1 Thursday, 25 July 2002

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 9.04 a.m.

6 JUDGE SCHOMBURG: A very good morning to everyone. Let us hear

7 the case.

8 THE REGISTRAR: Good morning. This is Case Number IT-97-24-T, the

9 Prosecutor versus Milomir Stakic.

10 JUDGE SCHOMBURG: Thank you. And the appearances.

11 MR. KOUMJIAN: Good morning, Your Honours. Nicholas Koumjian,

12 with Ruth Karper, for the Office of the Prosecutor.

13 JUDGE SCHOMBURG: Defence.

14 MR. LUKIC: Good morning, Your Honours. Branko Lukic and

15 John Ostojic for the Defence.

16 JUDGE SCHOMBURG: Thank you. All fit and prepared for the hearing

17 of today. I think we can start immediately.

18 MR. KOUMJIAN: Your Honours, I spoke briefly to Ms. Tabeau this

19 morning, Dr. Tabeau, and she explained to me that the Republic-wide

20 figures broken down by ethnicity for the populations in Bosnia and

21 Herzegovina are currently be reviewed in her office. The final figures in

22 preparation of the report for the Krajisnik/Plavsic case which is due on

23 the 30th of this month. It's her preference to provide us that report

24 once it's completed, and since she is going to be testifying regarding the

25 missing and dead in Prijedor, subsequently, she would prefer to testify

1 regarding those figures once they are reviewed and finalised and put into

2 a submitted report. Then also, both myself and Defence counsel would have

3 the opportunity to review that report in its entirety prior to questioning

4 her. But as Your Honours wish, she also informed that she did forget to

5 bring the questionnaire but she has asked for it to be brought here, and

6 it will be here by the break.

7 THE WITNESS: I'm sorry.

8 JUDGE SCHOMBURG: I think it's better to rely on the updated

9 figures. And if indeed, we could be in possession of this updated report

10 before court recess, we have them all here on the 1st of August, it would

11 be excellent and allow us to be prepared, also with a view that in fact as

12 expected and requested by the Defence, you'll appear once again in this

13 courtroom. I think it's a good solution.

14 MR. KOUMJIAN: May I just go over the schedule for today briefly

15 before the cross-examination.

16 JUDGE SCHOMBURG: There were some observations.

17 MR. OSTOJIC: If I may just in connection with the point that was

18 raised, Your Honour, although my learned friend has limited his comments

19 to the demographic figures of the population that are involved in

20 Republika Srpska, if I may ask whether or not the preliminary results or

21 the study that Dr. Tabeau has prepared for Bosnia-Herzegovina, commonly

22 known as the federation, whether those figures are available today or,

23 likewise, will we be provided with copies of that data later this month,

24 before the commencement of the proceedings after the break.

25 MR. KOUMJIAN: My understanding, and the Doctor can correct me if

1 I'm wrong, is that her report will include figures on -- she certainly has

2 available figures on all of Bosnia-Herzegovina in both of the current

3 entities. In fact, I think some of those figures -- I could be incorrect,

4 on the Keraterm report, I think there's some reference to that. I think

5 he raised a second point, but I forgot what it was.

6 Obviously, the Doctor has knowledge of what the figures are, but

7 it's just not finalised. If it's necessary to ask her questions about

8 that today, she certainly can answer them, but she prefers to wait until

9 all the figures are reviewed in her office and the report is in final

10 form.

11 JUDGE SCHOMBURG: Indeed, it would be better to wait but, of

12 course, to include the figures, not only for Republika Srpska but for the

13 entire now state of Bosnia-Herzegovina.

14 I think we can proceed now.

15 MR. KOUMJIAN: Yes. I don't know if Your Honours would like a

16 brief preview of the day's events anticipated. But we do have a set of

17 documents for distribution we've entitled List 6. It's about three

18 centimetres' worth that I have in my hand here, and those are a review

19 through all of the 19 binders we reviewed which documents have not yet

20 come into -- been admitted in the trial that we think are highly

21 relevant. That would be It's this list. It's hopefully, I believe, the

22 last major set of documents that will be admitted or proffered.

23 Secondly, Your Honour, yesterday Mr. President requested further

24 information about how the -- I believe it's S221, the eight -- S220 to

25 2267, the eight pages of documents with signatures were actually

1 obtained. And we checked yesterday with the person who actually made the

2 physical arrest, took custody from the Federal Republic of Yugoslavia from

3 the accused, and that person is prepared to testify as to how he first

4 obtained possession of those items, and he would be available after

5 Dr. Tabeau. We have also distributed his notes today, this morning.

6 JUDGE SCHOMBURG: Fast solutions are good solutions. We are

7 looking forward to this. Thank you.

8 I only may add, before we start, the further examination-in-chief,

9 that it seems to be necessary, having had an overview. And additional

10 thank you for the additional list, to that what you had cellophane. It

11 may be necessary to read out in any event four of these documents during

12 the next week.

13 So I think everything is settled, and we can start, please.

14 Mr. Koumjian.

15 MR. KOUMJIAN: The only further direct examination would have been

16 to the points regarding the total population changes in

17 Bosnia-Herzegovina, so at this point I have completed my direct

18 examination.

19 JUDGE SCHOMBURG: Thank you. And may I ask the Defence, then, to

20 start the cross-examination.

21 MR. OSTOJIC: Thank you, Your Honour.

22 WITNESS: EWA TABEAU [Resumed]

23 Cross-examined by Mr. Ostojic:

24 Q. Good morning, Ms. Tabeau. My name is John Ostojic, and along with

25 Branko Lukic, we represent Dr. Stakic.

1 A. Good morning.

2 Q. I'm going to ask you a series of questions here today in

3 connection with the area that you have a specialty, namely, scientific

4 statistical demography. Bear with me, if you will, if at some time I

5 misstate or will ask a question for purposes of definitional reasons,

6 because I'd like to at least have a better understanding of both your

7 report, the data provided, as well as the conclusions that you reached.

8 Yesterday, on page 33, specifically line 23 in the transcript, you

9 stated that your responsibilities while employed with the OTP, for the

10 last two years or so, include "estimating demographic consequences of the

11 conflict in the Former Yugoslavia, in particular, Bosnia and Herzegovina."

12 My question to you is, when you used the "estimating," how

13 would you define it?

14 A. Estimating is producing measures, statistics, that describe the

15 changes in the population, changes related to the conflict.

16 Q. So, in essence, you're providing us with statistics of the

17 movement, if you will, of the population, and that is exactly what a

18 demographer does. Correct?

19 A. It is what, among other things, demographers do.

20 Q. In your process and deliberation of formulating your report, would

21 it be fair to say that there's a two-tiered analysis?

22 A. If you could explain what you mean by a two-tiered analysis.

23 Q. I'll try. I find the area somewhat interesting but complicated in

24 many ways. The first tier, would you agree with me, would be the section

25 that would be categorised as informational sources, and a demographer or a

1 person such as a demographer, would take those informational sources and

2 collect that. That would be one tier.

3 The second tier would be taking those informational sources and

4 making an application to those sources in order to reach your conclusions

5 which would be called, I think, as you identify in your report, as the

6 methodology.

7 A. Generally, it is correct.

8 Q. With respect to this first section which you call informational

9 sources, would you agree with me that that, in essence, is merely a

10 collection of data that is not generated or produced by you but merely a

11 collection of data from a third source?

12 A. This is correct.

13 Q. Just so that we understand each other --

14 A. Original sources are data collected by others. We process this

15 information in the process of our project.

16 Q. These informational sources, just so that we again understand each

17 other, are items such as, for example in this context and in your case,

18 the 1991 census. Correct?

19 A. Correct.

20 Q. It also includes items such as the voter registration or the

21 voters' register, as you refer to it in your report. Correct?

22 A. Correct.

23 Q. Now your report, having relied on these two informational sources,

24 is as good or the quality of it is as strong as is the sources that you

25 yourself relied upon in order to gather that data. Correct?

1 A. Well, it is -- the quality of sources, it is a precondition, a

2 good quality of sources is a precondition of the outcome, a good outcome

3 of the project.

4 Q. And if the sources, Dr. Tabeau are not as reliable, then

5 ultimately, your report would also be considered less reliable. Correct?

6 And less complete?

7 A. As I said, the quality of outcome depends on the quality of

8 sources.

9 Q. Let me switch for a moment, if I may, to the second tier of this

10 two-tier analysis that generally is used by demographers, namely, the

11 methodology. Is the methodology, in essence, the interpretation of those

12 sources? Would that be a fair way to categorise and summarise that?

13 A. I think it includes interpretation of sources, but methodology is

14 more than interpretation only. These are also tools that are used to

15 reach our conclusions.

16 Q. Within this second tier methodology, do you provide as a

17 demographer any quality controls to secure that in fact that

18 interpretation of the informational sources and data you are reviewing,

19 whether or not quality controls for purposes of completeness and

20 reliability are utilised

21 A. Quality controls, what do you mean by quality controls? When

22 applying certain tools and reaching certain conclusions, we indeed do our

23 best to ensure that the tools and the way they are applied are absolutely

24 correct. And if -- I would think of quality controls in the context of

25 this phase of our work, we indeed pay a lot of attention to quality

1 control.

2 Q. Is the reason you pay a lot of attention to quality controls is

3 because you want to ensure that the conclusions ultimately reached by a

4 demographer are accurate and reliable?

5 A. Of course.

6 Q. So can you share with me, because I wasn't able to find it in your

7 report, what quality controls did you utilise to ensure that both the two

8 sources, two informational sources that you utilized, the 1991 census and

9 the voter registration, were actually something that can be reliable and

10 complete as it relates to demography?

11 A. Well, quality controls in the sense -- I already said choosing

12 tools that are appropriate and the way of application of the tools that is

13 appropriate. This all has been done, and I believe you can easily see

14 from the report what tools and how they have been applied. But I think

15 that what you mean is rather quality control in the context of sources, so

16 the choice of sources and completeness of sources, the reliability of

17 sources. This is what you now mean by quality controls, I believe.

18 Before I will answer how we approach these issues, I just want

19 your confirmation that that is that type of quality controls you are

20 asking me about right now.

21 Q. In part, it is. I think there are -- you may agree with me that

22 there's actually quality controls that relate to the informational sources

23 that you as an independent and objective individual or expert in the field

24 would look at and make an assessment of that, to determine whether it's

25 even data that you should consider, and then ultimately the quality

1 controls that should be in place to verify that indeed the conclusions

2 reached based on both the methodology, which in your case I think you

3 identified it as "linking," relating to those informational sources. So,

4 in part, yes, but it's a two-fold question.

5 A. So I will first speak about sources. We certainly do a lot of

6 quality controls with sources. It is -- before we can even start our

7 analysis, we must complete a lengthy process of data preparation. So it

8 is not that we, having received a source, can immediately start our

9 analysis. We check, always check, the completeness of the source. We

10 always check the frequency distributions of the variables. We work with

11 individual data so it is necessary to look for outliners, to explain what

12 are the reasons that certain outliners are seen in our frequency

13 distributions.

14 We compare the sources that we received with additional

15 information, auxiliary information, and based on this, we draw conclusions

16 about to what extent our sources are complete and reliable. With the

17 population census, the task is rather easy because there are official

18 publications of census figures, and we can compare results of our queries

19 with the official publications.

20 The situation is different with the voters register. Population

21 census is just a standard source of information used in producing

22 demographic statistics and socioeconomic statistics related to the

23 population. Voters' register is a different type of source. We don't use

24 these type of sources in producing official statistics. Still, I

25 believe this is a reliable and large source, exhaustive, relatively

1 exhaustive, that can be used to draw conclusions about the population and

2 its composition.

3 Again, we work, once we have original data in our office, we start

4 data processing by doing the same things, comparing the size of this

5 collection with other sources about the population, if there are any

6 existing, of course, to compare. We check distributions of items included

7 in that database. We look for outliners. We correct mistakes that we see

8 in the databases. So there is a lot of quality controls.

9 Of course, we could write a hundred -- hundreds of pages about how

10 we do it and what are the results of this process, but I believe no one in

11 this court would be able to go through these pages. It is just part of

12 our work. And regarding the matching, we indeed should have included

13 summary information about the quality of matching by criteria used,

14 percentage of matches obtained. And if necessary, I can prepare this type

15 of overview.

16 Q. We'll get back to that in a moment, but thank you for that offer.

17 With respect to voter registration and the voters' registry that you

18 reviewed, you yourself consider that to be a not -- not an official data

19 source that demographers use for producing official statistics. Correct?

20 A. Yes, I said so.

21 Q. I just want to confirm it. If you take the fact that you have two

22 informational sources, namely, the census of 1991 and the voter register,

23 or the voters' register as you referred to it in your report, and if one

24 is not as -- is not official, would that allow us to opine and conclude

25 that it is less reliable than the census?

1 A. Well, reliability and being official are two different things.

2 Well, official statistics are produced by statistical authorities in all

3 countries in order to be used by -- consistently used by the society.

4 These are just reference figures that we all need. Unofficial figures are

5 produced by other organs than official statistics, official statistical

6 office, but it doesn't mean that these figures are unreliable or not

7 useful. There are many surveys in every country - I'm speaking about

8 western, at least, countries - that are widely used and are never called

9 official. So this is the same situation we are dealing here with the

10 voters' register. It is not used for producing official statistics but it

11 is a large source of information about the population, about the size of

12 the population, its structure. And I believe it can be -- this is just a

13 survey. It can be used as a survey of the population.

14 Q. Would you agree with me, Dr. Tabeau, that in fact the voters'

15 registry does not include something that seems to be referenced and in

16 fact something that was asked of you to do, and that is to determine the

17 ethnic population of a certain area in Bosnia and Herzegovina. You would

18 never or rarely, in any country or state, find that there's an ethnic

19 composition or ethnic reclassification of people within documents known as

20 the voters registry. Correct?

21 A. You are correct when saying that there is no item "ethnicity"

22 included in the voters register. This is very correct. This information

23 is not there, not in this collection. But by matching sources, linking

24 records from different sources, we increase our information about

25 individuals. And after having linked records from the voters' register

1 backwards to the census, we are able to include the ethnicity reported in

2 the census for every voter that had been matched with the census. And

3 this practice is a standard procedure used in demography.

4 Q. Tell me, Doctor, if you know, what are the generally or widely

5 accepted or understood flaws and inaccuracies upon relying on voters

6 registers in coming up with statistical information in connection with

7 demography? What are those flaws, do you know?

8 A. Of the voters' register as such as a source?

9 Q. Correct.

10 A. First of all, I think we must mention that the source is

11 incomplete in the sense that certain age groups of the population are not

12 there. These are those who are not eligible to vote, the population, from

13 birth up to the age of 17. Secondly, voters' register is -- only includes

14 information about voters who registered to vote. Registration is not

15 obligatory. So those who want to register, register. Who didn't want,

16 didn't go, for any reason, are not there. So the source is large, but

17 incomplete, right. So two basic flaws I can mention immediately, yes.

18 Q. I agree with you. I categorise them as voter apathy, or apathy,

19 as one, and age elimination because we reduce and do not include a certain

20 segment of the population that is alive, may be living in the area and may

21 be of one or the other ethnic composition that we're discussing here

22 today. Can you provide with me, please, what the percentages are for

23 both, within that voters registry, of what that apathy was and what that

24 percentage was of age elimination?

25 A. You, of course, know that I can not because, in order to do so, I

1 would need information about the population at that time, which I could

2 compare with the voters' register. And I have used voters's register

3 because there is no information about population at that time in Bosnia

4 and Herzegovina. We haven't had census, population census, in Bosnia

5 since 1991.

6 Q. Forgive me, Dr. Tabeau, I'm not sure if we understand each other.

7 At the moment I'm not talking about the census. I'm talking about voter

8 registration. You are familiar that in 1991 or 1992, there was actually

9 an election in Bosnia-Herzegovina. Correct? And we can assume from that

10 there were actually data and statistics available which would provide us

11 with, at the very least, the voters registry?

12 A. I think that to answer specifically your question, I would need to

13 compare the population in the voters' register with the actual population

14 at that time. And I don't have this population. I am repeating what I

15 already said. I don't think that this type of comparison you are

16 suggesting is the way to do it.

17 Q. Fair enough. Would you think that, in order to verify the

18 accuracy and reliability of one of the informational sources such as

19 voters' registry, that one would want to obtain that information both for

20 completeness and thoroughness of your report? Would that be a fair

21 statement?

22 A. Well, there are ways to assess completeness of this source and

23 reliability of this source as well. But in order to do so, resources,

24 extra resources, would be needed to run a survey in a certain area and to

25 compare the population and the voters' register. But I want to note that

1 we are speaking about demographic changes in a population that was in a

2 conflict period long time. And in this period, in such periods, it is

3 unjustified to expect that there are sources about this population related

4 to the population size and other aspects of the population as in normal

5 times. So the situation is just abnormal. I would put it this way.

6 Q. Did you, Doctor, did you even try to obtain the 1990 voter

7 register from Bosnia-Herzegovina?

