Tribunal Criminal Tribunal for the Former Yugoslavia

Page 3381

1 THE INTERNATIONAL CRIMINAL TRIBUNAL CASE NO. IT-94-1-T

2 FOR THE FORMER YUGOSLAVIA

3 IN THE TRIAL CHAMBER

4 Tuesday, 16th July 1996

5 (10.00 a.m.)

6 THE PRESIDING JUDGE: Good morning, everyone. We have been in recess for

7 a few weeks while the other Trial Chamber was using this courtroom for

8 another proceeding. We have, of course, missed counsel very much and

9 the other parties. We are ready to resume today. I understand that we

10 will first begin with the Defence motion regarding hearsay. The

11 Defence has requested a hearing regarding this motion. We will then

12 talk about general matters that the Judges want to bring to counsels'

13 attention. Then I understand that the Prosecutor has an application

14 that it wishes to present, perhaps in camera, and, depending upon the

15 ruling on that application, we would hear the next witness in camera

16 in closed session. No? I have been given wrong information on that.

17 MR. NIEMANN: It would not be the next witness, your Honour; it is a

18 witness later on, but not the next witness.

19 THE PRESIDING JUDGE: Not the very next witness.

20 MR. NIEMANN: The very next witness is ready to proceed.

21 THE PRESIDING JUDGE: Very good. Those are our plans for this morning,

22 perhaps even into the afternoon. Mr. Wladimiroff, are you ready to

23 proceed with your motion on hearsay?

24 MR. WLADIMIROFF: Yes, your Honour, but Miss De Bertodano will present the

25 argument.

Page 3382

1 THE PRESIDING JUDGE: Very good.

2 MR. NIEMANN: Your Honours, Miss Hollis will respond for the Prosecution.

3 THE PRESIDING JUDGE: Very good.

4 MISS DE BERTODANO: Thank you, your Honours. Your Honours are aware that

5 the question of hearsay evidence is a matter of continuing concern to

6 the Defence. We have already made some objections about hearsay

7 evidence. This motion, I would like to make clear, does not seek to

8 go back over old ground but to anticipate matters yet to arise. Your

9 Honours, because we consider it to be a major issue, we have requested

10 there be oral argument on this matter.

11 If I might start by outlining the motion? The relief we have

12 requested is as follows, firstly, that the Tribunal refuse to hear

13 evidence relating to the guilt of the accused which is not within the

14 direct knowledge of the witness giving such evidence and, secondly,

15 that the Tribunal have discretion to hear any evidence excluded by

16 point 1 if it considers that its probative value substantially

17 outweighs its prejudicial effect.

18 Your Honours, I would stress at this point (and I fear there may

19 have been a misunderstanding on this matter) that these two points go

20 together. They are not alternatives. I only mention that because the

21 Prosecution's response appears to assume that they are proposed as

22 alternative measures and they are not. Your Honours, the effect of

23 these measures would be that there was a change in the presumption

24 with regard to hearsay, that is, that hearsay evidence would be

25 excluded unless there was a reason to include it.

Page 3383

1 Your Honours, this is a feature of all adversarial systems and it

2 is one in recognition of the fact that hearsay is generally regarded

3 to be evidence of secondary quality and that there is a preference for

4 first hand evidence in criminal trials. The reasons for this

5 preference are simple. Firstly, that first hand evidence is given in

6 court under oath and, secondly, that the defendant can cross-examine

7 witnesses on evidence that they have given of what they have directly

8 seen or heard. The defendant loses his right to cross-examine

9 witnesses when it comes to hearsay evidence, because the witness who

10 made the statement is not present in court.

11 Your Honours, I would quote at this point from paragraph 5 of the

12 Defence motion Article 21.4(e) of the Statute of the Tribunal which

13 affords the accused the right to examine or have examined the

14 witnesses against him. Your Honours, in our submission, this suggests

15 that evidence should be first hand.

16 Your Honours, I would further mention that there are features

17 peculiar to this particular trial which cause the Defence concern in

18 relation to hearsay evidence. I would refer your Honours to

19 paragraphs 10 and 11 of the Defence motion which briefly deal with the

20 situation in the area at the time, the fear and confusion among

21 witnesses, the length of time since hearsay statements have been made

22 and the dramatic split between ethnic groups.

23 Your Honour, the Prosecution has expressed concern that the Trial

24 Chamber has not the power to grant the Defence motion without

25 referring this to a full Chambers of Judges. Your Honours, in our

Page 3384

1 submission, that is not the case. The Trial Chamber has very broad

2 powers under Rules 89(C) and (D) to admit and exclude such evidence as

3 it sees fit. If we can turn to 89(D) of the Rules, "A Chamber may

4 exclude evidence if its probative value is substantially outweighed by

5 the need to ensure a fair trial". Your Honours, we say that, as a

6 general rule, the value of hearsay evidence is substantially

7 outweighed by the need to ensure a fair trial.

8 Your Honours, by making this ruling, you would not be binding future

9 Trial Chambers, but your ruling would have value as a precedent for

10 future Trial Chambers. So, your Honours, the substance of this motion

11 is that, as a general rule, hearsay is unreliable. However, some

12 types of hearsay have sufficient probative value to be admissible and

13 those seeking to admit hearsay statements should show this to be the

14 case.

15 Your Honours, the Defence attached to its motion an article taken

16 from a book called "War crimes in international law", and the article

17 on hearsay evidence in war crimes trials is written by Kenneth Mann.

18 Your Honour, I would draw your attention to two points in this

19 article. Firstly, at the bottom of page 371 the last paragraph on

20 that page demonstrates that under discretionary as opposed to bounded

21 systems of evidence, and that would include systems in which there are

22 no hearsay Rules, there are likely to be more false convictions due to

23 the fact that the Prosecution is bound not to use evidence that it

24 deems to be inculpatory. Your Honour, going on to pages 372 to 3 ----

25 JUDGE STEPHEN: Would you just repeat that again?

Page 3385

1 MISS DE BERTODANO: Sure. Your Honour, on page 371, I can read the

2 paragraph, if that would assist? The paragraph starts: "To exemplify

3 the way in which Rules of hearsay influence distribution of error, we

4 can compare a hypothetical murder trial in which the Prosecution is

5 limited to the extent to which it can present hearsay evidence with a

6 murder trial in which the Prosecution is not limited to the same

7 extent. It is quite clear that the limitation on Prosecution in the

8 former system will result in the exclusion of evidence that the

9 Prosecution views as inculpatory. In comparison, the Prosecutor in

10 the discretionary system will not be so limited, that is, he will not

11 have to exclude evidence he views as inculpatory to the same extent".

12 JUDGE STEPHEN: But, with respect, that simply is stating the obvious;

13 more comes in in one system than another.

14 MISS DE BERTODANO: Your Honour, yes, I agree that it is stating the

15 obvious.

16 JUDGE STEPHEN: It scarcely makes any point at all.

17 MISS DE BERTODANO: Your Honour, I disagree, with respect. The point is

18 that if hearsay evidence is not excluded, there will be evidence which

19 comes in as part of the evidence in the trial which is prejudicial

20 towards the Defence and which would be excluded in a trial in which

21 hearsay evidence was not allowed.

22 JUDGE STEPHEN: Surely.

23 MISS DE BERTODANO: So it must be true that that ----

24 JUDGE STEPHEN: True but obvious.

25 MISS DE BERTODANO: Your Honour, if you say so.

Page 3386

1 THE PRESIDING JUDGE: Your better quote from this article, it seems to me,

2 is on the next page or the next two pages, 373, the last paragraph.

3 MISS DE BERTODANO: I was going to turn to exactly that point, that

4 bounded systems of evidence, i.e. ones in which there are more

5 restricted Rules, can control the distribution of error better than

6 unbounded systems and, therefore, any restrictions on hearsay are

7 likely to prejudice the Prosecution to a greater extent than they

8 prejudice the Defence. Your Honour, the article concludes that

9 hearsay Rules are one of the specific Rules in which one can create

10 fewer false convictions than false acquittals. So the system of error

11 is regulated to that extent.

12 THE PRESIDING JUDGE: You are familiar though, of course, with a Rule, I

13 think it is 404 of the Rules of Evidence in the United States, which

14 would allow a court to exclude evidence if it had prejudicial effect.

15 You know, it is kind of a balancing of relevant evidence, if it is

16 outweighed by the prejudicial effect that it would have, could then be

17 excluded. So I understand what this author says, but that is a Rule

18 which he really does not address and the United States is a bounded

19 system. Also, in our system we have a Rule 89(D) which would allow us

20 to exclude evidence if its probative value is substantially outweighed

21 by the need to ensure a fair trial -- "fair trial", not "prejudicial

22 effect", "fair trial".

23 MISS DE BERTODANO: Your Honour, this is why we seek to make this motion.

24 Your Honour, we would seek to exclude hearsay evidence before it is

25 heard by the Court, so that it is not a question of hearing it and

Page 3387

1 then weighing up its prejudicial effect. It is a question of having

2 argument beforehand as to whether such evidence ought to be heard

3 before it is, in fact, decided that it can be heard by the Court. So

4 if it was decided that there was no reason to include a piece of

5 hearsay evidence, it would simply not be included.

6 THE PRESIDING JUDGE: You are not really arguing, are you, that all

7 hearsay evidence should be excluded? Are you not arguing that hearsay

8 evidence that does not fit within one of the exceptions ---

9 MISS DE BERTODANO: Your Honour, yes.

10 THE PRESIDING JUDGE: -- recognised by common law systems -- I can only

11 speak really for the United States, we have so many only exceptions

12 that the Rules are almost swallowed up -- in any case, is it not your

13 position that if the hearsay evidence does not fit one of these

14 exceptions then it should not be admitted because it would have the

15 prejudicial effect?

16 MISS DE BERTODANO: Your Honour, yes, but one does not have to hear the

17 hearsay evidence, hear the content of the hearsay evidence before

18 deciding whether it fits one of the exceptions or not.

19 THE PRESIDING JUDGE: How would we accomplish that? If we did not know

20 whether the person was going to testify, for example, because of an

21 excited utterance -- because that was one of the issues, one of the

22 two hearsay objections that we have overruled of the Defence thus far

23 -- until we hear the witness testify, unless perhaps the Prosecution

24 can be required to make an offer of proof as to what a witness will

25 testify to, we do not know whether it would fit within the exception.

Page 3388

1 MISS DE BERTODANO: Your Honour, with respect, I do not agree. The

2 Prosecution, by and large, knows what its witnesses are going to be

3 able to testify to; to a great extent we also know what the

4 Prosecution witnesses will be able to testify to because we have their

5 statements. My suggestion would be that when a point on hearsay seemed

6 to be about to arise, which would be obvious to the Prosecutor who was

7 examining the witness, then would be the time to say, "Your Honours,

8 there is a point on hearsay. This witness is going to testify that A

9 told him something concerning the defendant in these conditions". You

10 would not actually have to hear the content of the piece of hearsay to

11 decide whether it was, for example, an excited utterance.

12 Your Honour, of course, there would be slips -- there are always

13 slips in the best regulated systems -- but, by and large, it seems to

14 me that would be the best way in which to hear objections to hearsay.

15 THE PRESIDING JUDGE: Even in bounded systems, though, the lawyers do not

16 run the show. The Judges have to make the decisions as to the

17 admissibility of evidence. It just seems to me that it would be very

18 difficult for us to make that decision. The Prosecutor knows best

19 what, I suppose, the witness will testify to. The Defence has a good

20 idea of what the witness will testify to because of the statements

21 that you have. But I understand your position.

22 MISS DE BERTODANO: Yes. Your Honour, I would just add that if the Bench

23 is going to hear the evidence anyway, then there is very little point

24 to this motion. This motion is specifically to exclude the hearing of

25 such evidence, not simply to limit the weight attached to it.

Page 3389

1 JUDGE STEPHEN: I am right, am I not, in thinking that the reason for that

2 approach by bounded systems is that the minds of the jury will be

3 adversely affected by receiving the evidence in the first instance,

4 and that that prejudice will not be able to be dispelled by any

5 subsequent decision that it should really be excluded, therefore, you

6 have a voir dire procedure?

7 MISS DE BERTODANO: Your Honour, yes, and the jury is out while this is

8 heard.

9 JUDGE STEPHEN: All that is totally foreign to the way in which we

10 operate.

11 MISS DE BERTODANO: Your Honour, yes. This is different in a sense it is

12 a Bench trial, not a jury trial. So we have a kind of mixed system in

13 which we have an adversarial system which is generally associated with

14 jury trials, yet we also have a Bench trial.

15 THE PRESIDING JUDGE: In your papers you have said that even in Bench

16 trials, however, in the bounded systems, this hearsay evidence that

17 did not, I gather, fit one of the exceptions to hearsay would be

18 excluded as well.

19 MISS DE BERTODANO: Your Honour, yes, in my system, if you have

20 Magistrates' trials or on appeal, if you hear more evidence, the Judge

21 can still not hear hearsay evidence.

22 THE PRESIDING JUDGE: Except that, as a matter of practice, and each of

23 we, Judges, have all been Judges before we came to the Tribunal, at

24 least based on my experience, as a matter of practice, the Rules

25 regarded the admission of hearsay and other matters as well are much

Page 3390

1 more relaxed because there is this theory that Judges have this

2 ability that jurors do not have to sometimes disregard what the

3 Cardinal might say, referring to an earlier motion that was argued, I

4 believe, by Mr. Kay. So at least there is this belief -- whether it

5 is well-founded or not -- that the Rules regarding the admission of

6 evidence operate differently if there is a Bench trial -- at least in

7 my system.

8 MISS DE BERTODANO: Your Honour, yes, I would entirely agree with that and

9 for this reason, our motion is proposing a very broad discretion in

10 that the Judges can elect to hear any hearsay evidence provided they

11 deem that its probative value, there is some kind of guarantee, some

12 extra guarantee of its trustworthiness which is the general sense

13 behind most hearsay exceptions, that there is something extra which

14 suggests that it will be trustworthy; whether because it is an excited

15 utterance or because it is a dying declaration or whatever it is. It

16 was those points on which I was suggesting that the Judges could

17 decide without actually hearing the content of the statement.

18 But, your Honour, we accept fully that this is not a jury trial;

19 partly because of this, we have limited the hearsay motion to

20 evidence which directly concerns the guilt of the accused. Again I

21 feel from the Prosecution response there may have been some

22 misunderstanding about that. Your Honour, the intention was that we

23 would use this motion only with regard to evidence which directly

24 implicated the accused in one of the crimes with which he is charged.

25 The broader issues of the conflict and so forth, we have not sought

Page 3391

1 to introduce any kind of hearsay rule at all.

2 THE PRESIDING JUDGE: What do you mean by that, because if you are talking

3 about evidence that would specifically connect the accused with a

4 charged offence ---

5 MISS DE BERTODANO: Your Honour, yes.

6 THE PRESIDING JUDGE: -- that is what you are talking about?

7 MISS DE BERTODANO: Yes.

8 THE PRESIDING JUDGE: Because this is a war crimes tribunal, since we will

9 be hearing cases involving serious violations of international

10 humanitarian law, there is more that has to be offered than in a

11 typical murder trial or theft trial or whatever, you know, there is

12 more that must be offered than just, "I saw the defendant". You have

13 to put it in the context of an international or armed conflict --

14 international if we are talking about Article 2, grave breaches; armed

15 conflict if we are talking about the other Articles.

16 So, in order for the Prosecutor to establish guilt, it must do more

17 than just place the accused at the scene or offer evidence that

18 someone saw the accused commit an offence. They have to go further

19 and that is the kind of evidence that we have been hearing. We have

20 finished with policy witnesses -- thank goodness ---

21 MISS DE BERTODANO: Your Honour, that is why we bring up -----

22 THE PRESIDING JUDGE: -- but we are still on count 1 and that is

23 persecution, and there are a number of matters that the Prosecutor has

24 been attempting to offer, multiplicity of acts, whether it was

25 directed at a particular religious or political group. So that goes

Page 3392

1 to the guilt of the accused; it does not certainly make him guilty if

2 there is not that other piece.

3 MISS DE BERTODANO: Your Honour, in that case that is my fault for the

4 phrasing of the motion. My intention was specifically to restrict it

5 to matters as to whether the accused himself was participating in the

6 crimes. Therefore, we have not made any objections to hearsay during

7 the weeks when we were hearing about the background and the historical

8 nature of the conflict. Our concern is not with regard to the

9 prejudice that may or may not be there when people are talking about

10 the more general issues, but with regard to the prejudice that may be

11 there when people are talking about the accused's participation.

12 Because, your Honour, when it comes to hearsay evidence, we are not

13 able to cross-examine the witness who says the defendant was there if

14 that evidence comes to us through another person.

15 We do not know what the motives of the witness would be for saying

16 that the defendant was there, but in this type of situation, which may

17 be unique in criminal trials where there is this deep ethnic hatred,

18 we would not like the accused to be prejudiced by the prejudices of

19 others who are not available to give evidence, unless there is a very

20 good reason.

21 THE PRESIDING JUDGE: Would you give us a list of exceptions that you

22 would consider would be appropriate?

23 MISS DE BERTODANO: Your Honour, no, we specifically did not want to limit

24 your Honours in deciding what exceptions you thought were appropriate

25 by reference to, say, a particular set of national Rules. There may

Page 3393

1 be any number of reasons why you think it would be appropriate to hear

2 a certain piece of hearsay evidence and we do not seek to anticipate

3 those situations.

4 THE PRESIDING JUDGE: How then would it operate? Once again, the

5 Prosecutor would offer a witness and, based on the statements you have

6 received regarding that witness, you would say, "This evidence that

7 the Prosecutor is seeking to offer is hearsay" and, if I understand

8 your papers correctly, it does not fit within the generally recognised

9 exceptions to hearsay that would allow this testimony to be admissible

10 because it is trustworthy and reliable, and then we might say to you,

11 "Well, what exception are you talking about when you say it does not

12 fit within any of the exceptions?" Do you understand my question?

