Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7692

1 Friday, 25th October 1996.

2 (10.00 a.m.)

3 (Open session)

4 THE PRESIDING JUDGE: Would you bring in Professor Wagenaar, please?

5 PROFESSOR WAGENAAR, recalled.

6 Cross-Examined by MR. TIEGER, continued.

7 THE PRESIDING JUDGE: Professor Wagenaar, you understand that you are

8 still under the oath that you took yesterday to tell the truth?

9 THE WITNESS: Yes, your Honour.

10 THE PRESIDING JUDGE: Very good. Thank you. Mr. Tieger, you may

11 begin.

12 MR. TIEGER: Thank you, your Honour.

13 Q. Good morning Professor. Yesterday you spoke about one of your

14 rules concerning prior descriptions of a suspect before the

15 lineup is prepared before the viewing is made. You indicated on

16 a couple of occasions that you were, in terms of the

17 description, talking about such things as whether or not the

18 person is a man or a woman, is white or black, is dark or fair,

19 and those kinds of broad categories. As I understand it, part

20 of the reason for this is that recognition of faces is something

21 of a global process, is that right? The human mind does not

22 engage in the process of apprehending and recording individual

23 features in a mechanical way, but we register in a very

24 sophisticated way the entire face?

25 A. That is a correct statement about face recognition. It is not

26 something I said yesterday, but I would not disagree about this

27 statement of yours.

28 Q. I am sorry. I did not mean to suggest the latter question was

Page 7693

1 part of your testimony yesterday. As a result, because it is

2 not sort of a check list formulation, verbal processes and

3 those kinds of descriptions do not have a great deal to do with

4 the process of recording and recognising faces, is that

5 correct? I see you nodding and I just have to get an answer for

6 the record?

7 A. Yes, I think that -- I find it difficult to guess what the

8 relation with, say, the rule is that you mentioned, but it is a

9 correct statement.

10 Q. I would presume that, for example, in the case of someone who

11 knew the accused from before the conflict, part of the reason

12 that it is not sensible to seek out minor or peripheral details

13 is that this is a global apprehension process?

14 A. No, I would not, no, I would not say that. What I would say,

15 this rule is just -- is aimed at two things. One is to just

16 simply save yourself time and to exclude that the witness is

17 talking about someone who simply is totally different from the

18 accused that you have in mind and you want to show in a lineup.

19 The other is that in order to make a proper lineup, you need to

20 have, say, a rough description of, say, what the foils should

21 look like. That is only a rough description. They do not have

22 to have all the same shape of the nose or of the ears. You just

23 want rough categories, like colour of hair, approximate size,

24 colour of skin, something like age. A number of those broad

25 categories is sufficient. So it is very useful to have a

26 description in those terms from the witnesses so that would

27 enable you to make a better lineup.

28 You are also right that it is quite possible that the

Page 7694

1 witness knows a person very well and would still not be able to

2 describe the person, say, in more detail than in those broad

3 categories, because actually he would not be able to, say, well,

4 shape of nose or what colour of eyes or so this person has. So

5 it also would not be extremely useful to ask for more detail in

6 such a description, although if you can get it maybe that can be

7 useful, but this, it does not describe it, say, a witness -- if

8 a witness cannot give such detail.

9 Q. Sure. When we see and recognise someone we know, we do not, if

10 I can use sort of an analogy, record in memory all the specific

11 details of what that person looked like on that particular day

12 or how long his hair was or what clothing he was wearing?

13 A. Right.

14 Q. We record in kind of a visual fashion that was Dr. Wagenaar and

15 we already have the image of that person?

16 A. Right.

17 Q. You have mentioned on other occasions and in some of your works,

18 I take it, that the ability to recognise and remember faces is a

19 rather unique and special human capacity which goes back to the

20 very beginnings of our evolution?

21 A. At least that is the scientific opinion about that specific

22 faculty of human beings. That is, you might even say, a

23 prewired special unit in the brain that has a specific function

24 to recognise faces and nothing else.

25 Q. You also spoke yesterday of one of your rules which -- I am

26 sorry, before I proceed to the rules. I know you spoke about

27 the effect and significance of the four identifications that you

28 have been addressing. You separated those from the recognition

Page 7695

1 witnesses, the 42 or so recognition witnesses.

2 A. Right.

3 Q. On a number of occasions you stressed the significance of the

4 fact that there were four, that although this might seem like a

5 small number, indeed, it was extremely significant, and the

6 reason is that assuming the reliability of the lineup, you do

7 not need more people than that to show that the person selected

8 was at the scene of the crime, is that correct?

9 A. The background of that is that if the only other explanation why

10 they pointed all at the same person is that they guessed, that

11 explanation can already be ruled out when you have four on the

12 basis of the very low probability.

13 Q. Right. In fact, I think you were speaking about four because

14 that was the number in this case. As a matter of fact, you have

15 stated on other occasions that two identifications, given

16 appropriate conditions with the lineup, are sufficient to

17 establish that the person selected was at the scene of the

18 crime?

19 A. Right, and there are two reasons for that. I stated that in the

20 context of Dutch law and, according to Dutch law, just on the

21 basis of, say, legal requirements, two should be enough, but

22 I could also establish that, say, on the basis of probabilities

23 two witnesses, say, in ideal recognition procedures satisfies,

24 say, the sort of statistical requirements that you would want to

25 impose. So there, I would say, statistics and law legislation

26 go very parallel.

27 Q. Yesterday you spoke about the period of time that you felt a

28 witness should or should not be given when viewing a lineup.

Page 7696

1 You mentioned that, in your view, a witness should be given a

2 very specific and limited period of time within which to view

3 the lineup and make a selection. The principle underlying that

4 view, I take it, is that recognition is a relatively fast thing,

5 that it does not require a couple of hours or a couple of days

6 generally, is that right?

7 A. That is correct, yes.

8 Q. So the issue then with this period of time is how long it takes;

9 if it takes too long a period of time, then you become concerned

10 that something other than recognition is going on. It is also

11 true, is it not, that if you insist on a particular length of

12 time that it is going to increase the likelihood that the

13 individual viewing will attempt to conform his selection to that

14 length of time?

15 A. Can you say that again?

16 Q. Sure. If you say to somebody, "Look, you have this amount of

17 time to view the lineup and make a selection", there is a

18 likelihood that the person, that the witness, will make an

19 effort to conform to that period of time, to make a selection

20 within that given period of time?

21 A. Oh, yes, usually witnesses are very co-operative. You give them

22 instructions. They try to follow these instructions -- if that

23 is what you mean, yes.

24 Q. Sure, on the other hand, if you gave someone an unlimited period

25 of time they might take as much time as they felt they needed?

26 A. That is true, the question is, as they need for doing what?

27 Q. That is right.

28 A. Is it as much time as they need for, say, a proper recognition,

Page 7697

1 or is it as much time as they need for a rather complicated

2 process of reasoning or deduction where they try to deduce who

3 is the target instead of, say, simply recognising him? But you

4 are quite right; if you give them an unlimited amount of time

5 they can start using that time for, well, we do not know exactly

6 what. That is exactly why you do not want to give them

7 unlimited amounts of time, because you want to control that they

8 are involving themselves in a recognition process and not in the

9 process of logical deduction.

10 Q. But giving someone an unlimited amount of time gives you an

11 opportunity to see how much time that person may really have

12 needed to make a selection? On the other hand, insisting that

13 someone conformed to a particular amount of time may compel that

14 person to make his selection faster than he otherwise would

15 have?

16 A. In principle, you are quite right that if you would measure the

17 time, that would give you an extra piece of information if you

18 record it properly. The thing is, however, that in the

19 way identification procedures are defined, there is no rule for

20 how we would use, say, that extra piece of information. For

21 instance, when it runs -- to give the worst example -- counter,

22 say, to verbal expression, how we are going to use that. The

23 witness points at one, but then the witness spends an extremely

24 long time at another picture, what does that mean? It leads to

25 all sorts of uncertainties of interpretation.

26 We have had many examples where it was argued, "Well,

27 the witness said this, but she spent so much time looking at

28 this picture, she must also have recognised that person". That

Page 7698

1 introduces all kinds of uncertainties that, say, a proper test

2 should not have. Therefore, in my opinion, it is better to have

3 strict rules to predefine exactly what is a positive

4 identification and what is not, and that sort of excludes also

5 the difficult discussions later on.

6 Q. In any event, that particular instruction is not particularly

7 relevant if the viewing and recognition is all done quickly?

8 A. No, if the whole process is rather quick, like I read in one of

9 the witnesses said, "Well, the whole going through the book is

10 finished in a few minutes", that is a rather quick process.

11 That does not -- it would not run counter to, say, my rules or

12 recommendations, so I would not see any difficulty, a special

13 difficulty, there.

14 The question remains, of course, of how the pacing

15 exactly was, because even within a process of several minutes

16 you can show one picture a bit longer than the others. But,

17 say, if the whole process took in the order of minutes, I would

18 say that there is no question of excessive time and eliciting

19 reasoning processes. What I would rather like to prevent is the

20 process of hours.

21 Q. I want to speak with you also about the view that you expressed

22 about selecting or about the instruction to a witness to select

23 just one photo in a body lineup, just one person. As you

24 discussed yesterday, that obviates the problem that might arise

25 if someone selected more than one?

26 A. Yes.

27 Q. At the same time, if a witness went through the lineup and

28 thought he recognised more than one person, in the face of that

Page 7699

1 instruction, that witness would then select just one person, is

2 that not right?

3 A. Can you say that again?

4 Q. Sure.

5 A. I am not exactly certain what you are saying.

6 Q. That instruction tells a witness that he should just select one

7 photograph, although it may be the case that the witness

8 believes he recognises two photographs or even three photographs

9 in the lineup?

10 A. In principle, that would hardly be possible if the witness is

11 instructed to see whether a certain person known to the witness

12 by name or not by name, but a certain person that the witness

13 has seen, has met, at the scene of the crime, to see whether

14 that person is in the lineup, it is still possible that the

15 subject -- that the witness would say, "Well, there are two

16 pictures of the same person in the lineup; he appears twice",

17 but that rarely happens because the pictures are clearly

18 representing different people. In that case, the witness can

19 only identify no one or one, but not logically two.

20 The problem occurs only if you instruct the witness

21 whether he or she can recognise anybody, because then it is

22 quite likely or quite possible that the subject says, "Well,

23 I recognise this person. This is the man I discussed, say,

24 about the crime, but I recognise several others as well". So

25 that instruction to recognise, whether you can recognise

26 anybody, is sort of inviting this problem and is, therefore, not

27 recommended.

28 You exclude that problem if you say in this particular

Page 7700

1 case, "Well, we have talked about Mr. Tadic. Let us look. Is

2 the Mr. Tadic that you have seen, is he among the persons that

3 I am going to show you?" Then logically, I would say, the

4 witness can either indicate no one or one.

5 Q. But the problem that you are attempting to eliminate with that

6 instruction is one which does not work to the credit of the

7 witness in selecting the accused's photograph?

8 A. Can you expand on that? I think my language facility .....

9 Q. If the witness selects the accused's photograph and also selects

10 some of the foils ----

11 A. Yes.

12 Q. --- as being people he recognises, you have additional

13 information which might assist you in gauging the weight to be

14 given the selection of the accused's photograph?

15 A. You might, but you do not know what information you have,

16 because if you allow a witness to point at several people and

17 the witness is, in fact, guessing, then you increase the

18 guessing level and you do not know what the weight of the test

19 is any more. That is why you should not do that.

20 Sure, if the witness is truly recognising various

21 people, you get information about whom they recognised. But if

22 the witness is guessing, the likelihood of, say, guessing

23 correctly, guessing correctly who the accused is, is increased,

24 and that is exactly what the test is for, to eliminate those

25 people who really do not have a clear image of the perpetrator

26 and are guessing. That is why you have the foils, to exclude

27 guessing. So if you do not assume a person is guessing, well,

28 it is not worth doing the test anyway.

Page 7701

1 Q. But allowing person to select more photographs elicits the

2 information that the person is guessing and provides additional

3 information?

4 A. No, no, no, it is not even that and definitely not in your case

5 where it is logically possible that they recognise some of the

6 others, because the others are people from the former Republic

7 of Yugoslavia, and we have no way of knowing whether they know

8 these people or not. No, you really are asking for troubles.

9 You increase the guessing level too and unknown -- with an

10 unknown amount; whereas the set up of the test is such that you

11 kept the guessing level very low at 1/13 which is extremely

12 good.

13 So I would say if you have such an extensive test with

14 12 foils, and you took all the care to make certain that these

15 are not people known to the witnesses, you sort of spoil your

16 own test by after that allowing the subject to point at more

17 people. What if they point at all 13, they say, "I know them

18 all"? Would you say, "Ah, the witness identified Mr. Tadic"?

19 Q. That is right, then you have additional information with which

20 to gauge the reliability of the witness's selection?

21 A. No, I would say you have no additional information. You have

22 lost a witness, because you do not know what the identification

23 means any more.

24 Q. Yes, that is exactly right. It does not prejudice the accused;

25 it works to his advantage?

26 A. I think we are here stumbling over a thing that might be

27 different between your culture and my culture. I am not used to

28 think in whose advantage it is. I am used to think in terms of

Page 7702

1 how close can we get to the truth. So I would not run tests

2 that make it extremely easy for an accused to get off, to get

3 off. I would try to organise tests that help us to find out

4 whether the accused is the same as the perpetrator or not. To

5 that purpose, I would say, you need to ask the witnesses to

6 indicate one person or no one, but never two, three or four.

7 THE PRESIDING JUDGE: Let me ask you this, if I may just interrupt

8 one moment, in terms of searching for the truth, but if the

9 witness who is looking at the foils admits that he knows all of

10 the individuals and, even though he knows them all, he is able

11 to select the alleged perpetrator, is that not of assistance in

12 determining the truth, that is, the ability of the witness to

13 identify the perpetrator, and does that not take into account

14 the possibility that he may, having known someone, place that

15 person in his memory as being at the scene?

16 A. I think you are quite right, your Honour, if you would ask a

17 witness, "Well, even if you know them all, who of these people

18 is the Mr. Tadic you are talking about?"

19 Q. Yes.

20 A. Ask specifically, "Even if you know them all, we are not so much

21 interested, now we want to know of you whom of these 13 is

22 Mr. Tadic". In fact, then, of course, you are asking the same

23 question that I proposed and that I proposed you asked in the

24 beginning: "You have talked about Mr. Tadic. Is one of these

25 people the Mr. Tadic you were talking about?" After that you

26 can also ask (and it does not invalid, say, the earlier

27 identification), "And do you happen to know some of the others?"

28 There is no problem there. But if you just allow them to point

Page 7703

1 at an unlimited number of people and say, "Well, he might be

2 someone I saw and he might be someone I saw", and you do not

3 identify whom of these people is the Mr. Tadic he saw, then you

4 are lost.

5 THE PRESIDING JUDGE: Excuse me.

6 MR. TIEGER: In any event, doctor, if the witness looks at the lineup

7 and says, "That person is Mr. Tadic" or "That person is the one

8 who beat me on this occasion" ----

9 A. Right.

10 Q. --- then the problem is -----

11 A. "But, by the way, I also know some of the others", no problem

12 there, as long as there is only one chance given to identify

13 whom of these people Mr. Tadic is. If they say, "This is

14 Mr. Tadic, but he also looks a bit like Mr. Tadic, maybe it is

15 him", then you are lost. Then you have two shots instead of

16 one.

17 Q. You discussed the question of reporting negative results or

18 misses, and whether or not those might have some diagnostic

19 significance. I believe you indicated, for example, that a

20 negative result could be interesting or not. For example, if

21 you know that the person viewing a lineup was 300 or 400 metres

22 away from the incident, the fact that there is a negative result

23 is uninteresting?

24 A. Correct.

25 Q. Then, I suppose, that would be true for a variety of similar

26 circumstances if the person was not paying attention or was

27 not ----

28 A. It was very dark or something was blocking the view or the

Page 7704

1 person was turned around to the other way so they only saw the

2 back of them; all sorts of reasons, yes.

3 Q. Even for reasons unrelated to circumstances but more related to

4 human memory, I presume that a certain number of misses are also

5 expected?

6 A. Oh, definitely, recognition is not always perfect. Even some

7 people who have closely watched a scene might made a mistake,

8 but if they make such statements like, "I will never forget that

9 face, I see that every night in my dreams" or so, and then they

10 cannot recognise, I think in that case you should interpret the

11 negative outcome as meaning that the accused is the wrong

12 person.

13 Q. It is a matter of assessing all the circumstances?

14 A. Right, yes.

15 Q. You point out ----

16 A. I only wanted to say that negative results can be very valid and

17 diagnostic information.

18 Q. In terms of numbers, for example, you indicated yesterday that

19 it could be significant if a lineup was shown to 50 people only

20 four identified the accused. You are nodding so the answer to

21 that is "yes"?

22 A. Yes.

23 Q. Of course, that would also depend on the circumstances

24 surrounding the viewing of the incident by the other 46?

25 A. Yes, so what you would need to know about the 46, is there good

26 explanation why they failed or is there no good explanation and

27 should you know assume that this is just representing the

28 guessing level? That is why you have to look closely at them.

Page 7705

1 You do not have just to know the number, you have to look at the

2 conditions as well.

3 Q. But, in any event, those kinds of numbers would cause you some

4 concern?

5 A. If they were as large as that, yes, I think that would cause me

6 great concern.

7 Q. What if a lineup was shown to 10 people and seven or eight

8 selected the accused?

9 A. I do not think it would be very wise for me to make assessments

10 of, say, various amounts and say, "Well, this is all right, this

11 is marginal, this is whatever", because it all depends on the

12 circumstances. The only thing I wanted to stress is you have to

13 know about these others. Even if there is only one other,

14 I think the Court ought to know about it because it can be very

15 diagnostic.

16 Q. You spoke yesterday about a lineup which was prepared by German

17 law enforcement authorities, the one that you viewed.

18 A. I saw it for the first time yesterday, yes.

19 Q. OK. I know you were asked a number of questions about the

20 possible effects of seeing such a lineup. None of the four

21 people that you were talking about, that is, the four

22 identification witnesses in this case were shown that lineup, as

23 far as you know?

24 A. That is good -- well, I do not know about that, but if you say

25 that, I would say that is good.

26 Q. Fine. You are not aware of it?

27 A. No, no, I am not aware of it. I have no knowledge about it.

28 Q. OK.

Page 7706

1 A. I think you know very well what they were shown.

2 Q. OK.

3 A. So if you say so that they did not see that, I would say that is

4 good.

5 Q. So it is irrelevant to them?

6 A. The existence of that lineup if they have not seen it, they have

7 not -- there is no possible way they could have seen it, I would

8 say it does not bear on that case.

9 Q. If someone who knew Mr. Tadic from before the war was shown that

10 lineup and selected him from that, there is nothing wrong with

11 that either, as far as you are concerned?

12 A. If they really knew him well before the war, there is nothing

13 that you are going to show them that would, sort of, interfere

14 with, say, their intimate knowledge that they are having anyway.

15 Q. You would be completely comfortable with the German authorities

16 showing such a witness, someone who knew him from before the

17 war, a single photograph of Mr. Tadic to say, "Is that the ----

18 A. Yes, because ----

19 Q. --- "man?"

20 A. --- well, the reason is, of course, because their recognition,

21 by definition, does not have, say, on logical grounds the power

22 to place Mr. Tadic at the scene of the crime because they are

23 going to recognise him anyway, whether they saw him at the scene

24 of the crime or not. So, since the power of that testimony or,

25 you might probably go, the probative value of that testimony

26 is much more limited, you do not have to provide very difficult,

27 intricate tests. It does not mean anything to them.

