1 Thursday, 21 February 2002
2 [Open session]
3 --- Upon commencing at 9.04 a.m.
4 [The accused entered court]
5 JUDGE AGIUS: Can you call the case, please?
6 THE REGISTRAR: Good morning, Your Honours. This is case number
7 IT-99-36-T, the Prosecutor versus Radoslav Brdjanin and Momir Talic.
8 JUDGE AGIUS: Good morning, Mr. Brdjanin.
9 THE ACCUSED BRDJANIN: [Interpretation] Good morning, Your Honour.
10 JUDGE AGIUS: I assume that you are hearing me in a language that
11 you can understand.
12 THE ACCUSED BRDJANIN: [Interpretation] Yes, I can hear you and I
13 understand you.
14 JUDGE AGIUS: I thank you. You may sit down.
15 General Talic, good morning to you. Are you hearing me in a
16 language that you can understand?
17 THE ACCUSED TALIC: [Interpretation] Good morning, Your Honour. I
18 can hear you and I understand you.
19 JUDGE AGIUS: I thank you. You may sit down. Appearances for the
21 MS. KORNER: Your Honour, Joanna Korner, Anna Richterova and case
22 manager Denise Gustin for the Prosecution. Your Honour, before we go on
23 with the witness, may I return to something that I raised last night when
24 we have done the --
25 JUDGE AGIUS: Good morning to you, first.
1 MS. KORNER: Good morning, Your Honour. Sorry, I should explain,
2 in the United Kingdom n England and Wales, you get strongly ticked off,
3 corrected, if you say good morning to the Judge or the jury, and that's
4 why -- I hope Your Honours don't think I'm being rude. It's not normal
5 for me to say good morning to the Judges, but in future, I will.
6 JUDGE AGIUS: Okay. I come from a jurisdiction where that is
7 taken for granted. We always say it, even when we finish.
8 MS. KORNER: Yes.
9 JUDGE AGIUS: We say sometimes good afternoon, sometimes good
10 evening, sometimes good night, depending on what time we finish.
11 Appearances for Mr. Brdjanin?
12 MR. ACKERMAN: Your Honour, I'm John Ackerman. I appear with
13 Tania Radosavljevic. Thank you.
14 JUDGE AGIUS: Good morning to you. Appearances for General Talic.
15 MR. PITRON: [Interpretation] Good morning, it's Maitre Pitron,
16 assisted by Natasha Fauveau-Ivanovic.
17 JUDGE AGIUS: I almost did not recognise you, Maitre Pitron. I
18 had almost forgotten how you looked. I understand, before we rose
19 yesterday, last thing was something that you mentioned, which the Trial
20 Chamber basically is very grateful that you raised. And that is the --
21 when you remarked that Mr. Ackerman had failed during his
22 cross-examination to ask Mr. Smailagic any questions with regard to his
23 statement that he had heard Mr. Brdjanin on one or more occasions state
24 that the population of Muslims in Banja Luka would be reduced, would have
25 to be reduced, ideally to between 3 and 5 per cent. The issue being, of
1 course, what practice ought to be -- what will be the practice actually,
2 because this is of course the first time that we are meeting, you're
3 coming from one jurisdiction; I'm coming from another. Mr. Ackerman is
4 coming from another, and the French team is coming from another
5 jurisdiction. And I frankly myself did not realise that this would be an
6 issue and --
7 MS. KORNER: Your Honour, may I --
8 JUDGE AGIUS: I appreciate that you raised it.
9 MS. KORNER: May I explain? I think perhaps if I can just explain
10 why. Firstly, a rule, it's a relatively recent rule, but it was passed.
11 Can I ask Your Honours to look at Rule 90(H)(ii)?
12 JUDGE AGIUS: Yes.
13 MS. KORNER: Your Honour, where it states in cross-examination of
14 a witness who is able to give evidence relevant to the case for the
15 cross-examining party, counsel shall put to that witness the nature of the
16 case for the party for whom that counsel appears, which is in
17 contradiction of the evidence given by the witness.
18 Now, Your Honour, Mr. Smailagic, I think on at least two occasions
19 mentioned that he'd heard Mr. Brdjanin say that no more than between 2 and
20 5 per cent of Muslims should remain in Banja Luka. That was one thing.