13 MISS DE BERTODANO: I think I understand the question and I think I can

14 answer it like this, that we would not be making objections based on

15 reference to a specified set of exceptions. It might well be that

16 exceptions which are commonly used in many systems such as excited

17 utterance might come up. In that case, that could be used as a way of

18 your Honours hearing that evidence. But if there were another reason

19 which does not appear in any of these systems why you felt that it was

20 more trustworthy than the common run of hearsay evidence, we would

21 not seek for a moment to tie your hands in allowing it in.

22 THE PRESIDING JUDGE: OK. The United States has 24 exceptions and I am

23 not sure what is the situation in Australia and Malaysia, but remember

24 we are one Trial Chamber but we operate under Rules that have been

25 adopted by the Tribunal that govern the other Trial Chamber as well as

Page 3394

1 the Appeals Chamber. So now would you suggest that the three of us

2 get together, examine our systems, see whether any of those systems

3 are recognised?

4 MISS DE BERTODANO: Your Honour, I do not see any need to do it in

5 anticipation of these matters coming up. Your Honour, as I see, it

6 will happen as and when these issues arise and there is an attempt to

7 present hearsay evidence. That would seem to me to be the easiest way

8 of dealing with this.

9 JUDGE STEPHEN: Can I just take you up on that? How would you suggest, if

10 we accede to your submission, that we interpret Rule 89(D)? We would

11 exclude evidence if, and how would it go on then?

12 MISS DE BERTODANO: Your Honour, we are not seeking to change the Rules.

13 JUDGE STEPHEN: Exactly. It seems to me that already you have the

14 situation that you are arguing for if you read and understand 89(D),

15 which says that if its probative value is substantially outweighed by

16 the need to ensure a fair trial. I think you started off by saying

17 really it is the onus of proof that is changed. That is what I would

18 like you to explain to me.

19 MISS DE BERTODANO: Your Honour, yes. What I said was that we could read

20 it that the probative value of hearsay evidence in general is

21 substantially outweighed by the need to ensure a fair trial. However,

22 there may be circumstances in which it is desirable for hearsay

23 evidence to be included and those would constitute the exceptions.

24 But, your Honour, I do not see that that requires making any change to

25 the Rules. The change in terms of procedure would be that there would

Page 3395

1 be a direction that when a point of hearsay was to arise this would

2 automatically be raised.

3 JUDGE STEPHEN: Yes, so that the fact that you stand up at some stage and

4 say, "A point of hearsay is now about to be given, we know that from

5 the fact that we have the statement of the witness", and you would at

6 that stage seek, without the evidence having been heard, a

7 determination by the Bench as to whether there is an outweighing of

8 probative value by the need to have a fair trial?

9 MISS DE BERTODANO: Your Honour, yes, because, in general, the reason that

10 hearsay falls into one of the exceptions has nothing to do with the

11 content of the statement, so what this would really change is that we

12 would not need to wait until the statement had been made before we

13 made this kind of objection. We would automatically have a rule by

14 which hearsay was excluded, unless there was a reason to include it,

15 rather than the other way around.

16 JUDGE STEPHEN: The difficulty, surely, is going to be that which the

17 Presiding Judge has mentioned, how do we come to a conclusion on that

18 balancing exercise without hearing the evidence? You will know what

19 it is, the Prosecution, of course, will know what it is; we will not

20 because we will not have heard it and there will not be a voir dire

21 process.

22 MISS DE BERTODANO: Surely, your Honour, it would be quite possible for

23 you to be given the circumstances ---

24 JUDGE STEPHEN: A description.

25 MISS DE BERTODANO: -- in which this hearsay evidence was heard without

Page 3396

1 being given the content of the statement.

2 JUDGE STEPHEN: It does not seem to me that your motion really would

3 change anything, because that is the situation that would arise if you

4 make an objection in relation to some particularly obvious case of

5 prejudice and absence of substantial probative value.

6 MISS DE BERTODANO: Your Honour, I think that the change would be that the

7 objection to hearsay would be automatic, and that it would

8 automatically happen that the hearsay was not heard until it had been

9 decided there was a good reason for it to be heard. But, your Honour,

10 you are right in the sense that it makes no difference to your

11 discretion. You can decide to hear or not to hear anything that you

12 choose and we have made no attempt to limit that discretion ---

13 JUDGE STEPHEN: I appreciate that.

14 MISS DE BERTODANO: -- and that was with reason.

15 THE PRESIDING JUDGE: Let me just share something with you, if I may, that

16 relates to the adoption of the Rules: The Judges drafted the Rules

17 and we drafted them together as being Judges from common law systems,

18 civil law systems, in an attempt, as we have said, to get the best of

19 all systems, but a system that would be most appropriate for this

20 peculiar (in the good sense) Tribunal. This is the first and we

21 wanted to have Rules that would address this kind of Tribunal.

22 During those discussions, one Judge stated that, in principle,

23 regarding this rule anything would be admissible. I want to tell you

24 what I said because I do not think that we are so far away from your

25 position. I said that all out of court statements should not

Page 3397

1 automatically be admissible, should not automatically be admissible;

2 instead I enquired as to the meaning of the word "probative", and was

3 that included, was that meant to include such matters as truthfulness,

4 voluntariness and the trustworthiness of the evidence? All of the

5 Judges concluded that to be so.

6 So that when we put the word "probative" in there, all of the Judges

7 agreed that implicit in the word "probative", which allows us to admit

8 any relevant evidence that has probative value, would be trustfulness,

9 voluntariness and trustworthiness; and that in making the decision as

10 to whether the evidence is probative, it will involve a consideration

11 such as truthfulness, voluntariness and trustworthiness.

12 That gets you, it seems to me, where you want to be, except that it

13 would not allow for an automatic exclusion of all hearsay evidence

14 unless it fits within an exception recognised by this Chamber or by

15 common law systems generally. It does not get you that far, but it

16 gives you some latitude in that if we consider that the evidence is

17 lacking in trustworthiness, that it is not truthful, then it has no

18 probative value. But back to what Judge Stephen says, I do not know

19 how we would decide that until we hear it.

20 MISS DE BERTODANO: Your Honour, yes. For us, that is a crucial point and

21 that is why we seek for the automatic restriction on hearsay and the

22 need for those who wish to adduce hearsay to show that there is a good

23 reason for it being adduced, because we think it is fundamental that

24 the Trial Chamber should not hear evidence which is unreliable.

25 Your Honour, this comes back to a point which has often been raised

Page 3398

1 of justice being seen to be done as well as simply being done. Your

2 Honour, I would suggest that we are well aware that this is a Bench

3 trial, but there are problems attendant on Bench trials which are not

4 problems experienced by jury trials, and one of those is that the

5 tribunal of law and the tribunal of fact are the same people. Because

6 of that, the person who decides whether or not evidence will be

7 admitted is the same person as the person who then evaluates the

8 evidence.

9 THE PRESIDING JUDGE: Except that in continental systems, and there is an

10 entirely different system other than common law system; we come from

11 common law systems but there is another whole world out there,

12 continental systems, and we have Judges from civil law systems, France

13 is one of them and Judge Jorda is the Presiding Judge of the other

14 Trial Chamber. I would never suggest to Judge Jorda that justice is

15 not done or even appear to be done in his system when, if you were in

16 their system, we would not be having this discussion about the

17 admissibility of hearsay, because it is done routinely. They do not

18 even fathom our approach to this. They sincerely believe that that is

19 a better system, that that is a search for the truth, the actual

20 truth, as opposed to trial truth, as they say about common law systems

21 -- maybe I should not describe too much because I am not a civil

22 lawyer.

23 MISS DE BERTODANO: But then, your Honour, those continental systems are

24 largely investigative systems rather than the sort of adversarial

25 system that we have here. In a system where we have live witnesses

Page 3399

1 who are cross-examined in the court, it seems to me to be more

2 necessary to have Rules which do exclude certain types of unreliable

3 evidence than in systems where the evidence is largely documentary.

4 THE PRESIDING JUDGE: It is largely documentary based upon what the

5 investigating Magistrate Judge has done, secured the statements and

6 prepared the dossier, gives it to both counsel, but we three have

7 visited a civil law system and we saw a lot of cross-examination from

8 the Judge though.

9 MISS DE BERTODANO: Your Honour, yes.

10 THE PRESIDING JUDGE: So there there is a whole different system, but OK.

11 You want us to adopt the common law system in this Chamber and I

12 gather throughout the Tribunal because of the need for justice and the

13 appearance of justice.

14 MISS DE BERTODANO: Your Honour, we are talking with regard to this

15 specific trial, whether it is adopted by other Trial Chambers is not

16 our affair.

17 JUDGE STEPHEN: Could I ask you this? Are you really asking for more than

18 this, that when a stage comes in the course of evidence being given by

19 the Prosecution which you think raises hearsay and you then stand up

20 and say, "Now, there is going to be some hearsay evidence being given,

21 and it is of a character which would be substantially outweighed by

22 the need to ensure a fair trial, therefore, you should not hear it",

23 and you then describe that evidence and you then seek a ruling? That

24 is really all that you are seeking, is it not?

25 MISS DE BERTODANO: Your Honour, yes, except that we have put it the other

Page 3400

1 way round in that it is not for us to say, to give reasons, why it is

2 of a character that substantially outweighs a fair trial. It is for

3 those seeking to adduce it to give reasons why it should be included

4 and that is the crucial difference.

5 Your Honour, I can make some points on the Prosecution material, if

6 that would assist, before the Prosecution presents its motion, or I

7 can leave that until after.

8 THE PRESIDING JUDGE: Let me clarify your position. In your paper you

9 used the term "fair trial", I mean prejudicial effect -- let me see if

10 I can find it. It is the second relief requested, that the Tribunal

11 have the discretion to hear any evidence excluded by (1) if it

12 considers that its probative value substantially outweighs its

13 prejudicial effect. You have kind of rewritten our Rule 89(C). 89(C)

14 says, "A Chamber may exclude evidence if its probative value is

15 substantially outweighed by the need to ensure a fair trial". Is

16 that a significant difference or am I misreading it?

17 MISS DE BERTODANO: Your Honour, it turns it round; it turns it round

18 because it makes the assumption that there is prejudicial effect

19 inherent in hearsay. If it were felt better to substitute the word

20 "substantially" -- it cannot be done with any great ease, the

21 substitution of words, therefore, "prejudicial effect" seemed to me to

22 illustrate the problem with hearsay, which is that it does have

23 prejudicial effect, it is secondary quality evidence. The main effect

24 of Rule 2 is that it turns around the hearsay Rules as they stand.

25 THE PRESIDING JUDGE: 89(C)?

Page 3401

1 MISS DE BERTODANO: It does not turn around any of the Rules as such, but

2 it turns around the way in which one considers hearsay evidence.

3 THE PRESIDING JUDGE: Miss de Bertodano, do you have any additional

4 submissions?

5 MISS DE BERTODANO: Your Honour, no. My only additional points were on

6 the Prosecution response and you may feel that you would wish to hear

7 the Prosecution first.

8 THE PRESIDING JUDGE: We will do that. We will hear from the Prosecution

9 and then you may respond or add to it. Yes, from the Prosecutor,

10 please?

11 MISS HOLLIS: Thank you, your Honour. Your Honours, we noted in our

12 response to this motion we believe that, in essence, what we are

13 talking about here is adoption of a new Rule and a substantial

14 amendment to an existing Rule. We would suggest that the Rules that

15 are in place now are more than appropriate to provide this accused

16 with a fair trial and, in fact, are tailored specifically to this

17 Tribunal where we have experienced Judges hearing the evidence.

18 Rules of evidence to a great extent are always a matter of policy

19 and balancing test. Unless you are at either end of the spectrum, one

20 end being excluding all evidence, on the other end being denying an

21 accused a fair trial, where that balance is struck in the middle

22 relies in great part upon the setting in which the trial will be heard

23 and upon answers to policy questions.

24 Certainly each national jurisdiction determines how it will balance

25 those competing interests. At this Tribunal -- you, Judges, know much

Page 3402

1 better than the Prosecution or the Defence -- clearly these Judges,

2 all of the Judges, have decided where that balance will be struck.

3 The balance has been struck in favour of admissibility of evidence

4 relying upon what is always presumed of Judges, that is, that Judges

5 know the law, they apply the law, they are able when appropriate to

6 hear evidence and then exclude it or to determine what weight is to be

7 given to that evidence.

8 THE PRESIDING JUDGE: With all due respect to that suggestion and respect

9 to any of my fellow Judges, I do not know, maybe the Judges are given

10 a little too much -- what is the word -- wisdom. That is certainly

11 what we hear but, you know, Judges are people and we are people too.

12 We all have our own life experiences and our ways of approaching

13 things. But I hear that all the time and I suppose that is what is

14 accepted so we will do that.

15 MISS HOLLIS: Your Honour, that certainly was accepted, although probably

16 every one of us in this room has had occasion to doubt that at some

17 time. It is said with no disrespect at all. However, the point is,

18 yes, you are people, but any criminal justice system is made up of

19 people. The point has been made that Judges are uniquely qualified to

20 be able to set aside passions, prejudices and act as objectively as

21 humanly possible on evidence. I believe that is why we have that

22 balance. So here the balance has been struck, clearly, in favour of

23 admissibility.

24 What the Defence is proposing to you in many ways would restrict

25 what you get even more than national systems (which have very bounded

Page 3403

1 Rules) would allow you to get. For example, in bounded systems there

2 is a rule excluding hearsay, but there are many, many exceptions. If

3 hearsay falls within an exception, there is no requirement then to go

4 on to the balancing test that the Defence says you must do in order to

5 get in hearsay. So that is more restrictive.

6 The Defence says you cannot even hear the evidence you are to

7 exclude. I am not aware of any bounded system where the Judges are

8 precluded from hearing that evidence that is in dispute, even if it is

9 a Judge alone trial where they then must not consider it if they

10 exclude it. So they are going very far away from what you, Judges,

11 have decided is appropriate for you at this Tribunal and are in many

12 ways even more restrictive as to what evidence you receive than would

13 be the case in a bounded system.

14 As far as the uniqueness of this trial, we would suggest that the

15 concerns set forth in paragraphs 10 and 11 are concerns Trial Chambers

16 are going to face here and in every trial that they hear, so there is

17 nothing unique about that. It is somewhat confusing about this test

18 that is to be applied here, if you adopt this rule, a per se hearsay

19 exclusion rule, with no exceptions (which most systems do not adopt,

20 they have specified exceptions), if you do adopt this exclusion rule,

21 then the Defence says, "Well, the Prosecution and the Defence can get

22 together and decide what hearsay will non-the-less come before you

23 which will be, of course, a violation of the per se exclusion rule.

24 But since they would not object, somehow that would come in. So it is

25 a little confusing how that would work.

Page 3404

1 It appears what would happen if this per se exclusion rule is

2 adopted is that this Trial Chamber and the other Trial Chamber would

3 then have to set upon re-establishing what exceptions there are to the

4 hearsay rules. We suggest that in this setting that really would be

5 an inefficient use of time and resources at this Tribunal.

6 In that regard, in so far as the Defence has argued that even as

7 Judges, of course, you should not hear this evidence, that in bounded

8 systems you would hear, but you should not hear it because it is so

9 prejudicial and could lead to more convictions than acquittals, it is

10 interesting to note that the case upon which the article relied that

11 they submitted to you, the Demjanjuk case, that was eventually set

12 aside because of hearsay evidence that was admitted at the appellate

13 stage. So, in fact, it was hearsay evidence that had that earlier

14 conviction set aside.

15 THE PRESIDING JUDGE: If I understand that article correctly, the author,

16 at least, proposes that there be a bounded system but that it be

17 applied differently for the Defence than the Prosecution, but you are

18 correct, on the appellate level they applied the discretionary system

19 for sure because it did not fit within any exception.

20 MISS HOLLIS: That is right. They, in fact, in that case upheld the

21 inclusion, the admission, of the hearsay at the trial level, but they

22 said, "Because of this additional hearsay we have been given, we now

23 find a reasonable doubt and we have to set it aside".

24 So they did not say in that case that hearsay is invalid; in fact,

25 they used hearsay to set aside that earlier conviction and

Page 3405

1 appropriately so, but the point being even in the bounded systems

2 -----

3 THE PRESIDING JUDGE: The reason, though, is that they would apply a

4 different system for the accused -- maybe I misspoke when I said

5 bounded for the Prosecution -- bounded for the accused but applied

6 differently; was it the conclusion of that author, at least, that the

7 decision was right because there should be a different system for the

8 Defence?

9 MISS HOLLIS: I think that author uses this case to show the dangers of

10 hearsay evidence. As far as whether there should be a different

11 system for the Defence and the Prosecution, I would suggest that when

12 we are talking about Rules of evidence that are used to determine the

13 trustworthiness and the probative value of evidence, that it should

14 be the same Rules because the ultimate question is, the evidence

15 before you, whether it is Prosecution evidence or Defence evidence, is

16 it sufficiently trustworthy that it should be considered at all for

17 whatever point it is being offered? So I would suggest that would not

18 differ, depending on whether it was Prosecution or Defence.

