families.
14 Now, tell me this: If it wasn't the way I put it, how would it be
15 possible that that same police force, when it digs up a body, identifies
16 it and then hands it over to the family once this had been conducted and
17 then suddenly this same police force, these same policemen, or what you
18 refer to as Serbian forces, dig them up and take them to their own
19 backyard to bury them there? Does that seem to you be logical, to a
20 professional policeman such as yourself?
21 JUDGE MAY: Mr. Zdrilic, if you can't answer the question, just
22 say so.
23 THE WITNESS: The entire first part of that, Your Honour, I
24 couldn't answer. The last question, "Does that seem logical to a
25 professional policeman?" Then no, that would not seem logical at all.
1 MR. MILOSEVIC: [Interpretation]
2 Q. All right. Let's just deal, as I have very little time at my
3 disposal, for a moment with something very briefly.
4 How do you conduct the identification process when you don't
5 perform a DNA analysis? How is it done then?
6 A. If we're referring to identifications which are conducted in
7 Kosovo itself, then identification can be done by a number of means.
8 Naturally, a presumptive identification can be done from information
9 obtained from -- from inquiries, from investigations being conducted. And
10 then upon exhumation, a physical identification can be done using family
11 members to identify those bodies. That form of identification was
12 certainly possible in the exhumation process which was undertaken in 1999.
13 Q. Yes, but when the exhumation in 2001 was conducted, that certainly
14 wasn't possible.
15 A. There was no exhumations -- and I may be corrected here, but there
16 was no exhumations undertaken by the OTP within the area of Kosovo in
18 Q. And tell me, is it possible, is it sufficient for identification
19 purposes for you to find certain personal ID documents, parts of clothing,
20 et cetera? Is that sufficient to identify somebody; documents, bits of
21 clothing, et cetera?
22 A. In itself, that solely, then no, that would be insufficient to
23 give a positive identification.
24 Q. All right. And tell me this: Is it possible to conduct an
25 identification process by looking at the bodies after the time lapse such
1 as went by with the bodies that you are testifying about?
2 A. By physically looking at the bodies, then it may be possible but
3 it would be highly unlikely.
4 Q. All right. Now, did you take samples of DNA for analysis of the
5 11 bodies dug up at Prizren?
6 A. You would have to clarify for me what 11 bodies we're referring
8 Q. Well, somewhere in the report mention is made of a certain number
9 of bodies that were dug up nearby Prizren, 11 as far as I was able to
10 understand. Did you take DNA samples from them or is it just what you
11 described, were those the only cases in which DNA samples were taken or
12 samples for DNA analysis?
13 A. To assist the Court, I think you're referring to within the
14 statement I mentioned an examination of the site referred to as the firing
15 range in the municipality of Prizren, between the villages of Korisa and
16 Ljubizda, that there was a large number of artefacts located. Those
17 artefacts were identification documents, clothing, shoes and other such
18 items. Of those artefacts, there were some 11 artefacts which --
19 somewhere in the vicinity of 11 artefacts which were identified by family
20 members as belonging to persons believed to have been victims of the Suva
21 Reka cafe incident in March 1999. So the number 11 which I think you're
22 referring to is a reference to the artefacts which were identified from
23 that exhumation in 1999.
24 Q. And can this be checked out? Can you check out the objectivity of
25 the laboratory involved or performing the DNA analysis? Is there any way
1 you can do that?
2 A. We're now referring to the objectivity of the Madrid labs in
3 Spain; is that correct?
4 Q. Any. I'm asking a question of principle. Can you check out the
5 objectivity of the work of any laboratory in view of the fact that DNA
6 analysis is performed in it? Can you do that for any laboratory?
7 A. Well, it certainly can be checked in as far as their results. And
8 the summary and the conclusions that they draw from those results, that
9 can certainly be checked. So the answer is yes, you could check the
11 Q. And were double samples taken for the DNA analysis?
12 A. I'm not certain how many samples were taken. The -- again, that
13 would be a question for the forensic institute in Belgrade as to how many
14 samples they took. What I am aware is that there was a set of the samples
15 conveyed by a member of the institute in Belgrade to the institute in
16 Madrid in Spain.
17 Q. All right. Is -- can the samples for analysis be contaminated?
18 For example, in the Glodjani case where they said that analysis was
19 impossible because of the contamination involved?
20 A. I think you've answered your own question. Is it possible that
21 samples could be contaminated in a case? Then, yes, of course. Were
22 samples contaminated in this instance? Again, that would be a question
23 for the forensic institute in Belgrade, although, I would consider that
24 highly unlikely in as far as I consider the institute and having seen the
25 work that they conduct and the way in which they conduct themselves as
1 being a highly professional institute in what they do. Now, I have no
2 reason to believe that there was any contamination in the samples that
3 were provided to the Madrid institute in Spain.
4 Q. No, I'm not expressing any doubts with respect to the institute in
5 Belgrade. I'm asking you a question of principle with respect to that,
6 and I do believe that they were very professional and conscientious in the
7 work they did. What I'm dealing with now is the institute in Madrid.
8 Because of the way in which the DNA samples were stored, can there have
9 been any failing there?
10 A. Again, my answer would be similar. I have no reason -- no reason
11 to believe that -- that the institute in Madrid are any less professional
12 than the institute in Belgrade. And I would be assured -- or again, I
13 have no reason to believe that the samples have been contaminated in any
15 Q. All right. Could you explain this to me now, please, what this
16 other report says about genetic identification of the bodies found in the
17 Batajnica 1 locality. It is on page 8. It is chapter 6, your results and
18 conclusions, in fact. Now, I'm not quite clear on this, so I'd like to
19 hear your explanations, because you state that the samples, the bones, et
20 cetera, are assigned numbers. There are numbers. They are numbered. And
21 you saw the multilocus SDR profile, and then you have the number and you
22 say this indicates that the two bone samples were probably from one and
23 the same person, so this indicates that they came from the same person.
24 Then the next sentence goes on to say: "However, we cannot
25 exclude the possibility of them being derived from a certain Besik Shaban
1 [as interpreted], the biological father," et cetera.
2 So the results indicate that they come from one and the same
3 person although you cannot exclude that they originate from somebody else.
4 So what holds more water, if I can put it that way, the first statement or
5 the second statement, that they do in fact come from one and the same
6 person or that you cannot exclude the fact that they came from two
7 different people, that is to say they belong to someone else? Which of
8 those would you give preference to?
9 A. Just in way of clarification, it's not a case of giving preference
10 because certainly they go hand-in-hand. What the conclusions there are
11 saying is that they have received bone samples which were numbered BA22
12 and BA59. As a result of the DNA examinations that they've done,
13 establishing the DNA profile, the profile of those two samples is that
14 they determined that those two samples, BA22 and BA59 came from the same
15 individual. So that's one of their conclusions. Those two bone samples
16 come from the same individual.
17 Going further from that, they're also saying that those bone
18 samples from the same individuals cannot be excluded as being Vesel
19 Shaban, clearly a reference to Vesel Shaban Berisha which we see in the
20 family chart that I prepared, JZ-1, who is the biological father of Kuci
21 (Vesel) Dasurije, also who can be seen from the first chart.
22 So if I take you back to the first chart, JZ-1, you will see that
23 at the top of that chart, the head of that family is Vesel Shaban, 61
24 years old. A cross next to his name, denoting a person believed to have
25 been killed in the incident, the cafe incident in Suva Reka, that that
1 person -- that two bone samples have been examined and found to be one and
2 the same person. Those bone samples have then been identified through DNA
3 comparison as being the biological father of Dasurije Kuci, who is the
4 person to the far right of that same chart, who is the daughter of Vesel
5 Shaban and Sofia.
6 So what they're doing is twofold: One, saying that we have two
7 bone samples that are one and the same person; and two, we're identifying
8 that -- those bone samples as being the biological father of Dasurije
10 I hope that makes it clear.
11 Q. Is that your explanation? If we skip one point and go on to the
12 next one where it says BA29, 37, et cetera, indicates that these two
13 samples should come from the same person but we cannot exclude the
14 possibility, et cetera, et cetera. Is that -- do you have the same
15 explanation for that particular case as you did for the one just now?
16 A. A very similar explanation. BA29 and BA37, as you've rightly
17 pointed out, have, yes, been identified by DNA that as being from the same
18 individual. And then that individual has been identified as being two
19 things: As being, one, the biological daughter of Vesel Shaban Berisha;
20 and two, also the biological daughter of Sofia Berisha, which is the point
21 you skipped, her identification. It was the point in between.
22 So we have the two heads of the family, or the people at the head
23 of this family free, Vesel and Sofia, both being identified as being the
24 biological parents of Dasurije Kuci; and then from that identification,
25 Fatmire, their daughter, has been identified as the biological daughter of
1 both those persons.
2 Q. All right. On page 2, on the second page here, at the top and at
3 the bottom, you have two points in which it says that it is excluded that
4 there is any connection between the individuals listed here. So what is
5 claimed in this analysis? How many individuals do you actually have?
6 Where is the link found, with how many of them?
7 A. You may need to re-ask that question. I'm not very clear what
8 you're after.
9 Q. Where was the definite link established? On page 9, at the top of
10 the page, we don't have any numbers we just have squares indicating the
11 individual paragraphs, so on page 9, at the top, it says: "It is, however,
12 excluded that the person from whom this sample stems," and then at the
13 bottom it says, "it excludes this individual," et cetera.
14 So where was the link found? With how many individuals on the
15 basis of the analysis conducted? Where did you find positive links, with
16 how many?
17 A. I'm not exactly seeing what you're referring to, but in answer to
18 your question, as a result of DNA comparisons conducted by the Madrid
19 institute in Spain, in total to date, 11 persons have been identified by
20 DNA comparison as 11 persons who are believed to have been victims of the
21 Suva Reka cafe incident in March 1999. Eleven persons have been
22 identified that their remains have been located at the Batajnica 1
23 exhumation site.