8 A. 1992, you mean? 1990, I think that I have that census, the 1991

9 census.

10 Q. I know. And I may be speaking a little too fast, and I apologise.

11 I'm still on voters' registry, so I could understand it. And I don't

12 understand it, obviously, as clearly as you do. But did you, in order to

13 ensure that relying upon the voters' registry as you did for 1997, did you

14 try and seek to obtain documents similar to those that existed as a result

15 of the 1990 election in Bosnia and Herzegovina?

16 A. No, I didn't. This is the answer to your question.

17 JUDGE SCHOMBURG: Sorry, could you please take care not to

18 overlap.

19 A. At the same time, I believe that the 1997 election and the 1990

20 election you mentioned are not the same elections. But participation rate

21 can be quite different.

22 MR. OSTOJIC:

23 Q. Shouldn't we, before we conclude something like that, obtain the

24 information and then develop a methodology like you developed such as

25 linking or matching before we can actually leap to that conclusion?

1 Wouldn't that be a better way to do it?

2 A. I would love that. If you give me money and people, we will do

3 that. No problem.

4 Q. I have been asking for that for many years now, both money and

5 friends. Anyway, if I can switch the topic, I apologise, with respect to

6 the voter registry, or one last question in connection with that, I hope:

7 Do you know what the percentage of the population actually voted in 1997?

8 A. OSCE made some estimates and they vary depending on the

9 municipality. But we can conclude that approximately, say, 75 per cent,

10 up to 80 per cent.

11 Q. And that's for the entirety of Bosnia-Herzegovina. Correct?

12 A. Yes, for the country as such, yes.

13 Q. Now, can you tell me what the word "margin of error" means?

14 A. What?

15 Q. Margin of error.

16 A. Yes, it is an acceptable error one makes presenting estimates.

17 Q. Isn't it true that demographers and scientists such as yourself,

18 Dr. Tabeau, in preparing these types of demographic studies, that in fact

19 margins of error is something that you would include in every report so

20 that the reader and the person who is digesting that information can

21 conclude whether or not your report is objective and sound? Correct?

22 A. Yes, correct.

23 Q. Can you tell me what your margin of error was with respect to both

24 the informational sources that you rely upon in order to reach your

25 conclusions?

1 A. I think the margin of error should be seen in the context of

2 particular estimates, statistics, that we present in our report and not in

3 the context of sources. And indeed, certain fractions of ethnic

4 composition should be additionally shown together with -- within

5 confidence intervals, within a range of possible error. I would put it

6 this way. We haven't done this in this report. But you should also

7 remember that this is a report, one of our first reports, and we have been

8 doing -- improving, say, ourselves, and now we are presenting more recent

9 reports, these type of statistics as well.

10 Q. Are both margin of errors and confidence levels one and the same

11 or are they two distinct areas that a demographer and a scientist such as

12 yourself would utilise in a report?

13 A. Well, confidence level is actually a way of expressing --

14 expressing uncertainty related to a particular measure presented in a

15 study. Confidence and error are two related things. Confidence, an area,

16 say, not a point estimate but an area within which the estimate is likely

17 to be contained, are basically the same. It is the way of speaking.

18 Q. And I again just to repeat, if I may, and I apologise if you've

19 answered this question already, in your report we see no estimates or no

20 conclusions with respect to what the margin of error is, and we also do

21 not see any -- I got it. I'm just waiting for them to catch up this one

22 time. Any confidence levels that may or may not have been utilized by you

23 or your staff in reaching your conclusions. Correct?

24 A. Not in this report.

25 Q. It is not, correct?

1 A. It is not in this report.

2 Q. If I may turn briefly to the census, the informational source that

3 we've identified as the census, which is the 1991 census that you gleaned

4 or that you reviewed, with respect to that census or the second

5 informational source, before you make any conclusions, do you do any study

6 or evaluation to determine whether or not that informational source is

7 reliable and is something that you would utilise in your application and,

8 ultimately, your conclusion in reaching your findings?

9 A. I think it is a very general question. If you could be more

10 specific, please.

11 Q. I will. Did you examine whether or not in Bosnia and Herzegovina,

12 in 1991, whether there were any census controls that were put into place?

13 A. I spoke about these statistical authorities in Bosnia and

14 Herzegovina, and I believe there were no such activities like cleaning the

15 census. And this was related to the conflict that started shortly after

16 the census was completed.

17 Q. Would it be fair to say that without these census controls, the

18 1991 census would be deemed less reliable than if those controls would

19 have been put in place?

20 A. Of course, always after cleaning, data collection is of better

21 quality than without. But at the same time, I believe that even though we

22 realise there are certain errors in the census, it is not that all the

23 data is wrong and cannot be used. It is absolutely not the case.

24 Q. I'm not suggesting that it is, Doctor. Can you point to me where

25 you in your objective report identify for us that the 1991 census that

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1 you're relying upon as an informational source is either, in some part or

2 to a certain degree, erroneous, flawed, or inaccurate?

3 A. Well, we tried to say something about the quality of the census.

4 But indeed, the section is brief in this report. The only problem we

5 mentioned is misspelled names. That it is a problem, a major problem, I

6 would believe, from the point of view matching sources. And we have spent

7 a lot of time on correcting the names and certain procedures were applied

8 to eliminate errors from the names.

9 Q. Before we get into the actual errors within the names, what my

10 concern initially and what my question in part was, the census controls

11 that were missing in Bosnia-Herzegovina, so that I may have a better

12 understanding, would they be things that would include like a pilot survey

13 or a sample survey, which are two distinct things, though, correct?

14 A. Yes. Now, usually, before the census starts, there is a pilot

15 or -- pilot census, microcensus, in which the questionnaire is tested and

16 possible mistakes are detected and conclusions from this pilot are used in

17 this census itself. As far as I know, there was no pilot or additional

18 surveys.

19 Q. Let me understand that. If you as a scientist will take a data

20 such as the informational source, the 1991 census, would it be fair to say

21 that your first step is to determine how accurate and how reliable that

22 informational source is. So you would, in essence, proceed and ask

23 someone or try to determine whether in fact there was a pilot survey done

24 which, as you said, is a microcensus, pre-census. It is a study that is

25 done before in order to make verification and accuracy of the upcoming

1 census. Correct?

2 A. I think that my answer is different in this case. It is -- again,

3 I must stress that we deal here with a very extraordinary situation. We

4 are supposed to estimate demographic consequences of certain situation to

5 the population of Bosnia and Herzegovina. And we actually have

6 difficulties with finding sources. So the choice is either we can use the

7 sources that exist in the best possible way or not to do anything. I

8 believe that even though there was no pilot or pre-census, and even

9 though the statistical authorities in the country in Bosnia and

10 Herzegovina haven't done much to improve the quality of the source, we

11 have done a lot to improve the quality of the source here in our office.

12 And let me finish.

13 Q. Please.

14 A. We know a lot about problems related to the census. But still, I

15 think, it is not -- the problem is very complex. I wouldn't even expect

16 that statistical authorities at that time, in 1991, in Bosnia, were able,

17 had necessary equipment, software, to do this type of procedures that we

18 are able to do today. So it is -- I don't think that certain things were

19 possible at that time.

20 Q. Did you, Doctor, at any time make any effort whatsoever to

21 determine whether or not there was a pilot survey done in Bosnia and

22 Herzegovina in connection with the upcoming 1991 census? I understand

23 your conclusion, but did you verify the fact that it was not done or did

24 you simply reach that conclusion as a matter of convenience?

25 A. Well, I had several meetings with the statistical authorities in

1 Bosnia and Herzegovina at which I discussed, among other things, the

2 census. And never any one of the people of statistical authorities has

3 mentioned this type of survey to me. So this is the basis on which I draw

4 this conclusion.

5 Q. Fair enough. That's the pilot survey. Did you determine whether

6 or not a sample survey, which is a survey that's done, in essence, after

7 the census for purposes of verification of the reliability and

8 completeness of the data provided? Did you determine whether or not the

9 representatives in Bosnia-Herzegovina ever conducted a sample survey?

10 A. On the basis of what I already said previously, I concluded that

11 there was no such a survey.

12 Q. Can you share with me generally the difference between what a raw

13 count is in a census?

14 A. Raw count, you mean just the count of certain -- I don't know,

15 categories you are interested in as obtained just from the raw data, from

16 not clean data.

17 Q. Would you agree with me that a raw count is more reliable than a

18 census would be in any situation?

19 A. Now I am confused because my understanding of raw count is

20 different than your understanding.

21 Q. Let's go with your understanding. How did you understand the raw

22 count?

23 A. Raw count is just a number, absolute number, of certain

24 individuals reported in a source like a census.

25 Q. You don't find that a raw count or an actual head count is more

1 reliable and more thorough than a census?

2 A. I think that -- I'm still confused a little bit. But a raw count

3 is probably, for you, an estimate not based on the census but on other

4 sources.

5 Q. Well, a raw count to me, Doctor, is the actual count of the

6 specific number of people that may reside in a certain geographical area,

7 whereas a census, with its inherent inconsistencies and inaccuracies,

8 doesn't come -- as you know from the literature, doesn't even come

9 remotely close to a raw count in terms of both its reliability and

10 completeness. Wouldn't that be true?

11 A. You are speaking about the population, the actual population, the

12 number of the actual population as it is in reality, and the estimate of

13 this population obtained from the census, I believe. So the raw count is

14 the true size of this population for you, I believe.

15 Well, there is something like this, the true size, the true

16 number, but how can you obtain the true number otherwise then by using a

17 source like survey? So you must also accept that we obtain information

18 about population from certain surveys. Always any aggregate statistics

19 are based on the individual data collected in a survey, like the

20 population census. And in every survey, there are errors.

21 Q. And my question to you is with respect to the informational source

22 that you've identified as the 1991 census. What, in your opinion, based

23 upon a reasonable degree of scientific certainty, is the margin of error?

24 A. I'm unable to answer this question. No one is, I'm afraid.

25 Q. Your field of study and practice is actually making estimates from

1 the data and information that you would gather and glean. Can you, in the

2 field of specialty in which you received a Ph.D., provide us with an

3 estimate of what that margin of error is, an approximation, if you will?

4 MR. KOUMJIAN: Excuse me, Your Honour, but the question, I

5 think -- excuse me. It's not clear what counsel is referring to, the

6 margin of error for what specific figure? I don't think it's possible to

7 give a confidence level margin of error without giving a specific

8 statistic, asking about a specific statistic.

9 JUDGE SCHOMBURG: I think the question of Defence counsel is, to a

10 certain extent, fair and relevant and it would be indeed relevant to hear

11 what based on your experience in all other countries, in a kind of

12 worst-case scenario, the margin of error can amount to and translate this

13 to the area and the environment in Bosnia-Herzegovina, with all the

14 potential mistakes made when coming to these figures in the census.

15 My understanding of this margin of error is to point out in both

16 directions what would be the worst-case scenario. Is it possible, from

17 your general point of view, to say plus, minus 10 per cent? This would

18 amount to worst-case. Is it possible and is it, on a scientific basis,

19 possible to come to this margin of error in general, not related to

20 Bosnia-Herzegovina, first of all, and then probably come closer to that

21 what we have before us?

22 THE WITNESS: Well, I believe the question is still related to

23 this error between the true population size of the actual population and

24 the estimated population size as based on the population census. And, of

25 course, I am absolutely unable to indicate a number that would be an

1 approximation of such an error. I can only say that the number of

2 individuals reported in the population census in 1991, 4.4 million,

3 approximately, individuals is, in my view, an overestimation, I believe a

4 slight overestimation, because I believe, first of all, it is -- the

5 concept of the population is not clear. It's not clearly defined in the

6 documents I know from the statistical authorities. We don't know exactly

7 whether the statistics they present based on the census refer to the

8 de facto population or the de jure population. De facto is the actual

9 population living in the area. De jure is the population that lives there

10 actually, plus those who are registered in the population register. So it

11 is slightly unclear. This is one thing.

12 And another thing, there are duplicates in that census. Many

13 people, I think several thousand people, were reported twice, or even more

14 times sometimes. And this is related to the fact that household head who

15 was interviewed often reported children, for instance, students studying

16 in a different place and these students were also interviewed by other

17 interviewers and were included as individuals in statistics. So these are

18 the duplicates.

19 When we assume that the population reported includes these

20 duplicates and also population that is absent de facto in the country but

21 working, say, overseas, then these are the two reasons for the

22 overestimation of the population size.

23 How large it is, it is difficult to say for me right now. But I

24 believe that statistical authorities have not made clear indications about

25 how they deal with these issues when presenting their official

1 statistics.

2 JUDGE SCHOMBURG: Thank you for this. Defence may proceed,

3 please.

4 MR. OSTOJIC: Thank you, Your Honour.

5 Q. Let me, if I may, examine the actual census that was taken in 1991

6 but more from a -- help me understand how the census was taken. Censuses

7 can be taken, and are taken, in various countries in different forms.

8 They sometimes send the census information or packet to the individual

9 households and expect the individual citizens to return those forms back

10 to the bureau of census. Correct? That's one way of doing it.

11 A. Sometimes.

12 Q. And in this instance in Bosnia-Herzegovina, actually the way it

13 was done is that the offices, the federal offices in Bosnia-Herzegovina,

14 hired and employed individuals to go out and actually, on foot, take this

15 questionnaire house to house. Correct?

16 A. Yes.

17 Q. Now, do you know what the reliability or, statistically, would you

18 know how many of those reports came back either not filled completely or

19 having a result where the household members were not found?

20 A. I don't know how many households were not found. This type of

21 information is unavailable to me.

22 Q. Do you have information which would let us know whether or not

23 each of the data information requested in the census questionnaire,

24 whether or not any of those were omitted or not filled in by the various

25 citizens of Bosnia and Herzegovina in 1991?

1 A. So you mean incompleteness of the responses?

2 Q. Correct.

3 A. Well, I believe that I don't possess this information, but we

4 learn from the data itself about the incompleteness of responses. It is

5 very easy to check how many responses were wrong or incomplete, missing.

6 Q. Isn't that important if --

7 A. It varies depending on the item, of course.

8 Q. Isn't that statistical figure important, at the very least, if

9 you're going to make any reliance upon the informational source of the

10 1991 census, namely, that if 25 per cent, hypothetically, 25 per cent of

11 the respondents to the questionnaire or interview in 1991, failed or

12 refused to identify both their income and/or their educational background,

13 wouldn't that be significant in determining whether or not relying on such

14 data is reasonable?

15 A. But it is completely irrelevant to this report because the

16 information I used is just the individuals, counts of individuals. That's

17 it.

18 Q. I think that --

19 A. I didn't -- you are probably thinking about the second part of the

20 report, where the socioeconomic characteristics were discussed. But we

21 are not discussing this today, I think.

22 Q. So table 4, for example, which discusses the educational part,

23 that's not something that I understand you discuss and that's not

24 something that we are prepared to discuss today. Would that be a fair

25 summation?

1 A. Well, I can answer your question by showing you the number of

2 missing responses on this particular item from the census later, if it

3 is -- if you -- I think I believe it is such a basic information that we

4 can provide it very quickly.

5 Q. Are you familiar with the statistical process called imputation?

6 A. What do you mean by that? These are only words. Please explain

7 because our understanding can be different.

8 Q. I understand that. Do you as a demographer, have you ever heard

9 as a scientist, a statistical demographer, ever heard of the word

10 "imputations"?

11 A. You said quote - I don't see it in the transcript -- quote

12 imputation or -- ?

13 Q. I was merely putting emphasis and underscoring the word

14 "imputation".

15 A. Well, I heard it in many different context, but I need to know

16 more specifically what you mean.

17 Q. Sure. Maybe you'll like my definition. It's my understanding

18 that an imputation, in fact, in statistical demographic, scientific

19 statistical demography, is in essence where, if you take an informational

20 source such as a census, that the people at the census bureau take what's

21 called this imputation and fill in the gaps where the individuals did not

22 provide answers. That's what an imputation is, isn't it, Doctor?

23 A. One of the meanings is this, but I wouldn't expect that anyone

24 imputed any information because the questionnaires were scanned. And this

25 is how we obtain the data. So it is --

1 Q. Maybe I don't understand you. I'm not suggesting that you or your

2 office would impute that information. I'm talking about, in 1991, the

3 people who were conducting the census. I'm confident that they were

4 familiar with the statistical process called imputation.

5 A. The interviewers, you mean.

6 Q. No. The actual authorities who gathered the data and who actually

7 ultimately created the report that became the 1991 census, do you know and

8 did you at any time ask any of the authorities that you've met with

9 whether or not they considered imputations and to what extent were

10 imputations applied in the 1991 census?

11 A. I didn't discuss the issue of imputation with the local

12 authorities in Bosnia.

13 Q. In order to be able to rely on an informational source, the more

14 verification as to its credibility and reliability that we can do would

15 give us a higher confidence level, would it not, than in fact that data

16 that we're ultimately relying on to prepare conclusions, whether it be for

17 an independent company or a court would be necessary? Correct?