19 THE PRESIDING JUDGE: You see, the author says, "If war crimes trials are

20 to create a strong and systematic barrier against false convictions,

21 then the war crimes tribunal should choose bounded rules for both

22 prosecution and defence, but these rules should be asymmetrical rules

23 in which the defence would be allowed to present to the Court hearsay

24 evidence which the prosecution would not be allowed to present. A

25 proposed rule on these points would state that hearsay evidence is

Page 3406

1 admissible by the prosecution in war crimes trials only when it fits

2 exceptions applicable to the exclusionary rules in regular criminal

3 trials of a national jurisdiction sponsoring the Court", which was

4 Israel and, of course, we know in Israel, in ordinary crimes, they did

5 not apply these -- but they would apply exclusionary rules but they

6 did not in the war crimes tribunal, which is not our situation.

7 He goes on: "In distinction, hearsay that may raise a reasonable

8 doubt in the findings of the fact-finder on the issue of guilt may be

9 presented by the defence even when it does not meet conventional

10 exceptions to the hearsay rule". I do not know -- I have difficulty

11 understanding that.

12 MISS HOLLIS: I have difficulty with that as well. I would suggest that

13 the ultimate test, certainly in the United States with the catch all

14 exception, they say, "Even if it is not a well-established exception

15 to the hearsay rule, we know that the law evolves, so if you can prove

16 sufficient inditia of reliability, we will allow it in". I would

17 suggest that that should apply, if there is such a rule, to both the

18 Prosecution and the Defence because the accused does not have a right

19 to provide untrustworthy, unprobative evidence to any court. That is

20 not a fundamental right of an accused.

21 So when we are talking about what is admissible, what the bottom

22 line is, the rule should apply equally. What the Defence is doing with

23 their rules, I would suggest, is ----

24 THE PRESIDING JUDGE: The Defence says it should not apply equally

25 because you have the burden.

Page 3407

1 MISS HOLLIS: Of course we have the burden.

2 THE PRESIDING JUDGE: And we should hold you to that burden.

3 MISS HOLLIS: And you should. But when it comes to what evidence is

4 admitted, the bottom line for all that, we would suggest, is that the

5 Court should get evidence that is probative and, as you pointed out,

6 probative evidence, there is a wide range of it, but the fundamental

7 bottom line for probative evidence is that it is sufficiently

8 trustworthy, sufficiently voluntary, sufficiently reliable. No matter

9 which side presents evidence that is not sufficiently trustworthy, not

10 sufficiently voluntary, not sufficiently reliable, that evidence

11 should be excluded because it is of no assistance to anyone.

12 So, when it comes to determining what the bottom line is for

13 admissibility, that should not change whether it is the accused or the

14 Prosecution. The accused has no right to present to you false

15 testimony. He has no right to present to you untrustworthy testimony

16 simply because it is the Defence. That is a very different issue than

17 us having the burden of proof.

18 The Defence test here, they say that their second part is not an

19 alternative, but the first part seeks to exclude all hearsay evidence,

20 period. They do not say anywhere in that first rule "except where

21 both sides would agree that it meets within an exception". So it

22 appears that if you take that first rule, then you never get to a

23 balancing test, because if it is in any way hearsay it goes out.

24 Even assuming that somehow they would put in a caveat that if it

25 falls within a well-accepted or well-known exception, then it would

Page 3408

1 come in, the second part that they offer to you, their second request

2 substantially changes Rule 89(D) in the two ways that have previously

3 been discussed.

4 Rule 89(D), very appropriately, is a rule of admissibility because

5 the people getting evidence are you, Judges. So it favours

6 admissibility. The onus is on the opponent of the evidence to show

7 why the evidence should not come in. The Defence test would put the

8 onus upon the proponent of the evidence to justify its admissibility.

9 That is a significant change.

10 The test itself is significantly changed. We should hope that all

11 of the evidence we provide, if it is relevant and probative, will have

12 prejudicial effect, that is, will lead to proof beyond a reasonable

13 doubt that this accused is guilty. That is not the test in 89(D).

14 The test in 89(D) is that the Defence must show to exclude evidence

15 that the need to ensure a fair trial -- a much higher standard --

16 requires its exclusion because that need substantially outweighs the

17 value of the evidence to be admitted. So they are not only changing

18 the burden, they are changing the test in a very substantial way.

19 Basically, your Honours, what we suggest is the Rules as they exist

20 allow this Tribunal to receive a great deal of evidence and rely upon

21 the Judges' training, experience, professionalism, to determine what

22 weight to give that evidence. If the Defence should make a showing

23 that evidence that is being offered, that the need to ensure a fair

24 trial substantially outweighs the value of that evidence, then 89(D)

25 allows this court to exclude that evidence and then assumes that the

Page 3409

1 court will not consider that evidence once it is excluded.

2 That is consistent with bounded systems. In a sense, this is a

3 somewhat bounded system because there are boundaries and 89(D) is the

4 boundary, but because of the setting in which these trials are heard,

5 it is a boundary which favours admissibility. The concerns that the

6 Defence raises, even in 10 and 11 and the other concerns, are concerns

7 they can raise in cross-examination. They can ask questions that will

8 show this Chamber -- if the Chamber agrees with their questioning and

9 responses will show this Chamber they should give little weight to

10 the evidence that is being adduced, or they can make the argument

11 under 89(D) and ask that this Chamber exclude the evidence. But the

12 rule favouring admissibility is appropriate for this setting. It is

13 appropriate for these trials. We would ask that you deny the Defence

14 motion.

15 THE PRESIDING JUDGE: Is there any response, Miss de Bertodano?

16 MISS DE BERTODANO: Your Honour, only briefly. I do not understand the

17 reading of the motion which says that point 1 is a complete exclusion.

18 I thought the caveat in 2 was self-explanatory. I thought that I had

19 dealt with that in my argument. Your Honours, this trial may not be

20 unique among war crimes trials. It is, however, an extremely unusual

21 situation among the normal run of criminal trials. The problems which

22 this has given rise to which we have outlined in our argument, because

23 we are dealing with hearsay, cannot be dealt with by

24 cross-examination. That is precisely the point. When it comes to

25 hearsay evidence, we do not have the power to cross-examine the person

Page 3410

1 who made the original statement.

2 Your Honour, for the reasons I have given, I would say that we are

3 not changing the tests substantially. Again I think that I have dealt

4 with that in sufficient detail not to need to go over it again.

5 Your Honour, I would close by saying that we seek to have a trial

6 which uses the best possible evidence so that there is no possibility

7 of any insinuation that this has been a trial by rumour rather than by

8 evidence. Most systems accept that evidence may be both relevant and

9 probative but still inadmissible for obvious reasons. It is for that

10 reason that we ask you to accept our motion.

11 THE PRESIDING JUDGE: The article you have given us relates to a war

12 crimes tribunal where the evidence that was received dated back 40

13 years or so, I guess ---

14 MISS DE BERTODANO: Yes.

15 THE PRESIDING JUDGE: -- it is that approximate date. Of course, the

16 author there is concerned about the lapses of memory and other

17 considerations. You state that that is a concern of yours in this

18 motion, except that we are going back for a shorter period of time,

19 obviously ---

20 MISS DE BERTODANO: Yes, your Honour.

21 THE PRESIDING JUDGE: -- but still three years, four years perhaps, maybe

22 even five, but that is one of your concerns. I do not know whether

23 that is a neat fit with the situation proposed by the author regarding

24 the war crimes trial in Israel.

25 MISS DE BERTODANO: Your Honour, no. I was not seeking to show that there

Page 3411

1 is any kind of direct fit with the Demjanjuk trial. It is a quite

2 different situation. Your Honour, lapses in memory are relative. One

3 can forget a great deal over four years; one can forget a great deal

4 more over 40 years. It is a still a matter of concern for us,

5 particularly in the light of the traumatic situations which have been

6 suffered by a lot of witnesses which are known to have effects on

7 powers of memory.

8 THE PRESIDING JUDGE: I understand that and I like the way you put that in

9 your motion, but most criminal trials where there are victims,

10 personal victims, individuals who have been victimized and, perhaps,

11 even institutions that have been victimized, I think Judges are wise

12 enough and experienced enough to know that there may be a reason

13 sometimes for witnesses who appear before that court to have lapses,

14 should I say. What we are hearing is extraordinary, not

15 unprecedented, unfortunately, but that happens in national systems as

16 well.

17 So, I mean, the same considerations apply and in civil systems the

18 same considerations apply and they are not constrained by the hearsay

19 Rules.

20 MISS DE BERTODANO: Your Honour, yes, but I would stress the uniqueness of

21 the situation in which there has been such a bitter civil war.

22 THE PRESIDING JUDGE: Sure. It is unique, because everything is unique,

23 but this is particularly unique, I suppose. You say you cannot

24 cross-examine a proponent and, therefore, you want to exclude hearsay.

25 You cannot cross-examine a proponent when hearsay is admitted by

Page 3412

1 virtue of an exception in certain systems either.

2 MISS DE BERTODANO: Your Honour, no, but the reason for most exceptions to

3 hearsay is that there is some extra boost to reliability.

4 THE PRESIDING JUDGE: So then would you accept the proposition that this

5 Tribunal has accepted and that is when we use the word "probative" we

6 are talking about testimony which is truthful, voluntary and

7 trustworthy?

8 MISS DE BERTODANO: Your Honour, yes.

9 THE PRESIDING JUDGE: That can be done even if it is hearsay. That is my

10 suggestion.

11 MISS DE BERTODANO: Your Honour, yes. This is why we say we are not

12 making an actual change to the rules. We are seeking to change the

13 way in which hearsay is dealt with.

14 THE PRESIDING JUDGE: That is a decision will be made before we hear the

15 testimony and we would then decide whether it fits within one of the

16 exceptions generally accepted ---

17 MISS DE BERTODANO: That you choose to recognise.

18 THE PRESIDING JUDGE: -- that we choose to recognise?

19 MISS DE BERTODANO: Your Honour, yes.

20 THE PRESIDING JUDGE: Regarding 89(D), the decision that the majority of

21 the Chamber issued in August of last year on protective measures,

22 August 10th or 15th, whatever it was, but it was on protective

23 measures requested by the Prosecutor regarding anonymity to be given

24 to some of the witnesses, that decision, as I recall, gave anonymity

25 to one of three witnesses to a particular incident, and then gave kind

Page 3413

1 of a modified anonymity to two witnesses, but still gave their

2 locality after the Defence had said, "We really do not need their

3 names but we do need to know where they live". The majority said, "We

4 will not give you the exact address, but we will give you a locality".

5 As to the other witness that was anonymous, it was one of three

6 witnesses, but we were careful in that decision to say that 89(D)

7 would give us the ability to hear this evidence, place it in context

8 and then make a determination as to whether or not the probative value

9 of that evidence is substantially outweighed by the need to have a

10 fair trial.

11 So what we are saying is, "It will come in, but when we look at it

12 all, we will make that determination". Now, you disagree, obviously,

13 with the result reached in the decision, or maybe all of it or

14 certainly a part of it, but that is the approach that we seek to apply

15 in this instance and in all evidentiary matters, that is, we will take

16 a look at it, see how it comes in, what is the context and then make

17 this assessment, because there may be a prejudice occurring during

18 trials, errors that are made by Judges, that do not reach the level of

19 making the trial unfair. There is a concept of reversible error and

20 non-reversible error in some systems, so that Judges may make errors

21 but they are not reversible because it does not affect the fairness of

22 the trial.

23 That is what bothers me when you use the term "prejudicial" as

24 opposed to "fair trial". We, at least, have taken the position, our

25 Rules and at least the majority in a decision on anonymity, we will

Page 3414

1 look at it in its entirety and make that decision. That is not

2 satisfactory to you, I suppose?

3 MISS DE BERTODANO: Your Honour, we are concerned that this is not only a

4 fair trial but is seen to be a fair trial. This is a trial taking

5 place in public and we are concerned that it is not seen to be a trial

6 where unreliable evidence is heard.

7 THE PRESIDING JUDGE: In civil systems then, I gather, those are not fair

8 trials -- Mr. Wladimiroff, you come from a civil system. I do not

9 want you to testify necessarily, but I am sure that you are very proud

10 of your system; it has its defects like we all have in our systems.

11 But do you want to respond to my suggestions about civil law systems

12 because you certainly know about it and I do not?

13 MR. WLADIMIROFF: As a matter of fact, your Honour, the judges will cut

14 off a witness who is going to reveal to the judge information that is

15 passed to a witness by others. The judges would rather prefer to

16 hear the other witness.

17 THE PRESIDING JUDGE: So you are saying that hearsay evidence is

18 automatically excluded in the Dutch system?

19 MR. WLADIMIROFF: Unless the judge is satisfied that the information which

20 is passed to the Judge is reliable, and the same test will be applied

21 there.

22 THE PRESIDING JUDGE: How does that judge make that determination then in

23 the actual trial setting?

24 MR. WLADIMIROFF: Invited by each of the parties.

25 THE PRESIDING JUDGE: Arguments from counsel? A judge does not listen to

Page 3415

1 the testimony?

2 MR. WLADIMIROFF: The testimony may come in, but the judges themselves

3 will trigger the matter until the parties had triggered the matter at

4 the earlier stage.

5 THE PRESIDING JUDGE: So if the parties trigger the matter at an earlier

6 stage, does the judge then typically say, "Well, I hear from counsel

7 but let me hear what this witness has to say so that I can rule"?

8 MR. WLADIMIROFF: That is more or less case law, I would say, but it may

9 depend on what the witness has said so far, whether the judge will

10 stop him giving evidence and rather prefer the original information.

11 THE PRESIDING JUDGE: Did I understand you correctly to say that that the

12 judges sometimes would hear the testimony of a witness that is

13 objected to by defence on the grounds of hearsay in order to make a

14 ruling as to whether that evidence should be heard?

15 MR. WLADIMIROFF: Sometimes they will let the evidence come in to the

16 extent that they are able to decide the issue. That is not a general

17 rule as such, but it may depend on what has been said so far.

18 THE PRESIDING JUDGE: But in so far what was being said is that it is

19 clear that this should not be admissible?

20 MR. WLADIMIROFF: At the end of it the judge may say, "We will not accept

21 it; it is not admissible".

22 THE PRESIDING JUDGE: I suppose my point was only to Miss de Bertodano,

23 and I do not want to beat the point, is that this Tribunal, the first

24 International Criminal Tribunal, is international and it is not a

25 Malaysian tribunal, it is not an American tribunal, it is not an

Page 3416

1 Australian tribunal, it is not a common law tribunal, common law

2 system tribunal, it is not a civil law system tribunal; it is an

3 amalgamation of both and intentionally done so because we expect the

4 trials to come from all over the world, the Judges are from all over

5 the world, and we are attempting to combine the systems. I believe

6 that fair trials are given in civil law systems and they do have not

7 this discussion.

8 MR. WLADIMIROFF: We appreciate that, your Honours. The only thing we are

9 looking for is a policy to develop what are the exceptions here where

10 the Rules only provide that after coming in of the evidence you will

11 apply 89(C) and (D). So what we are looking for is one step back, if

12 there is any way to label, to identify, what are the exceptions for

13 hearsay Rules here. We propose the policy not to accept hearsay

14 evidence unless you have recognised an exception, because we have no

15 exceptions here, we have no domestic rules. We are not bound in that

16 respect. The next step is 89, we want one step back; before you are

17 going to weigh the evidence, we want you to develop a policy on

18 exceptions and we do not know where we stand. We only know that you

19 will accept it unless we object.

20 THE PRESIDING JUDGE: Let me say this. It is difficult and we, Judges,

21 will have to confer and decide how we will rule on this motion, but

22 when you state that you want us to make a determination that the

23 evidence would not come in unless it meets one of the exceptions, we

24 are really back where we started from, because if there is no rule on

25 hearsay, there are no exceptions, so we are kind of arguing in a

Page 3417

1 circle. But I think you have your answer in that 89(C) says, "A

2 Chamber may admit any relevant evidence which it deems to have

3 probative value". That is not 89(D). 89(D) is the one that Miss De

4 Bertodano suggests that we have kind of turned on its head, saying,

5 "Oh, well, you know, we will make this determination later". I

6 understand her position on that.

7 But 89(C) is what guides us in the first instance when the evidence

8 is coming in. What guides us is whether the evidence is relevant and

9 whether it deems to have probative value. I suggest to counsel that

10 probative value means being truthful, being voluntary and being

11 trustworthy.

12 Now, at least in my system, the underlying principle behind all of

13 the exceptions is that, and others perhaps, but that is basically it,

14 and reliability. So we accept, I think -- I certainly accept -- that

15 that should be the standard. So we do not read to write "excited

16 utterance" as an exception or res gestae you said in the Malaysian

17 system or in the English system even or business records or all of

18 those other -- or even the catch all.

19 Do not think we are acting in a vacuum and that we are just making

20 up rules we go along. We, as a tribunal, plenary met -- I think we

21 have considered the Rules on eight different occasions, but we,

22 believe me, have laboured hard and long with influences coming from

23 different systems and different professions among the Judges and have

24 come up with what we consider to be fair.

25 I submit that if we admit evidence that is truthful, voluntary,

Page 3418

1 trustworthiness with an underlining guide being reliability, that is

2 probative and that fits 89(C). We do not get to 89(D) unless we,

3 perhaps, make an error that the Defence would suggest or an error that

4 the Prosecutor would suggest and then we say, "OK, we said it was

5 probative but now we find that it is substantially outweighed by the

6 need to have a fair trial, so although we said it was probative, we

7 are going to exclude it". That is when we get to that kind of back

8 door approach that is objected to by counsel, and I understand her

9 position, but we do not get there if we apply 89(C) right.

10 MR. WLADIMIROFF: We fully appreciate that, your Honour. May I just say to

11 bring things back to the basic idea, the basic idea is that this is

12 the first case. There is no case law except for two rulings in this

13 case on hearsay evidence. It is essential in this case that we have a

14 clear view of what is your position on hearsay evidence since we know

15 by the disclosure of the statements given by the Prosecution to the

16 Defence that we are going to deal with a lot of hearsay evidence in

17 this case. It is our concern to know exactly where we stand.