21 And the second thing related to how Muslims were going to be treated, I
22 think something to do with a shoe. I can't remember the exact words.
23 Now, it's noteworthy that he was challenged, firstly, that Kupresanin had
24 said the words, "who is not with us, who is against us," but that was left
25 alone. Now, Your Honour, that's particularly important because the
1 indictment - and it's a long time since we've all looked at it - in
2 paragraph 16, in describing the individual criminal responsibility and
3 superior authority of the accused Brdjanin, says, particularly at the
4 sentence beginning, "As such from the early stages, he played a leading
5 role in the takeover of power by the SDS in particular with respect to the
6 propaganda campaign, which was an essential component of the SDS plan to
7 create a Serbian state."
8 Now, Your Honour, obviously one doesn't expect every single aspect
9 which may be challenged by the accused, if he gives evidence, or on which
10 you will be addressed at the end, to be put, but certainly, on major
11 matters, we suggest that the Defence must put its case properly. Mr.
12 Ackerman understands that because, as you saw, he also put his case
13 clearly about the accused's membership of the SDS in Banja Luka.
14 Your Honour, the reason for it, and I think I ought to make this
15 clear, is we have a huge case with a large number of witnesses. We would
16 like, obviously, to reduce the amount of evidence we have to call, and we
17 are only put on notice as to what evidence is challenged by being
18 challenged. We could have assumed that there was no challenge to the
19 words that Mr. Smailagic heard, and therefore have not called evidence
20 about it because we don't want to call unnecessary evidence. And so that
21 is why, in our submission, it's important.
22 JUDGE AGIUS: You're perfectly right.
23 Mr. Ackerman, let me hear what you have to say in regard, and then
24 I will see what the Defence team for General Talic has to say and then I
25 tell you my -- not my opinion but what our stand will be in the course of
1 these proceedings. Mr. Ackerman.
2 MR. ACKERMAN: Your Honour, the issue must begin with the Statute
3 of the Tribunal, which always overrides any rule that the Judges may
4 fashion. The Judges may only fashion rules that are in accordance with
5 the Statute of the Tribunal which comes from the Security Council of the
6 United Nations. That Statute requires -- has a number of matters
7 regarding the rights of the defendant, and one of those rights is to have
8 the Prosecutor prove the case against him beyond a reasonable doubt, to
9 have the burden of proof always rest with the Prosecutor and never shift
10 to the Defence. The interpretation which Ms. Korner wants you to put on
11 Rule 90 would be an egregious violation of the Statute in that regard
12 because what she is suggesting to you is that somehow she can prove her
13 case by the silence of the Defence. And the silence of the Defence should
14 never be a basis upon which she could prove her case.
15 JUDGE AGIUS: Let me interrupt you for a moment, Mr. Ackerman.
16 That's not how this Trial Chamber has understood what Ms. Korner has
18 MR. ACKERMAN: Well, if that's the case, then that's fine.
19 JUDGE AGIUS: It's not. Let's start from here, two basic
20 principles. Number one is that no one expects Defence counsel to be as
21 thorough in the cross-examination as to cover the whole evidence in chief
22 of the witness. Definitely, that is not the case. I mean, because
23 otherwise you would be penalised if you miss one question, if you miss two
24 questions, or if you miss the third question. That's not the point. The
25 whole point is this: What is the position, this is what I would like to
1 hear from you, if on a major issue on which the witness has been quite
2 categoric upon being examined, what is the position if, upon
3 cross-examination, that issue is completely ignored? In other words, if
4 no questions are put to the witness to confront him with whatever in
5 relation to that categoric statement on a major issue that he would have
6 made before. This is what I want to hear from you. And I more or less,
7 in order not to prolong it unduly, my personal opinion, basing myself on
8 the principle that emerges from the Statute, that the burden of proof,
9 that the onus of proof, never shifts on the Defence unless and except in
10 certain limited areas and for certain limited purposes only. And
11 secondly, the rule that Ms. Korner referred me -- made reference to,
12 accompanied with other rules that govern examination-in-chief and
13 cross-examination. Let's imagine for a moment that -- you may sit down
14 and then when it's time -- let's imagine for a moment that witness
15 Smailagic made an affirmation, which could be the affirmation that Ms.
16 Korner referred to yesterday or it could be another one. In this
17 particular case, the affirmation is that on more than one occasion, he
18 heard your client, I think on TV or on the radio or in a square, make a
19 statement to the effect that the plan is, the idea is, the desideratum is,
20 that at the end of this story there will only be 2 to 5 per cent Muslims
21 in the Banja Luka -- in the Banja Luka municipality. Now, that is
22 something which definitely, as Ms. Korner explained, falls within the
23 parameters of a very specific accusation that is being levelled against
24 your client.