18 A. I believe it would be indeed beneficial to have an opinion of an

19 outside body on that.

20 Q. I'm merely slowing down, Doctor, just so that -- unfortunately, I

21 was speaking far too fast. I want to have a better understanding of this

22 issue and area, so bear with me if I pause either mid-sentence or after

23 your answer for any length of time. Merely I'm just trying to allow

24 everyone to catch up and to digest some of the answers that are being

25 provided.

1 On page 56, Doctor, of yesterday's testimony, you answered a

2 question by my learned friend that since the report that you provided to

3 the Court that we have before us, since that time, you have acquired "new

4 sources, extensive sources." I'm sorry, page 37. It was day 56. I

5 misspoke. Page 37, lines 8 through 11, if I may.

6 Since that report, you acquired "new sources, extensive sources,

7 and received, for instance, a more recent version of the list of missing

8 persons, so the sources that we have now at our disposal are much more

9 extensive and much more reliable."

10 Do you remember giving that testimony yesterday, Doctor?

11 A. Yes.

12 Q. Is it fair to conclude or would it be unfair to say that the

13 sources that were relied upon in preparing and ultimately reaching the

14 conclusions identified in your report were far less extensive and far less

15 reliable than those that you have in your possession today?

16 A. My answer --

17 MR. KOUMJIAN: May I object for a moment. I believe, and perhaps

18 the Doctor could answer, but I believe it's taken out of context, in that

19 the doctor was answering at that time information regarding missing and

20 killed, while she is testifying at the moment regarding population

21 changes. Obviously, the list of missing persons does not relate to the

22 census but to the persons who are missing or killed.

23 MR. OSTOJIC: That's very fair.

24 Q. Doctor, in that context, though, would you agree with me that you

25 have obtained other informational sources, not just for the missing and

1 the dead, but other informational sources that are much more extensive and

2 much more reliable than those utilised in the report that you prepared and

3 submitted to us, namely, dated April 19th, 2001?

4 A. If you think of sources about the population, I haven't.

5 Q. Have you since 1991 tried to obtain any such information that

6 would verify some of the conclusions or the data that are provided by the

7 1991 census or the voters' registry?

8 A. We -- well, regarding the population as a whole, it is impossible

9 to find a source that would cover the whole population in

10 Bosnia-Herzegovina. So the census, the 1991 census, is the last latest

11 complete source of information about the population.

12 Regarding the voters' register, we indeed completed -- obtained

13 additional information. We possess now the voters register 2000 that has

14 been compared to the voters' register 1997, 1998. And the conclusion is

15 that the overlap between the voters' registers are very, very large. So

16 the population reported in the voters' register or registers, say better,

17 is largely the same in all voters' registers that we have.

18 Q. Are we able, Doctor, from your report, in any fashion whatsoever,

19 determine what the movement of population was in Bosnia and Herzegovina,

20 specifically in Prijedor; are we able to determine or even glean from that

21 report what that movement was from April 1992 through September 1992,

22 which is a period of specific interest to us all?

23 A. The movement, population movement discussed in my report are

24 actually shown at the moment of the election in 1997. So we are unable to

25 say anything about this particular period.

1 Q. So in fact, all the data that's provided and all the conclusions

2 that you reached is for information as it looked if you were to

3 freeze-frame that time as it looked in 1997. Correct?

4 A. Correct.

5 Q. Would it be fair to say that the conclusions reached and the data

6 provided by you has nothing to do, and we cannot at any point, based upon

7 a reasonable degree of scientific demography, determine what that movement

8 of population was from January 1992 to, let's say, January 1993?

9 A. We are unable to specifically explain or show, describe, the

10 movements in this period but we believe, and I think not only us but also

11 other organisations, that what we saw in 1997 is largely the consequence

12 of what was happening in 1992, including the period you mentioned. And

13 there were only a few returns between, say, the end of the conflict, end

14 of 1995, and 1997, of the population who used to live in these areas,

15 including Prijedor. So those who left these areas during the conflict

16 largely lived at new locations by 1997.

17 Q. I'm not interested as much in 1995 as I am in 1992. Are we able

18 to discern from any of the data that you provide whether or not there was

19 a movement of population and what specifically that movement of population

20 was from April through December of 1992?

21 A. We didn't provide this information in this report.

22 Q. You mention on page 38 of yesterday's transcript or testimony,

23 during direct examination on page 15, that there are international

24 guidelines regarding the way the census should be conducted. Do you

25 remember that testimony?

1 A. Yes.

2 Q. Now, I understand that you have been busy the last couple weeks.

3 Actually, you testified in two other cases or three other cases?

4 A. Some other cases.

5 Q. Okay. Some other cases. Fair enough. Approximately, or exactly

6 two weeks ago, on July 10th -- actually, two weeks and one day, July 10th,

7 2002, you were asked about certain international recognised standards for

8 the -- for a census. And specifically, Madam, if you can reconcile this

9 for me, Dr. Tabeau. On page 10809 of the July 10th, 2002 transcript, you

10 were asked a question as follows, on line 12: "Are there internationally

11 accepted guidelines for the conduct of censuses in countries? Can you

12 please comment on that."

13 Question, again on line 24: "So do we have certain international

14 recognised standards? " Answer by you, Dr. Tabeau, on line 25 of that same

15 page 10809, as follows: "Well, I must say I don't know. I may expect

16 there are such guidelines, but as far as I know, every country is free as

17 to how to apply, induce, these guidelines." Just for the record, it

18 continues on page 10810 of that July 10th, 2002 transcript.

19 Did you learn what those international guidelines were since two

20 weeks ago, Doctor?

21 A. Yes, indeed, I checked whether such guidelines are produced and

22 who does it. It is indeed United Nations and statistical authorities,

23 Statistics Division of the Department of Economic and Social Affairs in

24 New York.

25 Q. So is it fair to say that in 2001, April 19th, which is the date

1 of your report, despite the fact that you were on the team that was

2 evaluating these informational sources and reaching the various

3 conclusions, you hadn't, until two weeks ago, known that there were even

4 international guidelines that would applicable for conducting censuses in

5 countries? Would that be fair?

6 A. Well, I wasn't sure, so the answer "I didn't know" actually is

7 correct in this case. As I said, I may expect -- I might expect there

8 were such guidelines. Moreover, you forgot that this report was written

9 together with Helge Brunborg, who is an employee of Statistics Norway, and

10 actually he is an expert regarding this type of issues. So I relied in

11 this case on his expertise.

12 Q. Fair enough. Of this report, with the three individuals that are

13 named on it, what portion of it did you specifically do, Doctor?

14 A. In this particular report, we completed the analysis of population

15 movements based on the two sources, census and voters' register. This is

16 the results that are shown in figure, I believe, 3. And next one, figure

17 4, and the mapping. And the second part of the report, socioeconomic

18 characteristics of persons missing and dead. You should also remember

19 that this is a project in which very many people are involved, and certain

20 things had been done in the beginning of this project by other people.

21 And the part related to the censuses was done by someone else.

22 Q. Are you also the individual who prepared and performed most of the

23 data that's provided on table 4 of your report?

24 A. Yes. We did this part of the analysis, the parts I mentioned,

25 together with Torkild Lyngstad.

1 Q. We'll get to that very shortly, I hope. Let me finish very

2 briefly with respect to the census. Based on your experience as you told

3 us yesterday, specifically on page 38, line 20, you identified the fact

4 that: "I myself participated as an interviewer during my university

5 education in one of the population censuses in Poland." And that appears

6 on page 38, lines 20 through 22, of yesterday's transcript.

7 Reconcile this for me, if you will, Doctor, please: When asked on

8 July 10th, 2002, whether you had any involvement in conducting or

9 participating in censuses, you responded on page 10811, line 3 -- let me

10 read the question:

11 "I understand, thank you. Another question which follows after

12 your submission, from your professional background, in fact,

13 I see that you are dealing mostly with mortality. Is that correct?"

14 Answer: "Yes, that is correct."

15 Question: "Not with the demographic issue and statistics?"

16 Answer: "Very much."

17 Question: "Not, census to be honest?"

18 Answer: "Not census as much. I was never involved in

19 conducting censuses."

20 On line 10, again, page 10811 in the transcript of July 10th,

21 2002.

22 My question to you: Which is it, Dr. Tabeau? Were you involved

23 in a census as you told us yesterday, or were you not and you were never

24 involved in a census, as you told the Court under oath on July 10th, 2002?

25 A. I believe I was telling the truth in the other testimony and also

1 yesterday here in this courtroom. I was asked then at that time in the

2 other testimony about my professional qualifications. As a professional,

3 I have never been involved in conducting census. And this is perfectly

4 true. I was involved in a census as a census interviewer during my

5 university education as a young student. I was a student of the first

6 year then. I would not consider that professional experience that can be

7 reported here in this Court to prove that I have qualifications as a

8 census expert. Definitely, this is not experience that can be seen in

9 this way.

10 Q. Doctor, with all due respect, that's why I'm just asking you to

11 reconcile that issue for me. And thank you very much for that.

12 In your experience as a census interviewer, whether it was during

13 your university or college days or during your review of such data, did

14 you ever come to a situation where you found that the people who were

15 providing the information were inflating or exaggerating items that are

16 provided or asked for by the census, such as income or education?

17 A. Honestly, I cannot recall any experience with this type of issues

18 from the time I was interviewing people. I cannot say that from my own

19 experience I know the problem.

20 Q. But the literature is actually quite extensive when it discusses

21 that one of the flaws or inaccuracies with the census, whether it be done

22 by an individual interviewer or mailed out to various households, they

23 find that those inaccuracies stem in part, and in essence, from both

24 exaggerated and inflated data that would be provided by the individuals.

25 Correct?

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1 A. Of course, there is a lot of literature that is related to this

2 type of issues.

3 Q. Based upon a reasonable degree of scientific certainty, what is

4 the margin of error with respect to this very issue that you feel is

5 appropriate for the 1991 census in which you rely upon?

6 A. Again, you expect me to mention a number, the size of the error,

7 acceptable error. I, again, cannot say right now what would be such an

8 error. But in statistics generally, in mathematical statistics,

9 5 per cent error when providing an estimate is an acceptable error.

10 Q. Was there, Doctor, any verification done to determine whether the

11 data that was provided by the citizens in Bosnia and Herzegovina from a

12 secondary source, whether there was any work performed to make

13 verification -- you know what? I should repeat that question. I

14 apologise. Can I strike that and start over?

15 JUDGE SCHOMBURG: May I briefly interrupt you. We have really to

16 concentrate on the relevant issues. The relevant issues - we just

17 conferred - in this case seem not to be education or income; it's a

18 question of people living in the area, of missing people, people being

19 maybe deported from one area to the other. But we shouldn't go into

20 details of these additional questions of the demographic science.

21 MR. OSTOJIC: Your Honour, with all due respect, may I briefly

22 respond to that, if I may?

23 Your Honour, in the fourth amended revised indictment, as well as

24 during the opening statement by the Office of the Prosecutor and

25 throughout their case in chief in this case, the Prosecution has alleged

1 that a various group, namely intellectuals and those who were better

2 educated than the actual norm of society, were specifically being targeted

3 by various members or groups in Prijedor specifically. It is that

4 allegation, Your Honour, that I think that they have consistently made,

5 and therefore have asked, I believe, Dr. Tabeau and other scientific

6 demographers, to conclude for the Court data which we completely disagree

7 with and dispute. And the reason comes because as an issue that is part

8 and parcel with, as I believe the doctor will agree with me, the level of

9 education that perhaps individuals may have.

10 JUDGE SCHOMBURG: Respectfully, we don't need any kind of science

11 to know that there isn't such a link in general between education and the

12 income, unfortunately.

13 MR. OSTOJIC: If I may proceed, Your Honour.

14 JUDGE SCHOMBURG: Yes.

15 MR. OSTOJIC:

16 Q. Doctor, just briefly if I may, with the Court's permission, ask

17 one further question: When you take an informational source and you look

18 to determine or verify the accuracy of that, would it be fair to say that

19 scientists and demographers such as yourself, in order to make that

20 verification, would consider what's identified and called as a secondary

21 source?

22 A. Yes.

23 Q. And for example, if we were to study or make any observations with

24 respect to education, the data provided to us that you relied upon is this

25 1991 census. In order to determine both reliability, completeness, and

1 thoroughness, one would from a secondary source obtain the data and

2 information from places like the university, the college, the postgraduate

3 schools that are in the area that you're studying. Correct?

4 A. This is all correct. It is, again, a matter of time and resources

5 needed to collect this information.

6 Q. Did you or did your group and department, did you at any time, in

7 an attempt to determine the reliability and completeness of your findings,

8 did you seek out these secondary sources such as universities to determine

9 whether or not the accuracy of the data provided in the 1991 census would

10 be considered reliable?

11 A. I didn't. It was absolutely impossible for me within these two

12 years to do it.

13 Q. We spoke briefly of the reliability of various sources and

14 documents. Are you familiar with the widely accepted factors that may

15 affect accuracy and reliability such as synthetic errors, balancing

16 errors, late adds, and whole person imputations? Are you familiar with

17 those terms?

18 A. Well, they are not terms -- again, you would need to explain

19 exactly what you mean, but I am familiar with these types of terms. What

20 is your understanding of these types of terms, of course --

21 Q. In your report, do you at any time factor in these widely accepted

22 factors in order to let us know how accurate or how reliable the

23 conclusions or the bases of the documents you relied upon are by utilising

24 any one or a number of these factors?

25 A. You are again speaking about the second part of the report in

1 which we study socioeconomic characteristics of persons missing and dead.

2 And in this context, I must say I did not present any measures of

3 accuracy, completeness, and reliability of the information analysed in

4 this report.

5 Q. Well, let's then go quickly, if we may, to the missing and the

6 dead, as we've identified them, if I may. And that's the report that was

7 discussed. The data that we have before us, as you stated on page 37 with

8 respect to that, would be considered less, respectfully, extensive and

9 less reliable than the data that you have in your possession since this

10 report 19th of April, 2001. Correct?

11 A. So what is the actual question, please?

12 Q. I thought -- I'll restate it.

13 A. It was a very long question, so I missed the point.

14 Q. I know. That happens a lot. I'm sorry.

15 My question to you, Doctor, is this: In light of the fact that

16 you stated yesterday that you have available and in your possession more

17 extensive data or data which is more extensive or much more reliable, is

18 it fair to conclude that the material in connection with specifically the

19 missing and dead that we discussed here yesterday and today, in part, that

20 it would better to rely and wait to get that complete report before we

21 actually go through each of the tables that were discussed here?

22 A. This is what I said yesterday.

23 Q. Let me ask you this, then: Did you at any time or did your office

24 at any time consider with respect to quality control items, since we're

25 talking about dead and missing people, similar to those secondary sources

1 such as the universities that we've mentioned, did you consider as a

2 quality control reviewing or analysing any such secondary sources to

3 determine the number of missing or dead persons in Bosnia and Herzegovina?

4 MR. KOUMJIAN: Excuse me, Your Honour, the premise of the question

5 that we're discussing, the missing and dead, I thought was absolutely

6 inaccurate. We choose on direct examination not to do that because the

7 doctor is preparing a report with better and updated sources. I thought

8 counsel was going to cross-examine on the new report once it's done. I

9 don't think there should be two cross-examinations on that, so I'd ask

10 that he choose whether to cross-examine once the report is completed or do

11 it now.

12 MR. OSTOJIC: It's always --

13 JUDGE SCHOMBURG: Indeed, we should wait for the second report, no

14 anticipated cross-examination.

15 MR. OSTOJIC: If I may continue, Your Honour, briefly.

16 Q. Are you familiar, Doctor, with the methods used to compare the

17 accuracy of data that's provided such as models known as the total error

18 model and the lost function analysis?

19 A. Well, I must say that these are tools that I certainly heard of,

20 but I believe that it is a little bit unfair to ask me questions about any

21 method that can be applied to do with this type of operation. I would

22 rather prefer to speak about the methods I will present you in my report,

23 and then we can discuss to what extent these are appropriate tools.

24 Q. Okay, that's fair.

25 A. As always, I cannot -- I'm just a human being and don't know

1 everything and anything. And I am -- what I have done, I understand how I

2 did it and why I did it, and please ask me about these issues.

3 Q. That's fair, Doctor. Thank you very much. Just a couple other

4 questions. In your report, if you can tell us whether or not in

5 determining the movement of population in Bosnia and Herzegovina,

6 specifically in Prijedor, did you or your office at any time take into

7 consideration the voluntary movement of the Muslim population in April and

8 May of 1992, specifically, the approximate 15.000 to 20.000 people that

9 evacuated the area at the commencement of the war on April of 1992 in

10 Sarajevo?

11 A. Are you asking this generally, in my work generally, or in the

12 context of this report? In both cases, I must say I don't possess any

13 information, specific information, in terms of figures.

14 Q. Would it be fair to state that if that information is available

15 and produced to you, it may, in fact, alter dramatically the conclusions

16 that are reached within your report?

17 A. This report for Prijedor?

18 Q. Yes.

19 A. I cannot answer this question right now. I would have to see the

20 figures.