18 The basic, what we are looking for, is who is going to trigger what;

19 are we going to learn afterwards what is your position according 89(C)

20 or are we aware before that what your position might be? What we

21 simply suggest is to have the issue triggered immediately so we know

22 exactly where we stand, and not by us raising each time over and over

23 again an objection. We want to label the problem the moment it is

24 raised. That is exactly what we want. It is not allowed unless you

25 rule it is; it is a policy to learn what are the exceptions here in

Page 3419

1 your policy of executing 89(C) because we do not know, we do not know

2 anything. We are just in a blank here. That is exactly what we want.

3 THE PRESIDING JUDGE: That is what I attempted to do by reading -- I do

4 not know whether it was appropriate, but our minutes are open where we

5 discussed Rules and they are public. We, Judges, will confer and

6 issue an order or a decision that I think will give you guidance. You

7 are entitled to that. Probative, what does "probative" mean? I guess

8 that is where you are. What does that mean? You want to know what it

9 means so that you can phrase your arguments, your objections in a way

10 that, hopefully, will be accepted.

11 MR. WLADIMIROFF: Because if we are going to object, based on what? We

12 have no guidance here.

13 THE PRESIDING JUDGE: Judge Vohrah does not really have any additional

14 questions. We have talked some matters and I think we have spent

15 enough time on this. We would normally recess at 11.30. I am sure

16 everyone is tired at this point. Maybe an early recess might be

17 appropriate. We will rule very shortly on your motion, Mr.

18 Wladimiroff.

19 The other matters that we need to consider, though, are just general

20 matters, matters which we had discussed before our recess. We want to

21 find out where the parties are and thereafter we then will consider

22 the application of the Prosecutor, is that correct? You do want us to

23 consider the application this morning, if possible ---

24 MR. NIEMANN: If possible, yes, your Honour.

25 THE PRESIDING JUDGE: -- in camera, and then that will not be the next

Page 3420

1 witness so after that we will continue with a witness in open session.

2 MR. NIEMANN: That is correct.

3 THE PRESIDING JUDGE: So we will stand in recess for 20 minutes.

4 (11.25 a.m.)

5 (Adjourned for a short time)

6 (11.45a.m.

7

8 (Closed session)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 3421

1

2

3

4

5

6

7

8

9

10

11

12

13 pages 3421-3446 redacted Ė closed session

14

15

16

17

18

19

20

21

22

23

24

25

Page 3447

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (1.45 p.m.).

8 (Luncheon Adjournment)

9

10

11 (2.15 p.m.).

12 (Open session)

13 THE PRESIDING JUDGE: Mr. Niemann, I thought that I might mention the fact

14 that we have received an updated Prosecution witness list.

15 MR. NIEMANN: Yes, your Honour.

16 THE PRESIDING JUDGE: That, I think, might be of interest. The new list

17 that you have given us has significantly reduced the estimated time

18 that you will need for direct. So you now anticipate that, perhaps,

19 the Prosecutor will complete its case in chief by when?

20 MR. NIEMANN: About mid August, we think, yes, your Honour.

21 THE PRESIDING JUDGE: Very good. Thank you for giving attention to that

22 matter. We understand that you have a heavy burden and it is not our

23 desire to cut you off, but we want to move as expeditiously and fairly

24 as possible.

25 MR. NIEMANN: Yes, your Honour.

Page 3448

1 THE PRESIDING JUDGE: The other matter that I need to address is that I

2 had stated before our lunch recess that the minutes of the plenary

3 meetings of the Judges are public and they are not public. Mr.

4 Wladimiroff is shaking his head saying, "I know, I have probably tried

5 to get those minutes and they said no".

6 MR. WLADIMIROFF: I was happily satisfied hearing you saying that because

7 I found at an earlier stage they were not.

8 THE PRESIDING JUDGE: No, no. We have our meetings and then sometimes we

9 go into camera where we are totally alone, but none of those

10 deliberations are public, and for a correct reason. There are private

11 deliberations on Rules and a number of other matters. They state

12 different Judgesí opinions about Rules and approaches to things that

13 are confidential. I do not mind sharing my opinions because whatever

14 I say in private I say in public, so I have no problem revealing my

15 own thoughts about the Rules, but it is not appropriate to ascribe to

16 any of the other Judges any matters that they may have said. That I

17 did not do, but I am incorrect, they are not public.

18 So we are now public, Mr. Niemann, would you call your next

19 witness, please?

20 MR. NIEMANN: Yes, your Honour. Just before I do, there is one matter I

21 wanted to correct, if I may? I misspoke when I said earlier this

22 morning that we had written a letter to IFOR. In fact, what had

23 happened is that the letter was drafted but not sent because we

24 already knew the answer. We had asked the question and had been

25 informed it was not within their mandate. I just wanted to correct the

Page 3449

1 transcript.

2 THE PRESIDING JUDGE: You do as you wish. If you keep asking, you think

3 you will get a different answer? No, I guess not.

4 MR. NIEMANN: It is worth a try, your Honour. I call Sead Halvadzic.

5 MR. SEAD HALVADZIC, called.

6 THE PRESIDING JUDGE: Sir, would you stand and take the oath, please?

7 THE WITNESS [In translation]: I solemnly declare that I will speak the

8 truth, the whole truth and nothing but the truth.

9 (The witness was sworn)

10 THE PRESIDING JUDGE: You may be seated. Thank you.

11 Examined by MR. NIEMANN

12 Q. Is your name Sead Halvadzic?

13 A. Yes.

14 Q. Were you born on 1st November 1972?

15 A. Yes.

16 Q. Were you born in Prijedor?

17 A. Yes.

18 Q. Apart from the time when you joined the army, did you spend all of

19 your life up until 1992 in Prijedor?

20 A. Yes.

21 Q. Did you attend primary school in Prijedor?

22 A. Yes.

23 Q. Then when did you go into the army, into the JNA?

24 A. March '91.

25 Q. Were you in the army until when, what time, period of time?

Page 3450

1 A. Until 15th May 1992.

2 Q. When you were in the JNA were you located at a town called Nis in

3 Serbia?

4 A. Yes.

5 Q. Were you trained by the army as a parachutist?

6 A. In whether I was a parachutist?

7 Q. Yes. Were you a parachutist?

8 A. Yes.

9 Q. When did you leave the JNA?

10 A. May 15th '92.

11 Q. What happened then, where did you go then?

12 A. To Banja Luka.

13 Q. Why did you go to Banja Luka?

14 A. It was orders came that all the Bosnians were to be posted back in

15 Bosnia.

16 Q. When you returned to Banja Luka what did you do then?

17 A. We stayed at the airport in Banja Luka for about one hour and a half

18 and then the Colonel, the Commander of the airport told us that we had

19 a week free, a week off, because there were Muslims and Croats in that

20 unit.

21 Q. Did you then return to Prijedor?

22 A. Yes.

23 Q. When you went to back to Prijedor what did you do?

24 A. When I arrived in Prijedor I saw that Prijedor was already in Serb

25 hands. There were Serb flags everywhere. The tanks had been painted

Page 3451

1 blue and the militia APCs had been painted blue and they all had

2 belonged to the JNA.

3 Q. So what did you do when you saw this?

4 A. I spent at home some three days. I stayed at home and then I went to

5 Carakovo.

6 JUDGE STEPHEN: I do not understand what the witness means by saying "they

7 all had to belong to the JNA".

8 MR. NIEMANN: What did you mean when you said that you all had to belong

9 to the JNA in your evidence a moment ago?

10 A. Because the police in Prijedor, and generally the police never had

11 any tanks or APCs or that kind of APCs never existed in the police,

12 which means that they had been taken from the army, that the army had

13 given them to the police and to have them painted blue as the army of

14 -- as the police of Bosnia-Herzegovina.

15 Q. You said that after spending sometime in Prijedor you then left

16 Prijedor. Why did you do that?

17 A. I wanted to fight for the independence of Bosnia and Herzegovina.

18 Q. Did you join a force of men who were doing this, who were fighting

19 for Bosnia-Herzegovina?

20 A. Yes.

21 Q. Where were these men located?

22 A. We were located in a village called Carakovo.

23 Q. How far is that approximately from Prijedor?

24 A. About four or five kilometres.

25 Q. What is the name of this group of men that you joined? Did they have

Page 3452

1 a particular name?

2 A. No.

3 Q. What was the nationality or ethnic makeup of most of the members of

4 this group of men that you joined?

5 A. There were a couple of Croats and the rest were Muslims.

6 Q. How were you armed?

7 A. We had a couple of submachine guns, two or three snipers and a couple

8 of bombs, a couple of grenades -- nothing else.

9 Q. Did you have any uniforms issued to you or did you wear any uniforms

10 when you were with this group of men?

11 A. Well, perhaps a couple of us had uniforms. Others wore civilian

12 clothes or perhaps shirts that were usually worn by reserves.

13 Q. How long did you stay with this group of men for?

14 A. Until the attack on Prijedor which was May 31st and then we tried to

15 break through to Bihac.

16 Q. Were you successful when you did this?

17 A. No.

18 Q. What happened to you?

19 A. They captured me and my friend, Jasmin Adic, by a place called

20 C'ele which is near Agic'i which is more or less midway between

21 Prijedor and Bihac.

22 Q. Approximately how far is that from Prijedor?

23 A. Well, some 20, 30 kilometres.

24 Q. Can you remember the date it was that you were captured?

25 A. June 6th '92.

Page 3453

1 Q. Who captured you? Who was it that captured you on 6th June 1992?

2 A. Serbs from that locality.

3 Q. These were Serb soldiers, were they?

4 A. Serb reserves.

5 Q. Where did they take you once they captured you?

6 A. They took us to, what-its-name, to their Local Commune.

7 Q. Do you remember the name of that? You may not remember the name. Do

8 you remember the name of the Local Commune that you were taken to?

9 A. It was the municipality of C'ele.

10 Q. From there where did you go?

11 A. They wanted to kill us there straightaway but, fortunately, the

12 military police and police from Bosanski Novi came and later on they

13 transferred us to the police headquarters in Bosanski Novi.

14 Q. How long were you kept in Bosanski Novi?

15 A. We spent two nights there.

16 Q. Where did you go from there?

17 A. After the second night, in the morning, they took us to the Hotel Una

18 in Bosanski Novi, that was the military police, and at noon we were

19 transferred to the barracks in Prijedor.

20 Q. When you say the "barracks" what do you mean by that? Was that the

21 police barracks or the military barracks?

22 A. Military barracks in Prijedor.

23 Q. Can you tell us approximately where that is located in the city of

24 Prijedor, the military barracks?

25 A. At Urije.

Page 3454

1 Q. What date was it when you arrived at Prijedor barracks? Do you

2 remember?

3 A. After June 9th, it was 8th June.

4 Q. Approximately what time did you arrive there? Was it in the morning

5 or the afternoon?

6 A. Well, between noon and afternoon.

7 Q. When you arrived there what happened?

8 A. Then they took us to the first floor, left me and Burdo to stay

9 there. Two guards were with us. One of them went to report to their

10 Commander, to tell them that we arrived. Another one came along, saw

11 us there and said, "What are you Ustasha doing here?" He forced us to

12 raise three fingers and put us against the wall. Then another one

13 said, "Tadic, do you see Ustashi?" one of them said.

14 Q. You were facing the wall when this happened?

15 A. Well, yes, we were lined up against the wall with three fingers.

16 Q. What happened after that?

17 A. Then two men came in, one was taller, another one was shorter. They

18 both were in camouflage uniforms with white slings, and the moment I

19 turned somebody hit me. It was a very strong karate blow.

20 Q. How was it that you knew that it was a karate blow?

21 A. Well, I had also trained karate and while doing my army service I was

22 also learning jujitso and other marshal arts.

23 Q. What happened then after you were hit with this karate blow? What

24 happened then?

25 A. They went on beating us.

Page 3455

1 Q. Did you see the faces of the men that were beating you?

2 A. Yes, for a very short while.

3 Q. Did you hear them speak to each other at any time during the course

4 of this beating?

5 A. They simply struck us all the time and told us to turn to the wall

6 with three fingers against the wall, and they hit us with their

7 boots, with their batons and other things.

8 Q. Did any one of them use a weapon towards you at all?

9 A. Well, the Commander left the building. He said, "Tadic, let those

10 people alone", and he said, "They all have to, all their throats

11 should be cut. That is the only way".

12 Q. Who said that?

13 A. I did not see that.

14 Q. No, but just tell us again who told them to stop the fighting.

15 A. The Commander who was in the room and talked to the guards who had

16 brought us from Bosanski Novi there.

17 Q. What was the reply that you heard?

18 A. That our throats should be cut because we were Ustashi.

19 Q. Do you know which of the two men said that?

20 A. No, because I was facing the wall.

21 Q. What happened after that?

22 A. Then they took us and took us to a cell in the barracks.

23 Q. These men that beat you, did you know either of them prior to this

24 day?

25 A. No, I did not.

Page 3456

1 Q. Had you ever met a person by the name of Tadic prior to this date?

2 A. Met?

3 Q. Had you ever met a person by the name of Tadic prior to this date?

4 A. No.

5 Q. Did you know anyone by that name?

6 A. No.

7 Q. After that what happened then? Where did you go then, after the

8 beating?

9 A. Then they took us to the cell in the barracks and there they beat us

10 for the second time, other people.

11 Q. Who are they that beat you, do you know?

12 A. That I do not know -- soldiers too.

13 Q. Was it the same men that had beat you previously or was it different

14 men?

15 A. Different men.

16 Q. What happened after that? Where did you go then?

17 A. We spent one night there and then they took us to the camp at

18 Omarska.

19 Q. Where did you stay when you were taken to Omarska?

20 A. In the white house.

21 Q. When you went to Omarska did you recognise any of the guards that

22 were there?

23 A. No, not before.

24 Q. You did not know anyone from before?

25 A. No.

Page 3457

1 Q. How long did you stay in the white house at Omarska?

2 A. A month.

3 Q. During the time that you spent in the white house at Omarska were you

4 ever beaten?

5 A. Five times a day at least.

6 Q. Did you come to know any of the men that beat you during the time

7 that you were kept in the white house at Omarska?

8 A. Whether I came to know one of the guards?

9 Q. Yes.

10 A. I could only hear their names.

11 Q. Yes. Did you remember any of the names that were used against some

12 of the guards that had beaten you when you were in the camp at

13 Omarska?

14 A. Yes, I do remember some of them.

15 Q. Could you tell us their names?

16 A. You want me to give you the names?

17 Q. If you can remember them?

18 A. There was somebody called Kvocka, he was a Commander of the camp for

19 a while, then he was replaced by Zeljko Meakic who also beat me

20 personally; and from Prijedor came some guards, one of them was Zuga

21 Nikica and there was another one with them, Pirvan, then another one

22 called Brk, he was a personal driver for Zeljko Meakic, and a number

23 of others.

24 Q. How long did you stay in Omarska?

25 A. Until the camp was disbanded.

Page 3458

1 Q. When was that?

2 A. I do not remember. It must have been August or September.

3 Q. August and September of what year?

4 A. '92.

5 Q. From where did you go after you left Omarska?

6 A. Manjaca.

7 Q. How long were you kept on Manjaca?

8 A. Until mid December.

9 Q. From where did you go after you were in Manjaca?

10 A. I left with the International Red Cross convoy and we went to

11 Karlovac.

12 Q. Just going back for a moment to the time when you went to the

13 Prijedor barracks where you were beaten by those two men, when you

14 first heard the name "Tadic", what position were you standing in at

15 that moment when you first heard the name "Tadic"?

16 A. I was facing the wall with three fingers against wall, and when I

17 wanted to look at them, I saw two men come in and one of them hit me.

18 Q. In June of this year, June 14th June 1996, were you shown a book of

19 photographs by Mr. Thomas Ackheim and Mr. Reid of the Office of the

20 Prosecutor?

21 A. Yes, a booklet with photographs.

22 Q. Did you look through each of those photographs?

23 A. Yes.

24 Q. Did you recognise any of the photographs there that you saw in the

25 booklet?

Page 3459

1 A. Yes.

2 Q. The photograph that you recognised, who was that a photograph of?

3 A. On that photograph was one of the two who beat us at the barracks.

4 Q. Had you ever seen that photograph, the photograph of that person,

5 prior to this time when were you shown the photo book?

6 A. No.

7 Q. Had you ever seen the image of this person on television or any other

8 media form prior to this time?

9 A. No.

10 MR. NIEMANN: Might I have this photo book marked for identification,

11 please, No. 242? Might the photo book be shown to the witness?

12 THE PRESIDING JUDGE: Do you have a copy of that, Mr. Kay?

13 MR. KAY: We do not, your Honour. Your Honour may recollect there were

14 submissions about this subject before our break.

15 THE PRESIDING JUDGE: Do you have an extra copy of 242 for the Defence to

16 look at while the witness is looking at this?

17 MR. WLADIMIROFF: As a matter of fact, we have seen the booklet and I made

18 copies myself.

19 MR. NIEMANN: We gave a copy to the Defence, your Honour.

20 THE PRESIDING JUDGE: Very good, thank you.

21 MR. NIEMANN (To the witness): Mr. Halvadzic, does that appear to be the

22 book that you were shown by investigators Ackheim and Reid from the

23 Office of the Prosecutor?

24 A. Yes.

25 Q. Does your signature appear on one of the photographs in that book, on

Page 3460

1 the back of one of the photographs in that book?

2 A. Yes.

3 Q. What photograph in number from the front of the book does it appear?

4 A. There are two figures here.

5 Q. I am sorry. How many photographs into the book is it from the front

6 of the book? Can you just count up the photographs from the front of

7 the book?