28 Q. So the German lineup would be irrelevant for diagnostic purposes

Page 7707

1 to that group as well?

2 A. To that group of the people who knew him really well, I would

3 say it is irrelevant. Now, I am not -- maybe I should qualify

4 that a little bit. I have read in the various testimonies that

5 some of them, some of these witnesses, know him very, very

6 well. They went to the same school. They knew him from his

7 birth. They were his teachers and so on. They knew him on a

8 daily basis. Some of them knew him a little bit less intimate,

9 knew who he was, had seen him in the village a number of times

10 or he was pointed out to them.

11 There is a range of acquaintance there. Of course,

12 that range may include some people who really did not remember

13 his face quite well. For those few, the presenting of

14 photographs may have had the effect of, sort of, refreshing

15 their memory, so it would have mattered. But I have no clear

16 opinion about that, because I find it not easy to make an

17 assessment on the basis of the various testimonies what the

18 exact range is.

19 I know that many of the subjects knew him extremely

20 well. They knew him on a day-to-day basis. I would say, to

21 them, it does not matter what kind of photograph you show. But

22 there might be a few on the other end of the range where you may

23 have some doubts, whether, say, showing of pictures later on may

24 have, sort of, refreshed or altered their memory, but I do not

25 think that many of them. But I must warn you, of course, that

26 my little table that just classifies witnesses in groups is a

27 little bit artificial. There is a range, say, within the cells

28 of that table.

Page 7708

1 Q. Yesterday you mentioned that there was no linear relationship

2 between the number of witnesses who identify and the extent of

3 probative value. Were you referring when you said that only to

4 the issue of identification and selection from a lineup rather

5 than recognition witnesses?

6 A. Well, I think that the statement is meant for the true

7 identification witnesses because, logically, for the recognition

8 witnesses there would be no relationship at all because the

9 probative value of their recognition for placing someone at

10 the scene of the crime is low anyway. But since the others, the

11 four, in our case, are so important, there I think it is useful

12 to warn that 40 is not extremely better, much better, than just

13 four, because if you assume that those four, although they

14 identified, could have made a mistake, then the basis of that

15 mistake, for instance, the very close resemblance between the

16 accused and another true perpetrator, for instance, like twin

17 brothers, if you are afraid that would have caused the mistake,

18 you can be almost certain that you are going to prolong the

19 mistake and repeat the mistake with other subjects, and that is

20 "more subjects than" does not help. If you are afraid about,

21 say, the guessing level, then four is already enough. It does

22 not help to get to even lower probabilities.

23 Q. I believe I understood that. I just wanted to clarify that you

24 were talking about identifications and not talking about the

25 recognition witnesses.

26 A. There is, of course, if I may add a remark, if you have

27 witnesses who have witnessed different crimes or describing

28 different scenes, they were not all, say, like all 52, witness

Page 7709

1 to the same crime, then it could be important to have a few

2 witnesses for each separate crime, of course.

3 Q. Yes, that is a matter of common sense?

4 A. But that is a matter of sheer logic.

5 Q. Right. We talked about the Doob & Kirshenbaum test yesterday at

6 some length. That is a test which is performed by people in

7 your field and which you performed to determine whether or not

8 the photospread is suggestive or not?

9 A. Yes, that is correct.

10 Q. That test was administered in this case to 39 subjects?

11 A. That is right.

12 Q. In fact, actually I guess that would be 40 since you also made

13 an effort to identify the ----

14 A. Oh, yes, but that is not in the report -- only the 39 count.

15 Q. OK, but you also tried to pick out the photograph of the person

16 you thought might be the accused when you did not know who he

17 was?

18 A. I always try -- I am always the first subject in my own

19 experiments, but I do not count that.

20 Q. OK. You picked out one of the foils?

21 A. I did, yes.

22 Q. After you completed or perhaps during the process of performing

23 the Doob & Kirschenbaum test you began to wonder whether or not

24 former residents of Yugoslavia could distinguish Serbs from

25 Muslims from Croats and so on, and wondered whether or not

26 Mr. Tadic was the only Serb and so that you performed an

27 experiment in Belgrade ----

28 A. That is correct, yes.

Page 7710

1 Q. --- and found that the subjects there, who were more or less

2 representative of the witness population here, found it

3 impossible to classify the pictures according to ethnic

4 background?

5 A. Yes.

6 Q. That indicated that the hypothetical problem that had concerned

7 you did not seem to exist and had not occurred?

8 A. Yes, with the one small proviso that I made yesterday, provided

9 that, say, the faces that they saw indeed belonged to the

10 category of people living in the former Republic of Yugoslavia.

11 But I must say I was quite reassured after seeing those results

12 that nothing had gone grossly wrong in the selection of the

13 foils, yes.

14 Q. What question did you pose to the subjects in that Belgrade

15 experiment?

16 A. The question was, "We are going to show you a number of

17 pictures. Here are a number of categories that you could insert

18 them in, like Croat, Macedonian, Montenegrin and so on. Will

19 you try to make a judgment or, if you cannot make a judgment, to

20 just guess to which category these people shown in the

21 photographs belong". So is a kind of what we call a forced

22 choice test. They have to categorise everybody, even if they

23 are totally uncertain, to make sure that if they do not think

24 they can but, in fact, they can, but they are not aware of their

25 abilities, that would come out if you forced them to guess. So,

26 if you force them to guess and even then they cannot do it, you

27 can be sure there is no, say, conscious ability to do it but

28 also not an unconscious ability to do it.

Page 7711

1 Q. Is there any reason why you did not put in a photograph of

2 someone or some photographs of people known to be from the

3 former Yugoslavia to see whether or not the subjects could do

4 that?

5 A. Oh, yes, there was a very clear reason. We, sort of, spent the

6 whole summer of getting good pictures of people having lived in

7 the former Yugoslavia, and that appeared to be extremely

8 difficult. We also spent a lot of time in finding subjects from

9 the former Yugoslavia which appeared to be extremely difficult.

10 Only when, say, the date of this hearing came closer, I realised

11 that I would not want to sit here and have to tell the Court

12 that I had no information about this problem.

13 So what I did is I contacted a number of colleagues in

14 universities in the former Republic, to ask them whether they if

15 we came over for two days could provide the subjects to us.

16 They all responded positively. The University of Belgrade was

17 the only one that opened before 1st October. In the other there

18 were no students available before 1st October, so we selected

19 Belgrade for that. But at that moment there was no time to

20 produce new pictures, so we used the 12 pictures, the 12 foils

21 in the test that you had used. I thought that was appropriate

22 because the true question is about these pictures not about

23 others. So, I thought if we know about these pictures, that

24 they cannot easily be recognised as Serbs or non-Serbs or

25 whatever, I would feel quite sure that the test itself had not

26 gone wrong.

27 What you proposed to do with these other pictures is

28 something that I would also have liked to do, but that should

Page 7712

1 not have prevented me doing the test with the real foils because

2 that is the thing that really matters.

3 Q. I take it that nothing that happened during the course of this

4 experiment or any other review you did would cause you now to

5 advise big city police departments that they should check to see

6 whether the accused is Jewish or Italian and whether the

7 photographs are .....

8 A. No. No.

9 Q. In any event, your concern would be entirely alleviated, I take

10 it, if you found that eight or nine of the photographs of the

11 foils were persons from former Yugoslavia?

12 A. Sure, the rule that I used myself was that there should at least

13 be five foils that are good representatives of, say, the group

14 to which the accused belongs. So if you have five of those,

15 five or six, I would say there is a sufficient number of

16 alternatives that, say, a guessing witness I could have used to

17 guess at.

18 Q. By the way, I should probably clarify the chronology that led to

19 this since it was discussed a bit yesterday. In your letter to

20 the Prosecution after performing the Doob & Kirshenbaum test,

21 you mentioned in one section something about this. What you

22 said was, "If it is argued before the Tribunal that Dutch

23 subjects have insufficient ability to distinguish the various

24 ethnic groups, then such a test might be performed."

25 A. Yes.

26 Q. We discussed it and I told you that I could not see any basis

27 for that being argued since everyone from former Yugoslavia said

28 that that kind of distinction was not made and not possible to

Page 7713

1 make.

2 A. Yes, which, of course, leads us to the problem which was

3 mentioned yesterday, that people do not always know what

4 abilities they have. There are some things that we can do we do

5 not even know we can do. You would be very surprised to see.

6 Q. Except in this case we know now ----

7 A. Yes.

8 Q. --- but, in any event, that ended the matter for our purposes?

9 A. For your purposes it did, for mine it did not. So I wanted to

10 run that test to really see.

11 Q. Just to clarify, you did not insist to me that I should get for

12 you the information about who the foils were?

13 A. No, I pointed out what the problem was to you and it is

14 completely up to you to follow that up or not.

15 Q. OK. You also did not advise me when you began embarking on the

16 test with the Yugoslav subjects on behalf of the Defence?

17 A. No, I think the first test that you do is to do it with Dutch

18 subjects because, for instance, there are a number of things in

19 a test that are possibly suggestive and that would be suggestive

20 to any subjects. For instance, to take a gross area, if one of

21 the picture is larger, that would influence all subjects, no

22 matter where they come from. So to detect, say, a number of

23 those problems in the photospread that have nothing to do with

24 ethnic groups, Dutch subjects would be quite sufficient and, of

25 course, you would first take this first, this very easy step of

26 testing Dutch subjects. It does not exclude this one single

27 point of ethnicity, but it already excludes a number of other

28 mistakes that could be present in the photospread.

Page 7714

1 Q. I understand that. I was just asking you whether or not you

2 advised me when you began performing the test with the Yugoslav

3 subjects, and you did not, correct?

4 A. No. I reported, say, what they did and what they did not do.

5 It made sure that all sort of other mistakes were not in the

6 spread, but there is a question mark with respect to ethnicity.

7 I just mentioned it to you that that might be a problem. The

8 problem was big enough -- and we have discussed that -- it was

9 big enough for me to try to go on and find out for myself

10 because I do not like to come to Court and have to say, "Well, I

11 do not know that. I could have done it but I did not". So

12 I have advised you that I would try to go on and investigate

13 this on my own.

14 Q. You were working with the Defence about that time, were you not?

15 A. I am not working with -- I am working with you trying to answer

16 your questions. I tried to answer questions of the Defence.

17 I am not working with the Defence in the sense that -- in the

18 meaning that it might have in your country.

19 Q. I was ----

20 A. I am not taking sides or anything with the Defence.

21 Q. --- not asking you that question, doctor. I just wanted to know

22 the chronology of everyone's involvement.

23 A. Or just to prevent any misunderstandings because we all come

24 from different countries and, say, that statement might mean

25 different things to different people.

26 Q. Let me ask you something about your field of study, experimental

27 psychology. You referred, for example, to experimental data and

28 empirical data on which you rely. I take it by that you mean

Page 7715

1 experiments which are devised by people in your field to test

2 certain theories. It is correct to say that these tests have

3 been criticised as not reflecting real life conditions?

4 A. Well, not all empirical data on which my insights are based are,

5 say, laboratory tests. I also published the results of many

6 case studies in which identification was at issue. I even

7 published statistics across a number of such case studies and

8 I am not the only one. That is quite usual in my field. There

9 is a concern about experiments, because reality is usually

10 always one step more complicated than, say, what we try to

11 create in the laboratory.

12 Q. At least one step.

13 A. Of course. That does not necessarily mean that it is invalid,

14 what you find in laboratory.

15 Q. We will talk about some of those case studies later. But

16 I was ----

17 JUDGE STEPHEN: Oh, no. I was just wondering how long you were going

18 to go.

19 MR. TIEGER: I am sorry, your Honour. I did not ----

20 THE PRESIDING JUDGE: Might I just ask a question? I do not have the

21 letter. Can you pass me the letter, just to see if we can -- in

22 my country we have a saying called "cut to the chase", and I do

23 not know that I knew what that meant for many years. It must

24 come from movies where they are chasing someone, you know, and

25 so they say, "Let's just get to that." If I understand the

26 reports that you have given to both the Prosecution and the

27 Defence, you say that with respect to the procedures that were

28 used and the test itself, "I cannot myself make such a judgment,

Page 7716

1 because too many factors remained unknown." Is that correct?

2 A. That is correct.

3 Q. So you are not here today to tell the Court that the procedures

4 that were used are wrong and that the identification or

5 recognition was wrong, because you do not know a number of

6 factors, is that correct?

7 A. That is quite correct, your Honour.

8 Q. But you have told us yesterday about the things that should be

9 included and we went through 50 rules, well, not all of them but

10 many of them?

11 A. Yes, that is correct.

12 Q. OK. So that is the overall report. Then if you look at what

13 was actually done and what we received, we received first of

14 all -- I am now referring to the Defence 91, the report you

15 prepared, you gave, to the Defence but I understand your

16 position -- there were 42 people who knew, who testified that

17 they knew Mr. Tadic, and they made an identification of him. Is

18 that correct?

19 A. Yes.

20 Q. So if I understand your testimony, though, that is acceptable

21 and may be used unless, unless, it is used for the proposition

22 that the accused committed the crime?

23 A. (The witness nods in assent)

24 Q. But you are not supposed to make that jump; it is just that they

25 identified him?

26 A. Right.

27 Q. You do understand, at least I will speak for myself, that is, as

28 a judge, someone comes and they testify and they say these

Page 7717

1 things, then, of course, we have to make this judgment about

2 credibility which one day I would like to talk to you about --

3 maybe you can help us; it is very hard -- but if we do not

4 automatically assume that these 42 and accept their testimony as

5 gospel truth, then there is not a problem, is that correct?

6 A. You are quite correct, your Honour.

7 Q. OK. That is one of the big problems with a Judge. We will look

8 at these 42 and we will make assessments.

9 A. Yes.

10 Q. We will do it in a number of ways.

11 A. That is in your domain, not in my domain.

12 Q. Not a problem with that unless we accept it as gospel truth and

13 do not make these credibility judgments. The problem that you

14 did point out, though, were five persons who testified that they

15 knew the accused and were shown the photospread. That, if

16 I remember from our earlier discussion (because we had arguments

17 with counsel about this), would contaminate the identification,

18 the photo ID identification, because they knew him before. As

19 you said very well yesterday and in a language that I had

20 understood, that if someone knows someone before and they are

21 given a photo and asked to identify the alleged perpetrator, it

22 may be that they are relying upon their knowledge that they knew

23 him before as opposed to the actual identification?

24 A. Right, correct.

25 Q. So that is a problem. It contaminates it; it should not be

26 done.

27 A. If I may?

28 Q. Tell me.

Page 7718

1 A. If I may add a little bit? You can do that but, logically, you

2 do not achieve much more than or anything more than you achieved

3 with the other 42. It proves that they know this person.

4 Q. Yes.

5 A. It does not place him logically at the scene of the crime. So,

6 as long as again you do not jump to that conclusion, there is

7 nothing wrong with showing the photographs. It does not help

8 you a lot, but there is nothing wrong.

9 Q. That is something you said today just a few minutes ago. I do

10 not remember you said that yesterday. So are you suggesting

11 that if we, as Judges, do not make this jump and assume just

12 because five people identified him in the photospread that that,

13 in fact, is the gospel truth and that he committed the crime, if

14 we do not make that jump, then there is nothing wrong with the

15 five either, is that correct?

16 A. That is correct.

17 Q. Except for that one ----

18 A. Except for one.

19 Q. Yes, except for the one who, as you testified yesterday, the

20 woman who looked at the photospread and you said that if she

21 gave a negative response, could not make the identification, and

22 then you are not sure what happened then, but was given another

23 chance and should not have been given another chance?

24 A. Yes.

25 Q. So then those five, except for that one, are OK, is that

26 correct, in terms of procedures that were followed?

27 A. Yes.

28 Q. I suppose if that is my understanding, I do not know why we need

Page 7719

1 to go through a whole lot of case studies. I do not want to cut

2 you off, Mr. Tieger.

3 MR. TIEGER: Your Honour, I certainly do not mean to create problems

4 where there are not any, but I am anticipating at least what use

5 may or may not be made of the doctor's testimony. I want to

6 make sure that everyone's understanding is correct. I agree

7 that with respect to those five -- I was not concentrating on

8 either those five or the earlier 42. I think the doctor

9 indicated his testimony was not relevant to that group. I am

10 merely concentrating on the four persons he said, "If you are

11 satisfied with those procedures and you think that they were

12 reasonably reliable, then you can be sure that the person

13 selected was at the scene". I am focusing on the factors the

14 doctor suggested may or may not bear on that reliability.

15 THE PRESIDING JUDGE: I am sorry. Tell me the last -- the person was

16 reasonably at the scene. That is the problem that I have

17 personally with the whole procedures. Just, as far as I am

18 concerned, whether a person identifies someone and is known to

19 them their whole life and they are in the 42, let us say, and

20 then say not only did they know him their whole life but they

21 saw him at the scene, well, you know, we make judgments about

22 that; yes, it is clear that they were able -- I would accept,

23 unless he or she is impeached, that they knew him, but that does

24 not mean that we can say that he was at the scene unless we

25 believe the testimony. Do you understand what I am saying?

26 MR. TIEGER: Of course I do.

27 THE PRESIDING JUDGE: That is the 42. The only reason I wanted to

28 ask the question was that yesterday, as I recall,

Page 7720

1 Mr. Wladimiroff asked the witness, well, these 42, the

2 identification, something to the effect, that that cannot be

3 used that they committed the crime. Dr. Wagenaar said, "Yes,

4 that cannot be used". I just wanted to make it clear that I do

5 not think anyone who has been in the judging business for any

6 amount of time would make that jump, for myself.

7 MR. TIEGER: As Judge Stephen pointed out, your Honour, it was

8 clearly not why the dock identifications were made. At the time

9 the first witness came in to make a dock identification, we had

10 that brief discussion about it and it was clearly acknowledged

11 that it was being used for a certain purpose.

12 THE PRESIDING JUDGE: Right. So there the identification was only

13 confirming that this is the person they have known for all of

14 these years. It was not a recognition or identification just

15 based on seeing someone sitting between two guards.

16 I suppose where I am is that that is the 42. Now he

17 says that the five, you know, why give them the photospread if

18 they knew them before. That was something that was considered

19 also, at least in my mind. That was something that you and I

20 discussed. I mean, you know, we can disregard his looking at

21 the photospread and just say that the man testified he knew

22 him. I remember when the testimony came in. Why are you

23 showing them a photosprad if they knew him? Except for that

24 one woman who was given the opportunity twice, perhaps, it was

25 not really clear.

26 But all of this has been spent on the four who did not

27 know him and who were given a photospread. In the letter that

28 Professor Wagenaar writes you, he tells you, that is the

Page 7721

1 Prosecutor, "I conclude that the spread of 13 photographs can be

2 used for identification purposes". That is what he does. You

3 can use them. Those are the four. Yesterday he spent a lot of

4 time going through all of the rules saying what should be in,

5 but he does not know whether that was not taken into

6 consideration.

7 So all I am suggesting (and I have talked too long

8 myself) is that I did not know why you were going to get into

9 the case studies. But then you say you have to respond to the

10 direct, because you do not know what the Defence is going to do

11 with the testimony. I suppose you do not know what the Judges

12 feel about it either. So you do not know how far to go. Is

13 that what you are saying?