21 Q. Just a few more questions, if allowed. With respect to the

22 methodology that was used in conducting your report, namely, this matching

23 or linking as you've described it, can you tell us what the widely

24 accepted or what the literature says is actually the flaws and/or

25 inaccuracies of utilising only one source for purposes of both matching

1 and linking? That was the end of the question.

2 A. When we are speaking about matching or linking, speaking about one

3 and the same thing, and this is always done in the context of more

4 sources, more than one. So there must be at least two sources to be

5 matched with each other. And when matching sources, we must think of

6 having at our disposal a characteristic of individuals in both sources

7 that can be easily compared and specifically compared, that this

8 characteristic would allow us to decide that these particular records, two

9 records, are the same in both sources. If there is no such

10 characteristic, the matching becomes more complex and problematic.

11 Q. And problematic in the sense that it becomes more flawed and more

12 inaccurate, correct?

13 A. Yes.

14 Q. And that's why scientists such as yourself and people who are in

15 the field of demographics actually, in order to determine or to reach an

16 acceptable, reliable, and complete conclusion of the report, seek out not

17 only secondary sources but also obtain for this methodology of linking and

18 matching, they would make comparative analysis to more than just

19 one-on-one sourcing. Correct?

20 A. Well, I think that I should explain a little bit more about

21 matching. So matching, once it is done with the census, it is done

22 between all sources. So it is not that we match only two sources. At the

23 time, we match two sources, but once all sources are matched with the

24 census, the sources are matched also with each other. So in this way, we

25 compare individually very many sources.

1 MR. OSTOJIC: Thank you very much for your answer. Your Honour,

2 it may be an appropriate time to take a break. I truly only have

3 approximately 10 or 15 minutes left. However, if I can be given the

4 questionnaire, I would be able to at least conclude that so we don't have

5 to come back to it later. And it may be longer just based on the

6 questionnaire, if permitted. Thank you, Your Honour. Thank you, Doctor.

7 JUDGE SCHOMBURG: Thank you. I hope during the break the Defence

8 can be provided with the questionnaire. And as usual, the same request by

9 the Bench, to be informed. And I want to recall before going to the break

10 that we still expect the response from the side of the Defence as regards

11 the fourth notice of the OTP as regards 92 bis statements. We have

12 already the answer to the fifth, but not the fourth. If we can do this

13 after the break. Thank you.

14 The trial stays adjourned until 11.00 sharp.

15 --- Recess taken at 10.32 a.m.

16 --- On resuming at 11.05 a.m.

17 JUDGE SCHOMBURG: Please be seated. Please proceed.

18 MR. OSTOJIC: Thank you, Your Honour.

19 Q. Doctor, just briefly to conclude the area that we were discussing,

20 in discussing the secondary sources which may be utilised by scientists

21 and demographers such as yourself, secondary sources such as the

22 administrative records of births, deaths, legal immigration and legal

23 emigration. Are usually considered by persons in your profession in

24 analysing and computing data in reaching your conclusions. Correct?

25 A. Correct.

1 Q. In this report dated April 2001, had you, Doctor, ever used or

2 examined any such secondary sources that we've just discussed or

3 described?

4 A. I have not, but again it is -- if you would tell me why would I

5 discuss sources like legal immigration, birth, death, to show the ethnic

6 composition?

7 Q The purpose, I think, is the literature has shown, and you may

8 disagree with me on this, but I believe the literature is quite vast in

9 concluding quite universally that utilising these secondary sources are

10 extremely relevant and important in order to give reliability and accuracy

11 to the report that's being submitted when analysing these two

12 informational sources that you did.

13 A. I believe that it would be indeed necessary to discuss these

14 sources if I would present in my report a population projection starting

15 with the census, 1991 census, as the base year for the projection. So

16 using the standard demographic methods and sources like live birth,

17 deaths, migration, I could present you with an estimate of the population

18 by 1997, any other year, and then I would have to discuss these sources.

19 If not, I don't think I really have to discuss these sources when I

20 discuss -- when I was presenting population from two selected years.

21 Already population figures were there. I didn't have to produce them.

22 Q. Now, we discussed briefly, Doctor, S228 A and B, which is an

23 exhibit introduced by the Office of the Prosecutor yesterday, which

24 is -- which was marked "strictly confidential" from the Ministry of

25 Internal Affairs, Centre for the State Security Department, Banja Luka."

1 In connection with that document, and I'm not sure if, Doctor, you

2 have that document in front of you. If you could just advise me whether

3 or not you do.

4 A. Not right now.

5 MR. OSTOJIC: If I can have the Court, please, have the usher

6 provide the doctor with the document.

7 Q. Do you, Doctor, in your professional experience, at any time have

8 a situation where you were provided data from a source that's identified

9 as the Ministry of Internal Affairs, Centre for the State Security

10 Department?

11 A. This is the experience. This is the document.

12 Q. Any other, other than this one time?

13 A. This is the document which is from 1995. Well, I believe there

14 are more documents similar to this one. I might have something for 1993

15 like this one next to the figures from the Kozarski Vjesnik that we

16 discussed yesterday. But I can't recall that I have more figures,

17 statistics, produced by the State Security Department.

18 Q. My question was a little different, and I apologise if it was not

19 clear. That is, during the years in which you became a scientist, a

20 demographer, had you ever relied on data from an institution or

21 institutions identified as state security departments in the Ministry of

22 Internal Affairs?

23 A. Outside of the Office of the Prosecutor, I didn't.

24 Q. Did you, Doctor, while examining this overview, as it's captioned

25 on page 1 of S228, did you, Doctor, make any verification as to the

1 reliability of the data that is provided within that document?

2 Specifically, if I may direct your attention to page 6 of the document

3 relating to the Municipality of Prijedor which is identified under

4 subparagraph 9.

5 A. 9, we have census, 1991 census. So these figures, of course, were

6 compared with other sources.

7 Q. Can you tell me, Doctor, whether the figures that appear on

8 Exhibit S228A are the exact same figures as the figures that you rely on

9 from the 1991 census?

10 A. Slightly different, I believe. We can check this immediately with

11 the report. The total is in my report, page 7, English translation,

12 table 2.

13 Q. I have it. Under 1991, correct?

14 A. Yes.

15 Q. In fact, each of the categories for Muslims, Croats, Serbs, and

16 the other category, none of the numbers actually match. Correct?

17 A. Not perfectly, don't match, of course. But the differences are

18 small.

19 Q. Would that be considered a margin of error or how would you

20 describe those differences?

21 A. I believe these are marginal differences.

22 Q. The category that you have in your table 2 on page 7 of your

23 report, namely, "other," you have an asterisk by that, and you identify

24 that as Yugoslavs only.

25 A. Right.

1 Q. Did you, Doctor, in connection with formulating the conclusions

2 that you did in this report, verify or try to determine from the 1991

3 census what the composition was of those individuals who identified

4 themselves in the survey as Yugoslavs; namely, did you further, in order

5 to make your report more reliable and accurate, determine which ethnic

6 group of the three these Yugoslavs were actually members of?

7 A. It is impossible using the census data. Once someone reported the

8 ethnicity "Yugoslav," that's the ethnicity.

9 Q. Did you, Doctor, make any assumptions as to whether or not the

10 individuals that identified themselves as Yugoslavs belonged to one or a

11 different ethnic group?

12 A. I didn't make any assumptions about ethnicity of those reported as

13 Yugoslavs, any other ethnicity. I just used the reported ethnicity from

14 the census.

15 Q. What per cent as a whole, if you can share with me, is this other

16 category?

17 A. The Yugoslavs together with the other ethnic group. On the next

18 page, page 8, table 3, English translation of the report, the "others" are

19 8.3 per cent in 1991.

20 Q. Now, help me understand this margin of error, if you will, or my

21 understanding of margin of error. If we can establish that a hundred per

22 cent of this other category that we've identified as the Yugoslavs were

23 actually - and we know that's not realistic, it's a hypothetical

24 question - were actually of the ethnic makeup Serb, would you agree with

25 me then that the -- at the very least, the margin of error of your report

1 and data would be that 8.3 per cent?

2 A. The 8.3 per cent would be then classified mistakenly as "others"

3 while, in fact, they were Serbs.

4 Q. Yesterday, during your direct testimony, on page 45, specifically

5 lines 6 through 10, you gave us a somewhat example, if you will, of census

6 classifications. And if I may read that portion of it, you continued in

7 your answer, although it's quite extensive and lengthy, you state on page

8 6: "And we know examples from the Former Yugoslavia that when political

9 situation was more unstable, more people reported themselves as Yugoslavs,

10 just generally as Yugoslavs, and less people reported themselves

11 specifically as Serbs or Muslim or Croats." On line 10 of page 45.

12 A. Yes, I said something like that.

13 Q. So do you think the situation in Bosnia-Herzegovina, from what you

14 know, in 1992 was more or less stable?

15 A. It was certainly less stable than, say, ten years earlier in the

16 Former Yugoslavia or in other countries at the same time.

17 Q. So based on -- so based on your understanding or the assumptions

18 that you make, as you've just told us, that in fact wouldn't it be more

19 realistic in 1991 that there would be, since there was instability or

20 there was an unstable situation, politically speaking, in the Former

21 Yugoslavia, specifically in Bosnia-Herzegovina, that more people would

22 identify themselves as Yugoslavs as opposed to only 8.3 per cent of the

23 population?

24 JUDGE SCHOMBURG: May I just interrupt. In addition, it would be

25 only fair to ask whether, Witness, if there is any factual basis for the

1 witness to answer this question, the situation in 1981 indicating that

2 "others" as 13 per cent would have been more unstable than in 1991.

3 THE WITNESS: This is very straightforward conclusion if we

4 understand this figure as a measure of political stability, but I believe

5 it is a very imperfect measure of political instability in a country.

6 MR. OSTOJIC:

7 Q. If I could direct your attention to page 7 of your report, you

8 identify that the -- on a footnote there below, under "sources," that the

9 1993 census from Republika Srpska is both methodologically and

10 qualitatively not known, correct?

11 A. Yes.

12 Q. Isn't it fair also to state, Doctor, based upon a reasonable

13 degree of scientific statistical and demographic certainty, that indeed

14 reliance upon unknown methodology and quality would only increase the

15 margin of error with respect to the conclusions that one would reach while

16 analysing two different sources?

17 A. Generally, it is. But we should remember that we have the choice

18 between showing some figures that were produced in addition by the local

19 authorities in charge, say, of this area, and using nothing. So it is a

20 choice, a very difficult choice, and we have chosen to show these figures.

21 Q. We spoke briefly about immigration and migration of populations.

22 Would you agree with me that in some situations, namely, in the Former

23 Yugoslavia of Bosnia and Herzegovina, from 1995 through 1997, which is

24 specifically the area of focus in your April 19th, 2001 report, that there

25 were factors, politically speaking, such as those that you discussed

1 yesterday, namely, the Dayton Peace Accords, which influenced the exodus

2 of various ethnic groups and populations from one area to another?

3 A. Of course, there were certain political factors regulating or

4 influencing population movements in this period.

5 Q. And in fact, those were factors that were legally, as best as you

6 can tell us, widely and internationally accepted and quite frankly

7 mandated, were they not?

8 A. Well, I believe this is not a question for me.

9 MR. KOUMJIAN: The question is too vague.

10 JUDGE SCHOMBURG: Sustained.

11 MR. OSTOJIC:

12 Q. If we can turn back to S228A, please, on page 7. Specifically,

13 Doctor, I'm focussing your attention to subcategory B of paragraph 9,

14 which covers the Prijedor area. There they seem to have a 1995

15 identification of approximate numbers of each ethnic group. Correct?

16 A. Yes.

17 Q. Did you, Doctor, do any independent verification to determine the

18 accuracy of what, (a) the term "approximation" means, and (b) whether or

19 not these statistics were in any way manipulated by the people who were

20 formulating these statistics for political reasons?

21 A. Well, accuracy can be assessed by comparing these figures with the

22 figures we produced using the voters' register from 1997. The relative

23 measures, fractions, percentages, can be compared, I believe.

24 Q. And what was the conclusion once that comparative analysis was

25 done?

1 A. Well, it is next page in my report, page number 8, table 3, where

2 the 1995 figures and 1997 figures are shown next to each other. You see

3 that there are certain similarities in the pattern obtained from each of

4 these two sources. There are also certain differences as well.

5 And regarding the second part of your question, manipulation, of

6 course, is beyond my ability, I think, to check. I couldn't do that.

7 Q. So with respect to table number 3, Doctor, is it fair that the

8 data that you inputted in order to compile and reach the conclusions that

9 you did in your report, under the subcategory 1995, was directly taken

10 from this source, S228A?

11 A. Well, I believe so. These are the same figures.

12 Q. Now, just help me if you may, just to have an understanding of

13 another table that I didn't quite understand, and that is table 4. I just

14 want to -- my question will be limited because I'm sure we're going to

15 have an opportunity, once you conclude the z-test and the calculations

16 that are not available at this time which appears on page 17 of the April

17 19th, 2001 report. Just so I can have a better appreciation and

18 understanding of this report, Doctor, is it fair to say that this table is

19 actually distortive, flawed and inaccurate, because it does not include

20 simple things such as the educational status of women or persons from the

21 ages of 16 through 24?

22 A. It is a table that is made only for men age 25 or more years, and

23 it was meant to be only for men of these ages. And the reason was the

24 sample size didn't make sense to analyse women who went missing or died

25 because the numbers were insignificant. So the analysis presented in this

1 table is only presented for men, and the age restriction is related to the

2 fact that we wanted to include only those who completed already their

3 education.

4 Q. What is the basis to determine that people, whether they are men

5 or women, would not complete higher education, including postgraduate

6 work, at the age of 23 or 24?

7 MR. KOUMJIAN: This is beyond the scope of the direct examination

8 and the parts of the report that we were dealing with this week with the

9 witness's testimony. This is part of the report that would be updated

10 with possibly new information. So I think we would be repeating the

11 examination at a subsequent time.

12 JUDGE SCHOMBURG: In addition to that, please recall what I said

13 earlier on the relevance of education. And therefore, sustained.

14 MR. OSTOJIC: Thank you, Your Honour.

15 Q. Doctor Tabeau, at this time, I just want to thank you for

16 answering my questions and for helping me understand the scientific

17 statistical demography and hopefully, once we get the report, we can have

18 a discussion with respect to your conclusion. Thank you, ma'am.

19 MR. OSTOJIC: However, for the record I have not yet obtained a

20 copy of the questionnaire. So I would just like, for the record, reserve

21 the right to further ask Dr. Tabeau about the questionnaire, if allowed,

22 at a later time. Thank you.

23 THE WITNESS: If I may say something, Your Honour.

24 JUDGE SCHOMBURG: Yes.

25 THE WITNESS: I provided four copies of the census questionnaire

1

2

3

4

5

6

7

8

9

10

11

12

13 Blank page inserted to ensure pagination corresponds between the French

14 English transcripts

15

16

17

18

19

20

21

22

23

24

25

1 to the registrar. So I hope this can be arranged immediately that you

2 will receive a copy.

3 MR. OSTOJIC: Thank you.

4 JUDGE SCHOMBURG: Madam Registrar, please, via the usher,

5 distribute the pieces.

6 Probably we may come back to this later. I have only three

7 questions, not sophisticated at all, with necessary skepticism admitted

8 vis-a-vis statistics.

9 Questioned by the Court:

10 JUDGE SCHOMBURG: Nevertheless, do you have any concrete data as

11 regards the census of 1991 which is a discrepancy between the

12 questionnaires sent out and coming back?

13 A. I understand that this is a question related to the nonresponse

14 rate?

15 JUDGE SCHOMBURG: Yes.

16 A. I unfortunately cannot show specific figures. I'm sorry. I don't

17 know.

18 JUDGE SCHOMBURG: Second, we have the figures on the voters'

19 register. Do you have any figures how many persons actually participated

20 in the voting procedure?

21 A. I have these figures for the whole country, and also for each

22 municipality. Approximately, for the whole country, a number of 2

23 million, 2.4 million individuals.

24 JUDGE SCHOMBURG: What is this in percentage?

25 A. The Prijedor population of Bosnia-Herzegovina was 4.4 million,

1 approximately, so it is more than 50 per cent of the population, pre-war

2 population, that participated, registered to vote in the election.

3 JUDGE SCHOMBURG: And you can compare population and people

4 participating in the election? Correct me if I am wrong, only people over

5 the age of -- including the age of 18 have the right to vote.

6 A. Yes, this is correct.

7 JUDGE SCHOMBURG: So this would bring us to a figure of less than

8 4 million people having the right to vote. Correct?

9 A. Yes, this is correct. This percentage I mentioned would be then

10 higher. I don't have it right now ready for you. But it will be

11 certainly more than 50 per cent then.

12 JUDGE SCHOMBURG: Would you be so kind and provide us with these

13 figures when you come for another hearing here.