8 A. There is 0400, 14500, 136.

9 Q. Yes. All I want you to tell me is how many photographs in from the

10 beginning of the book is that photograph that you have signed? Go to

11 the front of the book, right.

12 A. The second.

13 Q. The second photograph?

14 A. Here the second.

15 Q. I think you were about to quote some numbers to us there appearing on

16 the back of that photograph. Were those numbers on the photograph

17 when you signed it, can you remember?

18 A. No.

19 Q. It was just blank, was it?

20 A. Yes.

21 MR. NIEMANN: I tender that photograph, your Honour.

22 THE PRESIDING JUDGE: Any objection?

23 MR. WLADIMIROFF: As a matter of fact, your Honour, we sustain the

24 objection we already made though the matter is pending, as I recall.

25 THE PRESIDING JUDGE: Then I will assume that you have a running objection

Page 3461

1 to the use ---

2 MR. WLADIMIROFF: Absolutely.

3 THE PRESIDING JUDGE: -- of this photo booklet in this procedure for the

4 reasons you stated in your submission.

5 MR. WLADIMIROFF: Thank you very much.

6 THE PRESIDING JUDGE: That will be overruled at this time. Exhibit 242

7 will be admitted.

8 MR. NIEMANN: Are you sure that the photograph that you have written your

9 name on the back of was the person that beat you at the Prijedor

10 barracks on that day, or one of the men that beat you at the Prijedor

11 barracks on that day?

12 A. Yes.

13 MR. NIEMANN: No further questions, your Honour.

14 THE PRESIDING JUDGE: Mr. Kay?

15 MR. KAY: Thank you, your Honour.

16 Cross-examined by MR. KAY

17 Q. Mr. Halvadzic, I can assume, can I not, that you live in a place at

18 the moment where there are televisions?

19 A. Yes.

20 Q. I can assume, can I not, that you live in a place where there are

21 newspapers?

22 A. Yes.

23 Q. When were you aware that you were going to be a witness in this case?

24 A. When they found me.

25 Q. When did they find you?

Page 3462

1 A. '95.

2 Q. Was it in May of 1995?

3 A. I do not remember.

4 Q. I have a statement here signed by you on 4th May 1995. I will take

5 that as being the approximate time that you were located to be a

6 witness in this case, would that be right?

7 A. I did not understand the question.

8 Q. I will take it that the statement dated 4th May 1995 would have been

9 about the time that you were approached to be a witness in this case,

10 would that be right?

11 A. Yes.

12 Q. So that was nearly three years after the events that have taken place

13 in Prijedor barracks when you were first arrested?

14 A. Yes.

15 Q. In the meantime you had spent nearly three months in the camp of

16 Omarska?

17 A. Yes.

18 Q. After Omarska you went to a camp called Manjaca?

19 A. Yes.

20 Q. How long were you in Manjaca for?

21 A. I do not remember. I cannot remember exactly.

22 Q. About six months or four months?

23 A. Altogether in both camps?

24 Q. In Manjaca?

25 A. Three to four months.

Page 3463

1 Q. Right. From Manjaca you went to a place called Karlovac?

2 A. Yes.

3 Q. How long were you there for?

4 A. About a month.

5 Q. What date was it that you were released and able to leave the life

6 of living in a camp either as a refugee or as a detainee?

7 A. You mean when I was released from Manjaca?

8 Q. Yes.

9 A. I think it was around 15th December.

10 Q. Did you spend time as a refugee living in a camp outside Republika

11 Srpska?

12 A. Well, yes, I was in Karlovac for a month.

13 Q. So it was a month you were in Karlovac and was that the last time

14 that you lived in a camp? Did you take up life elsewhere living in

15 ordinary accommodation after Karlovac?

16 A. I was still a refugee.

17 Q. So you gave a statement three years after the events that took place

18 in Prijedor barracks?

19 A. Yes.

20 Q. You are shown a photo book in June of this year?

21 A. Yes.

22 Q. Just over four years after the events that took place in Prijedor

23 barracks?

24 A. Yes.

25 Q. You know that this trial has been on television, do you not?

Page 3464

1 A. I do know but I did not watch it.

2 Q. Is that an honest answer?

3 A. Yes.

4 Q. Have you watched the news at all?

5 A. I have no time to watch the news.

6 Q. Have you seen newspapers covering this trial?

7 A. No.

8 Q. Have you walked around the streets or been in anyone's house when

9 the television has been on and seen coverage of this trial?

10 A. I do not watch any transmissions and my knowledge of [redacted] would

11 not allow me to follow that.

12 Q. No, but you can look at pictures, can you not?

13 A. I was forbidden to.

14 Q. Yes, but that does not stop you looking at pictures, does it?

15 A. I am an honest man. I am a sincere man.

16 Q. You have an interest in this case because you knew you were going to

17 be a witness?

18 A. No interest, sorry.

19 Q. No interest. So you are telling us then that you have not seen any

20 coverage in newspapers or on television concerning this trial and you

21 are being honest about that, is that right?

22 A. Yes.

23 Q. When you were in Prijedor barracks and you were attacked by the man

24 you say was called Tadic, were all the men military policemen?

25 A. In the room where they were, there were only military policemen.

Page 3465

1 Q. The guard who attacked you called Tadic, was he dressed as a military

2 policeman as well?

3 A. Yes.

4 Q. By being dressed as a military policeman, we mean wearing a white

5 belt.

6 A. Yes.

7 Q. That is what military policemen wear?

8 A. Yes.

9 Q. Did he have anything else with him, any other equipment, that a

10 military policeman might have?

11 A. Yes, he had a white baton.

12 Q. A white baton? You can remember seeing the white baton whereabouts

13 on his person?

14 A. I also remember him wearing -- having a knife.

15 Q. Can you just tell me where the white baton was first of all?

16 A. On his right-hand side.

17 Q. Attached to his belt?

18 A. Yes, attached to his belt on the right-hand side. On the left side

19 he had a knife. On the right side he had the baton.

20 Q. Just so that we understand it, can you tell us how big the white

21 baton was?

22 A. About half a metre.

23 Q. The knife that was on his person, was that also attached to the belt?

24 A. Yes, it was a bayonet, in fact.

25 Q. What sort of size was that knife?

Page 3466

1 A. Also about 40 centimetres -- maybe a little smaller.

2 Q. You describe being attacked by two men, was the second man, the other

3 man, also a military policeman?

4 A. The two who brought us from Bosanski Novi were also military

5 policemen from Bosanski Novi who had brought us to the Prijedor

6 barracks.

7 Q. The two guards who came in of whom you said one was called Tadic, was

8 the other one a military policeman as well?

9 A. Yes, they were both members of the military police.

10 Q. So it seemed to be that you were in a place where the military police

11 were working?

12 A. That was the barracks and there were only Serbian soldiers there.

13 Q. Yes, but the group of men that you were amongst in this room appear

14 to have all been military police?

15 A. I was in the corridor in front of that room.

16 Q. The group of men who were dealing with you appeared to be military

17 police?

18 A. No, I was sure. It did not "appear"; I was sure they were military

19 police.

20 Q. So we can assume that was their job?

21 A. Who beat us, you mean?

22 Q. Yes -- no, to be military policemen?

23 A. They were reserve servicemen.

24 Q. Do you know how many people are called "Tadic" in the Prijedor

25 region?

Page 3467

1 A. No, I do not.

2 Q. Do you know there is a village called Tadici?

3 A. No.

4 Q. Do you know there is a village called Babici?

5 A. No.

6 Q. Do you know there is a village called Drljaca?

7 A. No.

8 Q. You say you have never met anyone by the name of Tadic before?

9 A. No.

10 Q. Before this trial started did you watch any of the programmes on

11 television about the arrest of a man called Tadic?

12 A. I have only heard that a man named Tadic had been arrested.

13 Q. Where did you hear that?

14 A. A friend of mine told me.

15 Q. A friend. Why did your friend tell that you a man called Tadic had

16 been arrested?

17 A. He asked me if I knew him, if I knew someone called Tadic.

18 Q. As he thought you might be interested in these kinds of matters, is

19 that right?

20 A. I would seek out war criminals myself.

21 Q. Yes, and that is why you would watch television programmes, even

22 before this trial started, because you are interested in these

23 matters, is that not right?

24 A. I only watch films on television, nothing else.

25 Q. You do not watch any news that comes on between the films?

Page 3468

1 A. There is no news between films.

2 Q. Do you know about a film by a lady called Monika Gras?

3 A. No.

4 Q. You look at newspapers, do you?

5 A. The only newspaper I ever look at was [redacted] newspaper.

6 Q. So despite all that happened to you by being in Omarska, Manjaca,

7 being arrested, you have not taken any interest in the news describing

8 events upon those matters?

9 A. Because I do not believe in propaganda which is mostly lies.

10 Q. That is what you have told in this court, is it not? You have told

11 lies about not seeing any images on television or in the newspapers?

12 A. No.

13 Q. You have told lies about the name "Tadic"?

14 A. No.

15 Q. Was anyone else's name mentioned in Prijedor barracks on that day

16 that you were arrested?

17 A. No, only "Tadic" was called out.

18 Q. No other names of anyone else?

19 A. No.

20 Q. Of the other five or six?

21 A. No.

22 Q. Of the other five or six people who had dealings with you, no other

23 names?

24 A. They were not mentioned, as far as I remember.

25 Q. Any other names that you can remember relating to guards in Omarska

Page 3469

1 other than the well-known ones of Zeljko Meakic, any other names?

2 A. As I have said, Pirvan. I remember two brothers, twins, guards.

3 They had curly hair. I do not remember their names.

4 Q. I am asking you about names, you see.

5 A. I do not remember. I cannot remember.

6 Q. Any names of guards in Manjaca?

7 A. No.

8 Q. So, how many times a day were you beaten in Omarska?

9 A. At least five times a day.

10 Q. Were any names used then? Did guards refer to names amongst

11 themselves?

12 A. Yes, they did.

13 Q. Can you remember any of those?

14 A. As I have said, Pirvan, Duca, Zigic, Nikica, Brk, Krkan, Ckalja.

15 Q. Those are all of all the important people in Omarska, camps

16 commanders and shift leaders, are they not?

17 A. They all beat me in Omarska.

18 Q. All the commanders beat you?

19 A. Commander and the guards.

20 Q. Were you in Omarska at all?

21 A. Yes.

22 Q. So it just happens that you can remember amongst all those events

23 that happened to you the name of this one reservist military policeman

24 being called out as "Tadic", is that what it comes to?

25 A. I heard his name a couple of times in Omarska too.

Page 3470

1 Q. You have made it up?

2 A. No.

3 MR. KAY: Thank you.

4 THE PRESIDING JUDGE: Mr. Niemann?

5 Re-examined by MR. NIEMANN

6 Q. Mr. Halvadzic, could you tell us about the circumstances where you

7 heard the name Tadic mentioned in the camp at Omarska, please?

8 A. I did not understand the question.

9 MR. KAY: Excuse me. Your Honour, with reference to our submissions that

10 we had this morning in open court, we have not had a written judgment

11 from the Court yet relating to hearsay, and I am very mindful of your

12 Honours' remarks concerning veracity and other indicators as to

13 whether hearsay, as far as your Honour is concerned, should be used as

14 evidence within this trial. I object to Mr. Niemann using evidence in

15 this way to advise the Court upon matters that this witness may have

16 been told by other people which may or may not be true.

17 THE PRESIDING JUDGE: So your objection is that it is hearsay, not

18 probative?

19 MR. KAY: Yes.

20 THE PRESIDING JUDGE: OK. Mr. Niemann, would you rephrase your question

21 or repeat the question? Was your question, did you hear someone

22 called Tadic at Omarska? Was that your question?

23 MR. NIEMANN: Yes, your Honour.

24 THE PRESIDING JUDGE: Your objection will be overruled, Mr. Kay.

25 MR. NIEMANN: I then went on to say, tell us the circumstances under which

Page 3471

1 you heard that name. (To the witness): Could you tell us the

2 circumstances under which you heard the name "Tadic" mentioned when

3 you were in the camp at Omarska?

4 A. While they were beating us, I heard the name "Tadic" mentioned.

5 THE PRESIDING JUDGE: That is the answer. The answer he heard his name

6 mentioned, not what was said about him.

7 MR. KAY: If this is to be the substance of the answer, in view of my

8 earlier cross-examination which the Court is aware of, "they were

9 using the name 'Tadic' whilst they were beating us in Omarska", I

10 expect the Court will give such weight to it as it thinks appropriate.

11 THE PRESIDING JUDGE: Yes. Our discussion, though, related to a different

12 item. Our discussion related to the meaning of Mr. Niemann's

13 question. The meaning of his question, not the meaning but the actual

14 phrasing of the question has been made clear. We consider that it is

15 not objectionable and your objection will be overruled. Your question

16 now was whether or not he heard the name Tadic mentioned in Omarska.

17 The answer was, yes. You then asked the witness what were the

18 circumstances surrounding his hearing the name Tadic mentioned. Now he

19 is going to tell us the circumstances; was he being beaten at the

20 time, was he asleep, was he awake, was he in the white house, where

21 was he?

22 MR. NIEMANN: Yes, your Honour.

23 THE PRESIDING JUDGE: OK. Please continue.

24 MR. NIEMANN: Can you answer the question, please, Mr. Halvadzic?

25 A. I was all -- my head was broken in several places. I was all black,

Page 3472

1 because I had been beaten every day, and I heard all sorts of names.

2 Q. Can you tell us about the precise circumstances when you heard the

3 name Tadic mentioned when you were in Omarska camp? Can you tell us

4 approximately when it was?

5 A. We had to sit down. We had to sit on the floor. It was a small room

6 in the white house first to the right-hand side, or on the left,

7 sorry, as you come into the white house. It was a small room, two by

8 three metres, about 12 square metres, and there were always 13 people

9 there. We had to sit face down.

10 Q. When did you hear this name mentioned?

11 A. While we were being beaten.

12 Q. Did you see the person that used the name Tadic?

13 A. No, I was not allowed to look anywhere.

14 Q. Did you see the person that, apparently, had the name Tadic when you

15 were in Omarska camp?

16 A. No.

17 Q. Do you know what was happening at the time when you heard this name

18 Tadic mentioned in Omarska camp?

19 A. They started kicking me and I fainted again.

20 MR. NIEMANN: Thank you. No further questions.

21 THE PRESIDING JUDGE: Mr. Kay?

22 MR. KAY: No re-examination, your Honour.

23 THE PRESIDING JUDGE: I have just one question of the witness. Sir, you

24 testified that, "I would seek out war criminals myself". It is not

25 clear to me whether that was a statement or whether it was a question.

Page 3473

1 This was during the time that Mr. Key was questioning you on

2 cross-examination. Do you recall saying that?

3 A. Yes.

4 Q. What do you mean by that?

5 A. War criminals should all be punished.

6 Q. You said that, "I would seek out war criminals myself". What do you

7 mean by that? Had you been seeking out war criminals?

8 A. No, I have not but I had intended at one time.

9 Q. To do what, to seek out war criminals?

10 A. Yes, yes, I did.

11 Q. How would you seek them out?

12 A. How would I seek them out?

13 Q. How did you intend to seek them out?

14 A. If I had found any, I would have killed them on the spot.

15 Q. Are you referring to the time that you were with the armed resistance

16 group in the former Yugoslavia or are you referring to some later

17 time?

18 A. Some later time.

19 Q. What later time was that?

20 A. While I was in [redacted]

21 THE PRESIDING JUDGE: Is this a matter that needs redaction although we

22 have touched on this a little bit?

23 MR. NIEMANN: I heard it twice so far mentioned and I thought on those two

24 occasions ----

25 THE PRESIDING JUDGE: Why do not we just -- if you wish to have it

Page 3474

1 redacted?

2 MR. NIEMANN: I do.

3 THE PRESIDING JUDGE: OK. Is there any objection? We can look at the

4 time. Is there any objection to this reference being redacted as well

5 as the two previous ones which were not as obvious?

6 MR. KAY: No, your Honour.

7 THE PRESIDING JUDGE: OK. Has it been resolved, Miss Featherstone?

8 MR. NIEMANN: Your Honours, I think we have them, 15.14.42, 15.02.42 and

9 14.54.08.

10 THE PRESIDING JUDGE: Continuing with the questions that I have been

11 asking of the witness regarding his involvement in seeking out war

12 criminals, I will either continue with those questions or, if you

13 wish, Mr. Kay, you may continue with that line of questioning if you

14 wish -- you tell me.

15 MR. KAY: Your Honour, I am not concerned to follow the matters any

16 further.

17 THE PRESIDING JUDGE: OK. I am. Maybe you have statements, you two have

18 statements you know, but I am interested and it may relate to how I

19 view the testimony of the witness.

20 When was this -- again now, Mr. Niemann, you will have to help

21 me because if this is the subject of a redaction maybe I should not

22 proceed.

23 MR. NIEMANN: No, your Honour. If your Honour could just warn the witness

24 not to mention places?

25 THE PRESIDING JUDGE: OK. (To the witness): As I ask you these

Page 3475

1 questions, sir, do not mention places when you respond to my

2 questions, if you can. You testified that subsequently then you

3 became interested in seeking out war criminals. Would you explain to

4 me, was that a part of a group, when did you become a part of that

5 group and what you have done in that regard?

6 A. No, I did not have that in mind, but this is the fury that was

7 created and when I remember all that happened to me, I just get angry.

8 Q. Have you sought out any war criminals? You said you intended to but

9 have you actually sought out any war criminals?

10 A. No.

11 THE PRESIDING JUDGE: Mr. Niemann, do you have additional questions?

12 MR. NIEMANN: No.

13 THE PRESIDING JUDGE: Mr. Kay, do you have additional questions?

14 MR. KAY: No, your Honour.

15 THE PRESIDING JUDGE: Very good. You may be excused, sir. Is there any

16 objection to the witness being permanently excused, Mr. Kay?