14 MR. TIEGER: That is partially true. The Court will get information

15 about the procedures that were used and will then be in a

16 position to make the appropriate judgment which is for the Court

17 about the weight to give the identifications. I am just trying

18 to avoid a mechanical application of rules in a book without a

19 reasonable understanding of where they come from, what they

20 might mean and what impact they may or may not have on the

21 identifications.

22 JUDGE STEPHEN: While the flow of cross-examination has been

23 interrupted -- I am afraid I might have been responsible for

24 that and I apologise to you -- there is something basic that

25 I have failed to understand in this witness's testimony from the

26 start. It was repeated again this morning. He obviously knows

27 what he is talking about and I am misunderstanding, but

28 continually I seem to hear that the probative power of the

Page 7722

1 evidence of those who knew Tadic well from childhood and who

2 then say, "I saw him at a certain place" is less than that of

3 the four identification witnesses who had never seen him before

4 and saw him on one occasion and then identify him.

5 I would have thought it is exactly the opposite.

6 I think the witness said this morning that the 48 recognition

7 witnesses, the strength of the probative power (I think it was the

8 expression used) of their identification is low. I would have thought

9 it is infinitely higher than the case of the four and of great

10 significance. Can you perhaps ask the witness to elaborate on

11 this?

12 THE PRESIDING JUDGE: Can I just expand or comment on that too?

13 Maybe it is because we are so interested in this area -- I am.

14 For those four, if they did not know him before, then you can

15 eliminate any possible bias, reason for lying, anything, because

16 the only way that they can identify him is using the photospread

17 and that is why that is so powerful.

18 But as to those 42 who said they have known him and

19 then told us about a number of things, that is when the

20 credibility judgments come in, for me at least, that I have to

21 apply. But for those four, it is very powerful because they did

22 not know him before, if you accept that, and then you exclude

23 any possible bias ----

24 JUDGE STEPHEN: Oh, no.

25 THE PRESIDING JUDGE: --- no? That is not true because ----

26 JUDGE STEPHEN: No. I mean, they may be grossly biased.

27 THE PRESIDING JUDGE: --- they might be grossly biased and it has

28 been alleged because of different religious -- but is that what

Page 7723

1 you are saying about those four?

2 THE WITNESS: What I am saying is that -- I am not talking about the

3 probative value of, say, the total testimony of witnesses. Of

4 course, those who knew him very well, they know what they are

5 talking about and about whom they are talking. What I am saying

6 is for those who knew him very well, the identification does not

7 add a lot. That is not an important extra piece of

8 information. Of course, they can identify him. It does not

9 tell you a lot about, say, whether the other part of their story

10 is a true story. Identification does not help to make that

11 decision because they can make that decision anyway.

12 For the four who did not know, identification helps a

13 lot because if they are true -- if their story is not a true

14 story, they would be totally unable to identify him and the fact

15 that they are able to identify him needs an explanation. If you

16 still believe their story is not true, now you have to explain

17 for yourself, how was it possible that they identified him? It

18 points at the truth of their story. So for those four, the

19 identification is an important extra piece of information,

20 whereas for the 48 it is not.

21 JUDGE STEPHEN: I understand ----

22 A. I am not talking about the total probative value of their

23 testimony, because there I think you are quite right, those who

24 knew him very well are probably far more important than the

25 others.

26 Q. I understand then -- thank you very much -- exactly in relation

27 to the 48. I would like you, if you would, just to tell us a

28 little bit more about why the probability is that the four are

Page 7724

1 not lying?

2 A. Well, the four may still be lying ----

3 Q. Yes.

4 A. --- about what they saw. But if they are all able to identify

5 him, they must have met him somewhere.

6 Q. Yes.

7 A. If the only logical possibility is that they have met him in the

8 camp, that places the accused in the camp.

9 Q. Yes.

10 A. It is still possible that he did not -- there he did not do what

11 the witnesses say, but at least now he is placed in the camp.

12 If he denies ever having been in the camp, there is something to

13 explain.

14 Q. Yes. Thank you.

15 A. If he would have said, "Ah, but I have been in the camp, of

16 course they know me, but I did not do those things that they

17 accuse me of", then you still do not know very much. But if he

18 takes, say, the position, "I have never been in that camp", they

19 recognise him, we need an explanation how that is possible

20 because guessing is simply out of the order.

21 JUDGE STEPHEN: Thank you very much. I think that clarifies my

22 difficulty I had.

23 THE PRESIDING JUDGE: You can go on, Mr. Tieger. Go on with your

24 case studies. I think you know, at least, what my understanding

25 is and what Judge Stephen's is as well. OK. Go ahead.

26 MR. TIEGER: Thank you, your Honour. [To the witness]: Just to

27 alleviate any undue concern on the part of the Court, when

28 I refer to case studies I was talking about what will probably

Page 7725

1 be a 45 second recitation of a few factors that are significant.

2 THE PRESIDING JUDGE: I am sorry. I spoke too long then.

3 MR. TIEGER: Doctor, I think we were discussing at that point a

4 little bit of information about your field of expertise and

5 talking about the kinds of studies involved. The fact of the

6 matter is, as you indicated, that these experimental studies are

7 conducted in such a manner because of pragmatic reasons that

8 forced you to use laboratory conditions rather than real life

9 circumstances?

10 A. No, I do not agree with that.

11 Q. Doctor, I am talking about the empirical studies themselves.

12 A. Yes, right, I do not agree with that. Doing statistical

13 analyses of real cases, real trial cases, is still empirical

14 research. Those are empirical data. Second, I am not quite

15 sure what you mean by "laboratory studies". Some studies are

16 very realistic studies in which we create a very realistic

17 situation outside the lab. We test the witnesses of those

18 situations just in exactly the same manner as you would test

19 them. The only, say, lab-like aspect of it is that we have

20 created the situation so we control it, we know exactly what has

21 happened, but otherwise those situations can be very, very

22 realistic.

23 Maybe I may explain to you that just in the last year

24 one of my students has completed a thesis that will be defended

25 next year in which we compared, say, a very difficult situation

26 in 22 banks that we have created. Of course, the managers of

27 the banks agreed that we would do that. But the cashiers and,

28 say, people, employees of the bank did not know at all that they

Page 7726

1 were tested, they were subjects and so on. We did -- we

2 involved also person recognition with identity tests, so many

3 person photospreads and so on, just like you would do it with a

4 real, say, unexpected bank robbery. We compared that with, say,

5 exactly the same situation on television, because one of those

6 occasions we have filmed on television, and we have showed that

7 in the lab to subjects who knew they were subjects and were

8 simply watching a TV episode of something that happened in the

9 bank, and we asked them to do the photospread and so on.

10 The result is that you find almost no difference

11 between how the bank employees performed in the photospreads and

12 what you would call the laboratory subjects performed. So,

13 I have no -- point (1) is that many of the experiments are under

14 very realistic conditions, that is one, and that can be done, it

15 is not easy but you can do it, and point (2) is that from this

16 study the difference with lab conditions is not necessarily

17 high; in some of the studies it is not.

18 Q. But the reason for moving towards more realistic conditions is

19 that such factors as arousal, motivation, attention are believed

20 to be different in real life situations than laboratory

21 conditions?

22 A. No, the reason is that you do not want any uncertainty about

23 that, just as I did not want any uncertainty about the role of

24 ethnicity. You want to be certain that it is not such an

25 important factor. That is why you want to make the comparison.

26 It is not because we believe that it is important, because then

27 we would -- if you believe that, we would immediately come to

28 the conclusion that we cannot do lab studies.

Page 7727

1 No. The reason that we make the comparison is that we

2 want to exclude that it is terribly important. If you can

3 exclude it, then you can base some of your recommendations also

4 on lab studies. I must say, although, if you go through the 50

5 rules that we discussed yesterday, that you will find that the

6 large majority is based on logic, not on psychological lab

7 studies.

8 Q. But where based on lab studies you would agree, would you not,

9 it has been argued that laboratory studies on identifications

10 are invalid?

11 A. It has been argued (and probably we both know, are aware, of the

12 literature), it has been argued but not demonstrated, and the

13 argument is that, sure, it must make a difference. But at that

14 time that these first publications appeared, there was no

15 empirical demonstration that showed convincingly that it makes a

16 big difference and that, therefore, the recommendations that

17 were based on lab studies would be wrong.

18 Q. Have you yourself not acknowledged that, although there may be

19 partial solutions to the problems raised by those critics, there

20 is much truth in that argument?

21 A. Oh, there is much truth to the extent that if you have not ruled

22 it out, you have a problem and you cannot logically argue that

23 lab studies are good enough. You have to rule it out. So there

24 is, as long as you do not know, there is a problem. But once

25 you have made the comparison I have just described you once that

26 we did ourselves in my group, you can rule it out.

27 Q. So it is possible to alleviate the problem, but the criticism of

28 the fact that those conditions are different is valid?

Page 7728

1 A. I would say the claim that the conditions can be different is

2 valid. The claim that it matters is not so valid. Let me give

3 you a very simple example. If you want to buy new eye glasses,

4 you can go to an opthamologist and he has some sort of letter

5 chart, and you read those letters and you see what the best eye

6 glasses are. You do not expect the opthamologist to have a

7 courtroom because you want to use your glasses in the courtroom.

8 The test done by the opthamologist is good enough and makes it

9 possible to generalise to the courtroom situation. If you can

10 look well on the letter chart, you can also look well on the

11 courtroom.

12 So, the generalisation from the lab to reality is

13 always something a scientist should consider. But it is not, by

14 definition, an obstacle. It is something you ought to

15 consider. If it has not been considered, the criticism is

16 completely correct. We do not know anything about this, we have

17 not studied it, do not without having this knowledge just assume

18 that the validity is there and apply it, especially not in cases

19 where, say, the weight given to it could be extremely large and

20 the consequences very large. But once you have studied it and

21 you see that the generalized ability is there, the problem has

22 gone.

23 Q. That is the point the critics were making, in that it ----

24 A. At the time, say, that Egeth and McLoskey, they are among the

25 most -- the initiators of that criticism, I think. It has not

26 been properly studied and it was, I think, a totally just worry

27 that they verbalized. Right now I would be much less worried.

28 I see you are going through a book that I know well.

Page 7729

1 Q. So, at least more recently, efforts have been made to remedy

2 that problem and to resolve that problem? As of 1992 you were

3 still quite concerned about that problem?

4 A. No, not really. It is becoming maybe a bit repetitive. The

5 problem addresses only those recommendations that are purely

6 based on, say, research. For instance, the recommendation that

7 I have made based on our own research that you should have at

8 least five foils, not three or four but five, because then the

9 test is optimum. It is based on research in the lab and in

10 realistic conditions. There is a set of experiments, not just

11 one experiment, and there is a comparison of those experiments,

12 and the general finding is in realistic conditions and in lab

13 conditions that five would be enough.

14 You might say, well, that is a recommendation that

15 follows from research. It is, of course, also partly just a

16 logical rule. The guessing level is simply computed by, say, 1

17 divided by the number of foils. You can just say, if we have

18 five foils, the guessing level is 1/5th, 20 per cent. There is

19 no lab research involved in that. You could, completely

20 independent of research, argue, well, four foils it would be 25

21 per cent. Is that acceptable? You can build some sort of

22 reasoning on the basis of simply the guessing level.

23 I think the two reasonings coincide. The five that

24 follow from the empirical research I think coincides with the

25 thought that a 20 per cent guessing level and then a number of

26 witnesses, so that you multiply those guessing levels, leads to

27 a fair amount of certainty. If you have two witnesses, 20 per

28 cent, times 20 per cent is -- and then you are down to four per

Page 7730

1 cent. I would say, well, that should be acceptable. A total

2 certainty does not exist in criminal law.

3 MR. TIEGER: Your Honour, I think that is an appropriate time.

4 THE PRESIDING JUDGE: That is a very good place to stand in recess

5 for 20 minutes.

6 (11.30 p.m.)

7 (The Court adjourned for a short time)

8 (11.50 a.m.)

9 THE PRESIDING JUDGE: Mr. Tieger, you may continue.

10 MR. TIEGER: Thank you, your Honour.

11 Q. Dr. Wagenaar, your report (which was sent to Mr. Wladimiroff and

12 a copy of which was also sent to the Prosecution) addresses the

13 most important concerns about the reliability of a lineup or

14 photographic parade. For the most part, that document may speak

15 for itself but I want to ask you about at least one of the

16 factors that you discussed in there. You referred to the

17 possibility of biased instructions. I know that yesterday you

18 indicated that, in your view, it is highly important to tell a

19 witness expressly that the wanted person may not be in the

20 lineup. You have mentioned that a couple of times.

21 A. That is correct, yes.

22 Q. You indicated yesterday that the research on the presence or

23 absence of that explicit statement shows that it has a large

24 effect on false positives?

25 A. Yes.

26 Q. That is meaning the selection of foils instead of the accused.

27 You also indicated that the research on that is reported in the

28 chapter which precedes the chapter in your book on rules?

Page 7731

1 A. Yes, that is right.

2 Q. That is chapter 2 and, indeed, in it you refer to biased

3 instructions and the case study cited is Malpass and Devine?

4 A. Yes, 1981.

5 Q. In fact, however, Malpass and Devine did not involve an

6 instruction which said, for example, "If you see anyone you

7 recognise in the lineup, point him out". Instead, it involved

8 the following instruction, "We believe that the person who

9 pushed over the electronic equipments during the EEG

10 demonstration is present in the lineup. Look carefully at each

11 of these five individuals in the lineup. Which of these is the

12 person you saw push over the equipment?"

13 A. That is the biased instruction.

14 Q. That is the biased instruction in Malpass and Devine?

15 A. The unbiased instruction contains the warning.

16 Q. So that the Malpass and Devine study on which you rely is a

17 contrast between an instruction in which one test a portion of

18 the group is given an instruction in which they are explicitly

19 told that the person may not be in there, contrasted with

20 another group which is told expressly that the person is in

21 there?

22 A. Well, I think you should also read out the unbiased instruction

23 used by Malpass and Devine so that we can make a comparison of

24 what is the difference.

25 Q. Sure. "The person who pushed over the electronics equipment

26 during an EEG demonstration may be one of the five individuals

27 in the lineup. It is possible that he is not in the lineup.

28 Look carefully at each of the five individuals in the lineup".

Page 7732

1 A. Yes.

2 Q. This study, however, was a contrast between the effects of those

3 two instructions?

4 A. Yes, that is correct.

5 Q. It was not a study of an instruction which says, "If you see

6 someone you recognise in the lineup, then point him out"?

7 A. No, because that instruction, in fact, is never given in

8 lineups. It is always an explicit reference to one particular

9 person mentioned by the witness in his or her testimony. So I

10 do not know of any studies in which the instruction is studied

11 say, that, well, was reported in the records like, "If you

12 recognise anyone, please indicate who it is".

13 So there is very little that I can say about that

14 specific instruction. The only thing I have said about that

15 specific instruction is that it may create logical problems,

16 because if they recognise totally correctly more people, what do

17 you do? So I have not said that that more vague instruction is

18 biasing or anything. I said that it may create logical problems

19 and I do not know whether it has created logical problems or not

20 in this particular case.

21 Q. Doctor, I indicated earlier we would talk about case studies and

22 I indicated to the Court it would be very brief.

23 THE PRESIDING JUDGE: 45 seconds.

24 MR. TIEGER: It is always a mistake, your Honour, but I think we can

25 cut to the chase on this. In fact, in, I guess, 1990 you wrote

26 an article on examples of circumstances in which bad procedures

27 were followed and were criticised?

28 A. Are you referring to the article co-authored by Elizabeth

Page 7733

1 Loftus?

2 Q. That is right. I just wanted to run down some of the examples

3 of such bad procedures that you identified in the course of that

4 article in your efforts to find examples of bad procedures.

5 I am not sure how well you recall the article, so I ----

6 A. I do not have it in front of me.

7 Q. --- will just summarise it briefly then and you tell me if that

8 is correct. In one of the studies, the perpetrators were

9 wearing full face masks leaving only their eyes visible. The

10 two witnesses who ultimately identified a perpetrator said they

11 initially could not recognise anyone because he was masked.

12 There was a one person lineup.

13 In another, every foil differed in at least one

14 significant way from the accused. The lineup size was only

15 about four?

16 A. Right.

17 Q. There was repeated testing?

18 A. Yes.

19 Q. In another, there was a one person lineup and repeated testing

20 and the witnesses knew the accused from before.

21 In another, the effective lineup size was three. The

22 suspect was the only one in a distinctive item of clothing and

23 there was a repeated testing.

24 Another, there was a one person lineup. All the

25 details of the prior descriptions were incorrect.

26 In another, the photospread was made up of completely

27 possibly suspects. There were repeated tests. Witnesses talked

28 to each other during the course of the actual identifications.

Page 7734

1 In another, there was a one person lineup. The

2 witness knew the accused before. Police specifically mentioned

3 the accused's name?

4 A. They are horrible examples.

5 Q. In another, the lineup only had four foils. There was repeated

6 testing and there were actual suggestions to the witnesses to

7 change their identifications.

8 In another, there were five foils. Two did not fit

9 the description at all. Both witnesses knew the person from

10 before the incident, but stated they did not recognise him at

11 the time.

12 A. Right.

13 Q. In another, the instructions were that the suspect definitely

14 was in the photospread and, in fact, he did not fit the

15 description given by the witnesses previously. Thank you,

16 doctor. That is all I have, your Honour.

17 THE PRESIDING JUDGE: Mr. Wladimiroff?

18 Re-Examined by MR. WLADIMIROFF

19 Q. Professor, yesterday we discussed about the length of time that

20 would be appropriate to show the photographs to the subjects, to

21 the witnesses; today it was being discussed again. Let me just

22 to clarify some points: is it true that the longer the time is

23 given to the witness to look at the photograph, the more time

24 the witness has or there is more risk that the witness may

25 reason or may attempt a logical deduction of his choice?

26 A. Well, I would say, starting from a certain period, a certain

27 presentation period is reasonable and beyond that I think you

28 would increase that risk. I would argue that maybe up to half a

Page 7735

1 minute per picture would be, say, within reasonable limits.

2 Beyond that, I think you would be asking for trouble.

3 Q. Thank you. Talking about time and looking at the picture, let

4 us move to a related matter, a live view, a live situation,

5 where a witness will see someone. Did you research anything on,

6 for example, the problem of a fleeting glance?

7 A. Fleeting glances.

8 MR. TIEGER: Your Honour, excuse me.

9 THE PRESIDING JUDGE: Excuse me, Dr. Wagenaar.

10 MR. TIEGER: That was not covered in cross-examination and is

11 certainly beyond the scope of this cross. We focused on

12 entirely different matters.

13 THE PRESIDING JUDGE: A live situation -- was that discussed in cross

14 and is it even present in this case, a live lineup?

15 MR. WLADIMIROFF: I am not referring to a live lineup, your Honour.

16 It seems to me a related question to how much time you need

17 to ----

18 THE PRESIDING JUDGE: Identify.

19 MR. WLADIMIROFF: --- identify, what would that be in live? That is

20 what I am trying to test here, is there any difference or what?

21 THE PRESIDING JUDGE: The objection is it goes beyond cross?

22 MR. WLADIMIROFF: It seems not to me, your Honour, because it has

23 been discussed the time of looking is relevant here. So I want

24 to explore whether there is any difference in time, whether you

25 look at the picture or look at the person in live.

26 MR. TIEGER: The questions were only directed to the question of how

27 long a presentation period there is for a witness viewing a

28 lineup. The doctor just answered that question.

Page 7736

1 THE PRESIDING JUDGE: I do not recall that Mr. Tieger asked any

2 questions on cross how long it would take in a live situation to

3 properly identify or recognise a person. That is the

4 objection.