14 A. Yes, of course.

15 JUDGE SCHOMBURG: Thank you. Finally, we were provided with a

16 clip of Kozarski Vjesnik, and it's still open that we ask for the original

17 of this document indicating that it's really from the 2nd of July, 1993. I

18 think we have to come back to this.

19 Did you include this unofficial census results in any of your

20 reports?

21 A. Other reports?

22 JUDGE SCHOMBURG: In your own report or in the upcoming report.

23 A. The original document, Your Honour? That's the question?

24 JUDGE SCHOMBURG: The question is whether or not you included in

25 your report --

1 A. No.

2 JUDGE SCHOMBURG: -- presented here, or is it your intention to

3 include these additional figures in another report?

4 A. We can include the Kozarski Vjesnik, the copy that was distributed

5 already yesterday, but I understand that this copy is already in

6 possession of everyone. So my intention is not to include once again a

7 document which is available.

8 JUDGE SCHOMBURG: This is my question. It's an additional

9 information to that what you provided in your report. And finally --

10 MR. KOUMJIAN: Your Honour, I believe the witness misunderstood

11 the question. It is included in the report under the 1993 figures. That

12 is the source, although the report clearly indicates that Dr. Tabeau had

13 no way to verify the methodology or accuracy of the data but simply

14 reported this is what the Serbian authorities reported in 1993 as the

15 population.

16 JUDGE SCHOMBURG: To be quite concrete, a distinction must be made

17 between that what we can read in Kozarski Vjesnik and as we can read there

18 that the official results will be published by the republican bureau of

19 statistics. Did you rely on the official results or on this report in

20 Kozarski Vjesnik?

21 A. Your Honour, I will discuss this issue with Helge Brunborg, who

22 was doing this part of the report, and clarify with him which exactly of

23 the two sources were used for our figures in the report.

24 JUDGE SCHOMBURG: Thank you. Additional questions?

25 Judge Vassylenko, please.

1 JUDGE VASSYLENKO: Just one question. In this information

2 published in Kozarski Vjesnik, there is a very interesting figure that

3 96.3 per cent of the population of Prijedor have Serbian citizenship. And

4 I would like to know whether you have information about the citizenship of

5 the population of Republika Srpska, how many persons living in Republika

6 Srpska now have Serbian citizenship?

7 A. I don't have this information right now in my office, especially

8 not for the period 1993 or 1995. I can explore, investigate the issue,

9 and report later on the result of this investigation.

10 JUDGE VASSYLENKO: Thank you, Madam Tabeau.

11 JUDGE SCHOMBURG: Any further questions by one of the parties?

12 MR. KOUMJIAN: I have a very brief question, just to clarify

13 something in the cross-examination.

14 Re-examined by Mr. Koumjian:

15 Q. Is it correct, Doctor, that all of the breakdowns of ethnicities

16 in the 1991 census was done by self-classification? If a person reported

17 themselves as a Yugoslav, they were classified as a Yugoslav. If they

18 reported themselves as a Croat, they were recorded as a Croat. Is this

19 correct?

20 A. Yes, this is correct. Only considering and analysing as, for

21 instance, Serbs reported themselves as Serb ethnicity, we considered only

22 them as Serbs.

23 Q. Again, in the data used in 1997, because voters did not report

24 their ethnicity but you determined that by linking the voter to the 1991

25 census, it was again self-classification as to what a person felt

1 themselves to be, what ethnicity. Correct?

2 A. Yes, this is correct. It is important because in this case, we

3 used still one, the same definition of ethnicity, and compare population,

4 the population, in two different periods of time. Consistent definition

5 of ethnicity in this way was obtained.

6 Q. Okay. Thank you. And is it correct that your field is

7 demographics and you are not a professional historian on Yugoslavia,

8 although you mentioned the fact of instability, the various political

9 events influencing how a person would classify themselves is not an area

10 of your specialty?

11 A. Yes, it is correct. I have a common knowledge of history and a

12 limited knowledge of politics.

13 MR. KOUMJIAN: Your Honour, my only other question is given that

14 only a small portion of this report was actually covered in direct

15 examination, I don't know if Your Honour wants us to mark the entire

16 report as an exhibit or how Your Honours, Defence counsel, wish to handle

17 that.

18 JUDGE SCHOMBURG: May I first hear observations by the Defence as

19 regards the admissibility of this tendered report.

20 MR. OSTOJIC: Perhaps we can mark it, as a suggestion,

21 provisionally, and then wait until the final report is included or given

22 to us, and then the doctor can decide if she wants to make it as an annex

23 to her report or if the same data and information will be relied upon and

24 subject to that second report. I would prefer that we wait for the second

25 report so that it would be complete. However, acceptable also to

1 accepting this report as an exhibit and have no objection to the report to

2 be produced or marked as an exhibit and introduced into evidence.

3 JUDGE SCHOMBURG: The next available number will be?

4 THE REGISTRAR: It will be S230, Your Honour.

5 JUDGE SCHOMBURG: Then the entire report will be admitted into

6 evidence as S230.

7 MR. KOUMJIAN: Just for the record, I believe the -- aside from

8 portions of the report discussing the sources and methodology, the actual

9 results that were covered in the testimony relate to pages 7 through 10 of

10 this report.

11 JUDGE SCHOMBURG: Additional questions by the Defence?

12 MR. KOUMJIAN: Your Honour, perhaps -- I'm sorry. Does

13 Your Honour want the questionnaire or does either the Defence or Your

14 Honours want the questionnaire marked as an exhibit?

15 JUDGE SCHOMBURG: I just wanted to turn to this question when

16 turning to the Defence. Do you have any additional questions based on

17 this questionnaire?

18 MR. OSTOJIC: Quite frankly, Your Honour, I haven't had time to

19 digest the questionnaire in full length, but I do have, if permitted by

20 the Court to ask a follow-up question in the area covered by re-direct

21 examination by the OTP, or I can reserve it for another time because I'm

22 sure the area of self-classification will be raised at a later time as

23 well.

24 JUDGE SCHOMBURG: I think, to avoid repetitious, we should do it

25 when we have the entire and updated report before us. Then I can see no

1 additional questions.

2 Thank you very much, Madam Tabeau, for providing us with this

3 information. And we are looking forward to have as soon as possible the

4 documents and, as mentioned, it would be favourable to have

5 this before the Court recess.

6 THE WITNESS: Thank you, Your Honour.

7 JUDGE SCHOMBURG: May the usher please escort Madam Tabeau out of

8 the courtroom.

9 [The witness stands down]

10 JUDGE SCHOMBURG: May we hear immediately the next witness and may

11 be escorted into the courtroom immediately.

12 MR. KOUMJIAN: Hopefully the witness is outside, Mr. O'Donnell.

13 JUDGE SCHOMBURG: Thank you. Not to forget that I think it's

14 without doubt, this document, the questionnaire, will be admitted into

15 evidence as S231B, as evidently we don't have an English version.

16 MR. KOUMJIAN: Just a reminder to Your Honour, I don't know if you

17 want to mark it, but the report also has a French version, if you wanted

18 to give that a different number.

19 JUDGE SCHOMBURG: I think we did it always with a C. Right? Then

20 please do so.

21 Maybe in order to use all the available time ask the -- well, the

22 witness appears already.

23 [The witness entered court]

24 JUDGE SCHOMBURG: Good morning. Mr. O'Donnell, correct?

25 THE WITNESS: That's correct, Your Honour.

1 JUDGE SCHOMBURG: Thank you for coming immediately. May we please

2 hear, first, your solemn declaration.

3 THE WITNESS: I solemnly declare that I will speak the truth, the

4 whole truth, and nothing but the truth.

5 JUDGE SCHOMBURG: Thank you very much. Please, be seated.

6 THE WITNESS: Thank you.

7 JUDGE SCHOMBURG: And the floor is for the OTP.

8 WITNESS: BERNARD O'DONNELL

9 Examined by Mr. Koumjian:

10 Q. Sir, would you state your full name for the record.

11 A. My full name is Bernard Patrick O'Donnell.

12 Q. Mr. O'Donnell, who are you employed by?

13 A. I'm employed by the Office of the Prosecutor as an investigations

14 team leader.

15 Q. How long have you worked for the Office of the Prosecutor?

16 A. Since 1996, Your Honours.

17 Q. Prior to joining the Office of the Prosecutor, did you have any

18 experience in law enforcement?

19 A. Yes, I did. I joined the Australian federal police about 20 years

20 ago and worked with the federal police until the year 2000, and was on

21 leave without pay whilst attached to the Tribunal up until that time.

22 Q. Mr. O'Donnell, on the 23rd of March of 2001, can you tell us

23 what -- where you went and your duties for the Office of the Prosecutor?

24 A. On the 23rd of March, 2001, Your Honours, I undertook the formal

25 arrest of Mr. Stakic in Belgrade on behalf of the Office of the

1 Prosecutor, and brought Mr. Stakic back to The Hague.

2 Q. To clarify the matter, did you go and detain Mr. Stakic in

3 Belgrade or was he already detained by authorities there?

4 A. Mr. Stakic had already been detained by local authorities in

5 Belgrade. He was handed over to me at the airport in Belgrade.

6 Q. Prior to testifying about -- I'm going to question you about the

7 arrest. Have you refreshed your recollection with any notes that you took

8 at that time?

9 A. Yes, I have. The arrest procedure and the reading of rights was

10 tape recorded, Your Honours. I prepared a transcript of that tape

11 recording, and that was lodged into evidence. Before giving evidence, I

12 refreshed my memory from those notes.

13 Q. Thank you. Do you see Dr. Stakic in court today?

14 A. Yes, I do.

15 Q. Just for the record, where is he sitting?

16 A. Mr. Stakic is sitting against the wall beside the security

17 officer, wearing a grey suit and a maroon tie with dots.

18 Q. Mr. O'Donnell, do you have your notes with you?

19 A. Yes, I do.

20 Q. If you need to refer to your notes, just indicate to me prior to

21 doing so that you are doing that.

22 Tell us what happened when you arrived in Belgrade.

23 A. When I arrived in Belgrade, I met with local authorities, obtained

24 the details of those people, identified myself to the local authorities,

25 made arrangements for Mr. Stakic to be brought to the aircraft. I advised

1 local authorities that I wanted to undertake the reading of the rights as

2 soon as possible. That was done on the aircraft, and we departed for

3 The Hague.

4 Q. And you mentioned a tape recording. When did you begin to tape

5 record your interactions with the detained individual, Dr. Stakic?

6 A. From the first words that I said to Mr. Stakic, the tape recorder

7 was on.

8 Q. Where was it that you actually met him for the first time?

9 A. I first met him on the aircraft. He was transferred onto the

10 aircraft, but not by myself.

11 Q. So you saw him being transferred onto the aircraft but first

12 spoke to him on the aircraft. Is that correct?

13 A. That's correct.

14 Q. And you indicated that you prepared a transcript of a tape that

15 you made of that conversation. And was the tape itself also booked into

16 evidence?

17 A. Yes, it was, your Honours, both the actual tape recording, the

18 cassette, and the transcript of the cassette recording were lodged into

19 evidence by myself.

20 MR. KOUMJIAN: Your Honour, I have that, and I leave it to

21 Your Honours and Defence counsel's discretion whether you wish the tape

22 played or simply the transcript prepared by Mr. O'Donnell to be read.

23 JUDGE SCHOMBURG: Let's come to this later when we discuss the

24 admission into evidence.

25 MR. KOUMJIAN: Okay, thank you.

1 Q. Mr. O'Donnell, you indicated you prepared a transcript. Did you

2 actually do that by listening to the tape and attempting to put down word

3 for word the English translations of your conversation?

4 A. Yes, that is correct.

5 Q. Do you speak Serbian yourself?

6 A. Apart from a few words, Your Honours, no.

7 Q. And were you using the services of an interpreter employed by the

8 Office of the Prosecutor?

9 A. Yes, I was.

10 Q. Can you -- would the best and most accurate testimony regarding

11 that conversation be if you read the transcript that you prepared?

12 A. Yes, it would. I transcribed the tape myself, and it is an

13 accurate transcription of what is contained on the audiocassette.

14 Q. Could you then read the transcript of your conversations with

15 Mr. Stakic.

16 A. From the notes, I have some preliminary details recorded of what

17 I've just outlined. "At 5.20 p.m., Mr. Stakic was taken to the aircraft

18 by Serbian security officers. Mr. Stakic was searched for security

19 reasons. Mr. Stakic was wearing blue checked shirt, blue jeans, gold watch

20 with brown strap, black boots, no physical signs of injury. O'Donnell

21 speaks to Mr. Stakic with the assistance of a language assistant."

22 I said: "Dobar Dan, Mr. Stakic."

23 Mr. Stakic said: "Dobar Dan."

24 I said: "My name is Bernard O'Donnell. I'm an investigations

25 team leader with the Office of the Prosecutor at the International

1 Criminal Tribunal in The Hague. This is (redacted), who is my

2 interpreter. I want to tell you firstly that our conversations being

3 audiotape recorded as we speak. Do you understand?"

4 Mr. Stakic said: "Up to now, I understand."

5 I said: "Can I have your full name, please?"

6 He said: "Milomir Stakic."

7 I said: "Your date of birth?"

8 He said: "19 January, 1962."

9 I said: "Your father's name?"

10 He said: "Milan."

11 I said: "Where were you born?"

12 He said: "In the village of Mariska, in the municipality of

13 Prijedor."

14 I said: "I'm going to advise you of certain rights that you have.

15 We have an interpreter who is present," indicating (redacted)

16 from Belgrade. "Is it okay with you if the interpreter is present from

17 the Republic of Serbia"? The interpreter introduced herself to Mr. Stakic

18 in Serbian.

19 Mr. Stakic said: "I don't mind."

20 I said to the interpreter, for the purpose of identification --

21 sorry for the purpose of voice identification: "Can I have your full

22 name, please." And the interpreter said: (redacted)

23 I said: "Do you understand what I am saying to you through the

24 interpreter" to Mr. Stakic.

25 He said: "Up to now, I understand."

1 I said: "I'm going to advise you of certain rights, and I would

2 ask that you listen carefully to what I am telling you. Firstly, you are

3 entitled to be advised of your rights in a language that you understand,

4 as we are doing now, and to the use of an interpreter. Do you

5 understand?"

6 Mr. Stakic nodded.

7 I said: "Can you give me a verbal response, please."

8 He said: "I understand."

9 I said: "I have to advise you that you do not have to say

10 anything. Anything that you do say will be recorded and may be used in

11 evidence in any Tribunal proceedings, including at trial. Do you

12 understand?"

13 Mr. Stakic said: "I understand."

14 I said: "You have the right to be assisted by a legal officer of

15 your choice. Do you understand?"

16 He said: "Yes."

17 I said: "If you cannot afford to hire a lawyer, a legal

18 representative will be appointed for you. Do you understand?"

19 He said: "I understand."

20 I said: "Do you have a legal representative?"

21 He said: "No, I have been arrested. I have no idea. I have been

22 captured."

23 I said: "Do you wish to have a legal advisor appointed for you?"

24 He said: "Yes."

25 I said: "Okay. A legal representative will be arranged for you

1 as soon as possible. Before then, I will continue to advise you of your

2 rights. However, I will again remind you that you do not have to say

3 anything unless you wish to do so." I said: "I have a warrant for your

4 arrest which has been signed by Judge Bennouna of the ICTY, dated January

5 2001. I now show you that warrant."

6 B/C/S translation of arrest warrant was handed to Mr. Stakic.

7 And I said: "This is a translation of the warrant for your

8 arrest."

9 He said: "Can I read this now?"

10 I said: "I will leave it with you and you can read it now. I

11 will also give you a copy of several rulings from the Tribunal." Rule 21,

12 the B/C/S copy was handed to Mr. Stakic. Rule 42, again, the B/C/S

13 version was handed to Mr. Stakic. And Rule 43, B/C/S version handed to

14 Mr. Stakic.

15 "These Rules explain in more detail your rights as I have given

16 you a summary of now. Mr. Stakic, are you the person named in the warrant

17 that I have handed to you?"

18 Mr. Stakic said: "It is my first name and my last name,

19 so I assume."

20 I said: "I am satisfied that you are the person named in

21 the warrant of arrest. Therefore, I am placing you under arrest on behalf

22 of the Tribunal. You will be transported from here to The Hague in the

23 Netherlands. Once you are in The Hague, you will be given a full copy of

24 the indictment and other paperwork which accompanies the indictment, and

25 you will be served with other documentation. Whilst you will be given a

1 full copy of the indictment once we get to The Hague, I want to tell you

2 very quickly what the indictment is.

3 "Very briefly, the indictment is for the crime of genocide. The

4 brief details are that between the 30th of April, 1992 and the 31st of

5 December, 1992, you, in company with others, planned, instigated, and

6 ordered the establishment of detention facilities at Omarska, Keraterm,

7 and Trnopolje, and the detention there of Bosnian Muslims and Bosnian

8 Croats from the municipality of Prijedor under conditions calculated to

9 bring about the physical destruction of the detainees, with the intent to

10 destroy part of the Bosnian Muslim and Bosnian Croat groups as such.