24 Q. Now, tell me this in view of the fact that you're a policeman
25 yourself: Without a doubt, these people were dead, and without a doubt
1 several of them were identified. Now, does this in any way -- can this
2 any way be used as evidence to answer the question as to who killed them,
3 under which circumstances, when, what the motives were, et cetera, et
5 JUDGE MAY: Mr. Milosevic, we're now going back to the old point,
6 and there's no need for the witness to answer that. The answer is
8 You've now had an hour and ten minutes cross-examining this
9 witness, which is more than enough, much more than the time which really
10 should have been spent. You can ask one more question of him.
11 MR. MILOSEVIC: [Interpretation]
12 Q. Mr. Zdrilic, you are well acquainted with the localities in which
13 the Serbs were killed, massacred, burnt, and so on. Your institution,
14 your service, your profession or whatever, or your colleagues, did they
15 conduct an investigation and identification in the same way you did with
16 these 11 individuals in the cases where the victims of the crimes were
17 without a doubt Serbs?
18 A. Most certainly, Mr. Milosevic. Conducting the investigation as
19 part of the OTP, certainly our goal was to investigate incidents which
20 were bridges of humanitarian law whomever the victims were and whoever the
21 alleged perpetrators were. So without prejudice or favour is that we
22 worked in the area of, initially, in Albania, as we discussed, and then
23 within the area of Kosovo and anywhere else that our investigations led,
24 to gather evidence of -- of incidents, alleged incidents that occurred
25 within the region of Kosovo within the time frame we were looking.
1 Q. Yes. But what I'm asking you is this: Do you have a similar
2 report, along with all the DNA and all the rest of it, because I have in
3 mind over 1.500 Serbs who disappeared. Many of them are assumed to have
4 been killed, hidden somewhere, and so on. So do you have similar analyses
5 which would indicate investigations into the deaths of these Serbs who had
6 disappeared or ones that were casualties in any way and were dug up from
7 various locations throughout this campaign in Kosovo? Do you have similar
8 reports on that?
9 A. I personally don't but I am certainly aware that the OTP is
10 conducting investigations along the same lines that you're asking about,
11 and personally I know that I have gathered information which would be
12 relevant to such things. And if I'm called upon to testify about those
13 matters before this institution, then I will.
14 JUDGE MAY: Yes.
15 THE ACCUSED: [Interpretation] Mr. May, may we just clarify one
16 point? All right, I know you're not going to let me ask any more
17 questions although I do have another 30-odd questions here - I would have
18 - but that's not important. I'd just like to clear up one matter with
19 respect to all this mass of material that Mr. Ryneveld has supplied.
20 Now, I think that there was a question that somebody from a higher
21 level should be questioned here and examined with respect to all these
22 documents. Now, I'd like to make this more specific: If we're dealing
23 with letters, the letters of Louise Arbour, then there's no question of a
24 higher level of any kind, it is -- I would have to have Louise Arbour. If
25 we're talking about the Minister of Justice of Yugoslavia, then it is the
1 Minister of Justice himself, not anybody else. So these are questions --
2 these are all matters in which I can examine only the signatories of these
3 documents, and they're the ones I mentioned.
4 And another matter: You said that John Zdrilic, Mr. May, was the
5 only officer or employee of this so-called OTP, the Prosecution, whereas
6 many staff have testified here; Fred Abrahams, Mr. Baccard to name a few,
7 Paul [as interpreted] and so on, a series of others, all employees of the
9 JUDGE MAY: I'm going to interrupt you. It's true that these,
10 most of them, were former employees, it's right that one or two current
11 ones have, but it's quite appropriate that this witness could produce the
12 correspondence. As for the matter as to the appropriate witness who
13 should be produced for cross-examination, that is something which we will
15 Now, have the amicus any questions?
16 MR. WLADIMIROFF: No issues left, Your Honour.
17 JUDGE MAY: Mr. Ryneveld.
18 MR. RYNEVELD: Very briefly, Your Honours. Just a couple of
19 matters for clarification.
20 Re-examined by Mr. Ryneveld:
21 Q. During one of the questions in cross-examination, Mr. Zdrilic, you
22 were asked about the possibility of authorities perhaps fabricating
23 evidence. What -- and you responded you didn't know. What authorities
24 did you have in mind when the accused asked that question that prompted
25 your response?
1 A. The authorities clearly were referring to, being the exhumations
2 being conducted within Serbia, that the authorities would be the
3 authorities of Republic of Serbia and the Federal Republic of Yugoslavia.
4 Q. In that answer, did you include the authorities of the Office of
5 the Prosecutor?
6 A. Most certainly.
7 Q. Did your answer include the possibility that the Office of the
8 Prosecutor would be involved in fabrication of evidence?
9 A. My answer would certainly be that the Office of the Prosecutor was
10 not involved in the fabrication of any evidence, also in as far as that we
11 were not directly involved in the exhumation that was conducted.
12 Q. Another question, sir, about the possibility of these graves in
13 Batajnica -- or the bodies having been freshly moved there. Since the
14 12th of June, 1999, are you familiar with the presence of KFOR in Kosovo?
15 A. Yes, I am.
16 Q. And to your knowledge, would any exhumations or any transport of
17 bodies from Kosovo since the 12th of June, 1999, require permission from
18 an organisation such as KFOR who had jurisdiction over Kosovo?
19 A. Most certainly.
20 Q. They would require -- I'm sorry. Perhaps my question's not clear.
21 They would require the permission of KFOR?
22 A. That's right. Correct.
23 Q. And you -- the third thing: You mentioned that you are aware, on
24 the issue of the transport of the samples from Belgrade to Madrid, you
25 indicate that you know it was taken by someone. Was that Professor
2 A. To the best of my recollection, yes.
3 Q. And he is a professor from the Belgrade institute; is that
5 A. That's correct.
6 Q. And he transported -- to the best your knowledge, he transported
7 those samples to Spain?
8 A. He facilitated the handover of the samples from the Belgrade
9 institute to the Madrid institute.
10 MR. RYNEVELD: Finally, Your Honours, this is not so much
11 re-examination as it is to assist the Court. During the initial
12 cross-examination of this witness, suggestions were made about the OSCE
13 report, "Kosovo, As Seen As Told." I might refer Your Honours to page 340
14 of that report where it talks about security force operations on the 11th
15 of March in Jeskovo. And --
16 Q. Now, Investigator Zdrilic, when you took the statement from K41,
17 to your knowledge was he describing an incident in February of 1999
18 involving Jeskovo?
19 A. That's correct.
20 MR. RYNEVELD: Your Honours, you will note there on pages 340, if
21 I can draw your attention to it, there is a suggestion that there was an
22 operation on the 11th of March, 1999. So it appears to be either a
23 different time, or secondly, if it was the same time, the report indicates
24 that for the majority of the operations, OSCE/KVM patrols were denied
25 access to the area. They then talk about the report that the UCK had
12 Blank pages inserted to ensure pagination corresponds between the French and
13 English transcripts. Pages 9920 to 9926.
1 infiltrated into Jeskovo, a previously deserted village, about a week
2 earlier. Then skipping a paragraph which starts with the words: "On the
3 12th of March, OSCE/KVM teams were invited by the police to visit Jeskovo,
4 the village at the centre of the police operation on 11 March. The
5 verifiers saw the bodies of seven armed men in black UCK uniforms.
6 According to the police, all had been killed by small-arms fire during the
7 security force operation."
8 Then the next sentence is relevant as well. "The teams were not
9 able to conclude that the UCK members had died in the locations where they
10 lay," et cetera. So if Your Honours want to refer to that during the
11 course of your deliberations, page 340, I believe, is the relevant passage
12 that was in question during cross-examination.
13 JUDGE MAY: Yes. Thank you.
14 Mr. Zdrilic, thank you for giving your evidence. You are free to
16 THE WITNESS: Thank you, Your Honour.
17 [The witness withdrew]
18 JUDGE MAY: Mr. Nice, we will have to consider, as I say, who the
19 appropriate witness is to be tendered for the correspondence.
20 MR. NICE: If I can make one observation. The issue surely is
21 simply whether the letters were sent and received and whether the
22 statements were made. Although I've been following the cross-examination
23 only intermittently, I don't understand the accused's challenge that he
24 received the letters sent to him to challenge that they were sent to him.
25 So we're entirely at the Court's disposal.
1 JUDGE MAY: We think there should be a witness called. If I may
2 say, this is an example - and why I hesitated before I admitted the
3 evidence - of where opportunities are given for further cross-examination
4 and further taking up of court time on peripheral issues. Perhaps the
5 Prosecution could consider that, that if opportunities are given to the
6 accused to ask for cross-examination, he's likely to ask for it.
7 MR. NICE: Your Honour, yes. But so far as these particular
8 matters of historical -- of history and events, we do regard them as
9 significant. But the candidates for producing the documents other than
10 Mr. Zdrilic or another officer on the team, such as the case officer,
11 there's then his superior, the person at the level of commander as it was
12 then, I think, renamed now, or someone else within the Office of the
13 Prosecutor, the question remains what is the issue to which the witness is
14 going to go? It doesn't appear to be whether the letters were sent and
15 received. And the accused hasn't identified the issue.
16 JUDGE MAY: But it's again the difficulty of an accused in person
17 and how far he can be pressed on these matters and how far it's right that
18 he should be able to cross-examine. In any event, it can be the subject
19 of further consideration.
20 Perhaps you could tell us about the conduct of this part. Who is
21 it proposed to call next?
22 MR. NICE: Olivera Antonic-Simic, who, as I explained last week,
23 will be called shortly by me, and then it will be Mr. Coo.
24 JUDGE MAY: It is anticipated we are going to finish tomorrow or
25 not, given the time taken today?