17 MR. KAY: No, your Honour.

18 THE PRESIDING JUDGE: Mr. Halvadzic, you are permanently excused. You are

19 free to leave. Thank you for coming.

20 THE WITNESS: Thank you.

21 (The witness withdrew)

22 MR. KEEGAN: Your Honour, the Prosecution called Mr. Kasim Mesic to the

23 stand.

24 MR. KASIM MESIC, called.

25 THE PRESIDING JUDGE: Sir, would you take that oath that is being given to

Page 3476

1 you, please?

2 THE WITNESS [In translation]: I solemnly declare that I will speak the

3 truth, the whole truth and nothing but the truth.

4 (The witness was sworn)

5 THE PRESIDING JUDGE: Thank you. You may be seated.

6 Examined by MR. KEEGAN

7 THE PRESIDING JUDGE: Mr. Keegan, you may continue.

8 MR. KEEGAN: Thank you, your Honour. (To the witness): Your full name is

9 Kasim Mesic?

10 A. Yes.

11 Q. Your date of birth is 21st March 1944?

12 A. Yes.

13 Q. You were born in the town of Cela in opstina Prijedor?

14 A. Yes.

15 Q. Sir, what is your ethnic group?

16 A. Muslim.

17 Q. Were you raised in the town of Prijedor?

18 A. Yes.

19 Q. Did you have four years of primary school education?

20 A. Yes.

21 Q. Were you subsequently trained as a mason and work at that profession

22 for seven years?

23 A. Yes.

24 Q. When did you serve your compulsory military service?

25 A. In 1963.

Page 3477

1 Q. For how long of a period was that?

2 A. 18 months.

3 Q. Where did you do your military service?

4 A. In Leskovac.

5 Q. Is that in the Republic of Serbia?

6 A. Yes.

7 Q. What were you trained to be?

8 A. I was a sergeant, I was, yes.

9 Q. Were you trained in the infantry?

10 A. Yes.

11 Q. After your compulsory service did you return to Prijedor?

12 A. Yes.

13 Q. Did you do any reserve military service?

14 A. I was once in reserve.

15 Q. Was that the year after you returned, 1966?

16 A. Yes.

17 Q. Did you ever serve in the TO unit?

18 A. No.

19 Q. Where did you live in Prijedor?

20 A. At Raskovac.

21 Q. After you returned from your compulsory military service did you work

22 as a mason again for a time?

23 A. Yes.

24 Q. After that did you work in a factory?

25 A. Yes, a paper factory.

Page 3478

1 Q. In 1992 where were you working?

2 A. I was working in the Mira Cikota Company in Prijedor in 1992.

3 Q. OK. Did you unload trucks at that factory?

4 A. Yes, I was involved in transport.

5 Q. Did you stop working in May 1992?

6 A. Yes.

7 Q. Why did you have to stop working?

8 A. Because Muslims were banned, were not allowed to work -- because

9 Muslims were banned from work. They were not allowed to work.

10 Q. Mr. Mesic, when you are giving your answer if you could speak up just

11 a little bit, please? Who told you that Muslims were banned and not

12 allowed to work any more?

13 A. Manager, Topic.

14 Q. What nationality was the Manager, Topic?

15 A. A Serb.

16 Q. A few days after you were told you were no longer allowed to work,

17 did you witness the shelling of the Hambarine area?

18 A. Yes.

19 Q. What do you remember first about the shelling?

20 A. I remember them announcing that Mirza Mujadzic must surrender, and

21 then if he did not surrender that they will shell Hambarine.

22 Q. Did you hear that yourself on the radio?

23 A. Neighbours heard it on the radio. I did not have a radio and they

24 said that, unless Mirza Mujadzic surrendered by 2 o'clock, they would

25 shell Hambarine.

Page 3479

1 Q. Do you recall when the shelling did start?

2 A. I think it was about 2.00, half past 2, roughly.

3 Q. What did you do when that shelling started?

4 A. I got ready. My wife and my son, I sent them to the cellar.

5 Q. Was that to your cellar?

6 A. No, a neighbour of mine, Jusa Adzim and Cedo Balaban, and there were

7 two cellars there.

8 Q. Mr. Mesic, they need you to speak closer to the microphone so that

9 the interpreters can hear you, please.

10 A. Right.

11 Q. Why did you not go to the cellars?

12 A. Well, I did not go to the cellar because I was also all astounded,

13 completely bewildered, when the shelling started.

14 Q. What did you, in fact, do?

15 A. I started towards the Sana, and I looked at people and they were

16 running from above, down towards the woods, towards the forest, next

17 to the Sana; and then I remembered, what am I going to do there? I

18 mean, there is shelling all over. So I turned and went back home.

19 Q. So you went out of your house towards the Sana River?

20 A. Yes.

21 Q. From there could you, in fact, look over to the Hambarine area and

22 see the shells hitting buildings there?

23 A. Yes, I did see.

24 Q. What types of buildings were in that area that were being shelled?

25 A. Those were homes, private houses.

Page 3480

1 Q. Could you see people running from those houses?

2 A. Yes, they were closer to the Sana and were fleeing towards that

3 forest.

4 Q. The people that you could see running in the direction of the forest

5 and the Sana River, how were they dressed?

6 A. They were civilians.

7 Q. No-one in uniform?

8 A. No-one.

9 Q. Could you tell where the shells were coming from, where they were

10 being fired from?

11 A. Topica, Brdo, Pasinac, Karan.

12 Q. How could you tell that the shells were being fired from those

13 positions?

14 A. Well, smoke could be seen. The smoke was coming upwards, rising up,

15 and whenever it came up it meant that a shell had hit Hambarine.

16 Q. OK. Are you talking you could see the smoke when the shells landed

17 in Hambarine or you could see the smoke from the guns?

18 A. When they were fired.

19 Q. If I could have Exhibit 79 which is a map already admitted of the

20 Prijedor area placed on the elmo, please? Could we have the elmo

21 turned on, please?

22 THE PRESIDING JUDGE: I have Exhibit 79 with me. We can share it, if you

23 wish, Mr. Keegan, if it is not coming on.

24 MR. KEEGAN: Yes, your Honour. This is the actual 79. Just for

25 clarification for the Court, the stickers are to indicate those areas

Page 3481

1 he just mentioned. That is all. (To the witness): Mr. Mesic, you

2 have seen this map before?

3 A. Yes.

4 Q. The area marked with the "A", that is the area of Raskovac in

5 Prijedor?

6 A. Yes.

7 Q. That is the area that is between the railroad and the Sana River, by

8 the area which ---

9 A. Yes.

10 Q. -- the letter "A" appears. The letter "B" marks the area of

11 Hambarine from where you could see the shells impacting?

12 A. Yes.

13 Q. The letter "C" is generally the area of Karan which you mentioned

14 earlier, one position from which the shells were being fired?

15 A. Yes.

16 Q. The letter "D" is Pasinac in the vicinity of the ---

17 A. Yes.

18 Q. -- airports and the military barracks?

19 A. Barracks, yes.

20 Q. "E" is the Topic Brdo area at the bottom?

21 A. Yes.

22 Q. Thank you. Mr. Mesic, as the shelling of Hambarine was ending was

23 there also some activity in your neighbourhood, the Raskovac area?

24 A. Yes, police came to collect weapons.

25 Q. How did you know that?

Page 3482

1 A. They were asking for them. They were asking for weapons.

2 Q. Did the people in your neighbourhood turn weapons over?

3 A. Yes, but they did not have them, only two had weapons.

4 Q. What kind of weapons were those?

5 A. Two pistols. That was all there was there.

6 Q. After that day did forces come to your neighbourhood who referred to

7 themselves as the police who arrested people who lived in your

8 neighbourhood?

9 A. They came down there by the road somewhere, passing, going down the

10 streets and arresting and taking away.

11 Q. Did you see those people who arrested people in your neighbourhood on

12 that day?

13 A. We looked down towards the road as they were taking those people and

14 then a friend of ours, a Serb dressed as a soldier, he stopped there

15 and then he came to us and told us, "Hide some place", and we did.

16 Q. So that Serb who told you to hide, he was your neighbour?

17 A. I cannot tell you that.

18 Q. Are you hesitant to reveal his identity?

19 A. Yes.

20 Q. Were you arrested on that day with the other people in your

21 neighbourhood?

22 A. No.

23 Q. Why not?

24 A. Because I hid.

25 Q. What did the people look like, the forces who came to arrest the

Page 3483

1 people in your neighbourhood that day, how were they dressed?

2 A. Well, some of them were in multi-coloured uniforms, in military

3 uniforms. They had some red berets and they ran and walked and so

4 ----

5 Q. When you say "military uniforms", what type of military uniforms were

6 they wearing?

7 A. Well, listen, there were all sorts of them. There were really all

8 kinds of them.

9 Q. Were there some in camouflage uniforms?

10 A. Oh, yes, yes.

11 Q. Were there also uniforms referred to as SMB, the old JNA uniforms?

12 A. Yes, yes.

13 Q. Did those people have any particular insignia on their uniforms that

14 you noticed?

15 A. I did not see that, properly speaking. Some did have some Kokards.

16 Some had something, I do not know how to put it.

17 Q. Did some have some ribbons on their uniforms?

18 A. Yes, there were.

19 Q. What colour were those ribbons?

20 A. Well, they were the colours of the Yugoslav flag. They were tied

21 round here.

22 Q. White, red and blue were the colours?

23 A. Yes.

24 Q. They were tied around the epaulets on the uniforms?

25 A. Yes.

Page 3484

1 Q. Did you know who any of those forces were that day, did you recognise

2 any?

3 A. No, I did not anyone; we did not dare look. We were running away.

4 Q. Were you subsequently arrested yourself on another day?

5 A. Yes.

6 Q. When was that?

7 A. It was some four or five days later.

8 Q. Can you describe the circumstances of that arrest?

9 A. A group turned up, a group of men, of soldiers, those policemen.

10 They were shouting saying they were policemen. There were about 10 of

11 them in a van, and they caught us and next to my house, myself, my

12 son, 16 year old, and there were three nephews of mine were there. We

13 were sitting and talking and that is how they surrounded us and got

14 us.

15 Q. These men who identified themselves or called themselves police, how

16 were they dressed, what type of uniforms?

17 A. Some were in multi-coloured uniforms, some had black ribbons, black

18 head bands around their head and only one had a black beret on his

19 head.

20 Q. When you say "multi-coloured uniforms" are you referring to

21 camouflage uniforms or different types of uniforms?

22 A. Well, mottled, they were many coloured, they wore those uniforms.

23 Q. Did those men have any insignia on their uniform that you noticed?

24 A. Well, some had with four Sís and others I saw nothing. Perhaps those

25 Kokard, yes, some had Kokard, some did not.

Page 3485

1 Q. When you refer to the four Sís, are you referring to the symbol which

2 is a cross with the four Cyrillic Ss which look like the Latin C in

3 the corners of the crosses?

4 A. Yes.

5 Q. When those men rounded up yourself and the other men in the area,

6 what did they do with you?

7 A. They forced us to stand against the house, to raise three fingers

8 like this and against a wall, and then they came behind our back and

9 beat us and then they brought another three neighbours, three

10 brothers, and one of them was also a minor, and two more neighbours

11 and my two brothers.

12 MR. KEEGAN: Your Honour, could the record reflect that the witness held

13 out his hands at approximately head level out from his shoulders with

14 the thumb and first two fingers of each hand extended?

15 THE PRESIDING JUDGE: Yes, the record will so reflect.

16 MR. KEEGAN (To the witness): Is that the way you had to keep your hands

17 against the wall?

18 A. Yes, with the legs spread.

19 Q. How many men in all were rounded up and placed against that wall on

20 that day?

21 A. Well, about a dozen of them came, others went to neighbours and four

22 or five, I think, stayed there with us to beat us next to our house.

23 Q. I mean, how many men in all were rounded up by the police and forced

24 to stand against that wall?

25 A. 11 of us.

Page 3486

1 Q. What was the ethnic background of all of those men who were lined up

2 against the wall?

3 A. Muslims.

4 Q. You said that you were beaten while you were forced to stand against

5 the wall. Can you describe how you and the other men were beaten?

6 A. They moved from one to the other, three times with a baton at the

7 back of the neck, then kicking with their boots in the stomach with

8 rifle butts and then between the legs.

9 Q. When you say "between the legs", were you kicked in your genitals?

10 A. Yes.

11 Q. Where did they hit you with the rifle butts?

12 A. On the back, on the back, he hit me on the left side and injured four

13 ribs.

14 Q. Were you hit in the area of the kidneys?

15 A. Yes.

16 Q. Did you suffer any injuries as a result of these beatings?

17 A. I was bruised -- we were all bruised and, well, there was some blood

18 on our heads.

19 Q. Did you feel any effect from being hit in the ribs?

20 A. Well, it hurt and I took an X-ray in [redacted] and when I arrived in

21 [redacted] there was still blood coagulated because we did not have

22 doctors back there.

23 Q. Did you have problems breathing immediately after that incident?

24 A. Yes.

25 MR. KEEGAN: Your Honour, if we could have -----

Page 3487

1 THE PRESIDING JUDGE: Do you wish a redaction?

2 MR. KEEGAN: Yes, your Honour. 15.44.28. Thank you.

3 THE PRESIDING JUDGE: I am sorry, Mr. Keegan. Any objection?

4 MR. WLADIMIROFF: No.

5 THE PRESIDING JUDGE: Very good. It will be redacted.

6 MR. KEEGAN: How long did these beatings go on for?

7 A. For about an hour, hour and a half, two hours.

8 Q. Where were you taken from there?

9 A. They loaded us all on to a van and took us to the SUP.

10 Q. When you say the "SUP", you refer to the police station in the centre

11 of Prijedor?

12 A. Yes.

13 Q. When you arrived at the SUP where were you taken first?

14 A. They took us to the house facilities, detention facilities they had

15 there in the yard. They had these cells and they were standing in a

16 circle.

17 Q. Who was it that took you to the cell in the police station of

18 Prijedor? Was it the men ----

19 A. Well, those who had brought us there.

20 Q. Was anybody already in the cell when you arrived?

21 A. On the roof, yes, but in the cell, they brought us into the cell

22 beating us all the time.

23 Q. Was there someone already in the cell when you got there, another

24 prisoner?

25 A. No, nobody beat us. No, nobody beat us until we came out.

Page 3488

1 Q. Yes, when were you put into the cell, was there already another

2 prisoner in there?

3 A. Yes, there was a Croat there.

4 Q. How did you know that he was a Croat?

5 A. Well, how could I not know? I mean, he said. I mean, I know. He

6 said he was a Croat. He was covered in blood too.

7 Q. From the cell where were you all taken?

8 A. Then from the cell they took us out, again put us against a wall and

9 we raised three fingers again and spread our arms and our legs, and

10 they took our boot laces and our belts and our wallets, everything of

11 value that we had. They all took that.

12 Q. They took all your valuables. What did they do with your documents

13 and identification papers?

14 A. They threw them away on the ground, on the asphalt.

15 Q. Were you all beaten there in the courtyard?

16 A. They beat us again. The police came to beat us.

17 Q. Those individuals which you just said were police, how were they

18 dressed?

19 A. They wore blue uniforms.

20 Q. Was that the normal police uniform, a light blue shirt with dark blue

21 trousers?

22 A. Yes, yes, light blue.

23 Q. How were you beaten by those police?

24 A. They beat us with their hands, with palms of their hands, and all

25 sorts of things, but mostly with their open palms of their hands, the

Page 3489

1 police.

2 Q. How long did these beatings go on for?

3 A. Well, it also lasted for about two hours there.

4 Q. Can you describe what you and the other individuals who were beaten

5 looked like after these beatings were over?

6 A. My brother lost consciousness because he was hit here and he lost two

7 teeth there and his face was injured and were totally impotent. We

8 had nothing.

9 MR. KEEGAN: Let the record reflect that the witness pointed to his right

10 cheek.

11 THE PRESIDING JUDGE: The record will so reflect.

12 THE WITNESS: Yes.

13 MR. KEEGAN (To the witness): Where were you taken from the police station

14 in Prijedor?

15 A. The vehicle, it looked like a car but it was a van, and there were

16 only two benches there so six people could fit in, and they,

17 nevertheless, loaded all 12 of us on to it.

18 Q. So that was the eleven people who had been rounded up in your

19 neighbourhood plus the Croat who was already at the police station

20 when you arrived?

21 A. Yes.

22 Q. While you were in the van did they make you do anything?

23 A. We sang "Who says who lies Serbia is small".

24 Q. Where were you taken?

25 A. We were taken to Omarska.

Page 3490

1 Q. When you arrived at the camp what happened?

2 A. Then they got us off the van and we again had to be against a wall,

3 again with three fingers against a wall, and those two who had brought

4 us and other guards who were there. Then they put us into a garage.

5 Q. The two who brought you to the camp, were they from the group who had

6 rounded you up in your neighbourhood or were they police from the

7 police station?

8 A. I do not know where they come from or what they are.

9 Q. Were they dressed in the multi-coloured uniforms or were they dressed

10 in the normal police uniform?

11 A. Those of many colours uniforms.

12 Q. When they put you against the wall when you arrived at the camp, were

13 you beaten?

14 A. Yes.

15 Q. How were you beaten?

16 A. They kicked us with their feet, with all sorts of things, with

17 batons.

18 Q. Where were you kicked?

19 A. On the back and between the legs.

20 Q. Again when you say "between the legs" do you mean you were kicked in

21 the genitals?

22 A. Yes.

23 Q. When you were in the back were they concentrating in a particular

24 area of your back?