11 "It is further alleged that you, and others, had reason to know

12 that people who staffed the detention facilities were killing or causing

13 serious physical or mental harm to Bosnian Muslims and Bosnian Croats with

14 the intent to destroy them, in part, as a national, ethnic or religious

15 group, or that they had done so and you failed to take necessary and

16 reasonable measures to prevent such acts."

17 At that stage, there was a knock on the door, and local

18 authorities asked for (redacted) She said: "They called me. I

19 think I have seen enough." I said: "Okay, I will be finished in maybe 2

20 minutes. It is up to you, you are welcome to stay or go. (redacted)

21 said: "I will see if they need me. Thank you very much." And she left

22 the aircraft.

23 I then returned to speak to go Mr. Stakic and said -- or continued

24 rather, "that you failed to prevent or to punish the perpetrators. That

25 is a brief summary of the charges against you. And as I said, the full

1 details will be served on you when we are back in The Hague. Is there

2 anything that you wish to say at this point?"

3 He said: "No."

4 I said: "Do you wish to ask any questions?"

5 Mr. Stakic said: "I would like to thank you for this brief

6 information and would like to say nothing until I have a legal

7 representative."

8 I said: "Okay. Do you wish to comment on the way that you have

9 been treated so far?"

10 Mr. Stakic said: "I did not know is that there was an indictment

11 against me. I was arrested and now I am slowly trying to get it clear in

12 my head."

13 I said: "Do you have any complaints about the way that we have

14 treated you?"

15 Mr. Stakic said: "You mean here? You? No, absolutely

16 not.

17 I said: "Are you on any medication that you need to take this

18 afternoon?"

19 He said: "I think I have them in my bag here."

20 I said: "When do you need to take them?"

21 He said: "I am taking antibiotics now. I'm only taking

22 painkillers every now and then, when necessary, for my gallstones."

23 I said: "Will you inform us before we get back to The Hague if

24 you need to take any medication?"

25 He said: "Okay."

1 I said: "The time is now 20 minutes to 6.00. We will not have

2 any further conversation until you have a legal officer appointed. If you

3 have any questions, though, please feel free to ask.

4 Mr. Stakic said: "Nothing for now. Thank you."

5 At 5.40 p.m. the conversation was concluded.

6 MR. KOUMJIAN: Excuse me, Your Honour. If I could stop now, it

7 just occurs to me it might be more cautious, a better idea, to redact the

8 name of the local interpreter from the record.

9 MR. LUKIC: No objections, Your Honour.

10 JUDGE SCHOMBURG: Then please redact the name of this person from

11 the transcript, and we'll take this document later under seal.

12 MR. KOUMJIAN: And I would ask that if counsel or the Court have

13 any need to discuss the names of the local officials dealt with, that that

14 also obviously be in closed session.

15 Q. Mr. O'Donnell, you mentioned a black bag so far in going through

16 the tape.

17 A. That's correct.

18 Q. Can you discuss, tell us, about that bag.

19 A. Mr. Stakic had a small black bag with him containing personal

20 documentation.

21 Q. When you -- can you describe it a little bit further? Was it like

22 a briefcase, smaller than a briefcase?

23 A. Smaller than a briefcase, from memory, Your Honours. Something of

24 a bag that you would carry in your hand.

25 Q. Can you continue, then, with the conversation that you had.

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7

8

9

10

11

12

13 Blank page inserted to ensure pagination corresponds between the French

14 English transcripts

15

16

17

18

19

20

21

22

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25

1 A. At 5.40 p.m., we took off from Belgrade. I undertook a search of

2 the bag of Mr. Stakic.

3 I said: "Mr. Stakic, the bag that you have with

4 you, I will search in your presence now so that I can give it back to you

5 and you will have your medication with you. Again, because you don't have

6 a legal officer, I will again caution you that you do not have to say

7 anything unless you want to. Do you understand?"

8 Mr. Stakic said: "Yes."

9 The bag was then searched by myself. It was a small black bag

10 containing identification, paperwork, et cetera, in the name of Milomir

11 Stakic. Mr. Stakic was not restrained during the flight, apart from a

12 seat belt. No conversation regarding the charges on the flight.

13 I said to Mr. Stakic: "When you get to the Tribunal, I suggest

14 that you give the details of your medical condition, and a medical

15 practitioner will be arranged for you as soon as possible."

16 Mr. Stakic said: "I have a certificate from a doctor and some

17 ultrasounds."

18 Mr. Stakic's bag was returned to him so that he would have his

19 medication with him during the flight.

20 I said: "Mr. Stakic, where were you arrested?"

21 He said: "In front of my apartment where I am living for the time

22 being in Belgrade."

23 Sorry: "Where I am living for the time being."

24 I said: "In Belgrade?"

25 He said: "Yes."

1 I said: "When was that?"

2 He said: "Yesterday at about 16.30."

3 At 6.10 that conversation was concluded. At 8.35 p.m., we

4 arrived in the Netherlands.

5 I said: "Mr. Stakic, I just want to inform you of what is

6 happening. Before I do, I have to again caution you that you do not have

7 to say anything, and anything you say can be used in evidence. Do you

8 understand?"

9 He said: "I understand."

10 I said: "Once we stop, we will be met by security staff. That's

11 where we leave you, and the security staff will take you to the Detention

12 Unit. Staff at the Detention Unit will explain to you what is going to

13 happen from there. They will also arrange for you to have legal

14 representation as soon as possible and medical care. Would you please

15 inform the staff at the unit of your medical condition."

16 Mr. Stakic said: "Can I take my medical tests with me?"

17 I said: "Sure."

18 Mr. Stakic then took the paperwork from his bag.

19 At 8.37 p.m., I said: "Do you have the medical documentation that

20 you need from your bag?"

21 He said: "Yes."

22 I said: "Do you have any questions?"

23 Mr. Stakic said: "Will I have an interpreter as well in the

24 other place?"

25 I said: "Yes, you will."

1 At 8.38 p.m. the conversation was concluded and Mr. Stakic was

2 handed over to Dutch security police, Your Honours.

3 Q. Thank you. Mr O'Donnell, referring back to page number 3, you

4 indicated that you asked, about the fifth line or the sixth line from the

5 bottom, that you asked Dr. Stakic if he needed to take any medication this

6 afternoon. And he indicated, "I think I have them in my bag here." And

7 then on the very last page, you indicate that Dr. Stakic took paperwork

8 from his bag regarding the medical tests. This is actually the last line

9 of page 4, he asked: "Can I take my medical tests with me."

10 You said: "Yes," and he took documentation from his bag.

11 On both of these occasions, are you referring to the black bag?

12 Did you understand him to be talking about the black bag that you

13 described earlier?

14 A. That's correct, Your Honours. He was referring to the black bag

15 in his possession at that time, and took the documents from that black

16 bag.

17 Q. Did he have only one bag with him at the time?

18 A. Yes, he did.

19 Q. Now, you indicated that you had searched the bag and had -- prior

20 to him taking the medication, and that inside the bag there was paperwork

21 and identification with his name on it. Is that correct?

22 A. That is correct, Your Honours.

23 Q. Now, after he took the tests, medical tests, from the bag, what

24 did you do with the paperwork and other items of identification in the

25 bag?

1 A. I retained possession of the black bag with the other paperwork

2 and brought that back to the Tribunal. Copies of the paperwork were made

3 by myself, photocopies of the paperwork. Copies of that documentation was

4 lodged into evidence. I did the evidence registration and lodged the

5 documentation with the Evidence Unit myself. Copies of -- photocopies of

6 that material were given to the investigation team leader of Team 1. And

7 the actual bag containing the paperwork was also given to the

8 investigations team leader of Team 1, Mr. Inayat.

9 JUDGE SCHOMBURG: May I just ask, you spoke about the evidence

10 registration. Did you add already at that time registration numbers?

11 THE WITNESS: At the time that I handed the documents over to the

12 Evidence Unit, it had an -- what we call an if number, the number for the

13 form that I used to register the evidence. I don't physically assign the

14 numbers myself. That is then done by the Evidence Unit. But following

15 the assignment of the numbers, that range of evidence registration numbers

16 is put on to the IIF form, it appears at the top of the IIF form, linked

17 to those documents.

18 JUDGE SCHOMBURG: Thank you. Please proceed.

19 MR. KOUMJIAN:

20 Q. So just to be clear, the items that you gave to the Evidence Unit

21 regarding the paperwork were actually photocopies, is that correct, that

22 you made of the paperwork that was in the black bag?

23 A. That is correct, Your Honours.

24 Q. The ERN number or evidence record number, I believe it stands for,

25 is a unique number given by the Evidence Unit to each page of

1 documentation that they retain or an item of physical evidence. Is that

2 correct?

3 A. That is correct, Your Honours.

4 Q. Do you recall how many, or do you have a record, of how many

5 pages, photocopied pages, you gave to the evidence unit?

6 A. Yes, I do. At the time that I handed over the documents to the

7 Evidence Unit, I recorded the number of pages. It's a mandatory field in

8 the IIF registration form. There were 81 photocopied pages. That was

9 then assigned the ERN range of 0201-7189 to 0201-7269 inclusive.

10 Q. Mr. O'Donnell, can you explain that -- once the range is given,

11 does that necessarily mean that the items are actually stamped, each page,

12 with that number, or is that a separate procedure?

13 A. The photocopies that were handed over to the Evidence Unit are

14 stamped -- each page of documents handed over to the Evidence Unit is

15 stamped physically, and then those numbers are then put on to the IIF form

16 electronically.

17 Q. You are not the person that puts the numbers on the documents, is

18 that correct, and the photocopies you would have given to the evidence

19 unit would not have had the stamped ERN number, correct?

20 A. That is correct.

21 Q. The documents that you had photocopied, the pages, and for the

22 purposes of my examination, I will now call them originals, although using

23 that definition, the papers that were actually in the black bag, those did

24 not have any stamp put on them. Is that correct?

25 A. That is correct.

1 JUDGE SCHOMBURG: May I just interrupt, sorry for this. But this

2 IIF registration form, do you still have this document?

3 THE WITNESS: Yes, I do, Your Honours.

4 JUDGE SCHOMBURG: Is it possible to provide us and the parties

5 with this document?

6 MR. KOUMJIAN: I always heard that there was no reason not to, but

7 I don't understand what it is.

8 Q. Mr. O'Donnell, is it possible to provide that to the Court?

9 A. I have a copy here, Your Honours. To be honest, it's not a

10 decision of mine as to whether it's a provided or not. It's a policy

11 decision. I'm currently unaware of the policy as to whether IIF forms are

12 provided to the Court or not.

13 MR. KOUMJIAN: If I could just see the form, please. Your Honour,

14 we would make copies and make this available to the Court. I don't know

15 if Your Honour wants to see it now.

16 JUDGE SCHOMBURG: If the usher, please, could present it to the

17 Defence first, and then to the Judges. It's just for a better

18 understanding to avoid that you have to come back once again, we should

19 make the dishwash today.

20 THE WITNESS: I understand, Your Honours.

21 MR. KOUMJIAN: And perhaps I could ask the registrar, while the

22 Defence is looking at that, to prepare S220 to S226 to be shown to the

23 witness.

24 May I proceed? Do Your Honours need more time?

25 JUDGE SCHOMBURG: Not to confuse, we should first give an exhibit

1 number to the notes of arrest. Objections? No? Yes?

2 MR. OSTOJIC: No objection to having the typewritten transcript

3 from the interview marked as an exhibit. We would like also, if

4 Mr. O'Donnell has the handwritten notes, to be made available to us as

5 well, and perhaps we can make that as a separate exhibit if any such notes

6 exist.

7 JUDGE SCHOMBURG: Our understanding is that the OTP, and we are

8 grateful for this, provided two copies of the tape. This would be, then,

9 the document in writing, the notes of arrest, would be S231A. And it

10 should, in addition, it should be registered that the translation can be

11 found on today's transcript, page 68 following.

12 And then this document, which will be provided for us in

13 photocopy, we just saw, will be Document S232. The tapes should go under

14 the number S231-D, that's Detention Unit.

15 MR. KOUMJIAN: Your Honour, I would ask that the tapes be sealed

16 because they will contain the name that we struck from the record earlier.

17 JUDGE SCHOMBURG: And the same is true for the notes of arrest,

18 also under seal.

19 MR. KOUMJIAN: And I would actually ask if we could, just as a

20 matter of caution, I'd like to black out the names listed at 4.05 and

21 provide the Court with another copy of this for the Evidence Unit without

22 the names of those local officials.

23 JUDGE SCHOMBURG: I can't see any objections. We will proceed

24 this way.

25 MR. LUKIC: Excuse me, Your Honours. I'm sorry for interrupting

1 you, but I think that we gave number S231 to the questionnaire.

2 JUDGE SCHOMBURG: May the registry please assist.

3 THE REGISTRAR: I'm sorry, I did not understand that we marked the

4 questionnaire or that we admitted it.

5 JUDGE SCHOMBURG: Let's clarify this during the procedure. Please

6 proceed with your line of questions.

7 MR. KOUMJIAN:

8 Q. Mr. O'Donnell, in answer to Mr. Ostojic's request for your

9 handwriting of the transcript - he's from Chicago - you might explain. Do

10 you use a computer to write the transcripts?

11 A. I transcribe the tape directly on to a Word document on computer,

12 Your Honours.

13 Q. Thank you. However, did you also have, and bring to Court with

14 you, some brief handwritten notes regarding this incident on the 26th of

15 March?

16 A. Yes, I did, Your Honours.

17 MR. KOUMJIAN: Your Honour, I'd like to offer the notes as a --

18 Q. Perhaps you could read the notes into the record, Mr. O'Donnell.

19 MR. KOUMJIAN: Perhaps to make the record clear, we should give it

20 a number.

21 JUDGE SCHOMBURG: Caution is necessary here. Do you have before

22 you these notes with redaction or without?

23 THE WITNESS: Your Honours, the notes are in my official diary.

24 The diary in front of me is not redacted. The material redacted does not

25 relate to this case.

1 JUDGE SCHOMBURG: This is true for both pages we have here?

2 THE WITNESS: That's correct, Your Honours.

3 JUDGE SCHOMBURG: So from -- it's the same diary. Right?

4 THE WITNESS: That's correct.

5 JUDGE SCHOMBURG: Okay, thank you. I think it's enough for

6 clarification.

7 MR. KOUMJIAN: Okay.

8 Q. Mr. O'Donnell, you actually redacted the material and made the

9 photocopies of your diary. Is that correct?

10 A. That is correct.

11 Q. Would you like to have a photocopy with the redactions or do you

12 feel competent reading from the original?

13 A. I don't need the redacted copy. I can read from the original. The

14 entry starts: "Monday, 26 March, 2001. Handover of arrest documentation

15 to Evidence Unit. IIF for tape of arrest, for transcript, and for copy of

16 documentation with him at time of arrest. Copy to Suellen and copy to

17 Mazhar Inayat.

18 Q. Who is, for the record, who did you are you referring to as

19 Suellen? Who were you referring to

20 A. Suellen is Suellen Taylor, and investigator with Team 1.

21 The next segment is: "Black personal bag containing documentation

22 of Stakic, Milomir, as per IIF re same of 25 March 2001, handed over to

23 Mazhar Inayat 26 March, 2001." And Mr. Inayat has signed the receipt and

24 dated that.

25 Q. Mr. O'Donnell, I believe at one point when counsel and the Court

1 were going over documents, you were going over and looked through S220

2 through S226. Is that correct? Do you have those in front of you?

3 A. Yes, I do.

4 MR. KOUMJIAN: Your Honour, I recall in Court when we had the

5 photocopies, one page was poorly copied, and the last digit of the ERN was

6 not visible. I have a better copy of that page. I don't know if we could

7 substitute that, which shows the full ERN number.

8 JUDGE SCHOMBURG: It was one ending with 11?

9 MR. KOUMJIAN: Yes.

10 JUDGE SCHOMBURG: Unfortunately, I don't have it before me now.

11 But before turning to this point, in order to have a systematic approach,

12 can we please know who decided from these 81 photocopies to present

13 especially these we have before us now?

14 MR. KOUMJIAN: That was myself, Your Honour.

15 JUDGE SCHOMBURG: So you are in possession of all the 81?

16 MR. KOUMJIAN: Yes, and the Defence also has all 81 pages.

17 JUDGE SCHOMBURG: So once again, poor Judges, not having access to

18 all the information. We have to live with this.

19 MR. KOUMJIAN: We would be happy to make it available but --

20 JUDGE SCHOMBURG: Please proceed.

21 MR. KOUMJIAN: I was going to ask the Court what time Your Honour

22 plans to take a break because I am a concerned that you don't have a copy

23 of this one page 211.

24 JUDGE SCHOMBURG: Right. That's correct. Please, before having

25 the break, let's go into details, I am afraid this questionnaire has not

1 yet a number. We waited for this because we didn't have an English

2 translation, and we didn't have any questions from your side on this

3 issue. Therefore, it remains with a number provisionally attached to

4 these documents and the documents were, under these numbers, already

5 admitted into evidence. And may then one tape be given to the Defence and

6 one tape to the registry, please.