5 MR. WLADIMIROFF: I understand that and it has not been asked by

6 Mr. Tieger. It seems to me it is a related question. It

7 relates to the same problem, how much time do you need to

8 identify, live or from a photograph?

9 THE PRESIDING JUDGE: He says that was not discussed.

10 MR. WLADIMIROFF: The time ----

11 THE PRESIDING JUDGE: These photographs.

12 MR. WLADIMIROFF: It has been discussed how much time would be needed

13 from a photograph.

14 (The learned Judges conferred)

15 MR. TIEGER: Your Honour -- I am sorry.

16 THE PRESIDING JUDGE: I will overrule the objection for the reason

17 that are our rules are very liberal. We admit all evidence that

18 is relevant, that has probative value, and we may exclude it if

19 it does not. Since we only have 10 rules of evidence, we really

20 do not have any rules that talk about extent of cross and going

21 beyond. We, though, applied them as the trial has gone on and

22 we apply them differently, I suppose, sometimes. But I will

23 overrule the objection. You may get into it, even though I do

24 not remember anything on cross that got into it. You say it is

25 related. Go ahead, Mr. Wladimiroff.

26 MR. WLADIMIROFF: Thank you, your Honour. (To the witness): You may

27 answer the question.

28 THE WITNESS: I think we should make a clear distinction between two

Page 7737

1 situations. One is the situation in which the witness saw

2 someone commit a crime or just saw someone, and that was the

3 first time that the witness sees this person. So it is the

4 first impression of a certain person. So that is not a

5 recognition because it is the first encounter. It is the sort

6 of imprinting the image of a person you did not know yet.

7 Fleeting glance, technically, usually is referring to

8 this situation, because if in that situation you see a person

9 for a very short period, you might not receive a good enough

10 impression of that person to be able to recognise that person

11 later. For instance, in British law fleeting glances during the

12 first encounter, sort of, rule out identification tests, because

13 the first impression cannot have been good enough.

14 I think your question refers to the second situation

15 where now the witness is asked to recognise a person, so that is

16 possibly the second encounter -- that is what you want to know,

17 is this the second encounter or not -- and recognition,

18 recognising a person whom you have encountered before can go

19 much quicker. It can be within the second that you say, "Ah,

20 ha, that is him". So, for a recognition, say, a very short

21 presentation should not rule out the acceptability of the

22 response of the witness. On the contrary, if the witness would

23 need a very long time you would say, "Ah, ha, but that cannot be

24 a recognition because recognitions usually go very quick".

25 So, the presentation time for the second situation,

26 the recognition situation, need not be very long, whereas for

27 the first situation you may require that it is reasonably long,

28 long enough to form a good impression of a person.

Page 7738

1 Now, if your question is how much time do you need for

2 a recognition, what is a reasonable presentation time, I think

3 I have to repeat my answer. Anything between zero seconds and

4 half a minute would be totally acceptable for recognition. If a

5 witness needs more than half a minute to recognise a person, you

6 may doubt whether that is a true recognition.

7 Q. Thank you.

8 A. But if a witness after two second says, "That's him", I would

9 say that is totally acceptable.

10 Q. Thank you. Another matter I want to clarify is the German

11 photospread that was shown to you yesterday. Again, to be

12 absolutely certain about this, would it be relevant if the four

13 witnesses you mentioned yesterday and today, the four witnesses

14 we all focused on, had been involved in a German photospread, in

15 this German photospread?

16 A. Yes, then, say, the photospread, the 13-person photospread that

17 was reported in the records, would be a repeated test, and it is

18 not certain any more why they recognise the face because they

19 have seen this person at the scene of the crime or in a previous

20 test. So that would be extremely relevant, yes.

21 Q. Thank you. You were also asked questions by the Prosecution

22 about the instruction. Am I right in thinking that it all comes

23 down to two issues, whether the instruction is open or whether

24 the instruction is more precisely formulated? I think you

25 mentioned that if you ask, "Do you recognise anyone?" you run

26 the risk that people will recognise more than one person, is

27 that correct?

28 A. Yes, or some -- simply it is even -- the risk is even bigger.

Page 7739

1 What if they try to recognise, say, a limited set of people that

2 they have in mind and do not realise that maybe someone out of

3 that, outside that set, could be present? Then they are not

4 even telling, maybe not even telling you that the one person you

5 are interested in is in the set. So you really run a risk on

6 all sides.

7 It might be that the witness is telling you far more

8 than you want to know and you cannot interpret it any more. It

9 is also possible that the witness is exactly not telling you

10 what you want to know, although the witness could easily have

11 done that and you just miss information.

12 Q. Theoretically, you might have two situations here. You start

13 with a test with the witness and then you interview the witness

14 or you start the interview with the witness and some way on the

15 road or at the end of the interview you run the test. Let us

16 focus on the first one. If the test was run freshly without a

17 previous interview, what would be the correct instruction to

18 tell the witness?

19 A. Well, it is very difficult then to give a correct instruction

20 because the correct instruction mentions, say, one particular

21 figure that needs to be identified. Also, it would be rather

22 difficult because, ideally, you would first ask the witness to

23 describe that person. In some conditions, you then have to stop

24 because you have to construct the test on the basis of that

25 description.

26 So, if the first thing that you want to do in the

27 encounter with the witness is use the photo test, then that

28 photo test would logically not be based on any descriptions that

Page 7740

1 the witness gave. So you are already in trouble.

2 No, the logical way of doing it is interview the

3 witness, asking the subject -- asking the witness to describe

4 the person, say, that might be present in the test, and then ask

5 the subject, "Well, this particular person that you described to

6 me, is he present in this photo parade or live parade or not?"

7 Q. What if the test was run and afterwards a description was asked?

8 A. Well, then you run a great risk. You first present the test.

9 It is possible that -- let me give you an example, a very simple

10 example. You have constructed a test. All foils really look

11 like -- look like the accused, so it seems to be an unbiased

12 test. But now the witness says, "Ah, but the person I saw had a

13 little scar just under the eyes", and if you look well you can

14 see the accused has that and the others have not.

15 Well, once the witness has that information but you

16 did not know because you first applied the test, it is, of

17 course, extremely easy for the witness to identify the one

18 person because that one person has the scar and the others have

19 not. In that sense, given that piece of information is not a

20 fair test any more. So you first want to know what is the

21 information that the witness already has, and can we find foils

22 that, sort of, show all these characteristics that were

23 presented by the witness?

24 Now, that might happen, so you run a great risk. It

25 might be all right because the witness is not giving you any

26 more details that now invalidate the test, but since you do not

27 want to run that risk, I would say, first, you ask for a

28 description, then you look at the test and say, "Would this test

Page 7741

1 be a fair test for this witness?" Then you go on.

2 Let me give you an example. We have had in

3 Netherlands the rather famous case of the killings in a

4 supermarket in Oosterbuk Albert Heijn supermarket. In

5 that case we had to construct, because the witnesses gave

6 different amounts of detail, different lineups for all subjects,

7 for all witnesses. There you simply could not use the same live

8 lineup for every witness. So, first, you have to ask their

9 descriptions, then you construct the lineups.

10 Q. Thank you. Would that mean that the records of the test should

11 place the test in sequence with the interview? So if we only

12 have the record of the test itself, should we also not know when

13 the test was run during or after the interview or at what stage

14 of the interview and when the description was given by the

15 witness, should that be indicated?

16 A. Yes, I think so.

17 Q. Thank you. You also testified this morning again about the

18 Belgrade experiment. Why did you run that experiment? Was that

19 on the request of the Defence?

20 A. No, I just ran it -- I informed both Prosecution and the Defence

21 that I was worried about this detail and that I would try to run

22 an experiment on this, just to be sure about this detail, but we

23 run it on our own initiative. No one requested it.

24 Q. You testified also that the subjects with whom you ran the test

25 were students from the Belgrade University, is that right?

26 A. That is correct, yes.

27 Q. Do you know their ethnic descent?

28 A. In fact, we do, because since we were there we ran some more

Page 7742

1 experiments with them and for those other experiments we had to

2 know. We left it open for them because if they refused to

3 indicate or they did not feel any ethnic belonging, they could

4 also indicate that, but most of them indicated their ethnic

5 descent, yes.

6 Q. Can you tell us about that?

7 A. I could, if I would inspect the data, but I have not the data

8 with me and I do not feel certain enough to -- but there was

9 some spread of ethnic background there, yes.

10 Q. Thank you. We discussed yesterday (and it has been indicated

11 today again) the ethnicity of the foils. What if the foils were

12 not from the former Yugoslavia, would that be relevant for the

13 test you ran in Belgrade?

14 A. Yes, I think if they were -- if none of them was from the former

15 Republic, then there is a second explanation why they could not

16 classify them and that explanation would not be like the first,

17 that simply there is no difference or it cannot be perceived,

18 but it was a meaningless task because they simply do not belong

19 in those categories.

20 So, it would be important to know that, I would say,

21 the majority of them, or the large majority of them, really came

22 from the ethnic Republic, and if then they still cannot classify

23 them, that means that, say, that faculty, that ability, does not

24 exist.

25 Q. The majority or a large majority out of 13 would mean six,

26 seven, eight, something like that?

27 A. Yes, I would say, eight or nine out of Yugoslavia.

28 Q. If not, the Belgrade experiment may be explained in a different

Page 7743

1 way?

2 A. Yes, and is, in fact, quite meaningless.

3 Q. Focusing on the four again, the Judges put some questions to you

4 and following the line of questioning I have some questions on

5 that issue too. Say just for the sake of the argument that

6 those four have lied about their not knowing Dusko Tadic

7 before. If that could be established or if the Judges do not

8 believe that they told the truth about that, would that have any

9 influence on the outcome?

10 MR. TIEGER: Your Honour, I mean, that is not a proper question for

11 almost any witness I can conceive of, but certainly not for this

12 witness in his capacity.

13 MR. WLADIMIROFF: It seems to me ----

14 THE PRESIDING JUDGE: I think if you rephrase the question to ask him

15 what effect would it have on the validity of the test if they

16 had not told the truth about not knowing him, that is a better

17 way to put it.

18 MR. WLADIMIROFF: Thank you very much.

19 THE PRESIDING JUDGE: Rather than getting into our province. So

20 I will overrule the objection, Mr. Tieger, or do you think that

21 is still objectionable? You are free to object to anything

22 I say. I am sure you lawyers do when we are not around!

23 MR. TIEGER: The Doctor has commented at length about the factors

24 which he considers to be significant or not in assessing the

25 reliability of a test. Now to go back over the same ground in

26 the context of characterisations of a witness's testimony seems

27 to me to be inappropriate.

28 THE PRESIDING JUDGE: You spent a lot of time on cross talking about

Page 7744

1 the four, as a matter of fact most of time on direct and cross

2 has been on the four. I will overrule your objection. Again,

3 try not to invade the province of Judges. Try to get this

4 witness to focus on the validity of the tests and whether they

5 have been conducted according to acceptable, professional

6 standards. That is really his help for us.

7 MR. WLADIMIROFF: Thank you, your Honour. I do adopt the way you

8 have phrased it. It is my bad command of the language I could

9 not do that right away, but I may pass the question to the

10 witness if he wants to answer that.

11 A. If the four witnesses knew Mr. Tadic before the war, that places

12 them in the other group. First of all, there is nothing wrong

13 with the test, but the impact of the test changes now because

14 their identification can do nothing else but confirm that they

15 know him. It does not place him any longer logically in the

16 camp. But there is nothing wrong with having performed those

17 tests on those people. It is only the implication of it that

18 changes.

19 Q. Is it relevant to consider that they might not be aware of

20 knowing him before, thinking they tell the truth about that?

21 A. Oh, it is possible that you honestly believe never to have met a

22 certain person while in fact you have met him.

23 Q. You mean live, in person?

24 A. It could be a live encounter. It could be you have seen a

25 picture of this person on television or in a newspaper or

26 wherever. For instance, maybe it has happened to you that you

27 are looking at, say, a film or a movie on television and it

28 takes you half an hour to realise you have seen this movie

Page 7745

1 before. You were not aware of it then and suddenly something

2 happens and you say, ah, but I have seen this before. So it is

3 quite possible that you have seen something, someone and you are

4 not aware of it. The question whether that unconscious

5 knowledge would help you to identify and you still honestly

6 believe that you identify him for another reason, that is a very

7 difficult question. But that again cannot be excluded. It is a

8 risk.

9 Q. Does the test eliminate that risk?

10 A. No, the test does not logically eliminate that risk. If a

11 person has had a previous encounter but does not know about it

12 or at least does not tell you about it, there is no way to

13 eliminate that possibility through a test.

14 Q. Thank you. They told us they knew him before, they did not know

15 him before, those four did not know him before, and they

16 identified him through the test, and I leave aside whether this

17 test was run properly or not. The mere fact that they

18 recognised him, does that mean automatically and logically and

19 exclusively that they have seen him at the place of the crime?

20 Could it be the case that they might have seen him elsewhere and

21 therefore recognise him?

22 A. You have to establish that can be excluded within all

23 reasonability, I would say, because at the end of course there

24 is nothing you can establish for certain.

25 Q. Does that mean that the test itself ----

26 A. But I would say the more witnesses you have who recognise him,

27 the more unlikely that explanation will be because now you have

28 to assume that that is the case for all of them.

Page 7746

1 Q. But that means ----

2 A. So the reason for having more witnesses is to sort of exclude

3 all those small things that cannot really be excluded on the

4 basis of logic or evidence, but by increasing the number of

5 witnesses, and I would say four is a reasonable number, now you

6 would have to assume that all four have seem him and lied about

7 it or all four have seen him and do not realise it.

8 Q. If all talk about the same event?

9 A. No, they all talk about having seen him in Omarska, that is the

10 thing you want to establish through the test.

11 Q. Right.

12 A. Only that, have they seen him in Omarska or not. It does not

13 matter what they saw him do in Omarska, that might be different,

14 but what they say is, "We saw him in Omarska" and if they did

15 they must be able to identify him now. So it does not matter

16 which event.

17 Q. The test itself, am I right in thinking when I say that the test

18 itself does not exclusively place Mr. Tadic in the camp? You

19 need more to establish that?

20 A. Well, you need -- but those are the 50 preconditions that I have

21 listed. Once you violate these conditions you have difficulty

22 of interpretation. It does not necessarily invalidate the

23 test. It becomes now more difficult to interpret for the Court

24 what the identifications mean.

25 Q. Right.

26 A. Say, having met him before the war is one of those

27 preconditions. I even think it is number one that I have

28 listed.

Page 7747

1 Q. Coming to these rules, they might have emerged from laboratory

2 tests and have been tested in reality. Are those rules adopted

3 anywhere in legal practice?

4 A. Yes, there are variations from one country to the other.

5 I think the United Kingdom is the most strict, after a number of

6 identification disasters I must say, more strict in the adopted

7 rules. I think your colleagues could explain to you in more

8 detail what the rule in their country is. In the United States,

9 but I think the President can tell more about it, I think the

10 rules vary from one State to the other slightly. In the

11 Netherlands there is a code, some sort of code adopted on the

12 basis of what is called de Recherche Advies Commissie, investigatory,

13 advisory committee, who have adopted a very good strict set of

14 rules that is used as, say, a guideline to the Court of what is

15 to be expected from investigators.

16 Q. Are the rules you have formulated in your book we have been

17 talking about yesterday and today reflecting the same issues,

18 the same procedures, the same ----

19 A. Yes.

20 Q. --- concerns to avoid ----

21 A. Yes, they are. I was a member of that committee when these

22 rules were formulated.

23 MR. WLADIMIROFF: Thank you. That is all I ask.

24 THE PRESIDING JUDGE: Mr. Tieger, any recross?

25 Further Cross-examined by MR. TIEGER.

26 Q. Doctor, the issues about which your formulated rules are

27 concerned are issues of identification and reliability and so

28 on. So when you say that the countries you mentioned which have

Page 7748

1 adopted certain guidelines or rules for the conduct of

2 investigations reflect the same issues, does that mean that any

3 country has adopted your 50 rules wholesale?

4 A. No, I do not think so.

5 Q. Various countries have in one form or another addressed

6 themselves to the same issues in various ways?

7 A. Yes, and even before I formulated my rules, of course. Almost

8 nothing is original in the rules I have stated.

9 MR. TIEGER: That is all. Thank you.

10 THE PRESIDING JUDGE: Mr. Wladimiroff?

11 MR. WLADIMIROFF: Nothing arises, your Honour.

12 Examined by the Court.

13 JUDGE STEPHEN: Professor, I wanted to ask you something quite

14 different and a preliminary question. Am I right in thinking

15 that you are expert in the question of human memory?

16 A. Yes, you are correct. That is my general field, yes.

17 Q. I wonder if you can help me in relation both to facial hair and

18 also to uniforms. If you have a situation in which a person, we

19 will call him a witness, sees someone and at the time he sees

20 him there is of course no question of his having some years

21 later to give evidence, how likely is it that that person will

22 three or four years later recall whether a man possessed or did

23 not possess at the time (A) a beard and (B) a moustache?

24 I segregate them because it seems to me, with due respect to

25 yourself, that a moustache is less obvious than a beard? Have

26 you any views on that as an expert?

27 A. Yes, I have, your Honour. I have done research on moustaches

28 and it depends sometimes on the moustache. Some well-known

Page 7749

1 people have moustaches that are not being remembered and others

2 have moustaches that you simply cannot miss. But the general

3 experience is that if -- and we have run an experiment with one

4 of my colleagues in law and psychology who has a moustache who

5 was presenting a course for 10 weeks, two hours a week and at

6 the end of the course we asked the students to describe

7 professor so and so. His moustache was missed quite a few

8 times, whereas I would say I found that always a quite

9 remarkable moustache. So that happens. There is nothing to

10 worry about and you definitely cannot conclude if a witness does

11 not describe a moustache or says "I cannot remember a moustache"

12 that the witness has never encountered this person. It is quite

13 possible. It is also the reasoning why in my letter to

14 Mr. Wladimiroff I said do not worry too much about the facial

15 hair issue; it is probably a very misleading issue.

16 Q. Then imagine a country in which very many people are wearing

17 uniforms. Again, a person sees a man and some years later is

18 asked to describe what he was wearing. How likely is it that

19 the witness would know whether or not, remember whether or not

20 the person was wearing civilian clothes or a uniform?

21 A. Unfortunately, we have a lot of knowledge about that on the

22 basis of records from the former German concentration camps and

23 extermination camps, and the reports that people gave about

24 uniforms not about, say, uniforms they have seen, but who was

25 wearing what uniform, are not so very reliable. Again, it does

26 not mean if the witness describes a person with a uniform he

27 could never have had, that still does not mean that the witness

28 has not seen this person. It only means that the witness has

Page 7750

1 seen this person, also has seen this uniform and now sort of

2 transposes the uniform from one person to another person. We

3 know from experience, as I said, that that might easily happen

4 and there is no doubt whatsoever that those witnesses have been

5 in those camps.

6 JUDGE STEPHEN: Thank you.

7 THE PRESIDING JUDGE: Mr. Wladimiroff?

8 MR. WLADIMIROFF: There is just one matter that arises your Honour.

9 Re-Examined by MR. WLADIMIROFF.

10 Q. Professor, do people memorise, remember colours if they remember

11 a person?

12 A. Are you referring to colours of clothing?

13 Q. Yes.

14 A. Yes, that is very well possible. If you are asking about the

15 nature of a memory, is a memory a picture and a coloured

16 picture, that is a far more difficult question because you can

17 remember if you have, if the memory is in fact some sort of A

18 verbal description, that verbal description could still, say,

19 contain a description of colours, but if you ask can people

20 reproduce the colours they have seen in their oral testimony,,

21 the answer is, yes, they can.