1 MR. NICE: I would hope we can finish tomorrow, but there are a
2 number of administrative matters that I want to raise, and I hope that
3 they -- I don't think they'll take very long, but it's probably a good
4 idea that they're not squeezed into the last five minutes of court time as
5 sometimes happens. So I hope that the Court will at least allow us to go
6 into Wednesday, if it becomes necessary, although we'll do our best --
7 JUDGE MAY: The Court seems to be cut off for no apparent reason.
8 Leave it now, but in future, let's not cut off public debate.
9 MR. NICE: So there are a number of things that I just want to
10 tidy up. I also want to start the process of setting sail for the next
11 part of the trial and letting you know how I see that.
12 JUDGE MAY: So it may well be that Wednesday is a more realistic
13 view of when we're going to finish.
14 MR. NICE: If we work on that basis, we won't feel under any
15 particular constraints, but I'm still hopeful that we'll actually finish
17 JUDGE MAY: In which case we will start the next part of the case
18 two weeks after we conclude, which is likely to be the Thursday, the date
19 of which eludes me at the moment.
20 MR. NICE: The 26th, I think.
21 JUDGE MAY: Very well. You were going to call the witness.
22 MR. NICE: Thank you. And this witness, like the associated
23 witness, is having facial distortion but nothing else, and that of course
24 is at the request of her employers rather than, I think, herself.
25 Your Honour, the problem that developed with the unfortunate
1 reference to without citation of the entry in As Seen As Told led me not
2 only to search to find the entry but to inquire whether we have an
3 electronic version that would be electronically searchable. Now, we've
4 got an electronic version. We're not yet sure to what degree it is
5 searchable, but if there is one that is searchable, I suspect that might
6 be rather helpful to the Chamber and we'll make it available.
7 JUDGE MAY: At least to one of our number.
8 MR. NICE: Your Honour, yes. And I'll try and do the same thing -
9 I'll get Ms. Graham to make a note to this effect - that Under Orders, I'm
10 pretty sure that Under Orders will be available to us electronically, and
11 if it is searchable, I think that will help a great deal.
12 This next witness, as I say, she's tendered, I'll just ask her a
13 half a dozen questions and that will be all.
14 The accused cross-examined the previous related witness about the
15 statement of this witness. The witness was aware of the nature of the
16 cross-examination, is concerned that a longer extract of the statement
17 should have been considered. I understand her concerns. It may be that
18 her statement should at some stage should be exhibited. In any event,
19 I'll show the longer passage on the overhead projector.
20 [The witness entered court]
21 JUDGE MAY: Yes. Let the witness take the declaration.
22 WITNESS: OLIVERA ANTONIC-SIMIC
23 [Witness answered through interpreter]
24 THE WITNESS: [Interpretation] I solemnly declare that I will speak
25 the truth, the whole truth, and nothing but the truth.
1 JUDGE MAY: If you would like to take a seat.
2 Examined by Mr. Nice:
3 Q. Is your name Olivera Antonic-Simic?
4 A. Yes.
5 Q. Apparently employed with the Security Information Agency, formerly
6 with the State Security Service, or RDB, having worked overall since 1996
7 for those organisations?
8 A. Yes.
9 Q. Did you work together with Mr. Stijovic, a previous witness in
10 this case, when he conducted some interviews of the man Rade Markovic?
11 A. Yes.
12 Q. On those occasions, were you involved at all in the content of the
13 interviews or were you simply involved in their recording, their being
14 typed and printed and so on?
15 A. I was only involved in the typing and printing of the statement.
16 Q. Amongst those interviews, was there one dealing with the
17 refrigerator truck?
18 A. Yes.
19 Q. As to the content of that interview or any of the interviews, what
20 do you say to the suggestion, if it's going to be suggested, that Mr.
21 Markovic was in any way tricked into signing statements or that statements
22 were presented to him in a completed form for signature? What do you say
23 to those suggestions?
24 A. I did not attend that, no.
25 Q. It reads, "I did not attend that." The question was: What do you
1 say to the suggestion that there was any tricking of him or getting him to
2 sign statements that were not his own? Any truth in those statements?
3 A. That's precisely what I want to say, that this was not done in my
5 Q. Thank you. I think you saw on television or some other way the
6 evidence of Mr. Stijovic; is that correct?
7 A. Yes.
8 Q. Did you disagree with any part of it that he gave?
9 A. No.
10 MR. NICE: There's concern that one passage of your statement
11 which was referred to was incomplete. May the witness have a copy of her
12 statement in her own language and may the usher place the statement
13 concerned on the overhead projector, the bottom part of the front page.
14 JUDGE MAY: It might be helpful if we had copies now. I know we
15 have in the past. If they're available.
16 MR. NICE: Certainly. I think -- I hope they're available. Can
17 we have the original, and if we can place the bottom part of the statement
18 on the overhead projector.
19 There is a picture coming up on the video evidence button that
20 normally records what's on the overhead projector. It doesn't seem to be
22 Very well. On the other channel, on the video channel.
23 Q. Does the third from last paragraph of your statement,
24 Ms. Antonic-Simic, read as follows, and I'll read it simply in full
25 because you're concerned about the way it was dealt with on the previous
2 "Today, Tuesday, 3rd of September, 2002, Investigator Fulton of
3 the Office of the Prosecutor at the Criminal Tribunal for the former
4 Yugoslavia showed me a photocopy of a statement. I have examined the
5 statement and can confirm that the copy statement appears to bear my
6 signature. I cannot be more specific because this is not an original
7 document. It also appears to bear the signatures of Mr. Markovic and
8 Zoran Stijovic. The content of the statement is familiar to me, however,
9 I am really not in a position to confirm that the contents of the
10 statement that has been shown to me are what I typed on that particular
11 day. I would have typed this statement over a year ago, so I really
12 cannot recall the exact contents, however, the statement does refer to the
13 matters that were the subject of one particular interview."
14 And did you then go on to say how the interviews were conducted in
15 a professional way? And is what you said in your statement true?
16 A. Yes.
17 Q. Yes. Thank you very much. You may be asked some further
19 JUDGE MAY: Mr. Milosevic, the witness has given evidence about a
20 very limited matter, and I would have thought you would be able to deal
21 with it briefly in cross-examination, certainly by the next adjournment,
22 which is at a quarter past twelve. Yes.
23 THE ACCUSED: [Interpretation] All right, Mr. May. I hope I will
24 be able to do so. However, beforehand, I wish to make an observation.
25 This is probably a very rare occasion in the practice of regular courts
1 that the Prosecution brings witnesses to challenge the statement made by
2 their own witness, because namely, General Radomir Markovic was a
3 Prosecution witness. So then they didn't like his testimony and now
4 they're bringing in other witnesses to refute what he said.
5 JUDGE MAY: You can say what you like at the right time. This
6 isn't the right time. This witness has come to give evidence on a very
7 narrow issue, and you should get on with questioning, such questions as
8 you have.
9 THE ACCUSED: [Interpretation] All right. Very narrow.
10 Cross-examined by Mr. Milosevic:
11 Q. [Interpretation] Mrs. Antonic-Simic, you watched Stijovic's
12 testimony. You confirmed that a minute ago. He explained that you were
13 actually not a typist.
14 A. I'm not.
15 Q. I asked him something about that. You watched that, so I don't
16 want to waste any time by repeating it. But then he said that, "In that
17 particular case, her job was to be a typist, but she is not a typist."
18 What are you actually? What were you then?
19 A. An analyst.
20 Q. An analyst? Did you work in the department of Mr. Stijovic?
21 A. Yes. I worked in the organisation unit in which he was one of the
23 Q. Is it customary when such interviews are conducted that there is
24 not a typist present, a mere technical person? Is it customary to take
25 somebody from a higher level? Because you're not a typist, you're a
1 professional analyst, to the best of my understanding on the basis of what
2 you said.
3 A. Yes, that does happen sometimes.
4 Q. When does that happen? In what cases?
5 A. I am not the person who can answer that question. Simply in that
6 specific case, I got instructions and I carried out the instructions given
7 to me by my superior.
8 Q. So you typed only what Mr. Stijovic dictated; is that right?
9 A. I typed what Mr. Stijovic and Mr. Radomir Markovic dictated.
10 Q. All right. Tell me, how many times were you present during the
11 talks with Markovic or, rather, when Stijovic came to see Markovic?
12 A. I cannot remember the exact number, but it was several times.
13 This went on, I think, for about two months.
14 Q. Two months?
15 A. Several times.
16 Q. And during those two months, how often did you go; every day,
17 every other day, once in every five days? Approximately.
18 A. Well, it was almost every day, almost every day.
19 Q. So you were present at least 50 times during the interviews that
20 Stijovic had with Radomir Markovic; is that right?
21 A. I really don't know the number. I really don't know the number.
22 Q. All right. But if you say two months, almost every day --
23 A. Possibly.
24 Q. Possibly it was that often. And how long did these interviews
25 usually last, the interviews that you had with General Markovic, that you
1 and Stijovic had with him?
2 A. Several hours.
3 Q. What was the minimum, what was the maximum length of time?
4 A. I really cannot say. I do not remember. A few hours
5 approximately. That's the most precise answer I can give now.
6 Q. All right. Tell me, what were these interviews conducted? What
7 time of the day most often?
8 A. Sometimes in the morning, sometimes in the afternoon, depending on
9 the possibilities involved, the possibility to enter the premises, that is
10 to say, depending on the other commitments that Mr. Markovic had.
11 Q. All right. Tell me, since there were tens of interviews that
12 lasted several hours respectively, what were all the subjects of these
14 A. I really cannot remember all of that. There were different
16 Q. All right. Well, then, mention a few topics, for instance.
17 A. I don't know whether I'm now in a position to speak about
18 different subjects except for this one in view of the confidentiality of
19 the information concerned.
20 JUDGE MAY: There's no need to answer if you feel you're bound by
21 confidentiality. It's of doubtful relevant anyway. There were other
22 topics other than this one; is that right?
23 THE WITNESS: [Interpretation] I think so.
24 MR. MILOSEVIC: [Interpretation]
25 Q. All right. Tell me now, most of the interviews that you
1 conducted, these tens of interviews that you conducted, did they mostly
2 pertain to the things that Mr. Markovic was accused of or did they pertain
3 to some other activities of the State Security Service; the work,
4 organisation methods, anything else?