7 What about the remaining two pages attached to these notes of

8 arrest? I can't see any objections. So then they would be S232 and 233A.

9 And it is necessary to have it under seal or --

10 MR. KOUMJIAN: No.

11 JUDGE SCHOMBURG: I don't think there's any information...

12 Any additional problem? Sorry, now I made a mistake. The

13 information index form had already 232, and therefore the attachments

14 would be 233 and 234. I hope we have everything now in a correct order.

15 And this allows to make a break. And the trial stays adjourned until

16 12.50.

17 --- Recess taken at 12.27 p.m.

18 --- On resuming at 12.56 p.m.

19 JUDGE SCHOMBURG: Please be seated.

20 Thank you for this. Unfortunately, I didn't see in the transcript

21 that indeed the questionnaire was already admitted into evidence. This

22 has now the number, after re-numberation, 230-1. And then I learned that

23 the OTP ex officio wants to provide us with the 81 documents, or copies

24 better.

25 MR. KOUMJIAN: Yes, Your Honour. During our break, Ms. Karper was

1 working and has several items for us. The 81 pages, we have three copies

2 for the Trial Chamber. In addition, when it's convenient, we have the

3 redacted version, and I must admit I'm a little confused now what the

4 number is, the notes of arrest.

5 JUDGE SCHOMBURG: 231.

6 MR. KOUMJIAN: That's the questionnaire, isn't it, 231?

7 JUDGE SCHOMBURG: No.

8 MR. KOUMJIAN: Sorry.

9 JUDGE SCHOMBURG: It becomes difficult today. We need to have

10 some order in these flying documents, and therefore, even though I know

11 that apparently the documents now before the witness are included in this

12 set of documents, the 81 documents mentioned in the transcript already,

13 they have to be admitted. I understand they are tendered. I understand

14 the Defence is in possession of all these 81 photocopies. And therefore,

15 the next available would be 235, correct?

16 THE REGISTRAR: Yes.

17 JUDGE SCHOMBURG: Then let's please mark this entire bundle as

18 S235, and then we don't do this -- won't do this exercise now, but page

19 per page in the order as we have it, -1, -2, and following. Thank you.

20 Mr. Koumjian, you may proceed, please.

21 MR. KOUMJIAN: Thank you.

22 Q. Just a few more questions and I believe I will be finished.

23 Mr. O'Donnell, you reviewed S220 through S226. Is that correct? Did you

24 have a chance to compare the ERN numbers on those documents to the range

25 of numbers assigned by the Evidence Unit?

1 A. Yes, I did, Your Honours. The documents in front of me are marked

2 with the ERN numbers, top right-hand corner. The ERN numbers are part of

3 the range on the IIF form for the documents that I lodged with the

4 Evidence Unit, those documents being the documents in the possession of

5 Mr. Stakic at the time of his arrest.

6 Q. Thank you. And does that, then, allow you to conclude that these

7 are copies of the same documents that were in the black bag carried by

8 Mr. Stakic on the plane the day of the arrest?

9 A. That's correct, Your Honours. These are documents that were taken

10 by myself from Mr. Stakic, copies of which were lodged in the Evidence

11 Unit with the Office of the Prosecutor.

12 Q. Thank you.

13 MR. KOUMJIAN: Your Honour, the only other issue I have is S226.

14 I believe that the copy that the Court had was the one that was missing

15 the last digit. And somewhere before me, I have a -- Ms. Karper has

16 better copies that have the entire range. Perhaps they could be

17 substituted. It's also, of course, included in S235, that particular

18 page.

19 JUDGE SCHOMBURG: [No microphone]

20 MR. KOUMJIAN: Just to explain a little, briefly, 235, this is the

21 81 pages of photocopies that you made.

22 Q. Is it correct, sir, that there were things like cards that you put

23 on one page, several cards, to photocopy together?

24 A. That is correct.

25 Q. And did you photocopy an address book and each of the pages of the

1 address book?

2 A. Yes, that's correct.

3 Q. And did you photocopy a passport and at least several pages of the

4 passport?

5 A. That's correct.

6 Q. Thank you. And the only other item is the IIF form, the

7 information index form.

8 MR. KOUMJIAN: We have copies for all parties, now.

9 I have no further questions on direct examination.

10 JUDGE SCHOMBURG: Thank you. The Defence, please.

11 MR. OSTOJIC: Thank you, Your Honour.

12 Cross-examined by Mr. Ostojic:

13 Q. Good afternoon, Mr. O'Donnell.

14 A. Good afternoon.

15 Q. You testified on direct that you're with the Office of the

16 Prosecutor and that you're in the Team 1, and that you're an

17 investigator. Is that correct?

18 A. No, that's not correct. The investigation team leader of another

19 team.

20 Q. Can you just give me your specific title, if you would be kind

21 enough to do so?

22 A. Investigations team leader.

23 Q. As an investigations team leader, can you tell me what your

24 background is? Is it criminal, is it something else?

25 A. Your Honours, my background is criminal investigations.

1 Q. And how long, sir, have you been a criminal investigator?

2 A. As I think I mentioned earlier, I joined the Australian federal

3 police in 1982, so from that point onwards I have been involved in

4 criminal investigations.

5 Q. Help me with this if you don't mind. Can you tell me why it is

6 when you arrest an individual, as a criminal investigator, specifically

7 Dr. Stakic, you would warn him of his right to remain silent, and then

8 proceed to continue to engage him in conversations on no less than four

9 occasions?

10 A. There are certain things that have to be advised under the Rules

11 of the Tribunal, Your Honours, when there's an arrest. I informed

12 Mr. Stakic immediately that he didn't have to answer any questions. Out

13 of fairness to him, I advised him of all of his rights, and also advised

14 him of the procedure to be followed when he was to arrive in The Hague.

15 Q. Now, did Dr. Stakic at any time misunderstand specifically your

16 caution and remark as follows, and it's reflected on page 2 of your

17 report. Specifically, in the first third portion of the report, quote by

18 you, Mr. O'Donnell, sir: "I have to advise you that you do not have to

19 say anything. Anything that you say -- " "Anything that you do say will

20 be recorded and may be used in evidence in any Tribunal proceedings,

21 including a trial. Do you understand?"

22 MR. KOUMJIAN: Objection to asking this witness what Mr. Stakic's

23 understanding is. He can give Mr. Stakic's response, but he couldn't look

24 into his mind.

25 JUDGE SCHOMBURG: Sustained.

1 MR. OSTOJIC:

2 Q. Mr. O'Donnell, was there ever an impression by you by Dr. Stakic

3 that he did not understand your cautionary remarks with respect to having

4 the right to remain silent?

5 A. No, there was not. To the contrary, he specifically said that he

6 understood.

7 Q. And then subsequent to that, following on the latter portion of

8 that same page 2, sir, you tender to Dr. Stakic an arrest warrant,

9 translated in B/C/S, correct?

10 A. That is correct, Your Honours.

11 Q. Then you tell him, and in fact Dr. Stakic asks you whether or not

12 he can read the arrest warrant, and you tell him he can read it later.

13 Right?

14 A. Your Honours, that is correct. I -- rather than just giving it to

15 him, allowing him to read it and take it away, I actually left the warrant

16 with him to read on the flight.

17 Q. But sir, it's not a question of whether you left the warrant with

18 him. He asked you: "May I read it?" You responded: "You can read it

19 later." And then immediately thereafter, you started questioning him

20 about the warrant that you knew and you instructed him to read at a later

21 time. Isn't that what's reflected on the bottom portion of page 2 of this

22 transcript?

23 A. Your Honours, that's not quite correct. Immediately after handing

24 him the B/C/S version of the arrest warrant, I also handed him a B/C/S

25 version of his rights under Rules 42 and 43.

1 Q. And then you immediately asked him questions about the very arrest

2 warrant that you, sir, told him that he could read at a later time.

3 Correct?

4 A. The question I asked him was whether the warrant related to him,

5 and he obviously read his name and said it was his first and last names.

6 Q. And that, to you, was sufficient for you to reach the conclusion,

7 by him reading simply his first and last name, that that was the

8 individual that's contained in the warrant. Correct?

9 A. Not entirely, Your Honours. Mr. Stakic had been detained by local

10 authorities. There was documentation relating to that detention that I

11 signed at Belgrade airport at the time that he was handed over. Local

12 authorities had detained him as the person in that arrest warrant. That,

13 combined with him stating that it was his name, led me to believe that it

14 was in relation to him.

15 Q. Did you, Mr. O'Donnell, at any time make representations to

16 Dr. Stakic which were not fulfilled by yourself?

17 A. Your Honours, not that I'm aware of.

18 Q. Mr. O'Donnell, look on page 4 of the transcript wherein you tell

19 Dr. Stakic again, "You have a right to remain silent," in essence, and

20 that "We will not, sir, have a conversation until you have a legal

21 representative with you." Is that not a promise that you made to Dr.

22 Stakic? And thereafter, ten minutes later, you once again engage him in

23 conversation. Correct?

24 A. That is correct. However, Your Honours, at the time, perhaps I

25 should have stated it more clearly, that I was not going to question him

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1 in relation to the substance of the charges. Out of fairness to him, I

2 still gave him information about what was to happen. And there was other

3 conversation but not in relation to the charges. You will note that I

4 advised him to inform the Detention Unit of his medical condition because

5 he told me about that. There was other conversation, but clearly not in

6 relation to the charges.

7 Q. Sir, are you familiar with the term or the use of the word "chain

8 of custody"?

9 A. Yes, I am.

10 Q. What is your understanding of it? I have a specific definition,

11 but I'd rather use yours since you're the expert or professional in

12 connection with these types of procedures.

13 MR. KOUMJIAN: If that's asking for a legal definition, I object.

14 JUDGE SCHOMBURG: Sustained.

15 MR. OSTOJIC:

16 Q. Sir, with respect to any evidence that is taken from a potential

17 or a person who is indicted, would it be fair to say that the criminal

18 practice here at the Tribunal, and in all the times that you worked as a

19 criminal investigator, is to document and inventory a chain of custody for

20 evidence. Correct?

21 A. That is correct. There should be a record made, yes.

22 Q. Why should there be a record made, sir?

23 A. The purpose of chain of custody is so that the steps in the chain

24 of evidence coming from a certain location can be retraced. We know who

25 has had possession of, in this case, documentation and what has happened

1 to it in this case, being lodged in the Evidence Unit.

2 Q. With respect to, sir, the evidence that usually is placed or the

3 evidence that we're discussing could be weapons, and it could be also

4 documentary evidence as you suggest. Correct?

5 A. That is correct.

6 Q. Now, it's important to have this chain of custody, if you will,

7 and the purpose of having it established properly and adequately is so

8 that it would not distort the objective criminal proceedings that were

9 going to take place. Correct?

10 A. I'm not sure if I follow your question about distorting the

11 objective criminal proceedings.

12 Q. Let me give you a hypothetical, if I may, and see if you can

13 follow it. If, for example, a gun, a weapon, a piece of evidence, was

14 used in a crime, and that gun was taken into the custody by a police

15 officer, and subsequently the police officer left the gun at home, other

16 people used the gun, grabbed the gun, took the gun to other places,

17 returned it, would that piece of evidence have any credible weight in a

18 court of law? Or would the chain of custody clearly have been broken or

19 breached?

20 JUDGE SCHOMBURG: The answer has to be found by the Judges, not by

21 the witness.

22 MR. OSTOJIC: Thank you, Your Honour.

23 Q. With respect to the chain of custody and the documentation that

24 you seized from Dr. Stakic, my first question to you is: Did you have a

25 search and seizure subpoena to take his personal effects from him during

1 his arrest?

2 A. No, I did not, Your Honours.

3 Q. Under what authority or law, sir, are you given the right to take

4 the personal effects of any individual?

5 MR. KOUMJIAN: Objection, asking for a legal argument from the

6 witness. The witness says he didn't have a warrant. The attorneys in

7 the case, the Prosecution, with argue the legality under the Tribunal law

8 of a seizure at the time of arrest of the items in possession of an

9 individual.

10 JUDGE SCHOMBURG: I think it's fair that we learn from the

11 witness's point of view what was the legal basis for doing so, to find the

12 legal answer once again is later for the Judges --

13 THE INTERPRETER: Microphone, please.

14 JUDGE SCHOMBURG: -- only his subjective feeling, and that what

15 the witness regarded as the legal basis. This may be of importance.

16 THE WITNESS: Your Honours, the documentation in the bag of

17 Mr. Stakic was searched by me for two reasons: One is to check what was

18 in the bag, to ensure that there was nothing that could harm him or myself

19 during the journey back to The Hague. As I mentioned, he was not

20 restrained during that journey, apart from wearing a seat belt.

21 The second was because he was under arrest, to see whether there

22 was any material that may have evidential value on him at the time. In

23 the jurisdiction that I come from, that's the general practice. My

24 understanding here is that the Prosecutor, and through the Prosecutor,

25 members of the Office of the Prosecutor have the right to do that

1 generally under the powers of the Office of the Prosecutor, to investigate

2 matters generally.

3 MR. OSTOJIC:

4 Q. Did you, sir, advise Dr. Stakic about the fact that you were

5 seizing documents from him and that those documents may be used in

6 evidence against him, the same caution or similar caution that you gave

7 him with his right to remain silent? Did you give him that instruction,

8 sir?

9 A. Your Honours, no, I did not. The seizure of documents was not

10 something that he had an option in. And so it wasn't something that he

11 could decline.

12 Q. With respect to the safety issue that you raise for the purposes

13 of examining the black bag that was in the possession of Dr. Stakic, would

14 it be a reasonable assumption, sir, to make that you searched that bag

15 immediately, or would it be fair, based on the transcript that you -- the

16 transcript that you gave us, you weren't concerned about safety; it was a

17 small bag. And you only searched the bag, sir, after one hour and 45

18 minutes having been with Dr. Stakic. Namely, I reference page 4 and the

19 time at 5.40, taking off from Belgrade, and the paragraph immediately

20 below, suggesting that you searched the bag.

21 A. Your Honours, I wasn't overly concerned about safety to the point

22 that I had to search him immediately. The reason for that was he had

23 already been searched before boarding the plane. That should have been

24 good enough. However, to satisfy myself, that was a matter that I took

25 into consideration in searching the bag, but the second matter

1 was to see whether there was any material of evidentiary value.

2 Q. Going back to this chain of custody and documents and evidence

3 that can be utilised in criminal proceedings, sir, is it fair to say that

4 when you're seizing certain documents, a professional such as

5 yourself should in fact make a complete and detailed inventory of the

6 materials that you seize from an individual who is indicted?

7 A. Your Honours, that is not practicable in all situations. In the

8 situation here, there was a large amount of documentation. The

9 documentation was in Serbian. And to be able to itemise that material, I

10 would have had to have some sort of summary of each of the documents. So

11 it simply was not practicable for that to take place.

12 Q. Did you have an interpreter there on the plane with you that was

13 assisting you in translating the conversations between you and Dr. Stakic?

14 A. Yes, I did.

15 Q. Would that individual have been a practical person you could have

16 asked if you had any questions about identifying the documents?

17 A. That is the case. However, for the volume of material, the number

18 of documents that were with Mr. Stakic at the time, it would not have been

19 practicable to get a summary translation of all of those in the time

20 available.

21 Q. I'm not suggesting, Mr. O'Donnell, that you translate verbatim

22 each and everything that's listed, but to catalogue or to inventory the

23 documents, do you think that it would have taken a significant amount

24 of time, or do you not know?

25 A. I do believe that it would have taken a significant amount of

1 time, Your Honours, and longer than we had.

2 Q. Do you know, sir, that one of documents that you seized from

3 Dr. Stakic was an address book, and in fact the majority, in essence, 70

4 pages of the documents that you seized, were merely an address book which

5 contained telephone numbers and names of individuals such as his friends,

6 neighbours, relatives, et cetera?

7 A. Your Honours, I do recall that there was an address book. As to

8 the contents, I cannot comment because there was not time to go through

9 that in detail.

10 Q. Let me ask you this, Mr. O'Donnell, if I'm correct that

11 approximately 70 of those 81 pages that you seized of the documentary

12 evidence from Dr. Stakic was an address book, would you agree with me that

13 the remaining 8 to 11 pages would have been rather straightforward and

14 simple to inventory by yourself?

15 JUDGE SCHOMBURG: I can't see any longer the relevance of your

16 question. Sorry for this. You made the point, and you asked a legal

17 question. You'll get the answer by the Judges.

18 MR. OSTOJIC: Thank you, Your Honour. May I proceed, Your

19 Honour?

20 Q. Mr. O'Donnell, can you tell me what this IIF form is, the

21 information index form?

22 A. The information index form is filled out prior to lodging evidence

23 with the Evidence Unit.

24 Q. And who would prepare that report, sir?

25 A. The report was prepared by myself.

1 Q. And in that report, sir, do you note that they actually request

2 and require there to be a response to a question relating to chain of

3 custody, whether it was followed or not? Correct?