25 The position as this Tribunal sees it is as follows: A statement
1 has been made by a witness. A statement has been made by a witness.
2 Question number one, does it need to be contradicted by the Defence in the
3 course of the cross-examination of that witness? Number one. And in that
4 regard, it seems that Rule 90(H)(ii) or 90(H) seems to imply that in
5 cross-examining the witness, the Defence ought to challenge that witness
6 on what it thinks can be challenged. But let's say that you forget or you
7 decide it's not wise or it's -- it will not be useful or sometimes it may
8 be counterproductive to you to put the question, especially anticipating
9 that you will get a second confirmation by the witness of that statement.
10 Now, this Tribunal, as composed, can assure you that we are aware of these
11 dangers. I mean, I was taught when I was still a very young lawyer to be
12 careful what questions to put, especially upon cross-examination, because
13 sometimes you ask a question and the chances are that if you ask that
14 question, you go back home worse off than you were at the beginning of the
15 day. So you are, most of the time, very careful.
16 The whole point is this: At the end of the exercise, because this
17 is not just an exercise which implies the evidence of Mr. Smailagic, but
18 it is an exercise which implies a terrific, a humungous amount of
19 evidence, what will be situation be? Now, if the situation will be that
20 on day 19 and day 18 of February, 2002, witness Zijahudin Smailagic heard
21 Mr. Brdjanin say on two occasion the words that were made reference to,
22 were referred to earlier on, and if we also find on record that a week
23 earlier, Mr. Muharem Krzic said exactly the same thing, and in both
24 instances the two witnesses were not challenged as regards these
25 statements, and in the course of the trial, no evidence was forthcoming
1 which puts those statements in doubt, then obviously the fact that you did
2 not cross-examine that witness on that particular point is going to have a
3 bearing. It's going to carry some weight. So in reality, what I am --
4 what I am telling you before I hear you, and I am doing this precisely to
5 help you and the Defence team for General Talic come forward on this, I
6 think that first we ought to be grateful to Ms. Korner for having raised
7 the issue yesterday, because I realised afterwards that it would have been
8 most unfair if we were to go ahead with this trial and you not knowing
9 what the position would be. And therefore I personally, also on behalf of
10 my two colleagues, am very grateful to Ms. Korner for her loyalty to you
11 and to the Trial Chamber in raising this matter. That's number one.
12 Secondly, I think we ought to have this cleared out as we are not
13 here to do the job of anyone here, neither of the Prosecution nor of the
14 Defence, nor are we being asked to do it. But this is a long trial, Mr.
15 Ackerman. This is going to be a long, long trial. I spent hours already
16 with my legal staff and with my two Judges, trying to organise ourselves
17 as from day one in a way which would make it relatively easy for us,
18 certainly not impossible to reach our conclusions and to do our work well
19 when we come to the crux later on, maybe in a year and a half's time or
20 maybe even later.
21 You are more or less in the same position. The fact that you may
22 not have asked questions to Mr. Smailagic on this point and the fact that
23 this is not mentioned at all between now and when we come to the final
24 pleadings, coupled with perhaps a few other instances that we may come
25 across later on, because I would imagine that this is not the only
1 instance where this is going to happen, maybe damning, and this is where I
2 am being frank with you and I'm trying to open the eyes. The Rule 90(H)
3 is there for a reason, because just as there are rules governing
4 cross-examination, what ought to be included or what should be included in
5 a cross-examination and what should be left out, these are very important
6 rules, because it's not a question of drawing an inference from the
7 silence of the Defence. You've put it wrongly. It's a question of having
8 a piece of evidence, a statement, made by a witness, which may end up
9 being or remaining uncontradicted. If it is contradicted later on by
10 other evidence, you don't have to worry about it. But it may well be that
11 it will not be contradicted because you will forget about it the first
12 time, you will forget about it the second or the third time, and the
13 French team of lawyers will forget about it, too. No one remembers it,
14 but at the end of the day, we are going to have it the way we are
15 operating, this Trial Chamber with our legal team. At the end of every
16 evidence, the basic points are being catalogued. So at the end of the
17 day, if there is a cross-reference by a future witness, et cetera, it goes
18 straight -- by way of a cross-reference to previous statements by others.