5 JUDGE MAY: I've said that the witness needn't answer that.
6 THE ACCUSED: [Interpretation] I don't understand, Mr. May. If I'm
7 not asking you -- if I'm not asking her to disclose state secrets here and
8 to answer concrete questions, if I'm just asking her about areas, I don't
9 see that that is a secret that she cannot speak about.
10 JUDGE MAY: What is the relevance of this to her evidence?
11 THE ACCUSED: [Interpretation] First of all, I would like to hear
12 the answer and then I'm going to tell you why I think it's relevant.
13 JUDGE MAY: No. If you want to ask the question, you can tell us
14 why it's relevant first.
15 THE ACCUSED: [Interpretation] Well, it is relevant, Mr. May,
16 because the witness is giving evidence. So it is relevant what she talked
17 about, because she is testifying about what General Markovic spoke about,
18 and I am asking her what did they speak about.
19 JUDGE MAY: We're dealing with one particular issue as to whether
20 he was pressured in any way into making a statement, the statement which
21 has been exhibited. That is the only issue which she's giving evidence
23 THE ACCUSED: [Interpretation] Mr. May, is that the only issue or
24 not is a very relative thing, because the question raised here is whether
25 Mr. Markovic's treatment at all was lawful and whether the unlawful
1 treatment of a person in detention can be considered to be pressure
2 exerted upon such a person. Here you have a statement that a police
3 officer brought in and that could not have been the result of tens of
4 interviews that took place over a period of two months. It could have
5 been the result only of one interview.
6 JUDGE MAY: That was your interpolation, and no doubt it can be
7 clarified with the witness as to how many interviews there were. If you
8 want to put that the statement was the result of a great many interviews,
9 you can put that, but what else the discussions were about does not appear
10 at the moment, to me, to be in any way relevant, particularly if there are
11 problems of confidentiality.
12 MR. MILOSEVIC: [Interpretation]
13 Q. All right, Mrs. Antonic-Simic. Most of these interviews, weren't
14 they devoted to the questions related to what Mr. Markovic was accused of?
15 A. No.
16 Q. To what extent were these interviews devoted to that? Up to what
18 A. As far as I can remember, there was no discussion of the matters
19 that Mr. Markovic was accused of.
20 Q. Very well. Tell me, do you remember whether Mr. Stijovic warned
21 General Markovic that he had the right to have an attorney present?
22 A. I cannot remember whether he did or not.
23 JUDGE MAY: I thought the evidence was, from Mr. Stijovic, that
24 these were interviews under a provision in the criminal procedure which
25 did not require an advocate to be present. That's my recollection. I
1 could be wrong.
2 THE ACCUSED: [Interpretation] Well, if you recollect it, Mr. May,
3 then you will also recollect that such statements cannot be used in court
4 proceedings then, if you wish to quote Stijovic now and that particular
5 provision of the law.
6 MR. MILOSEVIC: [Interpretation]
7 Q. So, no. Tell me, please, with regard to what it says here,
8 whether, for example, this question about which the statement was given,
9 was it the subject of the interview that took place during the course of
10 one day or two days or several days?
11 A. As far as I can remember, only one day.
12 Q. So only one day. Out of several hours of interviews during two
13 months, this took place only in one day.
14 THE ACCUSED: [Interpretation] Mr. May, yesterday Mr. Nice gave us,
15 as he said, the official translation of the statement of Mr. Markovic.
16 Did I understand this correctly?
17 JUDGE MAY: Yes, as I understand it.
18 THE ACCUSED: [Interpretation] All right. Would you please be so
19 kind as to give me a photocopy of the statement of Mr. Markovic in
20 Serbian, because I haven't got one at the moment.
21 JUDGE MAY: Have the Prosecution got a copy? No doubt the witness
22 has been -- I mean, the accused has been supplied with this before.
23 MR. NICE: Yes, I have here a bundle of them coming your way.
24 JUDGE MAY: We've got one.
25 THE ACCUSED: [Interpretation] I'm not challenging the fact that it
1 was given to me beforehand, but I haven't got a copy here right now.
2 JUDGE MAY: And the witness should have a copy.
3 THE ACCUSED: [Interpretation] Let me just remind you, gentlemen,
4 I put a question to Mr. Stijovic when I quoted part of this statement of
5 his, whether it is possible that General Markovic, a man who spent his
6 entire career in the police, could say a sentence like this, which reads
7 as follows: "This was a meeting that was most probably dedicated to the
8 problem of Kosovo and most probably, in addition to the persons mentioned,
9 it was attended by representatives of the army of Yugoslavia, although I
10 cannot claim that with absolute certainty." So "most probably it was
11 dedicated to the problem of Kosovo and most probably it was attended by
12 the representatives of the army of Yugoslavia." I asked him how it was
13 possible if the meeting was in -- in the library, it was not a big rally
14 in a big field so you cannot know what was present -- actually, I'm
15 speaking about this because the translation reads [In English]: "most
16 likely devoted ..." "Most likely." [Interpretation] "Most likely" means
17 most likely. And then, in order not to have such an imbecilic sentence,
18 in the translation, it says [In English]: "Those listed was probably also
19 attended by representative of VJ although I cannot say that for certain."
20 [Interpretation] So two different explanations are used here.
21 From the point of view of language, it is all right, but from the point of
22 view of the authenticity of the text, it's not, because this sentence is
23 unbelievably stupid. That's the way I should put it. Because if anybody,
24 especially with that kind of maturity --
25 JUDGE MAY: Mr. Milosevic, you've been through it before. You've
1 made your point. That will be a matter for us, whether it's stupid or not
2 or whether it just reads like any ordinary sentence. We'll have to
3 consider that. But as far as the witness is concerned, you've been
4 speaking for two or three minutes without a question. What is the
5 question for the witness?
6 THE ACCUSED: [Interpretation] All right. All right.
7 MR. MILOSEVIC: [Interpretation]
8 Q. Mrs. Olivera Antonic-Simic, please, in your written statement, you
9 say quite precisely - I only have it in English, I'm going to read it to
10 you in English so that I would not misinterpret it, and I don't want this
11 to be abused: [In English] "The content of the statement is familiar to
12 me --"
13 [Interpretation] I'm not getting an interpretation here, so I
14 don't know --
15 JUDGE MAY: Try again.
16 MR. MILOSEVIC: [Interpretation]
17 Q. [In English] "The content of the statement is familiar to me,
18 however, I am really not in a position to confirm that the contents of the
19 statement that has been shown to me are what I typed on that particular
21 [Interpretation] So that's what you said, that you cannot confirm
22 that that is exactly what you typed on that day. And a few minutes ago,
23 you said that that was the subject of your interview only during one day;
24 is that right?
25 A. Yes.
1 Q. And the third thing you said in response to Mr. Nice's question a
2 short while ago when he asked you what your reaction would be if somebody
3 were to say that -- well, let me not quote Mr. Nice now, I'm paraphrasing
4 -- that this statement was given to him for signature. You answered that
5 you were not present then.
6 Then, thank you, I have no further questions.
7 JUDGE MAY: I'm sorry, I want that final point clarified.
8 What I thought you said, Mrs. Antonic-Simic, was that while you
9 were present, there was no tricking of Mr. Markovic or getting him to sign
10 statements which were not his. What the accused has put is that you were
11 not present when Mr. Markovic signed, which, as you'll appreciate, are two
12 different things.
13 If we look at the original version of the statement,
14 Mr. Markovic's signature appears on a number of places, and your own
15 signature appears. Were you present when Mr. Markovic signed the
16 statement on each page and at the bottom, next to your signature?
17 THE WITNESS: [Interpretation] Yes, I was present. What perhaps
18 created confusion is -- or actually, what I have to state is that I was
19 present and I signed every statement that was authentically taken. That
20 is to say, every statement was taken, typed, printed out, and signed in
21 the premises of the district prison in Belgrade.
22 As for the possibility that was mentioned here, that is, tricking
23 or, rather, planting some other statement instead, that is something that
24 I cannot testify about because I was not present during any such thing.
25 So I was present when the statement was taken if this signature is on the
1 authentic original version of the statement. Then this signature confirms
2 its authenticity.
3 My reservation in my statement given to the investigators
4 pertained to the fact that a photocopy of the document was shown to me.
5 And from the point of view of substance, the fact is that I took -- or,
6 rather, typed that statement more than a year ago, as I said in my
7 statement. Even then, I did not make an effort to remember it. So even
8 now - that's what I said here - I cannot say with certainty that that is
9 the text that I typed. That is because time went by and the fact that I
10 do not recall the substance, the content of the statement.
11 JUDGE MAY: Does anybody else want to ask any questions?
12 Yes, Mr. Tapuskovic.
13 Questioned by Mr. Tapuskovic:
14 Q. [Interpretation] Ms. Simic, just two explanations. In all these
15 talks, conversations that you had, every time, was -- were the minutes
16 recorded every time or did Mr. Stijovic make notes of his own first and
17 then take them in to the office and then worked with them further?
18 A. Mr. Stijovic and Mr. Markovic had talks, and during those talks,
19 Mr. Stijovic would make notes. What he did with those notes I really
20 can't say. I don't know. But when Mr. Markovic agreed to give a
21 statement on a particular topic, that statement in that particular room in
22 those premises, it was compiled, dictated, typed, and printed, and signed.
23 Q. During those long conversations, in view of the fact that
24 Mr. Markovic did not have any professional guidance or assistance, did he,
25 in any of those talks, ask to have a break? Was he tired? Did he want to
1 rest for -- and have a pause?
2 A. No. The premises are such, the ambiance is such that nobody can
3 be in a particularly good mood.
4 Q. No. I wanted to know whether he had any legal assistance and did
5 he show any reservations in that regard?
6 A. No.
7 Q. And can you explain in any way or not explain -- do you know what
8 date was placed on the document underneath his signature?