25 A. Yes.

Page 3491

1 Q. Where? Were they concentrating on your lower back or upper back or

2 anywhere else?

3 A. All over. We were in all colours like a snake.

4 Q. "In all colours like a snake", do you mean from the bruising?

5 A. Yes.

6 Q. Did they curse at you while they were beating you?

7 A. Yes, they did, "May Alija fuck your mother. You have come here

8 because of Alija" and so on.

9 Q. When they said "you came here because of Alija", who were they

10 referring to?

11 A. Alija Izetbegovic.

12 Q. The President of the Republic of Bosnia-Herzegovina?

13 A. Yes.

14 Q. Were you forced to sing any songs when you arrived at the camp?

15 A. Yes.

16 Q. What song?

17 A. Well, they told us to sing something about Karadjordje and we did not

18 know any so we sang again "Who says who lies".

19 Q. "Who says who lies Serbia is small"?

20 A. Yes, yes.

21 Q. You said you were then put in a garage?

22 A. Yes.

23 Q. Is that the garage that is in the administration building?

24 A. Yes.

25 Q. When you were put into that garage were there already prisoners in

Page 3492

1 there?

2 A. Yes, there were many prisoners there.

3 Q. Did those prisoners do anything for you when you were placed in the

4 garage?

5 A. Yes, they got their shirts off and tried to cover them, cover the

6 bruises where we were bruised on our backs.

7 Q. Did they place water on the shirts first before they put them on your

8 backs?

9 A. Yes.

10 Q. What was the ethnic group of the other prisoners that were in that

11 garage?

12 A. Muslim.

13 Q. During the time that you were in Omarska, what was the ethnic group

14 of most of the guards that you came into contact with?

15 A. Serbs. The Orthodox Serbs. They had become Serbs overnight.

16 Q. How many days were you held in that small garage?

17 A. About 20 to 25.

18 Q. During the time that you were in that garage, were prisoners called

19 out for interrogation?

20 A. Yes, later on they started calling out people and taking them for

21 interrogation.

22 Q. For the first couple of days how were people taken out of that

23 garage?

24 A. In the evening they would come and take out one or two, only point

25 with a finger who is to come out, and he comes out and would never

Page 3493

1 return to the garage.

2 Q. Did you ever see any of those people who were taken out at night

3 anywhere else in the camp while you were there?

4 A. I did not.

5 Q. Once the people were called out for interrogation, how would they be

6 called out?

7 A. They would bring a list with them and then call out names from that

8 list for interrogation.

9 Q. Could you hear in this small garage what was going on in the

10 interrogation rooms upstairs in the administration building?

11 A. There were a number of us screaming upstairs while they were being

12 interrogating, those people above us, above the garage.

13 Q. Were you eventually called out for interrogation?

14 A. After 20, 25 days they called me for interrogation.

15 Q. Were you beaten on the way to your interrogation?

16 A. Yes.

17 Q. Where did that beating take place?

18 A. On the access to the staircase, up the stairs and to the room through

19 the corridor, they were standing in a line there and beating.

20 Q. When you say "they were standing in a line", who are you referring

21 to?

22 A. Why, the Serbs.

23 Q. The guards in the camp?

24 A. Yes.

25 Q. Where were they standing?

Page 3494

1 A. They were standing by the stairs, below the staircase below and

2 upstairs at the end of the staircase.

3 Q. After you were taken upstairs, which room were you taken into for

4 interrogation?

5 A. Up the stairs in the first room to the right -- to the left.

6 Q. First room to the left?

7 A. Yes.

8 Q. Did the person who was interrogating you have a uniform on?

9 A. Yes, of many colours.

10 Q. What type of questions did he ask you?

11 A. They asked me where was my rifle, that was straightaway, and I said I

12 did not have a rifle.

13 Q. Did he ask any questions other than about weapons?

14 A. Well, nothing else, only about the weapons. So, writing down

15 something in a book. I do not know what he was writing.

16 Q. Were you beaten during the interrogation?

17 A. No.

18 Q. At the end of the interrogation were you asked to sign something?

19 A. Yes, that sheet I had to sign.

20 Q. Did you take time to read it?

21 A. I did not dare read it. I only signed it.

22 Q. After you were taken out of the interrogation room were you beaten on

23 the way out of the building?

24 A. Yes, down to the pista.

25 Q. After you came out of the building you were placed on the pista?

Page 3495

1 A. Yes.

2 MR. KEEGAN: Your Honour, if that would be a convenient time?

3 THE PRESIDING JUDGE: Before we recess, for the record, Prosecution

4 Exhibit 242 has 13 photos in it. They are numbered beginning with the

5 first one, it is No. 00400134, and the second one is numbered

6 00400135, it is also numbered 00400136, and the remaining photos are

7 numbered consecutively. I do not know what your copy shows, Mr.

8 Wladimiroff, but that is what is in evidence. We will stand in recess

9 for 20 minutes.

10 (4.00 p.m.)

11 (The Court adjourned for a short time)

12 (4.20 p.m.)

13 THE PRESIDING JUDGE: Mr. Keegan, you may continue.

14 MR. KEEGAN: Thank you, your Honour. Your Honour, before I start my

15 questioning again, just for the record, when we broke you mentioned

16 the prior Exhibit 242 and the numbers which were on the back of

17 photograph No. 2 in particular. Just for the record, your Honour (and

18 the Defence is aware of this) those numbers are the evidence record

19 numbers, which are stamped on the photograph after it is brought back

20 by the investigators from the witness and it is logged into our

21 system. There are two on the photograph which the witness signs

22 because the photograph is copied; one number relates to the front of

23 the photograph, the picture, the second number relates to the

24 signature.

25 THE PRESIDING JUDGE: I see. I did not know the reason for the two

Page 3496

1 photos, but I do recall that the witness said that those numbers were

2 not on there when he identified -----

3 MR. KEEGAN: Correct, so in each of the books you will note that every

4 picture is numbered and one, you would normally have two; anyone that

5 signs should normally have two ---

6 THE PRESIDING JUDGE: I see.

7 MR. KEEGAN: -- for that reason.

8 THE PRESIDING JUDGE: That was the only one that was signed in the group.

9 Good. Thank you.

10 MR. KEEGAN (To the witness): Mr. Mesic, when we broke for the recess you

11 were just describing how you were brought to the pista after your

12 interrogation?

13 A. Yes.

14 Q. When you arrived at the pista did you see anyone whom you knew?

15 A. Yes, I saw my nephew, and he called me to sit down next to him.

16 Q. How long did you spend on the pista?

17 A. One day.

18 Q. While you were on the pista for that day did you witness a shooting

19 of a prisoner?

20 A. Yes, I did.

21 Q. Can you describe what happened, please?

22 A. The young man was killed. He went to ask for bread, because he was

23 giving out bread to minors and he went to have some bread. The guard

24 pushed him away. They did not give him any bread. He walked between

25 us, among us. He shouted a little bit and then a guard came, put him

Page 3497

1 aside and sent him to the white house. He came at the door, at the

2 bottom door, he went into the room. The window was open. Under that

3 window there was a bench and he jumped out the window and sat on the

4 bench and a little while after that he jumped, he raised his hands and

5 said, "I have power", and he started walking towards the policeman.

6 The guard took a rifle and fired an entire round of bullets into his

7 lower part and he fell down.

8 Q. After the prisoner fell down, did the guards -- well, what did you

9 see next?

10 A. He went, a soldier went in a camouflage uniform, he came up to him,

11 close to him, and the other people said, "Here is Tadic". I turned

12 around to see who it was.

13 MR. KAY: Excuse me. Your Honour, I have an objection here again on the

14 principle that the evidence just adduced through the witness, its

15 probative value is substantially outweighed by its prejudice on the

16 basis that it is speech by other people informing this witness of the

17 identity of a person. Those people who give that information are not

18 witnesses that we have been made aware of, nor witnesses that we can

19 question or challenge. We do not know how right or wrong and on what

20 basis they received the information themselves, whether they knew the

21 man or not.

22 THE PRESIDING JUDGE: That is really the subject of your cross-examination

23 or at some point when you wish to question this witness, and that is

24 the circumstances surrounding his gathering of this information or

25 hearing "Here is Tadic". I will overrule your objection at this time

Page 3498

1 again -- well, we have not ruled on your submission, but it seems

2 appropriate, at least at this point, to hear the testimony before we

3 can really gauge what its probative value is because I do not know the

4 circumstances surrounding it. At this point, other than there was a

5 shooting in the lower part of an individual, the guard discharging a

6 round and somebody says, "Here is Tadic", that is all we know at this

7 point. So I will overrule your objection at this point.

8 MR. KEEGAN: Mr. Mesic, you indicated that a soldier dressed in camouflage

9 uniform, you said, walked up to him. Do you mean a soldier in a

10 camouflage uniform walked up to the guard who had shot the prisoner?

11 A. Yes.

12 Q. While that person dressed in a camouflage uniform was walking up to

13 the guard who had shot the prisoner, did fellow prisoners say

14 something to you?

15 A. No, they did not.

16 Q. Did someone identify the soldier who was walking up to the guard who

17 had shot the prisoner?

18 A. The prisoner said, "That was Tadic" and I looked at him and then I

19 turned away, and then he said, "Hello" to that guard and they smiled

20 at each other. He was carrying a book. I do not know whether it was

21 a novel or a notebook to write down about the murder. I do not know

22 what that object was, but at that moment there was a command for us to

23 sit down, to lie down with our face facing the earth. We lay down,

24 facing down. After that there was a command for us to get up, and

25 then Kera was put in a blanket and was taken behind the garage, and he

Page 3499

1 was put there behind the room where he was and the others started

2 washing the blood away from the grass.

3 Q. Mr. Mesic, when that soldier in the camouflage uniform walked up to

4 the guard, did one prisoner mention the name "Tadic" or was there more

5 than one?

6 A. More than one, "Here, here is Tadic coming again".

7 Q. What do you recall those people saying?

8 A. They said it was Tadic, and they are competing with each other as to

9 who will kill more people.

10 Q. The prisoners around you that mentioned, who said, "Here is Tadic

11 coming again", do you know where those prisoners were from?

12 A. We were from all places around the area. My nephew was there.

13 Q. The prisoners whom you heard say, "Here is Tadic", do you know where

14 those particular prisoners were from, what area?

15 A. They were mostly from Kozarac.

16 Q. Did you get a good look at the face of the man who they identified as

17 Tadic?

18 A. Yes.

19 Q. You said after you saw that man you looked away. You then described

20 how the man greeted the guard who had shot the prisoner. Does that

21 mean you looked again over at the area where the guard and this man

22 identified as Tadic were?

23 A. Yes, yes.

24 Q. What did they do when this man who was identified as Tadic came up to

25 the guard? How did they greet each other?

Page 3500

1 A. They shook hands and smiled at each other.

2 Q. You indicated that about that same time an order was given for

3 everyone to lay down and not to look. When you did that ----

4 A. Yes, we lay down facing down. Someone was sitting, some people were

5 sitting and looking down, and then you could look under your arm what

6 was going on around you.

7 Q. When you looked up again, could you see Tadic any more, the man

8 identified as Tadic?

9 A. When the command came for us to stand up, I could no longer see

10 Tadic, if it was Tadic.

11 Q. Where did you go from the pista that day?

12 A. That day I was on the pista until about 9 or 10 o'clock and then we

13 were thrown into room No. 16, who wanted to go, and I was among those

14 people.

15 Q. Why did you join the group that was going into a room in the hangar

16 building?

17 A. Because upstairs it was all closed.

18 Q. You thought it would be better conditions if you were inside the

19 building?

20 A. Of course I thought it would be better -- I would have better

21 conditions and we would not be abused as much in the room.

22 Q. Did you see what happened to the body of the prisoner named Kera who

23 was shot that afternoon you were on the pista?

24 A. That body remained there until the following morning.

25 Q. How did you know that?

Page 3501

1 A. Because in the morning we went to the meadow, to the toilet. We were

2 driven out there and there we saw when the bodies were loaded. There

3 were several other bodies and Kera's body was among them.

4 Q. When you say you were driven out there, do you mean the guards took

5 you from the room inside the hangar outside?

6 A. Yes.

7 Q. Where was the area that you were supposed to use as a toilet?

8 A. Near the white house.

9 Q. Where did you see the body of Kera?

10 A. At the same place where it was left, behind the white house.

11 Q. What did you see them do with the bodies that morning?

12 A. They were putting them on a small lorry and driving them away.

13 Q. Did you ever see the man who had been identified to you as Tadic in

14 the camp again?

15 A. Yes.

16 Q. When was that?

17 A. It was the morning we left when we spent the night and when we went

18 out to go to the toilet and went back, I was sitting next to that man.

19 He said he was from Kozarac, and then a guard came and told me that I

20 had to take him for interrogation upstairs, that he should follow me.

21 We went upstairs. I took him up the stairs. We were beaten a little

22 bit on the way up. He went to the right, in the third room to the

23 right. I was left to face the wall and raise three fingers and I was

24 standing like that until he came out. I saw Tadic there at a desk and

25 there were also chairs around the table. He lifted his feet on the

Page 3502

1 table and when I saw him I said to myself, this is the same man I saw

2 yesterday.

3 Q. After you were taken to the field for the toilet in the morning, you

4 were taken back upstairs into the same room in the hangar?

5 A. Yes.

6 Q. In that room there was a man -----

7 A. He was not taken back. I was taken back. He remained on the pista,

8 the man from Kozarac.

9 Q. I am referring to before you went to the interrogation with him. So

10 were you taken back to room 16 that morning and a man from Kozarac was

11 brought into room 16?

12 A. Yes, yes.

13 Q. You were told by a guard to take that man to interrogation?

14 A. Yes, because he was really beaten up and he could not walk on his

15 own.

16 Q. You took that man to the upstairs in the administration building

17 where the interrogations were conducted?

18 A. Yes.

19 Q. It is there that you saw the man identified as Tadic again?

20 A. Yes.

21 Q. After you had brought the man from Kozarac to the interrogation room

22 where did you stand?

23 A. In the corridor about two metres from him, from Tadic, that man, I do

24 not know if it was Tadic.

25 Q. How were you told to stand again the wall?

Page 3503

1 A. I had to raise three fingers and stand against the wall until he came

2 out.

3 Q. The man from Kozarac?

4 A. Yes.

5 Q. About how long do you think you were in that hallway waiting?

6 A. Not very long -- about 15 minutes.

7 Q. During that time did you get a good look at the man who was

8 identified to you as Tadic who was sitting at the table?

9 A. Yes.

10 Q. If you could, with the assistance of Miss Sutherland, I would like

11 you to point out on the model the various locations that we have

12 discussed. If you could stand up, please, Mr. Mesic? Mr. Mesic, if

13 you stand over next to your desk, to the witness desk?

14 THE PRESIDING JUDGE: If you wish, Mr. Keegan, he can come around this

15 side and use these microphones. I do not know where you want him to

16 identify. Do as you wish.

17 MR. KEEGAN: I think he can probably reach all the sides better from

18 there, Ma'am. In addition, they do not have the long headphones

19 available, unfortunately. I looked but they are not there today. Mr.

20 Mesic, if you could, could you please point first to the small garage

21 where you were held when you first arrived at the camp?

22 A. (The witness indicated on the model) This is the garage, this. This

23 is the garage.

24 Q. For the record, your Honour, I think at least the Court is familiar

25 enough with the model to appreciate that it is the small garage

Page 3504

1 located in the ground floor in the corner of that building. There we

2 are. If you could point again to that garage, please? Thank you. If

3 you could point now to the interrogation room in the administration

4 building where you were interrogated?

5 A. I was interrogated in this room upstairs.

6 Q. There is a letter and number in there identifying that room, if you

7 could read that?

8 A. This is No. 11.

9 Q. When you were taken out to the pista and you saw the shooting of

10 Kera, where were you approximately on the pista?

11 A. I was next to the flower pots near the white house.

12 Q. The flower pots that were closest to the white house?

13 A. It was close there.

14 Q. Mr. Mesic, if you could now point to the room where you were taken in

15 the hangar that day?

16 A. In the hangar?

17 Q. Yes. Where you were taken in the hangar?

18 A. (The witness indicated).

19 Q. If you could point again and then identify it by a letter or number

20 that is inside that room?

21 A. I do not understand your question quite well.

22 Q. If you could point again to the room in the hangar where you stayed,

23 in the hangar building?

24 A. [The witness's answer was not interpreted].

25 Q. The room where you were taken after you were on the pista?

Page 3505

1 A. I was taken to this room.

2 Q. If you could identify that by the number or letter that is inside

3 that model?

4 A. B1.

5 Q. If you could indicate the room in that white house where Kera was

6 taken before he was shot?

7 A. He was taken through the door and was put into this room.

8 Q. That would be the first room on the left as you look at the model?

9 A. Yes, there was a bench outside.

10 Q. The window that is indicated on the model there in the front, that is

11 the window that he jumped out?

12 A. Yes, though the window was opened, he jumped up and sat down on the

13 bench.

14 Q. During the time you were in room 16, were you ever taken to another

15 room in that hangar building?

16 A. No.

17 Q. While you were in that room was there a significant event which

18 occurred when more prisoners were brought in?

19 A. Yes.

20 Q. Can you describe what happened there?

21 A. They brought three bus loads of people from Hambarine.

22 Q. What did they do with you and the other prisoners who were already in

23 the room?

24 A. They transferred us along the corridor, along the hall, to another

25 room.

Page 3506

1 Q. If you could point to that other room, please?

2 A. Along the corridor from this room to this other room. That room over

3 there. We came out of here, and went directly to that door. There

4 was a staircase here, Cigo came there. He placed a guard, our door

5 was open, with a rifle, told him how to hold the rifle and then placed

6 us there. We were in this room here, and then they started beating

7 the people from Hambarine and then brought them to our room.