19 So I think I suggest to you -- let me hear what you have to say. But I'm
20 sure you have understood the approach of this Trial Chamber in regard to
21 this matter.
22 MR. ACKERMAN: I believe, Your Honour, I understand what you're
23 saying. The thing that I thought I heard Ms. Korner saying was that by my
24 failure to ask him about that one particular statement, that the issue was
25 foreclosed forever and she had proved that point, and that I would not
1 even be able to put on evidence to contradict it. If that's the case,
2 then I think it's a gross violation of the Statute.
3 It seems to me that it's of no value to the Trial Chamber or
4 anyone else for me to say to a witness, "Isn't it true you lied about Mr.
5 Brdjanin making that statement" so that he can say, "No, I didn't; it's
6 true," so you hear it twice. What does that do for you and what does that
7 do for me? Nothing. It just prolongs cross-examination. Now, I can
8 extend my cross-examinations - which I think already you think are too
9 long - by another hour or two, to make sure I cover every point, and I
10 don't think that's what you're asking me to do.
11 JUDGE AGIUS: I don't think you need to cover every point, but the
12 question has been put very bluntly and in no uncertain terms by Ms. Korner
13 to you. When you failed or when you decided - because it's not a question
14 of you failed - when you opted against putting that question to Mr.
15 Smailagic, does it mean to say that you are no longer contending that Mr.
16 Brdjanin on one or two occasions made that statement? You should -- I
17 think it's perfectly legitimate for Ms. Korner, and I would do the same,
18 to ask that question, because I would definitely want to know which
19 position you are putting, because if you are putting me in a position
20 whereby you are agreeing that that statement is not being contested, then
21 obviously I don't need to bring forward any other evidence, but if you
22 leave it pending like that --
23 MR. ACKERMAN: Certainly.
24 JUDGE AGIUS: Once you are asked, because if you are not asked, no
25 one is going to force you to put the question.
1 MR. ACKERMAN: That's fine. I appreciate that.
2 JUDGE AGIUS: But don't blame Ms. Korner for having raised the
3 matter. Because if she has a duty, as she has, of regulating her case,
4 bringing forward all the necessary -- don't forget that the Prosecution,
5 like you, have got not just the onus of the burden of proof, which you
6 don't have, but they also have the duty of bringing forward the best
7 evidence, and the best evidence means that if a point, an issue, is
8 contested, then if they have four, five, six witnesses that can prove that
9 point, until they are and unless they are directed, stop, that's enough,
10 they have a duty to bring forward that evidence.
11 MR. ACKERMAN: I understand that and I --
12 JUDGE AGIUS: So, I mean, the spirit which motivated Ms. Korner I
13 think is highly laudable. She is saying, "I am trying to make the life of
14 everyone here as easy as possible and not to prolong the proceedings
15 unduly by bringing forward unnecessary witnesses. Does the fact that you
16 failed to put these questions while Rule 90(H) would otherwise require you
17 to put a question in contradiction to the statement, does it mean
18 that you are not contesting that part of the statement?" Of course she is
19 right in asking that question of you.
20 MR. ACKERMAN: Your Honour, when the time comes when I make
21 admissions of various allegations in parts of the indictment, I will make
22 it extraordinarily clear that that's what I'm doing. I won't do that
23 sneakily in any way. The other thing that Your Honours must understand,
24 and Ms. Korner wants to even put on a witness to tell you about how these
25 statements are taken, but what you must understand is like this witness,
1 when he did his direct examination, we heard a number of things for the
2 first time that are not in his statement, and I'm not speaking of the
3 particular matter that she raised but a number of things he said here for
4 the first time.
5 JUDGE AGIUS: That's going to happen with every witness.
6 MR. ACKERMAN: That's going to happen with every witness, and to
7 expect me to immediately stand up and have the evidence to back a question
8 like Ms. Korner suggests I should ask, is just too much. All I can do is,
9 when I hear him say something that has never been in a statement, that
10 I've never heard before, is ask my people in Banja Luka to begin
11 investigating that.