4 A. No, that's not correct. I agree that the words "chain of custody"

5 are written on the form.

6 Q. Do you agree with me that after the words "chain of custody,"

7 there's a response that's typed in, presumably by you, that states "no"?

8 A. That's correct. That relates to how the documents should be

9 treated by the Evidence Unit.

10 Q. So explain to me what this means when there's an indication "chain

11 of custody" and your response "no."

12 A. There are two issues here. The first is whether documents are

13 chain of custody. The second is whether the documents should be treated

14 as chain of custody when they are taken over by the Evidence Unit.

15 Whether we have chain of custody on documents up to the time that they are

16 delivered to the Evidence Unit depends on, obviously, the handling of

17 those documents to that point, any statements and other things that we

18 have showing the chain of custody.

19 With certain documents, we may request that the Evidence Unit

20 treat those as chain of custody because they may have to be signed in and

21 out, for example, documents that have been taken to the forensic lab for

22 handwriting analysis, perhaps photographs and other things. When that

23 occurs, when there's a chain of custody form -- sorry, when it's marked

24 "yes," a chain of custody form is generated so then as it's signed in and

25 out of the evidence unit, it's treated in accordance with chain of

1 custody.

2 Q. So in fact, sir, on this IIF form where you identify the type of

3 evidence it is, namely, document, the language that the document is

4 written in, namely, B/C/S, I note that you have a document date that seems

5 to be in error of 1899, December 30th.

6 A. That's correct. Because there were, as it says, various documents

7 and, obviously, various dates. Therefore, the number 1899 is put down so

8 that there's no confusion that it could be -- if we pick an arbitrary date

9 that was 1992, someone might think that it was, in fact, 1992. So we pick

10 a date that is outside the range of probability.

11 Q. So are you referencing in that section -- I don't think I

12 understand that. But are you referencing in that section the documents

13 that you seized? Correct?

14 A. That is correct.

15 Q. So within that section, since you're referencing the documents

16 that you seized, do you see when you identify those documents that in fact

17 you state that documents were not signed? Correct?

18 A. Yes, that is correct.

19 Q. Do you, sir -- can you explain to us why you did not fill out in

20 the centre portion of this IIF form the rest of the material that was

21 requested, such as location, source reference, date from victim details,

22 witness details, date to, and perpetrator details?

23 A. Certainly. Your Honours, where individual documents are given an

24 information index form, in other words, where there is one of these forms

25 for a specific document, I would indicate whether that document is signed

1 or not and give other details relevant to that document. In this case,

2 various documents were put into the Evidence Unit. Some of those

3 documents were signed. Others were business cards, general records.

4 There would have been different dates and, therefore, that information is

5 generic. Therefore, there's no details recorded.

6 Q. Can you tell me, sir, if you can tell me why, if the arrest of

7 Dr. Stakic occurred on the 23rd of March, 2001, is it fair to say that you

8 would have immediately, as a criminal investigator, proceeded to hand

9 those documents over and to complete this IIF form as required by your

10 very own Office of the Prosecution policy and procedures? Why did it take

11 you, sir, two days to complete a simple task of filling this form out in

12 part?

13 A. Well, partly for the reason that those two days were the weekend,

14 and the Evidence Unit is not open on the weekend. But also, there had to

15 be a transcript prepared, and that was lodged also.

16 Q. Is this form, sir, that you have also a form that's within your

17 computer database?

18 A. Yes, it is.

19 Q. So this is a form, sir, that you could have filled out immediately

20 upon your arrival here at The Hague here in the Netherlands upon your

21 release of Dr. Stakic to The Hague authorities?

22 JUDGE SCHOMBURG: The witness could, but evidently he didn't, for

23 the reasons given, and I can't see the relevance of a delay of two days.

24 MR. OSTOJIC: Respectfully, Your Honour, I have one question, if I

25 may, one last question.

1 Q. Mr. O'Donnell, with respect to the chain of custody of documents,

2 what length of time, sir, do you think is significant that a chain of

3 custody for such evidentiary materials would be constituted a breach or

4 considered a breach?

5 A. It depends entirely on the circumstances.

6 Q. Can you give us a range or it would just depend on each and every

7 circumstance?

8 A. It depends entirely on the circumstances.

9 Q. Thank you, sir. I have no further questions.

10 JUDGE SCHOMBURG: Just for purposes of clarification. We touched

11 upon this issue already earlier during the examination-in-chief.

12 Questioned by the Court:

13 JUDGE SCHOMBURG: Can you, Mr. O'Donnell, please tell us who

14 decided to make photocopies instead of having the originals together?

15 A. I decided that, Your Honour. Perhaps if I can explain. At the

16 time of taking possession of this documentation, the documents firstly

17 were in Serbian. Secondly, I'm not involved in this investigation. I'm

18 the investigation's team leader of another team involved in different

19 investigations. Therefore, I was not in the best position to make an

20 assessment of what would be relevant and what would not be relevant to the

21 investigation. However, in case there was something of relevance, the

22 documents were photocopied, lodged into evidence, and the original

23 documents were handed over to the team responsible to be given back. At

24 the time, the documents appeared to be various financial records - again,

25 without translating, it was difficult to say exactly what was there - and

1 identification documents. So there was nothing that appeared immediately

2 as being very important evidentiary -- evidentially.

3 JUDGE SCHOMBURG: To whom in person did you give the originals?

4 A. The bag containing all of the original documentation was passed on

5 to Mr. Inayat from Team 1.

6 JUDGE SCHOMBURG: So all the documents we have before us now in

7 the form of a photocopy were given to Mr. Inayat for an assessment whether

8 or not they would be necessary or could serve, maybe, as evidence in this

9 case?

10 A. Your Honours, they were given to Mr. Inayat. My understanding was

11 that they would be returned. As I said, it was general identification

12 documents, financial records, and so forth, which did not appear

13 immediately to be of any great value to us. But the originals were handed

14 over to Team 1 and the photocopies lodged with Evidence in case there was

15 anything subsequently that was of interest.

16 JUDGE SCHOMBURG: You yourself mentioned beforehand the question

17 whether or not a writing examination would be necessary or not. And it's

18 not for us to decide on your decision or Mr. Inayat's decision, it's only

19 for us to find out what was the order, what happened in your sphere, and

20 my understanding is that you gave the originals to Mr. Inayat, a witness

21 we hear later. But just for final clarification, before filling out the

22 information index form, it was necessary for you to give to each document

23 the registration number we can find on these pages now. Is it correct?

24 A. That's not correct, Your Honour. Before handing the documents to

25 the Evidence Unit, it was necessary for me to complete the information

1 index form. That number has -- sorry, that form has the details of the

2 documents and a number. I then hand that form, along with the documents

3 to the Evidence Unit. The documents are individually assigned a reference

4 number by the Evidence Unit. And after that, that number is assigned, the

5 range is then put on to the information index form and appears at the

6 centre top of the document.

7 JUDGE SCHOMBURG: This centre part was only later filled in?

8 A. That is correct, Your Honour. After the documents are assigned a

9 registration number, the Evidence Unit who assign that number then put

10 that number on to this form.

11 JUDGE SCHOMBURG: And this happened when? Was it still in your

12 sphere?

13 A. Your Honour, I handed the documents to the Evidence Unit on

14 Monday, the 26th of March, 2001. And that process took place after that.

15 But the process was done by the Evidence Unit.

16 JUDGE SCHOMBURG: My question was only, during cross-examination

17 you said that you yourself on a computer document filled in this index

18 form. The question is now: Evidently, you couldn't or were not able to

19 finalise this work because you hadn't those numbers.

20 A. That's correct, Your Honour. I filled out the details. The

21 numbers are then assigned by the Evidence Unit, and then the form cannot

22 be changed by me.

23 JUDGE SCHOMBURG: Thank you for this clarification.

24 No other questions. Any other questions by the parties? No, it's

25 not the case. Thank you for assisting us immediately. And we know better

1 now about how the documents came into the possession of the OTP. And we

2 thank you for coming immediately and giving us this detailed information.

3 THE WITNESS: Thank you, Your Honours.

4 JUDGE SCHOMBURG: May the usher escort the witness out of the

5 courtroom, please.

6 [The witness withdrew]

7 JUDGE SCHOMBURG: May we turn immediately to the comments given by

8 the Defence as regards the fourth notice, 92 bis statements tendered by

9 the OTP.

10 MR. OSTOJIC: Yes, Your Honour. I believe upon reflection and

11 consultation, we believe that the witness should be brought viva voce as

12 he was initially offered. However, I'm somewhat confused as to the bases

13 that the Office of the Prosecutor is citing for witnesses being brought

14 under 92 bis. Simply to suggest, and I say it most respectfully to my

15 learned friend, that it is a "crime witness" would lead us to, at times,

16 feel that some of the witnesses that did, such as the witness that

17 appeared yesterday and the day before, who were actually fact witnesses

18 who dealt specifically with some of the atrocities that they have

19 personally sustained and allege, clearly indicated they didn't know Dr.

20 Stakic, never met Dr. Stakic, never heard of Dr. Stakic. During both

21 questioning, I think by the OTP, the Defence, and the Honourable Court,

22 those classically can be identified also as crime witnesses, yet they were

23 brought in. We believe, for purposes that we are still reviewing and hope

24 to examine, that the witness offered by the OTP should be called, as they

25 initially suggested, live.

1 JUDGE SCHOMBURG: Any observations in response to both the fourth

2 and the fifth notice?

3 MR. KOUMJIAN: Your Honour, I had asked earlier today if the

4 Defence was going to make an objection, and I thought they indicated no.

5 That's why I'm not prepared to talk about the substance of this statement.

6 But in answer to the question regarding how we choose these witnesses,

7 we follow the factors outlined in Rule 92 bis.

8 First of all, if a witness is going to testify to the conduct of

9 the accused, we do not believe he's eligible for submission of a

10 transcript. If the witness is only testifying to, for example, being a

11 victim of crime, crime-base type evidence, again we've adopted the

12 practice in this case of trying to present the major crimes that were

13 committed, at least through one live witness, but to avoid repetition of

14 evidence by having witnesses come in and testify to the same crime. I

15 think the rule is clear as to what the Court will look at. It's

16 discretionary with the Trial Chamber. The rule is clear that the Trial

17 Chamber can consider various factors in deciding whether or not the

18 witness should testify live. And I have not heard a reason given by the

19 Defence about why the -- bringing this witness to testify viva voce would

20 assist Your Honours in reaching an ultimate conclusion in this case.

21 MR. OSTOJIC: Perhaps, Your Honour, I can clarify a point, if you

22 would merely indulge me. I did have a conference with my learned friend

23 during the break in connection with this, and I apologise to the Court and

24 to him. His request on the fourth notice for admission of transcripts and

25 videos pursuant to Rule 92 bis has now been put before me. Specifically

1 with respect to that witness, Your Honour, identified under 65 ter number

2 41, as counsel and I discussed specifically the name of that individual,

3 we do not have an objection. My comments specifically, Your Honour, were

4 addressed to a witness under 65 ter number 40, which was previously --

5 which is the fifth witness under initial calling order, which was given

6 and permitted to be submitted under 92 bis and given the pseudonym "F," I

7 believe. We specifically would like to have --

8 MR. KOUMJIAN: I could short-circuit it. That witness is listed

9 now as a live witness. I think there's some confusion.

10 MR. OSTOJIC: There obviously is. Thank you.

11 Judge, so with respect to the fourth notice, we do not have an

12 objection, and that witness, with the Court's permission, can be submitted

13 pursuant to Rule 92 bis.

14 JUDGE SCHOMBURG: So in conclusion, I'm happy to hear the

15 contributions. We can expect Witness Number 40 appearing as a live

16 witness. And as regards the other witnesses and statements, documents

17 provided in the fourth and fifth notice, there are no objections to admit

18 this under 92 bis. It's only number 40, and number 40 appears live.

19 Right? Thank you. Then this seems to be clear.

20 In order to avoid problems on Monday, my understanding is that on

21 Monday, we have a witness where the problem may arise of having the

22 lineup. And may I hear whether or not the parties agreed, (a) on a photo

23 board; (b) on persons to be presented for this line-up.

24 MR. KOUMJIAN: We have not agreed on -- the persons have not all

25 been gathered at one place or at one time. And I just received

1 information I wanted to bring up one matter with Your Honour. One of the

2 volunteers has indicated just to me in a phone call this morning a

3 reluctance because this witness is from the Former Yugoslavia, if his face

4 will be on television. He does feel concerned about his safety or

5 reputation.

6 JUDGE SCHOMBURG: I think this can be resolved in closed session.

7 MR. OSTOJIC: No objection.

8 JUDGE SCHOMBURG: Can you agree?

9 MR. KOUMJIAN: Yes, I don't have a problem with at least the

10 participants in the line-up not being on television.

11 JUDGE SCHOMBURG: But I think one practical question, correct me

12 if it's not such one, I think it would be only correct that the witness is

13 in the courtroom before Dr. Stakic and the other persons enter the

14 courtroom, which causes one problem. Dr. Stakic has, of course, the right

15 to be present in the courtroom. It would facilitate the proceedings from

16 my point of view if Dr. Stakic would waive, in consultation with the

17 Defence counsel, of course, this right to be present immediately in the

18 beginning of this hearing - we'll say just for the purposes of taking the

19 solemn declaration - and then enter the courtroom together with the other

20 persons.

21 Would it be suitable for the Defence and for Dr. Stakic?

22 MR. OSTOJIC: Your Honour, briefly upon consultation with

23 Dr. Stakic, we would waive at this time this limited right to be present

24 while the witness is brought in and is given the oath to read, or the

25 declaration to read.

1 JUDGE SCHOMBURG: This is also your own and personal declaration,

2 Dr. Stakic?

3 THE ACCUSED: [Interpretation] I agree with this, Your Honours.

4 JUDGE SCHOMBURG: Thank you.

5 Any other -- please be seated again. Any other practical problems

6 in relation to this?

7 MR. KOUMJIAN: Not at the present time, although it just occurred

8 to me that if five individuals walk in together, the issue of security,

9 I'm not sure how security wants to handle that. But they can deal with

10 that. Perhaps these other issues may arise Monday afternoon. We'll just

11 have to see.

12 JUDGE SCHOMBURG: But please, I don't want to make the experience

13 on Monday afternoon that there is a practical problem that there's no

14 agreement on the photo board and so on. Please --

15 MR. KOUMJIAN: On the photo board, to be honest, I don't see how

16 practically there would be any value, to be honest, to showing a photo

17 board after the witness has just seen the person walk into court. We have

18 the same photo board that was presented to the Defence earlier. They

19 indicated they objected to 2 out of the 12 pictures. In my jurisdiction,

20 normally we only show 6 to begin with. So they indicated that they

21 thought 10 or 9 others were appropriate.

22 At this point, I don't think -- we also did try to change the

23 photo board, and we found it was not possible because Dr. Stakic's picture

24 came out a completely different colour than the others. And it wasn't

25 possible -- he would have stood out. It would not have been an

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1 appropriate photo board. I'm not sure of all the technical aspects of

2 that. But I saw the attempt to make a new photo board, and it was much

3 worse than the one that was previously shown.

4 But to answer the question, we don't plan to show it.

5 JUDGE SCHOMBURG: Any other problems from the side of the Defence

6 as regards this special procedure?

7 MR. OSTOJIC: Only with respect to, Your Honour, if my learned

8 friend would give us at least some ample notice when we can examine from

9 either a distance the participants that they are suggesting would take

10 part in this identification. I know I've -- several of them were pointed

11 out to me in passing, so I just would like to see the complete group of

12 individuals to assess both their characteristics, such as their height,

13 colour of hair, et cetera. Thank you, Your Honour.

14 JUDGE SCHOMBURG: I think we shouldn't really do too much harm to

15 these additional persons. And wouldn't it be a solution that, say,

16 15 minutes before starting of this hearing, you meet together and then

17 decide spontaneously. Would it be possible?

18 MR. OSTOJIC: That would be acceptable, Your Honour.

19 MR. KOUMJIAN: One matter occurs to me for purposes of a record of

20 this procedure, although we indicated the participants would not be --

21 their faces would not be broadcast, to have a record of the procedure, I

22 think it would be necessary or very helpful to have some video done of the

23 participants going in. I don't know if that can be arranged with the

24 audiovisual unit.

25 JUDGE SCHOMBURG: No doubt, the Trial Chamber makes advantage of

1 these possibilities, of course, and has done it also in the past already.

2 And it's without any doubt that we ask the unit to concentrate first with

3 one camera on the persons entering the courtroom and second on the

4 witness. And this does not mean that it's in public, but as we said

5 before, this entire exercise should be in closed session. I think the

6 practical problems are resolved now.

7 This concludes our today's hearing. And the trial stays adjourned

8 until Monday, 2.15.

9 --- Whereupon the hearing adjourned at

10 1.48 p.m., to be reconvened on

11 Monday, the 29th day of July, 2002,

12 at 2.15 p.m.

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