8 Q. Mr. Mesic, could you point again to the room where you were placed

9 when the men from Hambarine were brought, just point again?

10 A. I cannot see quite, but this is the room, yes. This is the room

11 where we were before, and then from this room, when the people from

12 Hambarine came, they transferred us to this room here.

13 Q. Thank you. If you can resume your seat now? For the record, your

14 Honour, because of the limitations of the witness being able to reach

15 it, it was room B7 that the witness was pointing to.

16 THE PRESIDING JUDGE: That he was transferred?

17 MR. KEEGAN: Transferred to, correct, your Honour. (To the witness):

18 When those men from Hambarine were brought into the room you have

19 identified as room 16, what happened?

20 A. They beat them.

21 Q. How were those men beaten?

22 A. They beat them during interrogation and they beat them until 9

23 o'clock in the evening, until half past 8 or 9.00, I am not quite

24 sure, and then they threw them into, the two to No. 16 and they asked

25 us who would like to go over to the other room. Some of us transferred

Page 3507

1 back to our room again. The people were beaten up. I asked one of

2 them where they were from and he said, "We were from Hambarine; they

3 caught us in the woods and brought us here".

4 Q. What did the room, room 16, look like when you went back in there?

5 A. There was blood. There was all sorts of things.

6 Q. Did those men stay in that room all night?

7 A. No, about 11, half past 11 in the evening, they called them out and

8 put them on a bus. The buses were standing by the pista. There were

9 three of them I saw exactly through a hole in the window. Then they

10 called them out, while beating them and forcing them to go on to the

11 bus.

12 Q. Later on that night did you hear anything unusual?

13 A. Yes, there was a shooting from a distance that night. That is when

14 they took my brother away and three of his sons and a brother of a

15 son.

16 Q. Was the shooting in the camp itself?

17 A. No, a little bit at a distance. It was a sort of strange sort of

18 sound.

19 Q. How much shooting was there?

20 A. Well, it was for about 15 or 20 minutes.

21 Q. When did you leave Omarska camp, Mr. Mesic?

22 A. Well, when the whole thing fell apart, I do not know the exact date.

23 We were simply loaded on to buses and took us to Manjaca.

24 Q. Can you describe the trip to Manjaca?

25 A. One could even reach Australia to which we arrived by the time we

Page 3508

1 arrived in Manjaca. They were beating us and they loaded us on to

2 buses like cattle. We were sitting along corridors. I sat on the

3 stairs. There were other people sitting next to me, and then around

4 half past 4, I am not quite sure, or perhaps 5 o'clock, and we set off

5 for Manjaca.

6 Q. Did they beat people on the buses during that trip?

7 A. Trampled on us, stepped on us, they ill-treated us, singing and

8 beating. Everything went on there.

9 Q. Did they have the heat on in the buses?

10 A. Yes.

11 Q. Did they give you any water or any food while you were on the buses?

12 A. Nothing.

13 Q. How long did you stay in Manjaca camp?

14 A. I stayed there until the 25th.

15 Q. Of August?

16 A. Yes.

17 Q. How do you know that date?

18 A. Because I have a discharge list and I have this card of the Geneva

19 Convention with which we registered us. That is how I remember it and

20 I celebrate it as my birthday.

21 Q. Where were you taken when you left Manjaca camp?

22 A. Manjaca, we were taken to Trnopolje.

23 Q. Do you know why you were transferred from Manjaca?

24 A. They transferred from Manjaca those who were elderly, who were sick,

25 and minors.

Page 3509

1 Q. What kind of condition were you in when you were transferred?

2 A. While I think they were quite good at Manjaca, the conditions,

3 because it appeared that they were planning to kill all the inmates,

4 those from Omarska, the guards and Joja, I do not know what his first

5 name or his family name is, but I know he comes from Omarska and they

6 called him Joja. He was the one who worst ill-treated us, who beat us

7 and then the Deputy Camp Commander came. He came there and he threw

8 abuses at them, said, "Why did you not do it there in Prijedor, in

9 Omarska? You are not going to do anything here" and that is how he

10 saved us. When we got off, he gave us water and everything.

11 Q. You are talking about the Deputy Camp Commander at Manjaca?

12 A. Yes.

13 Q. What condition were you in, physical condition were you in, when you

14 were transferred from Manjaca?

15 A. Very bad. I did not think I would get back home alive.

16 Q. Could you walk at that time?

17 A. No.

18 Q. How much did you weigh?

19 A. Thirty-eight kilogrammes it was.

20 Q. How long did you spend in Trnopolje camp?

21 A. Two days.

22 Q. Where did you go from there?

23 A. Then a neighbour Vlado Tubin came with my brother's horses and his

24 cart and he came to fetch us. Kuruzovic managed to release me and

25 that is how he took us back home.

Page 3510

1 Q. Did you ever see the man identified to you as Tadic again in

2 Bosnia-Herzegovina once you left the Omarska camp?

3 A. No.

4 Q. After you left Bosnia-Herzegovina in 1993, have you ever seen a

5 picture of the man who was identified to you as Tadic on TV or in any

6 newspaper or in any magazine?

7 A. No.

8 Q. In June of this year were you shown a book of photographs by an

9 investigator from the tribunal?

10 A. Yes.

11 Q. Do you remember the number of that book? Did it have the number on

12 the front?

13 A. No. 8.

14 Q. If I could have this book marked as the next exhibit in order,

15 please, it will be number 243, and then handed to the witness. Mr.

16 Mesic, if you would take a look at that book. Do you recognise that

17 book?

18 A. Yes.

19 Q. Do you recognise the book itself?

20 A. Which book?

21 Q. The book of all the pictures you are looking at, do you recognise

22 that?

23 A. Yes.

24 Q. Is that the book you were shown by the investigator?

25 A. Yes.

Page 3511

1 Q. When the investigator showed you that book, what did he say to you?

2 A. To sign the photograph on this album of photographs and I took the

3 picture, the photograph, and I signed it to recognise it, that person

4 who was there.

5 Q. OK. When he first handed you the book what did he tell you to do

6 when he very first handed you the book?

7 A. Well, whether I recognised here in the book who was that Tadic whom I

8 recognised, because I had never seen that Tadic until that time. I

9 had never heard of him.

10 Q. When he handed you the book did he tell you to look for the man

11 Tadic? Is that what he told you to do? Did he use that name?

12 A. No. No. No, only "Do you recognise, do you recognise that picture

13 and which you thought was Tadic?" I do not remember exactly. No, he

14 asked me to recognise among, to try to identify him among all those

15 men who was that man.

16 Q. Did you look at each picture?

17 A. Yes.

18 Q. Did you select any picture?

19 A. I did, the fourth.

20 Q. Did you sign the back of that picture?

21 A. Yes.

22 Q. Who was the picture that you selected?

23 A. Well, they told me it was Tadic, so I signed that it was Tadic.

24 Q. Is there any doubt in your mind that the man whose picture that you

25 chose in that book is the man who was identified to you as Tadic in

Page 3512

1 Omarska camp?

2 A. Yes.

3 Q. My question was, is there any doubt in your mind that that is the man

4 whom you saw in Omarska camp?

5 A. I saw that man there and the picture and they are the same.

6 Q. When I asked you the question, who was the picture that you selected,

7 the answer which was translated was, "Well, they told me it was Tadic,

8 so I signed that it was Tadic"?

9 A. Yes.

10 Q. Who told you that that man was Tadic?

11 A. Well, I recognised him. I recognised the picture of the man, but

12 whether he is Tadic or not ----

13 Q. So when you say "they" you are referring to the people in the camp

14 who said, "Here comes Tadic" on the day you saw him?

15 A. Yes. Yes. Yes.

16 Q. You are not referring to the investigator?

17 A. No.

18 MR. KEEGAN: Nothing further, your Honour. I am sorry, I would tender

19 Exhibit 243, your Honour.

20 THE PRESIDING JUDGE: No objection to 243? You have a running objection.

21 MR. KAY: Yes.

22 THE PRESIDING JUDGE: That will be overruled at this time. Exhibit 243

23 will be admitted. Mr. Kay, do you have cross-examination?

24 MR. KAY: Thank you, your Honour.

25 Cross-examined by Mr. Kay.

Page 3513

1 Q. Mr. Mesic, you were only on the pista for one day, is that right?

2 A. Yes.

3 Q. That day you were on the pista, are you able to tell the Court how

4 many other people were on the pista with you?

5 A. Sir, I really was not in a state to count people.

6 Q. What sort of state were you in on that day?

7 A. Beaten one might say.

8 Q. Did you have cuts? Were you bleeding?

9 A. On the face, yes.

10 Q. Was your body painful?

11 A. Well, yes, of course it was.

12 Q. What time was it that you got on to the pista?

13 A. I came around 5 or 6 o'clock.

14 Q. Is that in the evening?

15 A. Yes.

16 Q. Are you able to tell us anything about the date as to when it was

17 that you got on to the pista?

18 A. I know nothing about dates.

19 Q. Are you able to tell us for how long you had been in Omarska by the

20 time you came on to the pista?

21 A. Even that I would not know exactly, when I was brought there or how

22 long I was. A man cannot remember everything. I still do not

23 remember.

24 Q. The pista, is it right that it was bounded by flower tubs or boxes,

25 concrete boxes on each end?

Page 3514

1 A. Yes.

2 Q. The people who were in that area of the pista, was it a large number

3 of people? Was the area full?

4 A. There were many people there.

5 Q. Many hundreds of people?

6 A. Hundreds? Well, I think -- no, I do not know. I do not know exactly

7 how many, but the pista was full. People spent the night lying down

8 around the pista.

9 Q. When you left the other building did you walk out of the doors at the

10 front of the building on to the pista?

11 A. What do you mean?

12 Q. The doors that we see in the model in the court, perhaps you can see

13 it from where you are there, if you would like to stand up.

14 A. From interrogation?

15 Q. Yes. Perhaps you could indicate to us where you entered the pista

16 from? Perhaps if you stand up ----

17 A. (The witness indicated on the model) 21, that is it, that is where we

18 came out and came here.

19 Q. The pointer that you used there indicated that you were over towards

20 the grass, is that right?

21 A. Yes.

22 Q. The flower tubs, are you able to indicate where they were by standing

23 up and showing us with the pointer?

24 A. Well, the flower tubs, well, you know it, I mean they were on one

25 side and on the other side. I did not really draw it where they were

Page 3515

1 exactly.

2 Q. Perhaps you could stand up and indicate to us with the use of the

3 pointer where the flower tubs were?

4 A. The flower tubs were like this.

5 Q. Between the buildings?

6 A. Between this and they went in that direction. I cannot remember.

7 Q. The men on the pista, were they between the flower tubs?

8 A. Yes, we were all sitting there.

9 Q. The flower tubs was the boundary of the area where the men were held

10 who were on the pista?

11 A. I would not know that, whether they drew a boundary, put a boundary

12 somewhere or whether they considered it a boundary. I would not know.

13 Q. But you were between the flower beds, were you?

14 A. Yes.

15 Q. So that would indicate that your mark that you gave the Court that

16 you were nearer the grass where the white house is was in fact wrong?

17 A. Huh! How could it not be true when I sat next to the flower tubs?

18 Q. The flower tubs were between the buildings?

19 A. How could they?

20 Q. Well, you just indicated them to us not a few moments ago?

21 A. Listen, I cannot describe it now, no way. I am simply not up to it.

22 Where was what, how do I know now? It is all ----

23 Q. I am asking you these questions ----

24 A. I was sitting next to the flower tubs next to the white house.

25 Q. I am asking you these questions as you apparently can remember what

Page 3516

1 the man looked like who you say was Tadic from those photographs, and

2 you say you can identify him from those photographs as the man you saw

3 who spoke to the guard who shot Kere.

4 A. Yes.

5 Q. So, are you telling us that your memory about that is good and your

6 memory about other things is good? Or are you saying your memory is

7 poor about the other things?

8 A. How do I know where the flower tubs are and the rest of it?

9 Q. Well, I am asking you these things and, if you can remember, please

10 tell us. Now, did you know the man Kere at all? Was he a relative or

11 a friend of yours?

12 A. No.

13 Q. How did you know his name?

14 A. He was my fellow worker. We worked together.

15 Q. So was he a friend or not a friend?

16 A. Well, he was on a different transport. We were not friends. He is

17 not the same age. We could not be friends because we were of a

18 different age.

19 Q. When Kere asked the guard for bread where was the guard? Can you

20 stand ----

21 A. In front of the door, in front of the canteen.

22 Q. Is that the door that you indicated to us some 10 minutes ago that

23 you entered, that you left to enter the pista?

24 A. Yes.

25 Q. So the man Kere asked for bread. How did he come to end up at the

Page 3517

1 white house entering on the left?

2 A. The guard called him and took him into the white house.

3 Q. Which guard called him and took him into the white house? Where was

4 that guard?

5 A. He was there with the one who was distributing bread and Kere got

6 angry and started shouting. He told him he would take him into the

7 white house and he took him into the house.

8 Q. So the guard moved with Kere across the pista and put him in the

9 white house?

10 A. Yes.

11 Q. Did the guard remain there or leave that place?

12 A. He came back. He came back and the other one was standing there.

13 Q. So did he join the other guard who was in front of the canteen

14 building?

15 A. Whom do you mean?

16 Q. Well, the guard that took Kere over to the white house, did he leave

17 him there and go back to the canteen building?

18 A. Yes, and one was standing there and one stood by the hangar.

19 Q. You said that Kere jumped out of the window and sat on a bench in

20 front of the building?

21 A. Well, yes, that is correct, and then he stood up, started towards the

22 guard, towards us, and raised his arms like this and said, "I have

23 power", and he snatched his rifle immediately and shot.

24 Q. Where was that guard who shot him?

25 A. Close to us, to the flower tubs.

Page 3518

1 Q. Did the guard shoot over the head of the prisoners on the pista?

2 A. No, because he fired in the direction of the white house.

3 Q. When the guard fired his rifle at that man, what did the prisoners on

4 the pista do?

5 A. Lie down, straightaway, but when he moved, that soldier when he came,

6 went to him and when they greeted each other that is when the orders

7 came that we should lie down on our stomachs and keep our heads down.

8 Q. So when the firing happened everyone went to protect themselves by

9 lying down so that they came to no harm, is that right?

10 A. No. No, sir.

11 Q. When the ----

12 A. We were watching. When that gentleman came, when a guard came to

13 another guard, they greeted each other and that is when the orders

14 came for us to lie down.

15 Q. So did you lie down?

16 A. I was sitting and with my head bowed.

17 Q. Until that moment had you been watching the guard who shot Kere?

18 A. Yes.

19 Q. That was the thing that most interested you?

20 A. I had never seen a man die like that.

21 Q. How did you know the prisoners you were amongst on the pista were

22 from Kozarac?

23 A. Well, they were from all over.

24 Q. You told us of your nephew whom you joined. Where was he from?

25 A. From Raskovac.

Page 3519

1 Q. Not from Kozarac?

2 A. Well, how could he be from Kozarac? He was from Raskovac. They were

3 all from there.

4 Q. They were all from there, were they?

5 A. Listen, sir, you are slightly exceeding the limit. Does it mean if I

6 am from Raskovac everybody is from Raskovac and if I am from Kozarac

7 and then everybody is from Kozarac?

8 MR. KAY: Your Honour, I do not know whether the Court wants to adjourn at

9 this stage. There is more questioning and the witness has been in the

10 box for some time. Maybe it is an opportunity for a break.

11 THE PRESIDING JUDGE: Well, we should adjourn at 5.30. It is one minute

12 to 5.30. The last Exhibit was 243, is it? The last photo book?

13 MR. KEEGAN: Yes, your Honour.

14 THE PRESIDING JUDGE: Has that been sufficiently identified for everyone,

15 the numbers of photos in there, the numbers that are on them?

16 MR. WLADIMIROFF: I will have another glance.

17 THE PRESIDING JUDGE: Pass it to me. I guess I am the only one who is

18 overly concerned that one of those photos will fall out and then there

19 will be a disagreement about what was in it.

20 MR. WLADIMIROFF: Maybe, your Honour, it would be a good idea to have

21 copies of each book because the sequence may differ. Therefore, we

22 rather prefer to see the sequence too.

23 THE PRESIDING JUDGE: So the Prosecutor should make a copy of the actual

24 book that he intends, that it intends to offer for you, is that not

25 what you are saying?

Page 3520

1 MR. WLADIMIROFF: Right.

2 THE PRESIDING JUDGE: That is an excellent idea. You have given them an

3 opportunity to look at it, but the actual exhibit why don't you?

4 MR. KEEGAN: Yes, your Honour, and the point of having those numbers

5 stamped on the back is when it comes in it is logged with exactly the

6 number of the pictures so you can tell exactly which pictures were in

7 that book by number. So that is one way of safeguarding that issue,

8 your Honour.

9 THE PRESIDING JUDGE: I am just concerned that Mr. Bos is going to be

10 holding on to 243 -- I do not know how many photos are in 243 and I do

11 not know which numbers they are, and I can see that the pages at the

12 top are not stapled. I am concerned something might fall out, that is

13 all.

14 MR. KEEGAN: There are copies already in the evidence system and those

15 that can be provided. That is what I am indicating.

16 THE PRESIDING JUDGE: I want the Defence to know and receive an exact copy

17 of what is Exhibit 243. You will do that?

18 MR. KEEGAN: Yes, your Honour.

19 THE PRESIDING JUDGE: Very good. Thank you. Then we will adjourn until

20 tomorrow at 10 a.m. Thank you.

21 (5.30 p.m.)

22 (The hearing adjourned until the following day)

23

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