12 Now, I take it with regard to the issue that we are talking about
13 that I will be permitted, and I'm sure you've made this clear to me, if I
14 choose to, to bring as many witnesses as you will let me bring who were
15 present at that rally at which he says Mr. Brdjanin said this, to say, "I
16 was there and he did not say it." That would be a way for me to contest
17 it and I think the proper way for me to contest it. Any other way would
18 probably violate the Statute. The other thing, in my country, and I
19 assume this is true, it has been here before, if a witness testifies
20 falsely before this Tribunal about an important matter, the Tribunal then
21 has the option to reject his entire testimony. That's an instruction we
22 give to juries in the United States and I take it that if a witness on
23 cross-examination, if I spend 15 minutes and prove him a liar on three
24 matters, I could sit down and rest on the proposition that I've proven him
25 to be a liar and that you should not credit anything that he said. That
1 would certainly save time but if -- and I don't think I should have to go
2 through every statement that every witness makes and figure out some way
3 to contradict it. It would be dishonest, among other things, because I
4 can't legitimately ask a witness a question that I haven't even
5 investigated the issue about.
6 JUDGE AGIUS: Yes, Ms. Korner, before I ask --
7 MS. KORNER: May I reply to that before you here so that I deal
8 with Mr. Ackerman's points in order? The first is this: The requirement,
9 and I emphasise it, the requirement in the Rules, and it is no good
10 Mr. Ackerman saying that any rule that is in conflict with the Statute
11 must be struck down. There has been, as I understand it, no appeal
12 against this Rule. It is there, and the Rules are there for a reason, and
13 historically, as I understand it, one of the reasons it was put in was
14 because exactly what Mr. Ackerman has described was happening, that when
15 the Defence put on its case, suddenly a whole major aspect of the
16 Prosecution case was challenged which had never been put to any of the
17 witnesses. The reason it is there is not to require the Defence to prove
19 JUDGE AGIUS: Of course not.
20 MS. KORNER: But merely to put to the witness so that Your Honours
21 can see, amongst other things, the reaction of the witness, because you
22 have to assess, when there is a conflict of evidence, whether or not you
23 are satisfied so that you are sure the Prosecution witness or the Defence
24 witness, whichever it -- no, really the Prosecution witness, has told you
25 the truth. And so therefore the reaction of the witness is an important
1 aspect of the assessment of the evidence. Mr. Ackerman is perhaps -- I'm
2 not sure what the right word is -- but it's absolutely clear that he
3 understood the rule and applied the rule, because as I said to Your
4 Honour, he put to Mr. Smailagic that at no stage did -- was Mr. Brdjanin a
5 member of the Banja Luka SDS. He put to him that he was wrong in one of
6 the things that he said. The one thing that he's not put, and I
7 understand why he hasn't put it, he doesn't want to put his case.
8 JUDGE AGIUS: May I interrupt you for a second? You are so right,
9 Ms. Korner. If you look at the French text, I purposely -- I suppose you
10 are all in possession of this document, a compilation of articles of the
11 rules and how they have developed from time to time.
12 MS. KORNER: I don't think -- actually, I don't think I am but --
13 JUDGE AGIUS: If you look at the French text of this rule, it is
14 very clear. In other words, what it says, [French spoken - no
15 interpretation]. In other words, if you have -- you have a duty in
16 cross-examination, cross-examining the witness, to confront him with
17 information, with facts, that you know of, and which contradict his
18 statement. In other words, the rule itself makes it compulsory on whoever
19 is conducting the cross-examination, because it would work both ways, if
20 there has been a statement and you are in possession of facts which
21 contradict that statement, you must put those facts to the witness by way
22 of showing him that there is evidence which contradicts him.
23 MS. KORNER: And Your Honour, may I just finish before Mr.
24 Ackerman replies? Because the points that he's just made about witnesses
25 saying that things which are not in their statements, now, Your Honour, we
1 appreciate that and particularly with the older statements, witnesses have
2 a great deal more to say and when the witnesses are proofed, if they say
3 something new, the Defence is supplied as much as possible with what else
4 they are going it talk about so they can take instructions. But the
5 answer is if a witness in the witness box says something directly
6 pertinent to the defendant or the defendant's case which he has not said
7 before, then the defendant is sitting there and nobody could object if
8 time is asked to take instructions from the defendant on that new aspect.