22 Q. If we deal with uniforms, not one colour uniforms but

23 multi-colour uniforms ----

24 A. Like camouflage uniforms?

25 Q. Yes. Will people remember the components of such a uniform or

26 would they remember the image as a total one colour or a mirage

27 of colours?

28 A. The most likely thing to happen is they remember, say, a

Page 7751

1 camouflage uniform because you can remember that as a word, you

2 do not have to remember the colour. It is rather more likely if

3 you would ask what colours, that they might refer to a

4 camouflage uniform they have seen recently and come up with

5 those colours instead of the colours they really have seen. So,

6 I would be hesitant to ask such a question and I would not

7 attach very much weight to the answer. I would say the

8 camouflage uniform instead of a beautiful parade uniform. So

9 I would say that is very significant, but I would not ask for

10 specifications of what kind of camouflage uniform because there

11 is a lot of confusion possible there.

12 MR. WLADIMIROFF: Thank you. That is all I ask.

13 THE PRESIDING JUDGE: Mr. Tieger?

14 MR. TIEGER: No, thank you.

15 THE PRESIDING JUDGE: Is there any objection to Professor Wagenaar

16 being permanently excused?

17 MR. WLADIMIROFF: We may want to recall Professor Wagenaar, your

18 Honour. We do not want to release him on our side because if

19 the Prosecution is going to produce additional material, as

20 seems to be the case, then we want to recall Professor Wagenaar

21 again. It may also be technically in rebut to the rebuttal, but

22 that is a matter for the Court to decide.

23 THE PRESIDING JUDGE: At some point we have to end. I was going to

24 look at the Rules.

25 MR. WLADIMIROFF: I am just announcing that.

26 THE PRESIDING JUDGE: Without in any way suggesting we can go back

27 and forth forever, Dr. Wagenaar, you are free to leave now.

28 However, you may be recalled as a witness to testify. So please

Page 7752

1 make yourself available, but you are now excused. Thank you

2 very much for coming.

3 THE WITNESS: Thank you, your Honour.

4 THE PRESIDING JUDGE: Mr. Wladimiroff or Mr. Kay would you call your

5 next witness, please?

6 MR. KAY: Your Honour, might we adjourn for lunch early today and

7 perhaps resume before half past two? The two witnesses called

8 earlier this week in closed session will be required by the

9 Defence to be recalled so that your Honours can hear further

10 evidence. They are due to go back later on today. So it is

11 important that we try to locate them. We know where they have

12 been taken to but they are not immediately available.

13 THE PRESIDING JUDGE: Mr. Niemann?

14 MR. NIEMANN: Yes, your Honour, I have no objection to that, but

15 there is a matter that I would like to mention in closed session

16 and we could use the next 10 or 15 minutes for that.

17 THE PRESIDING JUDGE: That is a very good idea, because I have a

18 schedule appointment and will not return until 2.15. So we

19 could not begin earlier because we plan on recessing from 1.00

20 until 2.30. So we will then use this time for you, Mr. Niemann,

21 and we will go into closed session. So we will stand in recess

22 for five minutes to go into closed session.

23 (12.45 p.m.)

24 (The Court adjourned for a short time).

25 (12.50 a.m.)

26

27

28

Page 7753

1 (Closed Session)

2

3

4

5

6

7

8

9

10

11

12

13 pages 7753-7757 redacted closed session

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Page 7758

1 (The Court adjourned for a short time)

2 (Open Session)

3 (2.50 p.m.)

4 MR. NIEMANN: Perhaps, your Honours, it may be appropriate for me to

5 renew in open session an application that I made to your Honours

6 just immediately prior to the luncheon adjournment. As your

7 Honours are aware, in the course of these proceedings the

8 Prosecution called a witness who was given the pseudonym

9 "Witness L" and who gave evidence in camera relevant to certain

10 allegations contained in the indictment but, in more particular,

11 in relation to paragraph 4.3 of the indictment.

12 THE PRESIDING JUDGE: Of count 1?

13 MR. NIEMANN: Of count 1, your Honours. I have previously handed to

14 your Honours a copy of the indictment where I have indicated the

15 allegations that I think are relevant to the testimony of this

16 witness, your Honours. Your Honours, over the period of the

17 past couple of weeks following evidence that was called by the

18 Defence in this case, the Prosecution has carried out an

19 investigation into Witness L and into certain matters relevant

20 to him and to his testimony.

21 Your Honours, as a consequence of those

22 investigations, the Prosecution now feels that it can no longer

23 support that witness as a witness of truth. We invite the

24 Chamber to disregard his evidence entirely. We, in so doing,

25 acknowledge, your Honours, that in relation to the allegations

26 brought forward by this witness in his testimony that they are

27 no longer standing and, as a consequence of that, in relation to

28 those matters the accused has no case to answer and we invite

Page 7759

1 your Honours to rule accordingly.

2 In addition to that, your Honours, we have had certain

3 discussions with the Defence and it seems appropriate, your

4 Honours, that the Prosecution call a witness who can give

5 further details relevant to certain things that were said by

6 this witness, in particular, in a conversation between this

7 witness and members of his family.

8 With your Honours' leave, I will call investigator

9 Robert Reid from the Office of the Prosecutor who can relate to

10 the Court the circumstances that brought the Prosecution to this

11 position. I now do so, your Honours.

12 THE PRESIDING JUDGE: Mr. Kay, does that accurately reflect the

13 agreement that you have reached?

14 MR. KAY: That is right, your Honour. I am grateful to my learned

15 friend for dealing with this matter so promptly at this stage of

16 the trial.

17 THE PRESIDING JUDGE: Very good. Thank you. Would you call in

18 Mr. Reid, please?

19 MR. NIEMANN: If your Honours, please?

20 MR. ROBERT WILLIAM REID, called.

21 Examined by MR. NIEMANN.

22 THE PRESIDING JUDGE: Mr. Reid, would you please take the oath that

23 has been handed to you?

24 THE WITNESS: I solemnly declare that I will speak the truth, the

25 whole truth and nothing but the truth.

26 (The witness was sworn)

27 THE PRESIDING JUDGE: Fine. Thank you. You may be seated.

28 THE WITNESS: Thank you, your Honour.

Page 7760

1 MR. NIEMANN: Investigator Reid, I think you have previously

2 testified before the Tribunal ----

3 A. Yes.

4 Q. --- in relation to these proceedings?

5 A. Yes.

6 Q. Your full name is Robert William Reid and you are an

7 investigator with the Office of the Prosecutor?

8 A. Correct.

9 Q. You are also the lead investigator in relation to the case of

10 Dusko Tadic ----

11 A. That is correct.

12 Q. --- in these proceedings?

13 A. Yes.

14 Q. Yesterday afternoon were you approached and requested to arrange

15 a meeting here at the Tribunal between certain parties?

16 A. Yes, I was.

17 Q. Who were the parties that you were requested to arrange this

18 meeting with?

19 A. Between the witness, (redacted), a gentleman by the name of

20 Janko Opacic and a gentleman by the name of Pero Opacic.

21 Q. The witness (redacted), have you known him under a pseudonym,

22 pseudonym "L", up until this stage?

23 A. Yes, that is correct.

24 Q. Did you then proceed to arrange this meeting?

25 A. Yes.

26 Q. Where was the meeting to take place?

27 A. To take place in the Prosecution room on this floor.

28 Q. The witness (redacted), where is he being held at the moment?

Page 7761

1 A. (redacted)

2 (redacted).

3 Q. What arrangements did you then put in place in relation to this

4 meeting?

5 A. I spoke with the secretary, I think, to the Deputy Registrar for

6 a travel order to be struck for him to be brought to the

7 Tribunal this morning at 10 a.m. which occurred.

8 Q. Did you also have a conversation with a representative of the

9 Defence in relation to their attendance at this meeting?

10 A. I had a conversation with the Defence this morning in relation

11 to where the interview would take place, yes.

12 Q. Can you describe the circumstances of the interview, from best

13 you can remember?

14 A. Yes, I have made a statement in relation to this and if I can

15 refer to that?

16 MR. NIEMANN: Might I seek the leave the Court for Investigator Reid

17 to refer to it, if necessary?

18 THE PRESIDING JUDGE: Yes. Do you have a copy of it, Mr. Kay?

19 MR. KAY: I do and there is no objection. It is a contemporaneous

20 note.

21 THE WITNESS: Basically, what occurred this morning was at about 10

22 past 10 I met with Mr. Janko Opacic and Mr. Pero Opacic in the

23 office of the Victims and Witnesses Unit. I then went with them

24 and an interpreter to the interview room here and at that time

25 I was accompanied by Miss de Bertodano from the Defence and

26 Mr. Petrovic who, I believe, is the investigator for the

27 Defence.

28 We walked into the room where (redacted) was seated

Page 7762

1 and I said to him that I had two persons that I would like him

2 to meet. Janko and Pero Opacic followed me straight into the

3 room. I then asked if he know either of these two persons and

4 he stated that he did not. I then asked Mr. Janko Opacic

5 whether he recognised (redacted) and he said, "Yes, that is

6 (redacted)", and then I asked Pero Opacic whether he could identify

7 (redacted) and he said, "Yes, that (redacted)".

8 Q. So at this stage (redacted) still denied that these two

9 gentlemen that you had with you were his father and brother,

10 respectively?

11 A. Yes, that is correct.

12 Q. What happened then?

13 A. We then left the room, and I had a quite short conversation with

14 Janko and Pero Opacic. I then entered the room again and I had

15 a conversation with (redacted).

16 Q. Can you relate that conversation you had?

17 A. It was basically that I believed that Janko Opacic was

18 (redacted)and I also believed that Pero Opacic was (redacted), and

19 then outlined a number of investigations that I have carried out

20 during the past two weeks which led me to that conclusion. I

21 said that I was 99 per cent certain that I was correct, that

22 they were (redacted), and that I would

23 be 100 per cent certain on Monday or Tuesday when blood sampling

24 comes back.

25 Q. What did he say to you?

26 A. He still denied -- he said, "(redacted). I do not

27 know why you are bringing people before me. You are endangering

28 me", but continued to deny that they were any part of (redacted)

Page 7763

1 (redacted).

2 Q. What did you then do?

3 A. I then went and I spoke with Miss de Bertodano for a short time,

4 and then I had a conversation with Janko and Pero Opacic in the

5 presence of Miss de Bertodano. There were two things that were

6 worrying me. One was that he would not admit it in front of me

7 or, secondly, there was something that was in his mind that had

8 blocked it out totally.

9 So we decided that the best thing would be to just

10 confront them together, sitting in the room together where they

11 could just sit quietly, the three people, Janko Opacic, Pero

12 Opacic and (redacted). That removed me from the room, but

13 if it was something that was blanked out in his mind, I asked

14 Pero Opacic if he could just talk to him and, perhaps, stimulate

15 something in his mind, to say something that he may remember

16 that only those two had done, perhaps a football game, perhaps a

17 birthday party or something that may stimulate something. That

18 was done.

19 After some time, I think probably 20 to 25 minutes,

20 I went back into the room with the interpreter and I said, "Has

21 anything been resolved?" or words that effect, "Has anything

22 been resolved?" and he said, "Yes, this is (redacted)". He

23 said, "Yes, (redacted), Janko Opacic, and (redacted)

24 (redacted) Pero".

25 Q. What did he say to you then after he told you this?

26 A. Well, at that time I went and got Miss de Bertodano and

27 Mr. Petrovic. They came back to the room with me and I

28 confirmed that again in their presence and then we all left the

Page 7764

1 room.

2 Q. What was the next thing to occur?

3 A. I then went back to the room with the interpreter at about

4 12.30 p.m. and I again had a conversation with (redacted).

5 The first thing I asked him was why he had lied about the death

6 of (redacted), and why he refused to acknowledge photographs

7 that were put to him in the Court as (redacted). He apologised

8 and he told me that he had something to tell me.

9 He then stated he had been set up by the "Bosnians".

10 He said that after he had been captured -- when he was captured

11 in about November 1994 he was shot. He was captured as a member of

12 the Serb Army and at that time he was interviewed by the

13 military, and he had been beaten by the interrogators.

14 Q. Did you understand what he meant by the "Bosnians"?

15 A. By the Bosnian government authorities, and at that time

16 I believe it would be, my understanding is that it is the

17 Bosnian government military, the army of the Bosnian -- Republic

18 of Bosnia-Herzegovina.

19 Q. Thank you. Go on.

20 A. He stated that he was told that he had been in the camp by the

21 interrogators, and that he did, in fact, know Dusko Tadic,

22 I then asked him if he, in fact, did know Tadic and he stated

23 that the first time he had seen Tadic was on a video shown to

24 him (redacted). I understand that to be when he was

25 transferred from military custody into civilian police custody.

26 Q. He did not indicate to you who showed him this video?

27 A. No, he has indicated a certain person whose name I cannot

28 recollect at the moment, but I do have in some records and I am

Page 7765

1 attempting to find that out now.

2 Q. Go on.

3 A. He said that after his initial interview by the military, he was

4 transferred (redacted) where he spoke with police interrogators

5 for seven hours a day for about one month. The purpose of these

6 conversations was to train Witness L -- (redacted), I am

7 sorry, to give evidence against Dusko Tadic.

8 The training took the form of watching videos of

9 Mr. Tadic and watching videos of the Trnopolje camp. He said

10 that after that training was complete, he then took part in the

11 taking of a statement that was signed by him.

12 I then asked him was he actually a guard at the camp

13 and he told me that he never was. I asked him how he knew the

14 layout of the camp and the surrounding areas so well. He stated

15 that he used to play football with his friends, and sometimes

16 (redacted) (when (redacted) was not at the front fighting in the war)

17 within the grounds of the camp. He also stated that he used to

18 pass the camp on occasions and saw detainees within the camp.

19 I then asked him why he had pleaded guilty to

20 something that he had never done. He stated that he had been

21 threatened that if he did not co-operate with the Bosnian

22 authorities he would be executed, and I took this to mean that

23 he would be murdered as opposed to an execution by a lawful

24 court order.

25 I then asked him about the identification of (redacted)

26 (redacted) that he related to the Bosnian

27 authorities, and he stated that they had told him that (redacted)

28 (redacted) had worked with him in the camp, and once he had got that

Page 7766

1 knowledge, to protect (redacted), he told them that (redacted)

2 was dead.

3 Q. In relation to these matters that have just come to light, have

4 you had an opportunity to do any further investigations?

5 A. No, not at this stage, not as a result of what has occurred

6 today, no.

7 MR. NIEMANN: No further questions of the witness, your Honour.

8 THE PRESIDING JUDGE: Mr. Kay?

9 Cross-examined by MR. KAY

10 Q. Just one matter and that is if you can help me with this matter,

11 Mr. Reid? Do you know how it was that Witness L, (redacted),

12 came about to become a witness in these proceedings?

13 A. Yes, the Tribunal was contacted, or the investigation section at

14 the Office of the Prosecutor was contacted, I think, in March

15 1995 that there was a potential witness in relation to the trial

16 of Mr. Tadic. I travelled (redacted), I think, in April 1995

17 and had an initial interview with him.

18 Q. Which body or organisation provided the contact with this

19 witness?

20 A. It is the investigation department of the Bosnian government,

21 the police investigation department.

22 MR. KAY: Thank you very much. That is all I ask.

23 THE PRESIDING JUDGE: Mr. Niemann, do you have additional questions?

24 MR. NIEMANN: I have nothing further, your Honour.

25 THE PRESIDING JUDGE: Is there any objection to Mr. Reid being

26 permanently excused? I ask that question each time and, of

27 course, Mr. Reid is with the Prosecutor's Office, but it has

28 become routine.

Page 7767

1 MR. KAY: I think, as the officer in the case, he will probably be

2 staying with it anyway, your Honour, so I am not sure anyone

3 really wants him released.

4 THE PRESIDING JUDGE: Very good. Then you will around, will you not,

5 Mr. Reid ----

6 A. I will your Honour, yes.

7 Q. --- until we finish the case, in case you are asked to return to

8 give testimony by counsel or by the Trial Chamber?

9 A. Yes.

10 THE PRESIDING JUDGE: So you are now excused. Thank you very much

11 for coming.

12 (The witness withdrew)

13 THE PRESIDING JUDGE: Mr. Kay, would you call your next witness,

14 please?

15 MR. KAY: Your Honour, we call the accused Dusko Tadic.

16 MR. DUSKO TADIC, called.

17 Examined by MR. KAY.

18 THE PRESIDING JUDGE: Sir, would you please take the oath that is

19 being handed to you?

20 THE WITNESS [In translation]: I solemnly declare that I will speak

21 the truth, the whole truth and nothing but the truth.

22 (The witness was sworn)

23 THE PRESIDING JUDGE: Very good. Thank you. You may be seated.

24 Mr. Kay, you may begin.

25 MR. KAY: Thank you, your Honour.

26 Q. Can you give the Court your full name, please?

27 A. Dusko Tadic.

28 Q. What is your date of birth?

Page 7768

1 A. October 1st 1955 in Kozarac.

2 Q. Is your father or was your father called Ostoja Tadic?

3 A. Yes.

4 Q. What is your mother's name?

5 A. My mother's name is Staka.

6 Q. Do you have brothers Mladen, Stojan and Ljubo?

7 A. Yes.

8 Q. Is it right that your brother Ljubo gave evidence in these

9 proceedings recently?

10 A. Yes, his real name is Ljubomir.

11 Q. Thank you. Were you brought up in Kozarac and was that the

12 place of your family home?

13 A. Yes, I was born in Kozarac, like my other brothers, and that is

14 where I lived.

15 Q. Can you tell us what your education was? Were you educated in

16 the local school?

17 A. Yes, I completed elementary school in Kozarac, like all my other

18 brothers. After elementary school, I continued my education in

19 Belgrade where I completed my secondary schooling.

20 Q. Do you have any academic or other qualifications for trades?

21 A. Yes, I completed secondary school for TV mechanics in Belgrade,

22 a technical school.

23 Q. When you left school what was your first job?

24 A. I first started working in Cajavec, the company Cajavec, in

25 Banja Luka. That was at the beginning of 1981, I think.

26 Q. Is that an electrical company?

27 A. Yes, it is an electrical company, a well-known firm

28 manufacturing TV sets. I think it is the only such factory in

Page 7769

1 Bosnia-Herzegovina.

2 Q. For how long did you work there?

3 A. I worked until 1984 or '85.

4 Q. What was your next job, having finished work at that factory?

5 A. My next job was private business. Around 1987 I opened a

6 private company in Croatia in the town of Sisak, and I worked

7 with that firm until 1989, in various parts of Yugoslavia, but

8 it was registered in Sisak.

9 Q. Did you have a partner in that business?

10 A. Yes, my partner was my long-standing friend, Solkonovic Fikret,

11 and while we were working in the territory of Croatia and

12 Slovenia, and afterwards another friend joined us from Kozarac,

13 but he was not an official partner.

14 Q. In between those last two jobs you have told us about, did you

15 work in Libya or did you go to Libya and stay there for some

16 time?

17 A. Yes, I think this was in '85 or '86. Actually, I spent up to

18 six or seven months there.

19 Q. What was the reason for going to Libya?

20 A. The main reasons were economic problems in former Yugoslavia.

21 Life was getting difficult. Some people were doing well, but we

22 always wanted to do better.