9 A. Yes. I think that it is a question of handwriting, because I can
10 see that the figure, the digit, which has been mentioned as being in
11 dispute, that it is a 1 that looks like a 2, but I think that is a matter
12 of handwriting.
13 Q. And one more point: You listened to Mr. Markovic's statement on
15 A. Only partially, yes. Not in full, but partially.
16 Q. Thank you, Mrs. Simic.
17 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honours.
18 MR. NICE: Just one thing, please, Your Honours, arising.
19 Re-examined by Mr. Nice:
20 Q. In the preparation of these statements generally, were drafts
21 prepared that were reviewed by Mr. Markovic before the final version was
22 printed and signed?
23 A. Yes. Every statement was in fact dictated out loud. I typed them
24 out. When this was completed, I would print out the statement and hand it
25 over to Mr. Markovic for him to read and sign. If he were to have any
1 comments or corrections to make, we would introduce those, we would make
2 those, and then we would present a final version, print that out in a
3 certain number of copies, and that would be signed. Once again, it would
4 be read through again and signed.
5 Q. Just dealing with His Honour's point, the copy of the Markovic
6 statement that we have bears a signature under the name "Olivera
7 Antonic-Simic." Of course it's only a photocopy, but is that your
9 A. Yes. That looks in all aspects like my signature.
10 Q. Thank you very much.
11 MR. NICE: Nothing else of the witness save for considering
12 whether the -- her own statement should now be exhibited in light of the
14 JUDGE MAY: Yes. Reference has been made to it. It should be
16 THE REGISTRAR: Your Honours, the statement will be marked
17 Prosecutor's Exhibit 316.
18 MR. NICE: Your Honour, just before you adjourn, first of all, the
19 witness, may she be released? An then I've just got one thing to help you
21 JUDGE MAY: Yes. Mrs. Antonic-Simic, thank you for coming to give
22 evidence. You will be released. If you wouldn't mind hanging on a
23 minute. There may be one or two other matters which we have to deal with
24 before we go.
25 MR. NICE: It may be a bit Luddite of me, but the hand-operated
1 system was actually quieter. But I'd better not be heard saying that.
2 JUDGE MAY: Yes.
3 MR. NICE: Your Honour, I know that at the beginning of Mr. Coo's
4 evidence -- wait a minute. Has Your Honour finished with the witness and
5 said the usual words?
6 JUDGE MAY: I think so. Thank you for coming. You're free to go.
7 [The witness withdrew]
8 MR. NICE: I know at the beginning of Mr. Coo's evidence, there
9 are arguments of the amici on matters of law or fact that may need to be
10 considered. Two points arise: One, on one of the issues that's been
11 raised, I discovered there's a recent authority that adds to the
12 authorities we had before. It's on the question of the position of -- as
13 expert of somebody who has an interest in the outcome of the proceedings.
14 It's part of a very long judgement, so I've got three of the judgements in
15 full; one for Court in case they want it, one for the amici in case they
16 want it, and one for the accused in case he wants it. I've then got
17 extracts of the three pages that are relevant. In fact, only a couple of
18 paragraphs are relevant, and I hope they're properly in context.
19 JUDGE MAY: Perhaps you could hand them in, please.
20 MR. NICE: Yes. The case is part of the Factortame litigation.
21 It's in the English Court of Appeal, and as the extracts show, it's only
22 pages 19 to 21 that are material. In reality, it's --
23 JUDGE MAY: No, don't put that machine on yet. Yes.
24 MR. NICE: It's the second page, page 20, just the first couple of
25 paragraphs that help you, but you've obviously got to have it in context.
1 Sorry, I can give more versions of that for the Judges.
2 JUDGE MAY: Thank you.
3 MR. NICE: Two more extracts for the Judges if you wouldn't mind.
4 This will be to the Bench. Thank you.
5 And the second point about the objections, I ventilated with you
6 yesterday how the procedure might be. I observed that the amici didn't
7 object to my proposal but the Court had its own view. However it's dealt
8 with, it might be helpful, if not otherwise objectionable, for me to have
9 Mr. Coo in court because insofar as I will be summarising to you, if we
10 deal with it in advance, his position in relation to a number of passages,
11 I would rather he was here to make sure I get it right.
12 JUDGE MAY: Yes. Well, we will hear the argument first. It's
13 prepared in that way, and it would be simpler. And we've got the written
14 representation, so any oral representations could be short. It would be
15 convenient to deal with them all together. At the same time, we will
16 allow Mr. Coo to be in the court during the argument.
17 MR. NICE: Thank you very much.
18 JUDGE MAY: We'll sit again in 20 minutes.
19 --- Recess taken at 12.15 p.m.
20 --- On resuming at 12.39 p.m.
21 MR. NICE: I don't know if the Chamber wants Mr. Coo to take the
22 solemn declaration ahead of the argument.
23 JUDGE MAY: No. We'll deal with the arguments first and the
24 solemn declaration later.
25 MR. NICE: Thank you.
1 JUDGE MAY: Yes.
2 MR. NICE: We will deal with the issue of materials first of all.
3 There have been two reports filed, and I think in each case the actual
4 report has been supplemented by a report which has been slightly expanded
5 by cross referring footnotes to tab references. I'm actually working from
6 the versions that don't have the tab references and haven't converted all
7 my marks to the other ones, but we will do whatever is convenient for the
9 As to the second of the two reports, there was first a draft and
10 then a final version. I am, of course, working from the final version.
11 JUDGE MAY: Yes.
12 MR. NICE: I don't know whether the Chamber, as it were, has
13 focused on the narrow issue or whether it's using the first version of the
14 reports or the versions that have cross-references which slightly threw
15 the page numbering out. We will find out as we go along.
16 JUDGE MAY: Yes. Well, the answer is that I've got the latest
17 version of the final report.
18 MR. NICE: Thank you. Your Honour, I don't know how you'd like me
19 to deal with the objections made. The --
20 JUDGE MAY: Can I say briefly we have had the chance of reading
21 full argument, and therefore, we do not want to hear that rehearsed. Any
22 new argument, of course, we'll listen to.
23 MR. NICE: Well, then, Your Honour, I've added the latest
24 authority, the --
25 JUDGE MAY: Perhaps you could just take us to that, briefly.
1 MR. NICE: Yes, certainly. It's in the -- it's a decision of the
2 English Court of Appeal, given on the 3rd of July in the case of The Queen
3 on the application of Factortame against the Secretary of State for
4 Transport. It's quite unnecessary to set out the facts of the case, which
5 are fairly complicated. It concerns Spanish fishermen and their rights in
7 But at page 19 and 20, the position of the expert witness is
8 covered. On page 19, which is the first of the short extract I've
9 provided as well as providing the full report, the overriding duties of
10 the expert are set out. I needn't take you to those.
11 On page 20 at the top of the page, picking up a quotation from
12 Lord Justice May in Field v. The Leeds City Council, we read as follows,
13 and then it's this part of the paragraph, paragraph 69 and 70 which seem
14 to be relevant to me: "As to questions of opinion and generally," said
15 Lord Justice May, "I entirely agree with the Master of the Rolls, that
16 there is no overriding objection to a properly qualified person giving
17 opinion evidence because he is employed by one of the parties. The fact
18 of his employment may affect its weight but that is another matter." The
19 judgement goes on to say that: "This is a decision to be contrasted with
20 observations made by Mr. Justice Evans-Lombe in Liverpool Roman Catholic
21 Archdiocesan Trustees v. Goldberg," cited --
22 THE INTERPRETER: Would you mind slowing down, please. Thank you.
23 MR. NICE: "That involved a claim for professional negligence in
24 relation to advice given by a Queen's Counsel --" I'm going too fast.
25 I'll slow down. Very sorry. "-- specialising in tax law to the
1 plaintiff about its tax affairs. The defendant called to give expert
2 evidence the Queen's Counsel who shared his chambers and was a personal
3 friend of long standing. The question of whether, in these circumstances,
4 the expert's evidence was admissible was raised at an early stage of the
5 trial. The judge decided not to deal with admissibility at that stage,
6 but to deal with that question in the course of his judgement. The action
7 then settled, but the judge felt it appropriate to deal with the
8 admissibility of the expert's evidence. He held that the evidence was
9 inadmissible on the grounds of the public policy that justice should not
10 only be done but should be seen to be done. He put the matter in this
12 "I accept that neither section 3 of the 1972 Act nor the
13 authorities under it expressly exclude the expert evidence of a friend of
14 one of the parties. However, in my judgement, where it is demonstrated
15 that there exists a relationship between the proposed expert and the party
16 calling him which a reasonable observer might think was capable of
17 affecting the views of the --"
18 THE INTERPRETER: Could you please slow down.
19 MR. NICE: "... which a reasonable observer might think was
20 capable of affecting the views of the expert so as to make them unduly
21 favourable to that party, his evidence should not be admitted however
22 unbiased the conclusions of the expert might probably be. The question is
23 one of fact, namely, the extent and nature of the relationship between the
24 proposed witness and the party."
25 The Court of Appeal differed from that view, as we see from
1 paragraph 70, in holding that: "This passage seems to us to be applying
2 to an expert witness the same test of apparent bias that would be
3 applicable to the tribunal." From that, I take it to mean the composition
4 of the tribunal, I interject.
5 The judgement goes on: "We do not believe that this approach is
6 correct. It would inevitably exclude an employee from giving expert
7 evidence on behalf of an employer. Expert evidence comes in many forms
8 and in relation to many different types of issue. It is always desirable
9 that an expert should have no actual or apparent interest in the outcome
10 of the proceedings in which he gives evidence, but such disinterest is not
11 automatically a precondition to the admissibility of his evidence. Where
12 an expert has an interest of one kind or another in the outcome of the
13 case, this fact should be made known to the Court as soon as possible.
14 The question of whether the proposed expert should be permitted to give
15 evidence should then be determined in the course of case management. In
16 considering that question, the judge will have to weigh the alternative
17 choices open if the expert's evidence is excluded..."