9 So, Your Honour, I just wanted to add that.
10 JUDGE AGIUS: Yes, Mr. Ackerman?
11 MR. ACKERMAN: You've just raised another way, Your Honour, how
12 this rule if interpreted the way you've suggested is in gross violation
13 of the Statute, and that's this, and Ms. Korner just said it. We give you
14 information far enough in advance to take instructions. What she means by
15 saying that is that if a witness says that Mr. Brdjanin did something,
16 that I'm supposed to go ask him and come back and tell you what he said,
17 which is a gross violation of his right to remain silent. And I will not
18 do that. I can't do that. That's a violation of my ethics to report to
19 this Court what he told me in confidence.
20 JUDGE AGIUS: Definitely not.
21 MR. ACKERMAN: To do it in the form of asking a question.
22 JUDGE AGIUS: But I would invite you -- that's beside the point I
23 think at this point. I would invite you to look, if you understand
24 French, to look at the French version of this rule because it is a far cry
25 from being a literal translation of the English version. The English
1 version is, "shall put to that witness the nature of the case of the party
2 for whom that counsel appears, which is in contradiction of the evidence
3 of the witness." The French version literally translated means or should
4 read, "You have a duty to confront that witness with the -- those elements
5 or those facts about which you are -- which you have at your disposal
6 which contradict his statement."
7 So there is a conflict between -- according to me, not a conflict,
8 they certainly do not say the same thing, and the French version certainly
9 gives much more sense to what -- Ms. Korner's position than the English
10 translation itself. It's certainly more categoric. If you want to see
11 it, I have it here available. I can let you see it. But I suppose you
12 have it.
13 MR. ACKERMAN: I would have access to it. I wouldn't be able to
14 read it with the precision that you can, Your Honour, or my colleagues
15 behind me. And that then raises the question of whether there is one rule
16 or two rules because if they are that dramatically different, then there
17 are two rules and then which one controls?
18 JUDGE AGIUS: The aim is that basically since the
19 cross-examination is a -- taking the witness to task on what he stated in
20 examination, in the examination-in-chief, this is the whole purpose of the
21 cross-examination. Basically, if you are moving outside of those
22 parameters, you can only do it with the permission of the Court. But
23 within those parameters, you're taking the witness to task. It should be
24 complete, as complete an exercise as possible, with the consequence that,
25 although you do not have the onus of proof shifted on you at any given
1 time, no one is saying that, neither did Ms. Korner say that the onus of
2 proof is shifted on you upon cross-examination of the witness, no one said
4 MR. ACKERMAN: Your Honour, let me just close this way.
5 JUDGE AGIUS: Okay.
6 MR. ACKERMAN: I want the record to be clear that I am asserting
7 at this point that if Rule 90(H)(i) is applied in the way that Ms. Korner
8 suggests --
9 JUDGE AGIUS: Sorry, 90(H)(ii), Roman II, yes.
10 MR. ACKERMAN: -- is applied in the way Ms. Korner is suggesting
11 that it violates the Statute of this Tribunal in the ways that I have
12 said. Secondly, I must now request that I be permitted to reopen my
13 cross-examination of Mr. Smailagic and so that I can go through all these
14 matters with him that Ms. Korner suggests that I should have initially.
15 JUDGE AGIUS: I suppose first you would agree that we finish with
16 the cross-examination of Mr. Smailagic by the team for General Talic.
17 Now, do Maitre Pitron or Madam Fauveau have anything to say on this
19 MR. PITRON: [Interpretation] Mr. President, the issue that you
20 have raised is interesting because it does illustrate the differences of
21 our procedure. The questions that you have raised don't seem to be raised
22 in an inquisitional system or, if so, it's in a very different manner
23 because the proof would have been brought before the beginning of the
24 trial, the evidence. We are talking about existing evidence, and not
25 about evidence that appears in the course of the examination. So although
1 General Talic is not concerned by this particular point, by this factual
2 point, the legal issue is interesting in itself. I think that we should
3 refer to the text, which is what you have done, and rightly so.