23 Q. Did you get any work in Libya?

24 A. No, my wife got a job as a nurse, so I left with my daughter.

25 I hoped to get a job but that did not happen.

26 Q. You have told us about your wife. When were you married?

27 A. I was married in 1979, but officially we were not married. Only

28 after our first daughter was born we actually got married.

Page 7770

1 Q. How many children did you have within that marriage?

2 A. My oldest daughter is called Valentina. She was born on 11th

3 April, 1981. The younger daughter's name is Aleksandra,

4 4th March 1989 is her date of birth. The older one was born in

5 Banja Luka and the younger one in Prijedor.

6 Q. Did there come a stage when you and your wife went through

7 divorce procedures?

8 A. Yes, upon our return from Libya we agreed to divorce and we did,

9 me and my wife, and this lasted for quite some time. Actually,

10 we never got officially remarried again, but this was something

11 that never really concerned us. We did not care much about it,

12 the actual official marriage or divorce but when we lived

13 together.

14 Q. What was the reason for having that divorce?

15 A. As I said, from the first day I wanted to go abroad and upon

16 return from Libya I did not have a job. We had no livelihood

17 from friends from -- some friends from Switzerland promised to

18 find a job for us and that it would be much easier if we were

19 divorced. First of all, my wife is a nurse, a medical nurse,

20 and for medical staff it was quite easy to find jobs abroad if

21 they were divorced, and that is the only reason for our divorce.

22 Q. So was your wife trying to find employment abroad that would

23 have been easier for her to obtain if she did not have

24 officially a husband?

25 A. Yes, yes, that was just the -- you had to provide a document

26 certifying that you were not married.

27 Q. Throughout your marriage has that been the main occupation of

28 your wife, working as a nurse?

Page 7771

1 A. Yes, she graduated secondary medical school, I think it was

2 called Maglajic in Banja Luka, and she worked in that profession

3 all her life.

4 Q. Did she work in hospitals around Kozarac? Can you tell us which

5 hospitals she worked in?

6 A. From 1980 she worked in Kozarac. At that time she had -- the

7 place where she was working was a health centre, though it

8 belonged administratively to the Prijedor hospital. She worked

9 in Kozarac, then for a time after that in an outpost in the

10 village of Kozarusa, and occasionally she would work at the

11 outpatients clinic in Trnopolje. Then for a time she would be a

12 visiting nurse on the territory of Kozarac. These were mostly

13 the jobs she had until she left Kozarac in April 1992.

14 Q. At some stage after April 1992 did she resume her nursing work

15 in Prijedor?

16 A. Yes, she started working. I think it was August 1992. She also

17 worked in the Prijedor health centre. It is, so to speak, the

18 same institution only located in Prijedor because there was no

19 such post any more in Kozarac.

20 Q. We have heard about your family. Were you a close family, a

21 family that had good relations amongst you, sons, with your

22 parents?

23 A. Mostly, yes. Nothing special, there is nothing special to be

24 said about that. When we were younger, of course, we were

25 extremely close but as we grew up, since there was a

26 considerable difference between me and my eldest brother -- my

27 eldest brother is nine years older than me -- we were not so

28 close because of this large difference. As we grew up and were

Page 7772

1 ready for secondary school, some went on to higher schools.

2 Most of my brothers left Kozarac for their education. Then they

3 went to Banja Luka, Belgrade, and so on.

4 Q. We have heard that your eldest brother, Stojan, travelled around

5 the former Yugoslavia and was in business, is that right?

6 A. Yes, for a time he worked in Banja Luka in an enterprise called

7 Veletekstil and afterwards as a travelling salesman for the same

8 firm, and several years before the war broke out in

9 Bosnia-Herzegovina he worked as a travelling salesman for his

10 own firm. He had some partners but I do not know them.

11 Q. Is it right that he was unable to continue in business as

12 relationships between the states of the former Yugoslavia

13 deteriorated?

14 A. Yes.

15 Q. The second son, your brother Mladen, is it right that he went to

16 work and live in Germany?

17 A. Yes.

18 Q. When was that?

19 A. I think he left in 1973 or '74. He went to Munich and there he

20 worked in the Siemens company. After that he worked in several

21 private companies. All this went on until, I think, March of

22 1994.

23 Q. Did your brother Mladen keep up close contacts with the family

24 in Kozarac? Did he visit them frequently or infrequently?

25 A. Yes, he came very frequently. From the first day he left for

26 Germany, already after a year or a half, he would say that he

27 would be coming back next year and this went on for 25 years.

28 All people who went to Germany went in the belief that they

Page 7773

1 would come back in two years time. He was very tied to our

2 place.

3 Q. The third son and your other brother, Ljubomir, is it right that

4 he went to live and work in Banja Luka?

5 A. Yes. When Mladen left for Germany -- I think this was in '73

6 or '74 -- he went to Banja Luka where our older brother had

7 lived there before. He lived with him for a time. At the

8 time -- at the same time he engaged in karate coaching.

9 Afterwards he got a job in Cajavec and so on.

10 Q. We have heard that three of the sons of the Tadic family,

11 Ljubomir, Mladen and yourself, have all been karate experts with

12 black belt and having the fifth, fourth and third dan as grades

13 amongst you, is that right?

14 A. The titles in karate are right, but to call us "experts",

15 I think that is rather a broad term and perhaps it would be

16 suited to Mladen who lived in a large west European centre. To

17 a part, it could apply to Ljubomir who was among the more

18 well-known competitors and coaches, but it could not be said of

19 me, least of all of me, because I sort of went with them, but

20 I did not have any special merits in that field.

21 Q. Did you coach karate within Kozarac?

22 A. Yes, I was an amateur coach of a club which was founded in 1981

23 in Kozarac based in the Kozarac elementary school. When I had

24 time, I would conduct the coaching, but I was linked more to the

25 Borac karate club in Banja Luka because in Kozarac I was working

26 mainly with children aged seven to 12 mostly. There were no

27 older members of the club.

28 Q. We heard from your brother, Ljubomir, that his club in Banja

Page 7774

1 Luka was the Borac club. Was that a rather bigger scale karate

2 club than what you were running in Kozarac?

3 A. The club in Kozarac was, one might say, insignificant for a long

4 time. We were not even registered as a club because of the age

5 group of the participants. We did not have any competitors. We

6 mostly competed at the level of children, but the club in Banja

7 Luka was a big one, a well-known one. It was founded by our

8 older brother, Mladen, and when he left for Germany Ljubo

9 continued to head the club and one could even make a living of

10 that. This was not possible in Kozarac. This was just

11 amateurism, recreation, nothing more.

12 Q. Did you take part in sporting competitions yourself, in karate

13 competitions and matches, representing either your club or a

14 local association?

15 A. For a time I did compete for the Borac karate club. There were

16 several, one in Banja Luka, one in Belgrade and that is all.

17 I was not a competitor. I mainly engaged in sport for my own

18 satisfaction, and those who wanted to join with me. That is why

19 I took part in the opening of the club in Kozarac. Many parents

20 wanted this. It was an inexpensive sport. It did not require

21 great funds. So that my participation in that sport in Kozarac

22 was mainly educational, that is, I dealt with small children.

23 Q. How long did you run the karate classes at the school in

24 Kozarac?

25 A. I officially led it. I was a registered coach, officially

26 registered coach, but I had assistants from the first day.

27 These were younger boys. I did not have so much time. From

28 1981 until I went to Libya I travelled to Banja Luka daily.

Page 7775

1 I had to work in my company every working day and that is quite

2 a distance from Kozarac. At first, I did not have my own car

3 and even if I did it would be expensive to travel.

4 I would get up at 4.35 a.m. and take a bus on the

5 Prijedor to Banja Luka road at Kozarac at 5 a.m. We would get

6 to Banja Luka at 6.00. I would get back at 6.00 or 7 p.m. the

7 same day. So that I would spend two to three hours travelling,

8 the rest working, and what time I had left I would be with my

9 family. Occasionally, I would go to the club just to encourage

10 them to develop the sport. I did not have time to dedicate

11 myself to it.

12 Q. Did there come a time when you ceased running the club at

13 Kozarac?

14 A. Yes. When I left for Libya in the previous few years several

15 younger people had grown to competitor status, so there were

16 people who wanted to continue the work of the club, and as of

17 then I mostly -- I did not really engage in leading the club in

18 Kozarac.

19 Q. It has been said in evidence that you were someone who would

20 have been known in the area because you featured on the sports

21 pages of the local newspapers such as Kozarski Vjesnik. Do you

22 recollect being on the sports pages regularly?

23 A. No, there were often reports about my brothers, Mladen,

24 Ljubomir. Mladen was one of the best known people in

25 Bosnia-Herzegovina and Yugoslavia as a master karate competitor,

26 Ljubo too. But, as far as I am concerned, I do not remember

27 such articles. There was no reason. I never won any

28 competitions in Yugoslavia. I competed only a couple of times,

Page 7776

1 so that there was no significance in that. Active sportsmen and

2 competitors would have competitions at least twice a month.

3 I did not have time for any such thing, and I did not look upon

4 karate as a competitive sport.

5 Q. Did your brother Mladen represent Yugoslavia at international

6 competitions?

7 A. I think he did several times at the international level in

8 Hamburg. I do not know whether he was in Paris. I think he

9 was. He did participate in several international competitions

10 in Belgrade every year, in Sarajevo. He had a great deal of

11 success, so did Ljubomir as a karatist.

12 Q. Did Ljubomir also represent Yugoslavia internationally?

13 A. Yes, for quite some time he competed together with

14 representatives of a special karate style at various

15 competitions in Europe and throughout Yugoslavia as well.

16 Q. Did you represent your country at international level?

17 A. No, not even at the Republican or inter-Republican level, no,

18 never.

19 Q. What sort of level of competition were you in?

20 A. I think I participated in three competitions in all, as a

21 competitor, but I participated as a coach and I took children to

22 compete at these competitions. So I would be sitting there with

23 the audience somewhere. My job was to take care of technical

24 things, applications, travelling to and from the venue, giving

25 advice such as coaches do. That was all.

26 Q. Did you continue with that work or did there come a time when

27 your involvement in that aspect of karate ceased?

28 A. As I said, Kozarac did not have a competitive club for older

Page 7777

1 members. Upon my return from Libya, I decided to go in for

2 private business and dedicate myself to business and the

3 family. So my sporting activities were reduced to recreational

4 activities and contacts with friend. I had no participation in

5 any public competitions from then.

6 Q. When you got married, did you live at the family home in Marsala

7 Tita Street that we have seen photographs of during this case?

8 A. Yes.

9 Q. Did you always live there or did there come a time when you

10 moved to live in another house or place in Kozarac?

11 A. I did not live there all the time. Around 1987 or '88 I lived

12 in a house in Kalate Street in Kozarac also.

13 Q. Having lived there, did you eventually return to live with your

14 parents back at the Tadic family home in Marsala Tita Street?

15 A. Yes, after our father died in 1989, somewhere around August,

16 I returned to live in the family home in Marsala Tita Street in

17 Kozarac.

18 Q. I would like you now to look at Exhibit 300 which is a

19 photograph of the family home. If it could be put straightaway

20 on the overhead projector? You can turn to the right. Thank

21 you very much, Mr. Usher. As you know, we are very familiar in

22 this courtroom now with this photograph and I want to run

23 through this fairly quickly. We have been told that on the

24 left-hand side is what is today a bar which originally was given

25 to your brother Mladen by your father, is that right?

26 A. Yes.

27 Q. Next to that where the wider windows are, those are premises

28 that are run by your brother Ljubomir, is that right?

Page 7778

1 A. [The witness indicated] Yes, at this time it is now a business

2 space but it used to be a residence.

3 Q. The smaller window to the right of that is where your other

4 brother Stojan was given a portion of the family home, is that

5 right?

6 A. Yes. All these three parts had separate entrances from the

7 outside.

8 Q. Originally, your parents' home was a single storey home where

9 you and your other brothers were brought up, is that right?

10 A. Yes. It is this part. [The witness indicated]

11 Q. The extra floor on top of the ground floor, that was built at a

12 later date, is that right?

13 A. Yes. This part here was built first and later on this one here,

14 up here.

15 Q. Who lived in that upper storey above those ground floor sections

16 that were eventually given to your brothers?

17 A. In the first period, when I first got married, I lived here.

18 [The witness indicated]. Then I moved to Kalate and after the

19 return I lived in this part here. [The witness indicated]

20 Somewhere around 1990 I moved to this residential unit here. In

21 1990, this part was not completely finished inside and I

22 completed it together with my wife and only then did we move in.

23 Q. We have heard about your father. He was an eminent person in

24 Kozarac because of his distinction in the Second World War, is

25 that right?

26 A. Yes. He was a well-known participant of World War II in 1941

27 and, not only that, because he was a well-known participant, he

28 was also an honest and realistic man. He was 90 per cent

Page 7779

1 handicapped because of the wounds he received during the war.

2 That is on the one side. On the other side, he was also known

3 as a man who was a very tolerant man from the World War II on

4 regarding things national, and this is precisely why he moved to

5 Kozarac in 1946 and continued to live there until his death.

6 Throughout his life he continued to build this house, for one

7 reason he wanted one -- he only needed one business unit but he

8 wanted us all to come back and live there. He did not need all

9 this space.

10 Q. As a former army officer, is it right that he was given a

11 reasonable pension?

12 A. Yes, those were among the largest pensions in Yugoslavia at the

13 time. It was a pension at a level almost like an average German

14 salary of an average employee in Germany. So it was a good

15 pension, and the very fact he was able to put all his children

16 through school with that money and build a house talks about

17 that. Plus, he had other privileges, ability to raise loans and

18 then he had free trips to the coast. He never travelled by

19 train. He would always take planes and he was a very sick man.

20 Q. The right-hand section of the family home that we see in that

21 photograph was built at a later date, is that right?

22 A. Yes.

23 Q. Can you tell us when that right-hand section was built?

24 A. You think this part?

25 Q. No, on the ground floor which is slightly -- no, over on the

26 right-hand side where the Nipon cafe was.

27 A. I think I showed it once.

28 Q. Yes. When was that built?

Page 7780

1 A. Construction of that part of the object was completed in 1990.

2 The construction was started by -- I started about a month

3 before my father's death in the summer of 1989. However,

4 gathering of all the materials for this structure took much

5 longer. From the first day when I went to Libya and when

6 I opened the private business in Croatia, in the period between

7 1977 and '89 which means, 87, 89 when we lived in the Kalate

8 Street, I was always in the field. I rarely ever got there,

9 maybe two or three nights a month. I was always working in the

10 field. I was with my company in Ljubljana, Zagreb, Belgrade,

11 and my time was always on construction sites. It was a

12 construction company.

13 I am saying this because by working in the field

14 I would come back to Kozarac every once in a while and gather

15 the construction materials that I would need for construction of

16 this structure, and so I started it in '89 and finished towards

17 the end of 1990.

18 Q. Eventually, there came a stage when you opened a cafe in that

19 side of the house, is that right?

20 A. Yes, towards the end of 1980 -- '90, that was in December and

21 January.

22 Q. The upper part of that side of the house in red brick, was that

23 built at a slightly later time?

24 A. No, it was built at the same time. The basic construction work

25 was done by the end of 1990, but I was concentrating on the

26 lower part for economic reasons so that I could start the

27 business as soon as possible, calculating that if I use that

28 money I could build the rest, but both were planned as a single

Page 7781

1 business premises and the top part was never moved in.

2 Q. You completed the bottom part and then work on the upper section

3 still remained to be finished, is that right?

4 A. Yes, in fact, I never stopped working. When I first opened my

5 business, from the first day, I continued with the

6 construction. I was gathering more materials. I was putting in

7 installations. I was reckoning that until '92 or '93 I would

8 open the other part of the premises and so that I could move my

9 family, because the brother Ljubomir wanted to have this lower

10 part where I was, that I was occupying at the time, turned into

11 business space.

12 Q. The finance for that section of the house which you had your

13 cafe built upon, did you obtain loans from various local people

14 in order to contribute to the costs of the building?

15 A. The expense, the costs for this construction were very high. In

16 any event, a lot of people helped me. My neighbours, friends,

17 even relatives, would show up by themselves and offer to support

18 that. Some offered labour, some offered financial aid, some

19 without interest, some of the people came to my mother's. They

20 knew that I was also building my residence where we wanted to

21 move to. There were even people who offered it for their own

22 economic interest.

23 In that period, all dinar means were very difficult to

24 raise. Adem Kahrimanovic is a good example. He had a lot of

25 means in the local currency, dinars, but he could not raise them

26 in value, and that in those circumstances we made an arrangement

27 that he would give me about 10,000 deutschemarks at the time and

28 I would give it back to him, but I needed to return it to him in

Page 7782

1 dinar counter value. At that time I had to do it, it would be

2 about 15,000 deutschemarks at a time by the time I returned it,

3 so there were different ways in which people helped me and there

4 were some economic reasonings in that.

5 Q. Did occasions occur when a number of local people would gather

6 together and a sheep would be roasted and sections of the house

7 would be built with a number of hands giving support?

8 A. Yes, that was a tradition in Kozarac. I do not know about the

9 other parts, but Kozarac had that tradition. It was not a

10 question whether you had money to pay people. It was a

11 tradition which lasted, I do not know how long.

12 When there were larger construction works, if you had

13 to put the roof or put a concrete plate on top, then all

14 neighbours would come over. I remember when there were cases

15 when two brothers, they were not -- they did not have a good

16 relationship, they did not even have a contact, even though they

17 were relatives, but the family members would always go there,

18 regardless. It was an old tradition in those parts. The

19 host -- it was an unwritten rule -- would either put a pig on a

20 spit and they would give out the drinks, and it was not material

21 benefit, it was a tradition.

22 Q. What time did your cafe start to trade and you receive customers

23 from within Kozarac?

24 A. In December 1990 I started -- I started trading in this cafe

25 Nipon.

26 Q. In that period until the conflict in May 1992, was it a

27 successful business?

28 A. Yes, I thought that it was successful. I thought it was a

Page 7783

1 success. I never worked as a waiter there at any time. I was

2 the owner of the cafe and I mostly did other jobs which was

3 supplying and then dealing with the tax authorities and local

4 administration, pay rolls and such, but I thought that it was

5 rather successful.

6 Q. Was it a place that was particularly popular with the youngsters

7 in Kozarac?

8 A. Yes, mostly the young people. I think that the average age of

9 my patrons was between 14 and 18. However, the older people

10 from the centre used to come early for coffee. They were older

11 people and it was expresso Italian coffee and it was very high

12 quality, and I would sit with them and then they would go on

13 their business and I on my own. But, otherwise, when the dusk

14 fell, I had the youth. Sometimes I was the oldest person who

15 would walk in there, and sometimes I would not stay there very

16 much. I had younger waiters, young men and women. It was for

17 the youth. There were no folk music there which was what people

18 mostly listened to in Bosnia. I was getting music cassettes

19 from abroad, from my brother or somebody else, so it was mostly

20 disco or music from abroad. This is what they were interested

21 in, the youth there.

22 Q. It is right that your ethnic background is described as being

23 Serbian, is that right?

24 A. I do not know. I am a Serb.

25 Q. As a Serb opening a coffee bar in Kozarac at this time, did you

26 employ people of different ethnic backgrounds to work there with

27 you?

28 A. Yes. The whole time while the business was open, I never had

Page 7784

1 more than two waiters. However, one was always a Muslim, the

2 entire time. The other one could have been any other

3 nationality, but one waiter would always be a Muslim. I did

4 that on advice, for the most part, of my neighbours who were

5 natives there. It was reasoning that I would not want to create

6 an impression that this was a Serb cafe. It was for all the

7 people of Kozarac, and mostly Muslims went there, if that is

8 what you are asking about their national background.