18 And then it focuses on the overriding objective of the English
19 Civil Procedure Rules.
20 My further apologies to the interpreters for forgetting myself.
21 Your Honour, that judgement fits entirely with the arguments. And
22 I would have argued and do argue, with common sense and all our
23 experience, witnesses, in criminal trials in particular, typically and
24 very often are in one sense a part of the prosecution, to use, as it were,
25 the most pejorative term by which police officers, forensic scientists,
1 pathologists in such cases can be described, because they're engaged and
2 employed by the very same service. And we've seen in this case and in all
3 the cases here, on an entirely regular basis, members of the OTP, as it
4 were, or people engaged and contracted to the OTP, giving evidence.
5 So I know Your Honour doesn't want me to go over the ground that's
6 already set out in the written argument, but this recent judgement which
7 it seemed appropriate to draw to your attention as it turned on or touched
8 on one of the issues raised by the amici simply confirms that position.
9 Of course, in this case, the amici do not suggest that Mr. Coo is
10 other than an expert and only invite your consideration of this as an
12 The other issue --
13 JUDGE ROBINSON: Mr. Nice, is there a distinction between a person
14 who is in the permanent employ of a party and gives evidence as an expert
15 for that person, on the one hand, and a person who is employed on an ad
16 hoc basis as an expert?
17 MR. NICE: There is the factual difference. There is no
18 difference of principle.
19 JUDGE ROBINSON: Both would be -- the evidence of both would be --
20 would be admissible.
21 MR. NICE: Certainly, yes. There's no difference of principle at
22 all. I suppose probably in the United States -- but I must ask probably
23 Mr. Shin for guidance on this; in the United States, it's probably the
24 latter type of witness who is more attacked and savaged in
25 cross-examination because he's contracted on an ad hoc basis and, I
1 believe, typically subject to deep inquisition over the fees he's received
2 and matters of that sort, things that don't happen, for example, very much
3 if at all in England. So probably in some jurisdictions the independent
4 expert is regarded as more suspect than the in-house expert. But so far
5 as the legal position is concerned, there is no difference in principle
6 and none of any significance in this case where we have, of course, had
7 already ad hoc experts, we've had a case officer or so giving evidence,
8 bringing, if not expertise, matters closely analogous to expertise and so
9 on. We also set out in the paper the many other examples in this Tribunal
10 of exactly this type of evidence being given.
11 As to the other headings and then the detailed points, I don't
12 know if the Chamber wants me to go through the detailed points. I've
13 flagged them all.
14 It seems to me there are just two other points I'd like to
15 emphasise at the moment. One, the objection issue raised about an expert
16 giving evidence on -- or giving opinion about evidence that's already been
18 First of all, this expert and any other would always acknowledge
19 that questions of fact are entirely a matter for the Chamber. So his
20 expert opinion is entirely contingent on what -- whether the evidence
21 given is ultimately accepted. Having made that obvious point, it's also
22 worth bearing in mind that typically this is exactly what experts do. If
23 you take the perhaps most famous of the traditional experts, the
24 pathologist in a murder trial, who will come at the end - again,
25 typically, not always, but typically at the end - of a prosecution's case
1 or towards the end of it. He gives a great deal of evidence based upon
2 various different factual hypotheses built on the evidence.
3 JUDGE MAY: But the objection here is that much of what this
4 witness is saying is pure comment and nothing more.
5 MR. NICE: Well, Your Honour, I don't read the criticisms as being
6 to that effect. I think I read them more, I must say, as being criticisms
7 of dealing with ultimate issue, which is the other point I wanted to come
8 to. They're certainly not comments.
9 I think one will find, looking through the particular matters that
10 are objected to, that they were either quite narrowly summaries of -- or
11 not summaries, replication of what actual documents say, sometimes they
12 are the result of analysis by Mr. Coo under the skills that he has and
13 that are particular to him as an expert, and sometimes they are comments,
14 particularly, for example, in Part II, I think, on such matters, the Part
15 II, section E, for example, where he's dealing with crime site linkage.
16 There he is dealing with evidence that has been given and drawing threads
17 together in relation to that. But, of course, everything that he says is
18 recognised by him and by us as being entirely dependent, where it is
19 evidence based, on the findings that the Chamber makes. But what he is
20 doing is exactly the same as experts do.
21 If you take the other most standard expert in ordinary domestic
22 litigation, the forensic medical expert dealing with a personal injury
23 claim, the alleged malingering plaintiff or claimant, as they would now be
24 called, the evidence as to the physical symptoms and signs of the claimant
25 are given, probably challenged, and ultimately the Court has to assess
1 where the truth of that part of the evidence lies. The experts then enter
2 the witness box and say, "Well, on the basis that the symptoms are
3 genuinely described, this is the ideology. If I'm wrong -- if their
4 symptoms are misdescribed, then my opinion is of less or no value," and
5 it's an entirely standard exercise that courts deal with.
6 And as I've revealed by my two very simple examples, they are
7 dealt with both before juries and, of course, before judges, because even
8 before juries, judges are well able to so direct the jury as to allocate
9 expert evidence to the -- to its proper scope depending on their factual
11 JUDGE ROBINSON: I think on some occasions the objection is that
12 the matters on which opinion is given are not matters that require
14 MR. NICE: Yes. There are some of those towards the end, I think.
15 There are so many that I haven't scheduled them in particular. Shall we
16 look at those? I think they come -- just find them -- in the second
17 report, if my recollection is correct, towards the end.
18 Yes. It's -- in the formulation I have of the report, it's on the
19 second report, and it's Registry page number 13837, but it's probably
20 better if I give a different reference. It's the second report, Part II
21 C, page 13. And it's paragraph 18 is one of the examples that Your Honour
22 had in mind, I think. And the paragraph --
23 JUDGE MAY: Sorry to interrupt you, but a better example might be
24 five pages further on at page 18, paragraphs 25 and 26, when all the
25 witness is doing is commenting on the evidence. General Drewienkiewicz,
1 for instance, was offering his professional military opinion, he says,
2 about one --
3 JUDGE KWON: That's Part II B.
4 MR. NICE: Yes, I'm sorry, it's a question of page numbers. The
5 page numbering further on is earlier. Yes. Thank you very much. 25, I
6 have that. No, I don't. Part II B, paragraph --
7 JUDGE KWON: 26.
8 MR. NICE: 26. I'm sorry to have interrupted Your Honour. Your
9 Honour was --
10 JUDGE MAY: I was making a comment that here is a comment about a
11 witness. It's not expert opinion, it's merely a straightforward comment
12 on the witness which it is for us to determine.
13 MR. NICE: Your Honour, of course the assessment of the evidence
14 is for Your Honours to determine. That we accept. I've said that several
16 What the witness is identifying here is the symmetry between the
17 evidence on this occasion that's been given and the doctrine that he's
18 dealt with on a de jure basis, particularly in Part I of his report, going
19 to show that the two match. And on this sort of topic and on others, it
20 would be important for the Chamber to know - and these are occasionally
21 matters I would elicit from the witness in addition to what is already in
22 his report - that there is that evidence that he's seen contrary to the
23 drive of the doctrine of the VJ army in the particular area. So here is
24 the doctrine; as a matter of fact, here is some evidence from General
25 Drewienkiewicz that matches with it; no, I haven't found any evidence to
1 the contrary effect. And that's --
2 JUDGE MAY: The other problem is that this goes into matters which
3 you really should be arguing. It's for you at the end of the case to pull
4 those threads together and put the argument rather than for -- to do it
5 through a witness.
6 MR. NICE: We certainly will be doing that, but we respectfully
7 suggest that there's, first of all, nothing at all wrong with this being
8 in the report, and it's there to be considered if only for you to pass
9 over it and say, "We'll make our own mind up about that." But it's very
10 helpful to have evidence that, well, here's something that's been given in
11 evidence, and as a matter of fact, this fits with what I had, I think
12 you'll find in case, decided as a matter of expert opinion was the
13 doctrine of this army. These things match. And it's, in our submission,
14 better to have that from the expert than to have it just from me.
15 JUDGE ROBINSON: Mr. Nice, I agree with Judge May. That is a
16 matter that should be dealt with in closing argument by you. There is no
17 expertise that's required in saying that the one matches the other.
18 MR. NICE: Well --
19 JUDGE ROBINSON: That's legal argument.
20 MR. NICE: If at least two of you are of that opinion, there's
21 probably little point in my saying more. I'm not seeking to do a count,
22 but I'm simply going back to my example --
23 THE INTERPRETER: Microphone for Mr. Nice, please.
24 JUDGE KWON: That's three of us.
25 MR. NICE: Three of you. I won't rerun that. Take another
1 typical example. The most typical example, I suppose, almost, in a murder
2 case beyond the pathologist is the psychiatrist dealing with issues of
3 diminished responsibility. He will explain the test to the jury and will
4 indicate some of the things you might be looking for, and he will then
5 say, "Well, I understand evidence has been given, or I've been in court
6 and I've heard evidence given of this. If that's accepted, then that fits
7 with this theory." Everybody understands that, by making that particular
8 proposition, he's not interfering with anybody else's factual remit. And
9 indeed juries, of course, are carefully directed in such cases it's for
10 you to decide the facts and then to apply the legal test. But he says,
11 "Well, there's the test. If this behaviour is accepted as having
12 occurred, it fits with it."
13 So that what's happening here is entirely standard. And if I may
14 say so, the amici don't, in their paper, which, of course, is designed to
15 do that which the accused would not be able to do and no doubt has been as
16 thorough-going and comprehensive as it can be, given that they all feel
17 that they're not in a position to make choices and to abandon their weaker
18 arguments, they don't point to any prejudice at all, and there is none,
19 because as professional judges, all three of you, I remind myself, are
20 able to decide which parts you want to accept and which parts you don't
21 need to be troubled with. But the scope of the report is, in our
22 submission, entirely appropriate to the expertise of this witness and to
23 rules that apply.