4 My interpretation is not quite the same as yours, of Article
5 90(H)(ii). What I notice in the second part of the sentence in this
6 article is that the party who is cross-examining the witness has to
7 confront him with the elements that they have which are in contradiction
8 of his statement. And as a cross-examiner, I have to challenge the
9 witness's statement with evidence that I have at my disposal. Yes, I have
10 to do that. But I have to challenge him on the basis of the elements that
11 I dispose of, and if I have understood problem that we are faced with, Mr.
12 Ackerman had no such evidence in order to respond to the witness's
13 statement, because in the witness's statement, written statement, which
14 was a basis on which the cross-examination was prepared, the reference to
15 the two declarations that Mr. Brdjanin made was non-existent. So this is
16 a new element which appears in the debate. How can the Defence respond to
17 elements that it had no information on?
18 So as far as this question is concerned, I think that it is
19 possible to provide three cumulative answers. The first answer is that it
20 is normal for the witness to be re-examined again on a new point and that
21 the cross-examination be reopened after the Defence has been able to
22 analyse the witness's new statements and to discuss this with its client.
23 My second remark is that the witness -- I'm sorry, the Defence, may
24 always, if it so desires in the course of the trial, either by
25 cross-examining a witness or by presenting its own witnesses, they can
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 raise a new debate on questions in order to clarify matters. And the last
2 remark I would like to make, and I'm referring to the inquisitional
3 system, in any event, the Defence's final argument provides a summary of
4 its position. And after my argument, I contest what the witness says,
5 even something that he said a few months earlier, I think that your
6 Tribunal has to take account that I'm against the statement that the
7 witness made that I don't agree with it, even if in this particular case,
8 I only -- I only have my word and I have no other evidence to provide. So
9 in conclusion, I think that if we follow this line of reasoning, we will
10 be respecting a fundamental principle which transcends the Rules of the
11 Tribunal, the Rules of Evidence of the Tribunal and all the other
12 principles that have to be applied in all trials. This is the principle
13 of contradiction.
14 JUDGE AGIUS: Yes. Can we close the matter here? More or less,
15 the position as the Trial Chamber sees it is as follows: This is not a
16 question of whether when winding up the case at the final stages, you have
17 a right or not to say, "We don't agree with this. We don't agree with
18 that. We submit that this has not been proven. We submit that there is
19 reasonable doubt on this and a reasonable doubt on that." This is not an
20 issue. No one should even think for a moment that this will not take
21 place when the time comes.
22 The whole issue is this: May I please remind you, in my career as
23 a Judge I have lost count, and I wouldn't even try to count the number of
24 judgements which I wrote in which my conclusions are based on the facts
25 that certain statements made by witnesses in the course of the proceedings
1 remain unchallenged, uncontradicted. It's not a question of you standing
2 up and saying, "We do not agree with this. We don't agree with that." At
3 the end of the day, whoever is going to decide on the facts is going to
4 put in the basket all the evidence that has been forthcoming, pro and con,
5 and see what the situation is.
6 If there is a fact that has been stated on oath or under solemn
7 declaration, even once if necessary, which is capable of being believed,
8 and the Trial Chamber believes it, and that fact especially is not
9 contradicted, the fact that it is not contradicted is going it carry a
10 tremendous weight. This is why, rather than confronting Ms. Korner on --
11 for having raised the matter, I'm thankful to her, because it has made
12 things clear to more or less to everyone, especially since we come from
13 different jurisdictions. I'm fully aware of the difficulty that this may
14 cause, especially for someone coming from the continental system, like the
15 French or the Italian or the -- the Spanish or the Portuguese, or even the
16 German and even the Dutch, if I remember well. But the thing is this, we
17 are not saying that a fact stated by a witness upon examination-in-chief,
18 if not contradicted in the course of that cross-examination -- of the
19 cross-examination, can never be contradicted afterwards. What we are
20 saying is that you have a duty under 90(H)(ii) to confront that witness
21 with any elements, any facts that are in your possession which are in
22 contradiction with his statement. The basic conclusion, the logical
23 conclusion, legal conclusion - because I'm not interested in syllogisms
24 here - the legal conclusion, Mr. Ackerman and Maitre Pitron, is and can
25 only be, if what I told you now is valid, in other words, that at the end
1 of the day the fact that something has not been contradicted will carry --
2 will have a bearing, will carry its proper weight. It will carry an even
3 greater weight if you had, possibly, information that you could have faced
4 that witness with and you never faced that witness with that information.