9 As far as I could notice, I never polemicized about

10 that and I never kept any statistics who was coming. But, since

11 I was born in Kozarac, I lived there, 98 per cent of people

12 there were Muslim. Many Serbs, I do not know why, but they were

13 not coming.

14 Q. Given the costs that were involved in building these premises

15 and running them, could your business have been successful if it

16 had only restricted those who were welcome there to being those

17 only of Serbian background?

18 A. No, no, not even -- I can count how many Serbs came, maybe seven

19 or eight. Sometimes it was a cafe -- there were always 100 or

20 sometimes over 200 people there every night, I cannot tell,

21 because I did the finances, I know what the turnover was there,

22 how much beverages had been used. So I know that my average was

23 between 100 and 200, and in Kozarac you did not have enough

24 Serbs in that period. Especially in 1991, a lot of Serbs and

25 young men who were potential patrons were in different war zones

26 around Yugoslavia.

27 Q. With the cafe running, were you able to repay the loans that you

28 had obtained from some of the local people?

Page 7785

1 A. I do not know if you understood me well. Every once in a while

2 I would get money, but I would also loan money to others. Of

3 course, I would always return money. There were no -- it was my

4 business was always clean that way, but it would happen that one

5 of either Sefik Arnautovic or Adil Jakupovic -- in Yugoslavia,

6 you always had a problem with foreign currency, and the dinar

7 would lose about 30 per cent of the value at a time. Often,

8 people would come and ask one, two or 3,000 deutschemarks at a

9 time. That would be my daily intake and they needed it for a

10 man who was exchanging 20 or 30,000 marks for them, and then

11 they would give me the counter value in dinars the next day. So

12 this is how we exchanged, so there was no problem there.

13 But whether I could keep in business if my patrons

14 were only Serbs, that is a silly question; you could not even

15 think about that. It is well-known the structure of the

16 population in Kozarac, plus I never thought of who would be my

17 patrons in my cafe.

18 Q. Just to clear up one matter, although the dinar was the official

19 currency in the former Yugoslavia, would it be right to say that

20 a lot of business was really done with deutschemarks?

21 A. Yes, mostly.

22 Q. The other section of the house that your brother Ljubomir had

23 given to him, did that open as business premises as well?

24 A. Precisely, because Ljubo saw that my business is taking off and

25 it was successful, I suggested to him that he should do

26 something similar and I suggested I know that he was -- that my

27 neighbour, Adil Jakupovic, was in a dilemma. He said, "How is

28 that possible?" He did not want to take that risk to open up a

Page 7786

1 private business. I know that he often told me later that

2 because of my advice he took that road and that was after me.

3 So, also Ljubo, because of my suggestions, opened a private

4 business in that former residential part of our old family

5 house. He opened it, I think it was somewhere 15, 20 days

6 before the war started.

7 Q. What business did he open there?

8 A. His business was linked to the brewery in Banja Luka. He made a

9 business arrangement. They would ship the goods to him on a

10 regular basis. He would distribute it. He would have a certain

11 percentage from distribution. So that was wholesale, so he was

12 distributing wholesale. So it was not a bottle or two or three

13 but larger quantities and through that, and that was the

14 practice in the Prijedor municipality. From such distribution

15 centres others would supply. For instance, if I wanted some

16 beverages, I would buy with him, of course, or somebody else

17 because it was much cheaper. It was like a factory price. It

18 was as if you bought it in Banja Luka.

19 Q. He described it as a beer discount store. Would that be a

20 correct description?

21 A. Yes, I think that that was the official title. He should know

22 that.

23 Q. Did he also sell soft drinks there?

24 A. Yes.

25 Q. Was his business in that 21 days or so before the war started in

26 Kozarac successful in that short period?

27 A. Yes, very successful.

28 Q. Did it look as though that was a business, if allowed to

Page 7787

1 continue, would have been something that would have continued to

2 have been successful in Kozarac?

3 A. Yes, that is certain. I had some acquaintances in Prijedor who

4 in a short period of time became rich doing this kind of

5 business. I think it was an excellent business. I think it was

6 better than the one I had.

7 MR. KAY: Your Honour, that looks to be an appropriate moment.

8 THE PRESIDING JUDGE: We will stand in recess for 20 minutes.

9 (4.00 p.m.)

10 (The Court adjourned for a short time)

11 (4.20 p.m.)

12 THE PRESIDING JUDGE: Mr. Kay, you may begin.

13 MR. KAY: Thank you, your Honour.

14 Q. I would like to ask you some questions now about your

15 relationships with the other residents of Kozarac. Were you on

16 friendly terms with most people there?

17 A. Yes.

18 Q. Were you a person who mixed with people from Croatian

19 backgrounds, Muslims ----

20 THE PRESIDING JUDGE: Excuse me one moment, Mr. Kay. I am just

21 checking to see if there is sound going to the gallery. Yes, it

22 is coming through now. I am sorry, Mr. Kay.

23 MR. KAY: That is all right, your Honour. I will just start the last

24 question again. [To the witness]: Were you someone who mixed

25 with people who were Croats or Muslims or other ethnic

26 backgrounds within Kozarac?

27 A. Yes. I did not make any differences in terms of ethnic origin.

28 That was how our father brought us up, both me and my other

Page 7788

1 brothers. I paid no attention. I may have had friends of Serb

2 nationality, but most of my friends were Muslims and Croats.

3 Q. Living within Kozarac, would it have been difficult for you to

4 restrict yourself to friendships with only Serbian people?

5 A. First of all, it is hard to answer that question, because there

6 were few Serbs of my generation. I do not think anyone -- in my

7 childhood, in elementary school, they were all Muslims. I did

8 not have a Serb friend.

9 Q. In the ----

10 A. I cannot remember a single Serb with whom I was close, that we

11 used to visit each other at home. No, I cannot remember a

12 single one.

13 Q. Did that present you with any particular problems, any

14 particular difficulty, in life or was it something that was just

15 natural and you were able to deal with?

16 A. I simply did not pay attention to such things. The people I was

17 friendly with also, we never talked about such things. We never

18 had any polemics. That was how I was brought up, as I said, me

19 and my brothers.

20 I also, when we are talking about this, let me add

21 I was not christened. We are not religious people. We did not

22 celebrate religious feasts. We celebrated the state holidays of

23 the former Yugoslavia which were the same for all ethnic

24 groups. There was no difference. I do not know how he declared

25 himself officially, but I do not remember myself or any of my

26 friends ever discussing ethnic differences. This was something

27 we simply did not pay any attention to.

28 Q. Did your cafe bar in the months just before the conflict in

Page 7789

1 Kozarac become a place that was a focus, a centre, for those who

2 were of Serbian background who had returned from the front, who

3 had been fighting in Croatia?

4 A. No, I do not think it was ever a centre for one particular

5 ethnic group, particularly not the military. The military would

6 go to cafes where good quality food was being served, not just

7 drinks. In those days the soldiers were well paid in '91. As

8 I said earlier, my cafe was a place where the young people would

9 come.

10 I cannot say that occasionally older people did not

11 come by, they did, but only rarely. They spent a short time

12 there. They did not enjoy disco music. They were not

13 interested in pop songs. They were interested in the songs

14 glorifying nationalist leaders, and my cafe was never a meeting

15 place for such guests.

16 Sometimes people from the Territorial Defence would

17 drop in, members of the JNA perhaps, but this was not a

18 gathering place that was happening in other restaurants or cafes

19 where food was being served, Neira, Red Roses. The guests were

20 mostly people who had plenty of money, who were ready to spend

21 it on food. My guests were young men and women who had pocket

22 money given by their parents to spend that evening.

23 Q. You mentioned Neira and Red Roses, were they other cafes in

24 Kozarac?

25 A. These two that I mentioned, they are not cafes, they are

26 restaurants, and I mentioned them because that was where food

27 was served. In cafes, food was not served, as a rule. There

28 were other cafes, but the army, the military, would mainly go to

Page 7790

1 these two restaurants. I never heard that there were any

2 problems there either. I went there rarely, but whenever I did,

3 it was packed to capacity with guests with various insignia of

4 all kinds.

5 Q. We have heard of a friendship you had with a man called Emir

6 Karabasic. When did you first meet him?

7 A. I met Emir Karabasic in 1980 or '81, when I became leader of the

8 karate club in Kozarac. I first met his younger brother, Esmir,

9 and then Emir. I do not know, but later we found out that my

10 father and his grandfather had somehow close relations. They

11 were both participants in the Second World War and had very good

12 and close relations, and those relationships between the elders

13 were always passed on to the younger generations. Emir

14 Karabasic graduated secondary school in Sarajevo. He returned

15 to the Prijedor municipality. He worked at a time in Prijedor.

16 Then he worked in Omarska for four or five times, then for a

17 time in Ljubija. That is it, as much as I know.

18 Q. The work you described, was that Emir Karabasic working as a

19 police officer?

20 A. Yes.

21 Q. We saw a photograph when your wife gave evidence. Perhaps D71

22 could be put on the overhead projector, so that it is made

23 clear? Perhaps Miss Sutherland may be able to assist? I know

24 she can work the machine. Thank you. We see there a photograph

25 of the family on holiday apparently taken by you, is that right?

26 A. Yes.

27 Q. That is your wife and your eldest daughter Valentina with your

28 eldest brother Stojan, is that right?

Page 7791

1 A. Yes.

2 Q. Emir is sitting on the towels behind your wife, is that right?

3 A. Yes.

4 Q. So, your friendship with him was a friendship where you went on

5 holiday together?

6 A. Our friendship was much greater than many are aware of.

7 Relations between me and this older brother, for instance, were

8 blood relationships, but with Karabasic and some of my great

9 friends, we would visit each other, spend the night, eat at each

10 other's houses, his problems were mine and my problems were

11 his. They were our common problems. He was like a brother to

12 me, and I think he considered me the same. This was a

13 photograph when we went to the seaside together. It was taken

14 in Medulin, near Pula, in Croatia. I think we spent about three

15 weeks together at the seaside. I do not know what else I could

16 say, but we slept in the same room. We shared the same room.

17 Q. What would the date of that holiday have been?

18 A. I think this was taken in 1983. We went to the seaside together

19 several times. This was not the first time. We would go to

20 Belgrade, to various places. It is difficult to remember each

21 of those trips, but any family festivity or reunion at my home

22 could not take place without him and his wife attending. They

23 knew -- he knew all my friends in Banja Luka, in Prijedor. He

24 was like a member of the family. Paolo and Vesna, when they

25 would come to Banja Luka, would say, "Invite Karabasic" and I

26 would go and call him because we could not have any get together

27 without him.

28 We were together in sports too, but it was not at the

Page 7792

1 level that people may think. His brother was a much better

2 karatist, but he and I were friends. We were much closer

3 otherwise, not in sports. On a Saturday morning, he would come

4 at 5 o'clock and we would run towards Mount Kozara jogging, then

5 we would come back and we had some wonderful times together.

6 Q. Your wife said that he was a single man who had many

7 girlfriends. Did he have a wife? Was he married or did he have

8 a steady girlfriend?

9 A. It is hard to say. As in my case I got married, but not

10 officially. The moment we made our vows to each other, we

11 considered ourselves married. We did not consider a paper to be

12 important. Anyway, in Yugoslavia any extra marital community

13 had equal status as an official marriage. Emir Karabasic was in

14 a similar situation. He did have a wife, but in 1990 he lost a

15 baby upon delivery. I was in Banja Luka then. I was staying

16 with my friends, Selcek(?). We had a road accident so we went

17 back to Banja Luka. This was a terrible blow for him and for

18 me, of course.

19 After that, the relationship between him and his wife

20 at the time cooled, so that afterwards one could say he was

21 married or he was not. The death of the baby contributed to the

22 collapse of that union. That is why probably my wife thought

23 that he was sometimes married, sometimes not.

24 Q. When your father Ostoja died, was he one of the bearers of the

25 coffin at your father's funeral?

26 A. Yes. Yes.

27 Q. Who were the other bearers of your father's coffin?

28 A. Mostly friends, my brothers, among others, Vercek Paolo, my

Page 7793

1 friend from Banja Luka. I will never forget it. We bathed my

2 father when he died. Karabasic carried him out. They were --

3 we were always at each other's side when we were in difficulty

4 and when we were enjoying ourselves. Karabasic was there all

5 the time, not just he, but many other of my friends and

6 neighbours. My friends from elementary school, they came to

7 attend the funeral from various parts of Yugoslavia, not just

8 those living there at the time. In our parts, funerals,

9 weddings, are a time to show respect towards one's neighbours

10 and it is something one remembers, one never forgets.

11 Q. Before the conflict in Kozarac on 24th May 1992, how would you

12 describe your friendship with Emir Karabasic at that stage, at

13 that point of time?

14 A. From the beginning -- at the end of 1991, at the beginning of

15 1992, Emir Karabasic had many personal problems. In the middle

16 of 1989 he was working as a policeman in Omarska for four years

17 by then and I was familiar with all of his problems. At that

18 time, he led a karate group in Lamovita and Omarska. He spent

19 many years living and working there, and I do not know the

20 reasons, but for six months Karabasic was suspended as a

21 policeman at the end of '91/beginning of '92, and he immediately

22 appealed to me and my brother to try and help him to move to

23 Banja Luka or to some other town.

24 I do not know the real reasons why he was suspended as

25 a policeman, but I know that he was laid off for six months. He

26 fought for that job because he always said that was the only

27 thing he knew how to do. My relationship towards him did not

28 change, but he was very busy with his own personal problems.

Page 7794

1 I do not know whether they had to do with Omarska or Kozarac.

2 Many of his colleagues did not like him. They

3 reported against him. They claimed that he acted contrary to

4 the policemen's code. He was an honest policeman on duty, and

5 when he was off duty he was like anybody else who liked

6 company. Probably some of his colleagues did not like this and

7 they complained against him. It happened in Omarska and in

8 Kozarac too. They would go to higher level authorities to

9 report him.

10 Our relationships at the time did not change

11 particularly, but we did not see each other so often because of

12 those personal problems. I remember that he came on several

13 occasions to see me and my wife. Whenever he passed by, he

14 would drop in. He would often bring cevapcici, minced

15 meatballs. Maybe he had problems because he was a great friend

16 of mine, I do not know really, but in any case we did not see

17 each other very often then. I attributed this to the problems

18 that he was having in the police because he often told me about

19 them.

20 Q. He was of Muslim ethnic background, is that right?

21 A. Yes, he was a Muslim but he considered himself a Yugoslav, a

22 typical Yugoslav.

23 Q. As a policeman working in Omarska, that would have been him

24 working within a particular village that had a concentration of

25 Serbian people and Serbian policemen within the town, would that

26 be right?

27 A. Yes, Karabasic worked in Ormaska for four or five years.

28 Q. Omarska, unlike Kozarac, was a particular area that had a

Page 7795

1 concentration of Serbian people?

2 A. It was similar to Kozarac in the sense that in Kozarac there was

3 a larger percentage of Muslims and in Omarska there was a much

4 larger percentage of Serbs.

5 Q. You said that your relationship changed between the two of you,

6 but was there any animosity, was there any dislike, or was it

7 that he had problems at that particular time and your friendship

8 for that period was not based upon the same previous friendship

9 that you had had before?

10 A. I still think that even at the time that he was my best friend

11 and I his. Our relationships did not change particularly. As

12 I said, maybe the atmosphere in those parts had changed and it

13 required everyone to take care of himself. I did not have much

14 time to roam around. I did not dare to as I did before; I spent

15 most of my time at home or in my cafe or visiting family in

16 Banja Luka, and Karabasic too was working in Ljubija at that

17 time. This is another part of the municipality of Prijedor.

18 But our relationships did not change. We would always

19 meet, talk about all kinds of things. We just did not see each

20 other so often because out of technical reasons this was no

21 longer possible. Karabasic worked in Omarska. We would see

22 each other through sport, and then he moved to Ljubija. Sports

23 activities died down. Ljubija was quite far away, but our

24 relationship did not change. I know when his brother died in a

25 traffic accident I attended the funeral. We talked. I know

26 I was upset. This was just a few months before the war.

27 Q. Did he ever serve in Kozarac before the war -- now I am just

28 talking about in 1992 -- as a policeman in Kozarac?

Page 7796

1 A. I do not think so. We never talked about it, about the police

2 too much, and I am not sure, to be perfectly honest. Our

3 conversation was usually about private problems, sports or

4 family relations, what happened within my family and my friends

5 and his friends. That was our -- that was our conversation. We

6 never had special conversations about my business and he about

7 his own. All our conversations were unofficial in character.

8 It was private in nature, like with a family member, we never

9 polemicized much about anything, but I do not think he worked in

10 Kozarac, no.

11 Q. You said in answer to an earlier question that the atmosphere

12 had changed in the area. Can you, as far as you are concerned,

13 give a time when it was detectable that the atmosphere in

14 Kozarac had changed from what it had been in the old days?

15 A. I think that the atmosphere in Kozarac was no different from the

16 one that was around in all of Bosnia and Herzegovina. I do not

17 know exactly when this Assembly was constituted, the multi-party

18 one, but I remember that those proceedings were televised, that

19 people were talking among themselves. They had fears. The

20 conflicts in Sarajevo somehow, they were spreading to other

21 parts. The conflicts that were there, they were frightening

22 people, if you look from that propaganda angle.

23 On the other hand, the war in Croatia was a fact, and

24 from day-to-day you could see that it was moving towards

25 Bosnia. It was a fact with which we lived. We were all fearing

26 that it would spill over into Bosnia, and the President there

27 said that they would do anything to move the war into Bosnia

28 and, in essence, this is what actually happened. People lived

Page 7797

1 in fear. There was a general fear.

2 Q. Did there come a time when you, in fact, received a threatening

3 letter whilst you were in Kozarac?

4 A. Yes, that happened in August of 1990, around the time of the

5 death of my father.

6 Q. It has been suggested by some witnesses that were called at an

7 earlier stage in the proceedings that either you or your wife

8 had written this letter as some sort of gesture, is that right?

9 A. No. Not at all, neither myself nor my wife wrote this, nor do

10 I know who wrote this. I do not know who wrote this letter.

11 I received that letter. It is a fact, it happened. It can

12 happen to anybody. I never hid that -- for the first few days

13 I did hide. I did not want anybody to know in the family. Then

14 I thought about it and I felt, somehow my conscience woke up and

15 if something did happen I would have felt guilty that I did not

16 say about that, and those threats were also directed not only at

17 me but my mother, my wife and I lived in Kozarac at the time

18 with my mother and my wife and two children, and I was afraid

19 for their security.

20 At that time when it was not right for me to hide,

21 then I showed it to my wife and my mother and I called my

22 brothers to ask them what to do and I wanted to leave. However,

23 I talked to my neighbours who were Muslims and members of SDA

24 Party, and they said, not to pay any attention to that, that

25 they would support me, that there was no problem. I asked the

26 veterans' union representative and I invited him to my house and

27 we talked, and I talked to Mr. Kahrimanovic with Adil

28 Jakupovic.

Page 7798

1 I talked to a lot of my neighbours and I wanted to

2 find a real solution because it would not have been fair of me

3 to have left a place as if I was expelled. I did not want

4 that. The only thing I could do was I turned the letter over to

5 the police in Prijedor, and I did not want something to happen

6 and I did not -- I had not done something about it.

7 Q. In August 1990 when you received that letter, had you had any

8 indications before that date that certain people might be

9 viewing you with animosity or dislike?