24 And may I make one other point: A lot of objection is made as to
25 things being, it's said, "ultimate issue," and there are two responses to
1 that. The first is that, well, pretty well all jurisdictions now allow
2 experts to give ultimate issue evidence. We haven't cited any, I think,
3 that don't, because the old fiction that somehow the decision-maker had to
4 be protected from somebody else's opinion has gone, even for juries. So
5 to pick up again the diminished responsibility example, although the
6 fiction of drawing a line between ultimate issue from the mouth of the
7 expert and the decision of the jury's finally gone, it has actually been
8 effectively dead for decades and people have been giving ultimate issue
10 So point number one, ultimate issue is not in itself a ground for
11 objection in any event. Although the amici suggest several of these are
12 ultimate issues, they're not. Ultimate issue is guilt or innocence of the
13 particular offence charged, and you can always try and say that
14 something's an ultimate issue when it's a part of the overall evidential
15 material. And the various issues raised and dealt with by Mr. Coo aren't
16 ultimate issues. The ultimate issue is guilt or innocence.
17 And that again, of course, is why the diminished responsibility
18 example is always such a good one, because in a murder/manslaughter case
19 where the killing is admitted or accepted and the only issue is diminished
20 responsibility, then the issue on diminished responsibility does determine
21 the verdict as between one and the other. And that's why it was, I think,
22 for long enough thought undesirable for experts to say, "Well, I am of the
23 view that this accused suffers from diminished responsibility." But even
24 that's gone. But we aren't anywhere near that territory in the material
25 here from Mr. Coo which deals with a number of issues along the way.
1 I have taken some time but I hope that's helpful. In our
2 respectful submission, the appropriate course would be to take the reports
3 as they stand. The amici will always be in a position to, perhaps as they
4 rather forecast yesterday, make their points insofar as the witness
5 doesn't satisfy them, and one would hope yourselves, but it's for you to
6 decide that what he's doing is not what the amici suggest he's doing and
7 for you to decide in due course, there being no prejudice to taking the
8 reports in full.
9 Can I help further at the moment?
10 JUDGE MAY: Thank you, Mr. Nice.
11 Mr. Wladimiroff, is there anything you wish to add?
12 MR. WLADIMIROFF: Thank you, Your Honours. Not that much.
13 Actually, it's not the first report that worries the amici the most. That
14 is more or less a description of the objective facts which describe how
15 the army, the MUP, and the local defence works and exists in abstract. We
16 have filed some observation on that part of the report as well, but the
17 focus of our concern is the second report.
18 The second report is more like a kind of note that a law clerk
19 perhaps may draft for one of the Judges of the Court, for all the Judges
20 in the Court, to consider. It really deals with matters which we feel are
21 matters for the Court and not a matter for the expert, because he, in his
22 report, actually reviews the evidence which is reviewed by him and then he
23 is commenting on that evidence on the level which we feel does not require
24 expert opinion or expertise.
25 Now, let me try to summarise what the issues are. Our main
1 concern, as I said, is that both reports consist of various evidentiary
2 topics which are matters for the court and not subject to expert opinion,
3 and the focus is on the second report.
4 What we have submitted is that an expert opinion would only be
5 permissible if it would assist the Court in matters which require
6 specialist knowledge to understand the matter before the Court and to
7 assess it. In that respect, we have taken reference to the Boniton
8 [phoen] case, as quoted, as our observations on the second report.
9 We suggest that not all issues in the reports are matters that
10 require expert assistance, especially not when conclusions are drawn on
11 factual issues that would not require any assistance of an expert, as
12 Judge Robinson rightly recognised. These were issues, as we have
13 identified, which are easy to understand and that really doesn't need any
14 assistance of an expert.
15 The amici indeed have raised the issue of permanent employment of
16 the expert by the OTP. Let me say that we do not say that the employment
17 as such does disqualify him from giving evidence. We concur with the
18 judgement in the Factortame case, as said by the Prosecution, but the
19 problem is a different one.
20 The issue is that an expert should avoid eagerness to prove
21 matters rather than to provide expertise opinion. We are worried, we have
22 a pointed at topics that may evidence such eagerness. We have suggested
23 it shows bias to the accused. This, of course, is a matter for the Court
24 to consider. We do not say, as we have said under sub 5 of our second
25 filing, that we do object in a way that it should be excluded but it is a
1 matter that has been raised by the amici for the determination of the
2 Trial Chamber because it worries us.
3 In our observations, we have suggested that the expert has drawn
4 conclusions which are not properly founded or which are beyond his
5 expertise, and we say that the test seems to be this: An expert can
6 assist the Court by testifying to the best of his expertise, knowledge,
7 consistent with the general understanding of the peer group of the matters
8 at hand, after analysing the materials reviewed by him. We also suggest
9 that an expert cannot make -- cannot make evidential assessments instead
10 of the Court or simply draw conclusions from the evidence from a
11 perspective which is not within his expertise, as I defined it.
12 For example, Mr. Coo's a military expert but not an expert in
13 interpreting statements in relation to military matters, nor is he an
14 expert on legal issues as, for example, constitutional law. We submit
15 it's for the Court to assess these kind of matters. It's for the Court to
16 assess the evidence before it. The expert should not replace counsel for
17 the Prosecution in arguing the probative quality or the pervasiveness of
18 the materials reviewed by him, and we also submit that the expert cannot
19 create evidence by adding an opinion which is not in his remit as, for
20 example, his conclusion drawn from the law.
21 For all these reasons, we believe the expert has submitted
22 opinions and conclusions which are not within his remit as an expert as
23 has been set out, in our opinion. For that reason, we ask the Court to
24 consider these objections and either exclude them or give them proper
25 weight, as we suggested.
1 That's all I have to say.
2 JUDGE MAY: Thank you, Mr. Wladimiroff.
3 Mr. Milosevic, this is a narrow issue which we're dealing with.
4 You have the right to address us on it. It's whether we should admit this
5 particular evidence or not. Now, you will have the chance, if we do admit
6 it, to cross-examine the witness, so there's no need to go into the merits
7 or anything of that sort. It's purely a question of law, but you can
8 address us on it if you want, having seen the arguments.
9 THE ACCUSED: [Interpretation] Well, I shall make a few comments
10 with regard to this, but I will be much, much shorter than anyone else
11 over here.
12 I do not see that anyone can challenge the fact that the main
13 characteristic of a court expert before legal courts anywhere in the world
14 - so that is to say the basic characteristic of a court expert before
15 legal courts anywhere in the world - is impartiality. I assume that no
16 one is denying that.
17 Over here, it is quite clear that an employee of the Office of the
18 Prosecutor, who has a duty that he is paid for, that is to say, to prove
19 what the other side claims, cannot be considered an impartial person.
20 However, in this specific case, there is also a clear picture of the
21 entire construction, as it were. Here it can be seen that this false
22 prosecution takes its own assertions as proof of their very own
24 This is a very special perpetuum mobile that we have been seeing
25 here, and in this particular case, it is clearly demonstrated. Moreover,
1 the Prosecution takes its own assertions as proof of its own assertions is
2 done by its own employees in the role of witness. So I would say that
3 this is a violation above all violations of all basic rights that apply to
4 impartiality and ascertaining any kind of truth which would be the role of
5 an impartial court of law. However, as far as this institution is
6 concerned, I certainly would not be surprised if this witness - and I say
7 "this witness" under quotation marks because there can be no mention of a
8 witness here - I would not be surprised if such statements were actually
9 to be taken as proper.
10 I would even like to add that Mr. Nice, when speaking a few
11 minutes ago - again I cannot quote him exactly, but I can paraphrase what
12 he said, but I think I'm right when I do this - that as regards his
13 employment, that is to say that this witness is employed by the OTP and he
14 quoted this example from the British judicial system, does not have to
15 disqualify the witness as such. He says that employment does affect the
16 weight that is attached to the evidence. Well, that's the whole point.
17 That's the whole point of somebody's testimony, especially here where this
18 entire kaleidoscope of false witnesses has appeared before us, is in the
19 weight that can be attached to it. This kind of testimony, witness
20 statement - and I say all of this under quotation marks because there can
21 be no mention of that - I think that all of this is quite clear. I'm sure
22 it's clear to you too, but you probably have your own criteria according
23 to which you're going to rule on this particular matter. I spoke about
24 this on several occasions already.
25 I see that the amicus, these friends of the Court of yours, are
1 not very categorical in propounding their own positions, but I would like
2 to quote their position from the papers here, provided by them. On page
3 2, it says: "However, there is a crucial question of the independence of
4 the witness and the fact that the OTP uses the services of its own
5 employee to testify as an expert. What an absurdity. Mr. Coo is employed
6 as a military analyst by the OTP and has been so since June 1999. In view
7 of this status of an OTP employee, the amici believe that the obligation
8 of impartiality for court witnesses, expert witnesses which is essential
9 can thus be compromised."
10 They are not very energetic - how shall I put it? - in expounding
11 on this but it's quite obvious that even your friends could not neglect
12 this altogether.
13 I believe that no further comment is needed. Thank you.
14 [Trial Chamber confers]
15 JUDGE MAY: The Tribunal has a chance to consider this. Yes, Mr.
16 Nice. Did you want to add something?
17 MR. NICE: I wasn't going to add anything; I thought you were
18 about to address us.
19 JUDGE MAY: Please. I'm going to. I'm going to give our ruling,
20 but there's no need to --
21 I should say that the Chamber has had the chance of reading the
22 written submissions and considering them -- and considered them. It has
23 had the chance now of hearing oral argument, and I will give the ruling.
24 The first issue is the question of the independence of the expert,
25 whether it's right that a witness who is employed by one of the parties
1 should be permitted to give evidence as an expert, on the ground that his
2 impartiality is thereby tainted.