10 A. I will tell you. After my father's death and especially after

11 I decided to build the business premises in Kozarac when it was

12 visible that I would open this cafe, because before I was

13 thinking I wanted to go abroad, that was my long time wish, but

14 I never succeeded for a number of years. Then I decided to

15 continue my life in Kozarac and then I decided to invest

16 everything I had into that. I do not know.

17 Since I started building this cafe, some things

18 started. There were some things that were happening that

19 reminded me that there were some people there who did not want

20 me to continue my life there. To date, I do not know who it

21 was. I think it could have been the competition of other cafe

22 owners. I do not think it was a movement or anything.

23 I thought it about it for a long time. Maybe somebody

24 interpreted it that way.

25 I think that that was a bit false, this letter. I did

26 not -- I thought it was a provocation. It could have been done

27 by anybody. After all, it could have been done by Serbs. It

28 was all possible. I did not -- I could not find out a solution

Page 7799

1 about it.

2 As far as the relationships are concerned later on,

3 sometimes there were phone threats to my daughter or my wife.

4 Once I picked up that phone and I talked to this person who had

5 called, and it seemed silly to me, but my daughter was afraid

6 and so my wife. I did not pay much attention to it, but

7 especially through the accent, I could figure out it was nobody

8 from that area. I thought it was somebody from abroad. It was

9 not an accent of a person who lives in Bosnia-Herzegovina. It

10 was a female and it was ridiculous, what the voice was saying,

11 and it effected my family much more than it did me. I did not

12 speak about it much to anybody.

13 Q. At this time from 1990 was there suddenly more political

14 activity within Kozarac and the area of Prijedor generally?

15 Were people identifying themselves for the first time with

16 political parties in a way that they had never experienced

17 before?

18 A. I would not say that was the case. I think from the very

19 beginning of the creation of the national parties, for instance,

20 SDA, SDS, HDZ, those parties were representing themselves in

21 public as if they were to co-operate in the future, that the

22 main enemy was the former communist system, that that was their

23 priority. All parties proclaimed that, both the nationalist

24 ones and the others, and they were leaving an impression among

25 common people that the important thing was to defeat communism

26 and their relationships would be splendid; as if in the former

27 system the nations did not have their representatives and now

28 they would represent them, especially HDZ and SDS and SDA. That

Page 7800

1 is how people also thought. So it was generally a movement.

2 In the beginning it did not seem to me like a party

3 organisation. There were movements, one can say, and the Croats

4 mostly joined HDZ and the Serbs SDS and Muslims to the SDA.

5 That is how it started. The relations among people and this

6 taking memberships in these parties did not cause discord among

7 common people. I do not know a single case when people came

8 into a conflict because one was a member of HDZ or SDS or SDA.

9 There were no such cases. I do not know any of these parties

10 had platforms that would hurt -- be hurtful to other nations. I

11 do not know about that.

12 Q. When did you join the SDS?

13 A. In 1990.

14 Q. Was that before or after you had received that letter?

15 A. That was later. Not only after I received the letter, but

16 several months later it turned out that the investigation that

17 allegedly was conducted was fruitless. Then there were several

18 additional phone calls and threats, and my wife insisted that we

19 had to take some shelter with some side. Then we went to

20 Prijedor to the health centre and that Dragoje Musac(?) was

21 working there. He said that they would take us in and so we

22 became members, my wife, myself and my brother.

23 Q. The Prosecution in this case have quoted from a document that

24 you wrote saying that you were one of the first members of the

25 SDS in the Prijedor region. Do you know if that is right?

26 A. Theoretically, that was impossible. Up until the establishment

27 of the local committee of the party, I was not a member of any

28 SDS or HDZ or SDA. You have to be a member of this local

Page 7801

1 committee, go to meetings and be part of the committee.

2 Membership of a party is nothing. It would be almost like an

3 honorary membership. I was not a member of any local

4 committee. There was no local committee, and I could not have

5 attended meetings in Prijedor in any local committee. That was

6 the procedure. So there was no dilemma there.

7 Q. In November 1991, there was a plebiscite held for Serbian

8 people. Is it right that you conducted that plebiscite on

9 behalf of the SDS in Kozarac?

10 A. I think that that is not the right definition.

11 Q. Perhaps then you can ----

12 A. That reflects the real situation. The fact of the matter is

13 that probably the SDS was the initiator of the plebiscite. .

14 I think that the initiative for the plebescite came from the

15 SDS. However, all this was conducted through the Local Assembly

16 in Prijedor. There was a Commission of the Municipal Assembly

17 that was in charge to organise the plebescite. I do not know

18 what the procedure was to be followed at the municipal level,

19 the party and the Municipal Assembly, but the party itself could

20 not have organised such a plebiscite. The party could table it,

21 but there is a commission for plebiscite. Non-partisan members

22 had to be appointed and I think that the control of this

23 plebiscite, one of the people who controlled it was Jovan Vukoje

24 and this man was not a member of the SDS. I think he was a

25 socialist or something.

26 Q. If we could have a look at Exhibit 146 and at the same time if

27 you could pull out 147. If 146 could be put on the monitor. If

28 you could put the English version on the monitor and give the

Page 7802

1 defendant the copy in his own language. Thank you very much.

2 I hope that can be read by everyone. This document here is the

3 decision on the appointment of voting officials for the

4 plebiscite in the area of Kozarac, Vidovici, and you were to be

5 the President of the voting officials. The document is actually

6 dated 8th November 1991 and signed by Dragan Savanovic. Can you

7 tell us how it was that you came about to be appointed with this

8 position and this responsibility? Whose decision was it?

9 A. First of all, I would like to say that at the top of the

10 document here it is clearly stated that the organiser of this

11 was commissioned, a municipal plebiscite commission, that is

12 what I said.

13 Q. Is that a municipal plebescite commission of Prijedor or

14 elsewhere?

15 A. Exactly as I said. It is the municipal commission that was

16 appointed by the Municipal Assembly. I do not know the

17 procedure, but I assume that the suggestion came from the SDS

18 within the Assembly, and then based on that suggestion this

19 commission was established who took over the responsibility for

20 this plebiscite, the same way for the referendum that the SDA

21 initiated. They could not do themselves, so it was all down at

22 the municipal level. Again, a commission was formed that was

23 put in charge of it.

24 Q. Were you approached by someone beforehand and asked if you would

25 undertake this responsibility, or were you just notified in some

26 way that you would be expected to undertake this responsibility?

27 A. I remember exactly how it took place. At that time in Kozarac,

28 as in other places in Bosnia and Herzegovina, there were some

Page 7803

1 multi-party governments. There were a few representatives of

2 different parties in this Executive Committee. The SDS was

3 represented by Zivko Kos from the village of Balte, Babici or

4 Balte, I do not know exactly. At that time both Balte and

5 Babici were belonging to the Local Commune of Kozarac. As far

6 as I know, they already had previously formed SDS committees

7 there. Based on that Zivko Kos who was a member of the Council

8 of Local Commune of Kozarac, at that time he visited me and

9 asked me whether I would undertake with some people to organise

10 this plebiscite at voting station 36 which was in Vidovici.

11 Here it states clearly that this is voting station 36. In the

12 Local Commune in Kozarac there were at least five or six such

13 polling stations, so this would be one of them.

14 Q. This document refers to polling place No. 36 in Vidovici. Were

15 there other such documents such as this that indicated other

16 polling places for this plebiscite?

17 A. Here is mentioned Kozarac, Vidovici, as you can see, but mostly

18 it was planned that the plebiscite would be held in the village

19 of Vidovici which has seven families living there. Because of

20 that it was not practical for them to go to Kamicani, to another

21 place, so that is why it had been suggested that this polling

22 station be formed there. It was assumed that there were only a

23 few families of Serb background that lived there. So it was

24 expected that there would not be many votes.

25 Q. So was your responsibility as the President of the voting

26 officials for the plebiscite also concerned with the other

27 polling stations around Kozarac?

28 A. No. This was only for the polling station 36, but not for

Page 7804

1 Kozarac. It is only for the village of Vidovici. However, we

2 organised that in an office that was in the churchyard in

3 Kozarac. The only reason for that was because there were no

4 other communal objects, and it would not have been right to hold

5 the plebiscite in a private house. So we went to this place.

6 Q. So would it be right to say that Vidovici in fact did not have a

7 polling place No. 36 on plebiscite day?

8 A. Correct. Another reason for holding this in the centre of

9 Kozarac, it seemed to me that to organise a plebiscite in a Serb

10 village would not be right in Kozarac, since I lived in the

11 centre of Kozarac. It seemed to me to be like some kind of

12 clandestine voting. It would not have been fair. That was one

13 of the reasons why we decided that the plebiscite take place in

14 Kozarac. It would be questionable to hold the voting in a

15 single ethnic group, place. I did not think it was right.

16 Q. Can we look now at Exhibit 147. Could the Serbo-Croatian

17 version be put in front of the defendant and the English version

18 on the monitor. This is headed as the Minutes of the Election

19 Committee for the day of the plebiscite on 9th November.

20 I think you have already told us that this took place actually

21 in the Serbian Orthodox church office in Kozarac, that is right,

22 is it not?

23 A. Not in the church, but an office in the churchyard.

24 Q. Yes, that is what I meant. If the English version can now be

25 pushed further up the monitor, please, so we have the bottom

26 half of the page fully on display. Thank you very much. This

27 is a record of the numbers of people who voted. Was this a

28 particular responsibility of checking the ballot for the day by

Page 7805

1 you and your committee?

2 A. It was not just me that had to do that. I was President of the

3 commission who had to supervise to make sure that everything was

4 in order, but since it lasted two days many people took turns,

5 not just those on the list; there were many others who took

6 turns. After the voting we acted according to the procedure.

7 There was a document indicating the actual procedure for packing

8 and counting the ballots. They had to be packed and then after

9 a certain time sent to the Municipal Assembly in Prijedor. They

10 were not sent to party headquarters, but to the Municipal

11 Assembly and its commission responsible for organising the

12 plebiscite in the municipality of Prijedor.

13 Q. At this time in November 1991 were you someone who had read a

14 great deal of the political text, other documents that were

15 issued by the party of the SDS?

16 A. I never read anything linked to the SDS or to any other party.

17 In the first place, I had no access to the documents of the SDS

18 party. I was not a member of any local committee, as I said, so

19 I do not see how I could have participated in any such

20 activities. I am not aware of any publications made nor did

21 I ever receive any such documentation.

22 Q. Was the scale of the SDS in Kozarac a very small scale operation

23 without a great deal of organisation?

24 A. There was no SDS in Kozarac until 1992. This is quite clear.

25 Furthermore, many people who were members of the SDS did not

26 proclaim their affiliation in public. I personally did not know

27 who was a member, nor did many know that I was a member. I paid

28 membership fees once and never again. Then I lost my little

Page 7806

1 booklet, membership booklet. So my membership in the SDS in

2 that period was quite insignificant. They must have kept a

3 record in Prijedor of members and I was on that record, on that

4 register, but there was no SDS active in Kozarac at the time.

5 Q. We know that in August 1992 you eventually became the President

6 of the SDS in Kozarac. I am not now concerned with that period,

7 but the period before the conflict. Did you have any official

8 position within the party before the conflict started in

9 Kozarac?

10 A. I told you that until the conflict started in 1992 there was no

11 local SDS committee in Kozarac, officially or unofficially. As

12 far as I am aware, the closest local committee of the SDS was in

13 Jaruge or Babici or somewhere there, but in the centre of

14 Kozarac where I lived there was no SDS local committee

15 registered, nor were any meetings of the SDS party held.

16 Officially the local committee of the SDS was registered in

17 December 1992. That is quite evident.

18 Q. At this time before the conflict in May 1992, did you attend any

19 political assemblies in Prijedor which would have involved the

20 SDS? Did you attend any of their meetings?

21 A. I apologise, could you please repeat the period you are

22 referring to?

23 Q. Before the conflict in Kozarac did you attend any of the

24 meetings of the SDS in Prijedor?

25 A. No, I never attended any meeting of the SDS. It could not have

26 happened. I do not know how to explain it to you. If you were

27 not a member of a local committee you could not attend such a

28 meeting. I know this because the procedure for attending

Page 7807

1 meetings was the same procedure as existed during the communist

2 system. There were local organisations of the League of

3 Communists and these local organisations had a list of members.

4 People were called you out and it was their duty to attend those

5 meetings. Several absences without justification would entail

6 dismissal from the party. Another obligation was to pay

7 membership fees. That was one of the most important duties. If

8 you were irregular in your payment of fees you would be deleted

9 from the register. I am saying this because I think that a

10 similar procedure existed in all other parties. I was not a

11 member of any local committee, and if I wanted to I could not

12 attend such meetings. Every member could attend assembly

13 meetings of the Serbian Democratic Party that were held once a

14 year, but I did not attend ever such assemblies either.

15 Q. Did you have high contacts within the SDS party, with people who

16 were officials?

17 A. I think that the highest official I knew was called Zivko Kos,

18 that is as much as I knew, but I did not have special contacts

19 with other people. Of course, I learnt from the media who was

20 President of the party, the SDS party, but I did not have any

21 special relationships with any of them. I know from the time

22 the parties were formed that the relations among the party

23 leaders were good. Then later I do not know what happened with

24 those relations.

25 Q. Did they supply you as an individual with any information as to

26 what they were doing, what they were planning?

27 A. No. No, I did not even have a statute. I assume there must

28 have existed a statute of the party. I do not know. I am not

Page 7808

1 aware of it. However, no one ever showed it to me or read from

2 it to me. I do not know what the programme of those political

3 parties were, any of the parties. I was not really interested

4 to be quite frank.

5 Q. When the takeover of Prijedor took place on 29th April 1992 and

6 the organs of power within Prijedor were subject to the control

7 of the SDS, were you aware of that event before it happened?

8 A. No. I heard of it for the first time I think it was a

9 Thursday. I remember hearing about it from my neighbours. The

10 first to tell me was Adil Jakupovic. A large number of people

11 from Kozarac were turned back from their way to work. They were

12 turned back to Kozarac. They simply could not go to work on

13 that day and that is when I heard from them for the first time

14 that there had been a takeover of power, that relations had

15 become strained. I do not know the reason, but I know for sure

16 that many were turned back. They told me that they had been

17 turned back from entering Prijedor. I saw lots of people going

18 by and I enquired and many neighbours told me this. I never

19 listened to the radio, but I heard about it from the neighbours

20 that I saw.

21 Q. Were you in Prijedor on that day of 29th April? Did you take

22 any part in taking over the institutions of the town either on

23 that day or on the days afterwards?

24 A. No.

25 Q. Did anyone invite you to take part in the takeover of the

26 institutions within Prijedor on that day or the days immediately

27 following?

28 A. No. I do not see why. What could I have done? What could

Page 7809

1 I have helped? In what way could I have helped? I do not think

2 the idea had ever struck anyone. There was no point, no reason.

3 Q. When that takeover occurred, what effect did it have on the

4 people within a town such as Kozarac?

5 A. People did feel upset. I spoke to many neighbours then.

6 I think it was done in an unfair manner. People were surprised,

7 more perhaps because those political parties ever since their

8 foundation had managed to convince the average citizen that they

9 were co-operating, that there was not any chance of anything

10 happening. They kept advocating the idea that what was most

11 important was to overcome the communist system. There was a

12 general euphoria and you could frequently see people sitting

13 together belonging to different parties, drinking and saying,

14 "We have defeated communism". Ordinary people were not aware

15 of where it was all leading.

16 Q. Before that takeover took place on 29th April, had your family

17 left Kozarac for any substantial period of time to live

18 elsewhere?

19 A. Yes, on April 1st.

20 Q. Why was that on April 1st?

21 A. Several months before that, maybe ever since March, people were

22 getting armed. After the last few months people would not even

23 hide their weapons. They would walk in the streets armed and

24 there was general chaos. The more serious people would not

25 carry weapons in public, but the younger generations would not

26 conceal their weapons. They were getting organised in a sense.

27 I know there were many lists of who would go to which shelter.

28 They were listing buildings. Nobody informed me about anything,

Page 7810

1 I was never invited. I simply felt isolated in that period.

2 Furthermore, I noticed that anyone who had anywhere to go had

3 left, particularly those who had a member of the family abroad,

4 Germany or Slovenia. People were leaving en masse and it was

5 very difficult to get a bus ticket at the time. Those from

6 Banja Luka going to Belgrade were full too. Whoever had

7 anywhere to go went. I simply had no other place to go to. So

8 I sent my family. My wife arranged with a friend of hers that

9 they go to Sanski Most. People were on the move. People were

10 leaving.

11 Q. Why were weapons and arms suddenly being visible and able to be

12 seen in Kozarac?

13 A. I do not know the real answer to that question. Perhaps if

14 I look back at all that happened, I think that everything that

15 was happening in Sarajevo created fear in people. The war in

16 Croatia was getting closer. People felt scared. They feared

17 one another. Then there were groups that emerged, people with a

18 criminal past, for example, Suljo Kusuran who had served time in

19 prison for many years on the Serb side. There were some

20 extremists in Prijedor too and these groups created this fear

21 among people. They would fire shots. They would act in an

22 unruly manner. I knew that people would sell a car to buy a

23 rifle. They would build dug-outs next to their homes. That

24 I could understand because people remembered the last war and

25 the weapons were probably because they feared for their family,

26 but to carry weapons, that was most unpleasant to see,

27 particularly in an environment in which there were five or six

28 families that were Serb in my street, the street I was living

Page 7811

1 in. I think my house was the only Serb house. So that was one

2 of the reasons why I sent my family to Sanski Most.

3 MR. KAY: Your Honour, that is a convenient moment.

4 THE PRESIDING JUDGE: Mr. Wladimiroff, I have been told that you wish

5 that the Trial Chamber meet on Monday?

6 MR. WLADIMIROFF: That is right, your Honour.

7 THE PRESIDING JUDGE: We are at your disposal.

8 MR. WLADIMIROFF: Thank you very much.

9 THE PRESIDING JUDGE: It might be better. You will need that time to

10 complete your witnesses, will you not? Do you think you will

11 finish by Tuesday?

12 MR. WLADIMIROFF: We will aim to do that, but it would be very

13 helpful if we can sit on Monday indeed.

14 THE PRESIDING JUDGE: Mr. Niemann, I will ask if there is any

15 objection. Is there any?

16 MR. NIEMANN: No, your Honour.

17 THE PRESIDING JUDGE: Very good, then we will. We did discuss the

18 closing arguments. The Trial Chamber has decided that the only

19 date I suppose that will fit with both of the schedules of the

20 Prosecutor and the Defence, since you are not available on 14th

21 (and then the courtroom is being used by the other Chamber on

22 19th and 20th) would be November 25th. So we want the closing

23 arguments to begin on Monday, November 25th at 10 a.m. If you

24 wish to submit written submissions then those should be filed by

25 November 20th. As we have indicated, it would be very helpful

26 to us in either the written submissions or orally that you give

27 references and charts or outlines, however you want to do it.

28 In the written submission, of course, you will need to discuss

Page 7812

1 the facts and how they relate to the law, the elements. Do not

2 forget about Article 7(1). That was not mentioned in either of

3 the pretrial briefs. Do not forget about the nature of the

4 conflict, internationality.

5 Perhaps we can talk more about it, but I wanted to

6 give those dates, November 25th at 10 a.m. for the closing

7 arguments. Written submissions are to be filed on 20th. We

8 will adjourn until Monday at 10 a.m.

9 (5.30 p.m.).

10 (The Court adjourned until Monday, 28th October 1996)

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