3 The Trial Chamber has considered this point and the objections
4 raised by the amicus and echoed by the accused but nonetheless comes to
5 the conclusion that this is not a matter of admissibility but one which
6 affects the weight to be granted to the witness's evidence. That view is
7 reinforced by the judgement which we have just been shown of the Court of
8 Appeal of England and Wales in The Queen on the application of Factortame
9 against the Secretary of State for Transport of 3rd of July, 2002, where
10 the opinion of Lord Justice May in Field against Leeds City Council,
11 unreported 8th of December, 1999, is given.
12 As to questions of opinion and generally, there is no overriding
13 objection to a properly qualified person giving opinion evidence because
14 he is employed by one of the parties. The fact of his employment may
15 affect its weight, but that is another matter.
16 And in Factortame itself, the Court of Appeal, or Justice Waller,
17 said that: "Expert evidence" - in paragraph 70 - "comes in many forms...
18 It is always desirable that an expert should have no actual or apparent
19 interest in the outcome of the proceedings ... but such disinterest is not
20 automatically a precondition to the admissibility of his evidence."
21 We agree with those observations.
22 The next ground of objection raised by the amici is that some
23 statements and conclusions in the report are based on insufficient
24 evidence. This, too, is a matter which goes purely to the weight of
25 evidence and not to admissibility.
1 The most substantial objection to the evidence is on the grounds
2 that it goes to the very issues which the Trial Chamber has to decide, the
3 ultimate issue, as it's called.
4 The Trial Chamber notes first that, as the Prosecution have it
5 correctly, this -- the ultimate issue doctrine, as it's called, is
6 essentially a common law concept now obsolete in many jurisdictions. For
7 instance, the United States Federal Rules of Evidence permit experts to
8 dealt with the ultimate issues, Rule 704(A). And in the United Kingdom,
9 in the case of Stockwell, 97 Criminal Appeal Reports 260, the Court of
10 Appeal specifically rejected the former prohibition against ultimate issue
11 evidence. Likewise in Re M v. R, 1996, 4 All England Reports 238, the
12 Court of Appeal again allowed that such evidence should be given in civil
14 Therefore, the rule which simply provides that a witness may not
15 give evidence on those matters, or give an opinion on those matters which
16 are ultimately for the Trial Chamber to decide, namely the guilt or
17 innocence of the accused, that rule is now very much in abeyance and,
18 therefore, the Trial Chamber finds that it has no standing in an
19 International Tribunal where a Trial Chamber consists of professional
20 judges well able to decide for themselves upon matters even if an opinion
21 has been offered on them by a witness.
22 I would add that it must no doubt be suspected, must be the case,
23 that the rule in common law jurisdictions was introduced for the
24 protection of juries.
25 Finally, since reference has been made to it, the Trial Chamber in
1 Kordic and Cerkez excluded certain evidence of a Mr. Cigar in relation to
2 ultimate issues. However, that can be distinguished as a ruling on the
3 particular facts in that case in which the Trial Chamber commented that
4 the expert report was littered with conclusions and inferences and would
5 not assist the Trial Chamber since it was not evidence of probative value
6 under Rule 89(C) of the Rules of Procedure and Evidence. The reference to
7 Kordic and Cerkez is in the transcript at pages 13305 to -07.
8 On the other hand, in the current case there is no question of a
9 report being littered with conclusions, as it was in Kordic. There are
10 very few, and the Trial Chamber considers the evidence to be relevant and
11 of probative value under Rule 89(C).
12 However, the Trial Chamber will exclude certain evidence in the
13 report which is based on observations, on questions or comments made by
14 the accused during cross-examination, and on certain observations on the
15 evidence given by other witnesses.
16 In relation to the questions or comments by the accused, the Trial
17 Chamber notes that this is not evidence. The point has been made often
18 enough to the accused that what he says in cross-examination is not
19 evidence and amount to rhetorical or hypothetical questions. In the view
20 of the Trial Chamber, it is not appropriate for comments in the expert
21 report to be based on these propositions put forward by the accused.
22 As to the expert observations on the evidence given by other
23 Prosecution witnesses, in some cases these comments amount to no more than
24 assessment of the evidence and argument which it is for the Trial Chamber
25 and not for the expert to make.
1 For these reasons, the following seven passages in Part II of the
2 report will be excluded, and it may be helpful if counsel and also the
3 witness -- if the witness and counsel would take out the report, I will
4 deal with the passages.
5 The first is section B, page 1, para 1, the third sentence and the
6 quotation. So it is the sentence beginning: "There is evidence that this
7 principle was recognised ..." and there is then a quotation from the
8 transcript. Those will be excluded.
9 Two, page B -- I'm sorry. Page 18, part B, paragraph 25. This is
10 again a comment by the accused. The whole of that paragraph is out, is to
11 be excluded.
12 The next paragraph contains an inappropriate comment, in the Trial
13 Chamber's view, on the evidence of a witness, so that paragraph will be
15 Going on next to the page 20, the bottom paragraph, paragraph 31.
16 The clause in the first line of that paragraph: "... and statements to
17 the same effect by the accused," together with the footnote 53, again
18 relates to comments by the accused, will be excluded.
19 Paragraph -- part C, paragraph 6, which is page 5; Part II C, 5.
20 The second and third sentences in paragraph 6, again a comment by the
21 expert on matters which are for the assessment of the Trial Chamber. So
22 the sentence beginning, "Very similar tactics ..." and the other sentence
23 beginning, "And Colonel Ciaglinski ..."
24 Section C, page 13, paragraph 18, the third sentence, beginning
25 with, "Witnesses such as General Maisonneuve ..." and ending "... for
1 particular indictment sites" again will be excluded on the same grounds as
2 being argument and a matter for the Trial Chamber.
3 And finally, part D, Part II D, page 1, the paragraph 1(A) and
4 (B). So beginning with, "In their testimony, Colonel Richard Ciaglinski
5 ..." this is subpara (A), and over the page including subparagraph (B),
6 "And arguments supporting this contention should be made in closed
7 session ..." Again, both of those subparagraphs are excluded as the view
8 of the Trial Chamber is that they are purely matters of argument and
9 comment and not appropriate for the expert to make, a matter which the
10 Trial Chamber will have to assess in due course.
11 Subject to those particular exclusions, the evidence will be
13 MR. NICE: Thank you. Your Honour, I ask that the witness take
14 the solemn declaration and provide his curriculum vitae. He will then be
15 banished from further contact until tomorrow, or we could break now.
16 JUDGE MAY: He's ready. Yes. The witness will take the
18 WITNESS: PHILIP COO
19 THE WITNESS: I solemnly declare that I will speak the truth, the
20 whole truth, and nothing but the truth.
21 Examined by Mr. Nice:
22 Q. It's Philip Coo, correct?
23 A. Yes, Your Honour.
24 Q. And, Mr. Coo, you're employed by the Office of the Prosecutor as a
25 military analyst?
1 A. Yes, I am.
2 Q. How many years?
3 A. Roughly three years; I began in June 1999.
4 Q. We'll look at your background in a second or so, but military
5 analysts working in this office review what categories of material,
7 A. Generally material of a military nature; and the sources of that
8 information can come from a diversity of sources for that information.
9 Q. Can you give us some examples so that those watching can have an
10 idea? Sometimes there will be military orders.
11 A. Yes. We have access -- in this case, I had access to a number of
12 military orders issued by the VJ and the Supreme Command. I also made use
13 of open source material, including the VJ's weekly journal, Vojska. I
14 used the VJ legislation -- sorry, I should say the FRY and Serbian
15 legislation that we had access to in the OTP. Those are just a few
16 examples of the types of material I used in drafting the report.
17 Q. Very well. Now, by background, you are or were a soldier,
19 A. Yes, I was.
20 Q. How many years were you a soldier?
21 A. I spent ten years as an intelligence officer in the Canadian
23 Q. Starting in what year and finishing in what year?
24 A. I was commissioned in 1988, and I ended service in 1999 when I
25 began working at the OTP.
1 Q. An intelligence officer throughout, explain to us in the most
2 straightforward and simple terms what an intelligence officer does when
3 working within an army, or within your army, and on what materials.
4 A. The primary purpose of an intelligence officer is to assess a
5 diversity of information and put together a picture for a commander of
6 what's happening on the ground, and in addition to what's happening on the
7 ground, also the intelligence officer's role may be determining the
8 structures of the organisations opposing his commander.
9 Q. Intelligence of what's happening on the ground could relate to
10 your own troops, could relate to the other side's troops, could relate to
11 allied troops. All three or typically just one or two of those?
12 A. Typically just the enemy, what's described in our terms as the
14 Q. Within the ten years that you were engaged, you may not have been
15 engaged in any active battle, I'm not sure, but what sort of materials did
16 you have that were similar to or different from the materials that you
17 have to work on here?
18 A. I had access to doctrinal materials which provided information on
19 the doctrine, the ways in which various militaries operated. That
20 material wasn't from exactly the same sources as the sources I used here
21 in drafting this report, but the nature of the information was very
23 JUDGE MAY: Mr. Nice, I think we'll have to come to an end fairly
25 MR. NICE: I think I probably will come to an end within a couple
1 of sentences.
2 Q. You set out in the curriculum vitae available to the Court, even
3 if it hasn't been publicly filed, your history as an intelligence officer
4 and the schools you attended, that is, the military schools you attended
5 and the positions you held. We may come back to one or two of them later,
6 but at retirement, you held the rank of?
7 A. I held the rank of captain when I retired.
8 Q. And were at that stage working on what particular post?
9 A. At that time, I was in charge of an intelligence section in a
10 reserve unit in Western Canada.
11 JUDGE MAY: Very well. We will adjourn now.
12 Mr. Coo, I must tell you formally that don't speak to anybody
13 about your evidence until it's over. That does include, of course,
14 members of the Prosecution team.
15 THE WITNESS: Yes, Your Honour.
16 JUDGE MAY: Very well. We will adjourn now. Nine o'clock
17 tomorrow morning.
18 --- Whereupon the hearing adjourned at 1.45 p.m.,
19 to be reconvened on Tuesday, the 10th day of
20 September, 2002, at 9.00 a.m.