5 It's not a question of you being prejudiced because you prevailed yourself
6 or took advantage of the benefit you have to remain silent. This is not
7 the case.
8 There is a rule which makes it imperative that you should confront
9 a witness upon cross-examination with evidence that you may have which
10 should -- which can be used to contradict him or which shows him at least
11 that you are not accepting his statement. In this particular case,
12 telling him, "I am in possession of -- I have witnesses that are prepared
13 to give evidence here that you're not saying the truth," for the purpose
14 of this exercise under 90(H)(ii) would probably suffice, but you have to
15 face it under 90(H)(ii), in other words, not leave it, let it pass by as
16 if it's not being contested by you. Are we there? Not yet?
17 MR. ACKERMAN: Not yet, Your Honour.
18 JUDGE AGIUS: It's a good thing I sleep a full eight hours every
20 MR. ACKERMAN: I'm glad you do. I wish I could. There are two
21 more matters, I guess, that I need to bring to your attention in light of
22 this. The first thing, I think the Prosecution will agree with me, I've
23 cursorily looked, and I'm pretty sure I'm correct, that in none of the
24 statements of Mr. Smailagic did he report, even after four days of
25 questioning by OTP investigators, that Mr. Brdjanin had ever said, "We
1 would keep between 3 and 5 per cent of balijas here to make them do
2 humiliating jobs, the jobs which were humiliating for Serbs." No where in
3 his statements does this appear. And, all of a sudden, my failure to
4 contest it is taken as some kind of an admission, and I think that's not
6 The other thing that I now need to report to Your Honours because
7 of what I've been hearing just the last few moments is this: At about
8 10.00 last night, I received some additional new documents from Banja Luka
9 that were discovered in the course of the further investigation of the
10 things this witness has said. I concluded last night that it was -- it
11 would just be extraordinarily time consuming and delaying for me to try to
12 get those in the position they could be used as exhibits and ask you to
13 let me continue my cross-examination of this witness to get them
14 translated, to do all the things necessary to use them. But if you're
15 going to apply a rule which says I must confront him with things as to
16 which I have knowledge, then I would ask that we -- that we take some
17 time, that we have a short recess, 30 minutes to 45 minutes, so that I can
18 get these materials prepared as exhibits, so that I can be assisted by my
19 staff to understand better the contents of them and then be able to
20 question him about them. I will tell you that they have to do with his
21 contentions regarding this travel agency and Perka, and who owned it and
22 who operated it, and I think we have documents that now make it quite
23 clear that virtually everything he said about that agency is wrong and
24 incorrect and untrue.
25 My idea was to get them translated and marked and give them to the
1 Prosecutor as reciprocal discovery within the next couple of days, but not
2 to use them until there was perhaps an appropriate witness to use them
3 with, that the Prosecutor would call or with a witness that I would call
4 later in the case. So I'm now at a position where I must ask the Chamber
5 what you would prefer that I do with regard to these new documents and I
6 will do what you suggest, Your Honour.
7 JUDGE AGIUS: Well, a very quick answer to that. I don't -- I
8 think that what we have been discussing so far has been the result of an
9 issue that was brought up by Ms. Korner and which was limited only to a
10 very particular part of the evidence of Mr. Smailagic. That is the part
11 in which he specifically alleged to have heard your client say the words
12 that we mentioned before. And I think we ought at this stage to limit
13 ourselves to that issue, with the understanding that - which probably you
14 have understood already - that you will have an opportunity once we finish
15 with the cross-examination by the team of General Talic, to re-examine --
16 re-cross-examine or reopen your cross-examination of Mr. Smailagic with
17 regard to that point. There is no allegation that you have failed to
18 observe the dictates of Rule 90(H)(ii) with regard to any other point,
19 aspect, of Mr. Smailagic's evidence.
20 With regard to this particular issue, the agency, Perka, whether
21 Perka is Mr. Brdjanin's wife, was there an involvement by Mrs. Brdjanin in
22 this agency, was there an involvement by Mr. Brdjanin in this agency, or
23 not, I think you confronted Mr. Smailagic with the evidence that you had
24 there, obtained from him, an affirmation that Perka was not Mr. Brdjanin's
25 wife, that this agency was not run by Mr. Brdjanin's wife but by this
1 Perka and by Mr. Glogovac.
2 MR. ACKERMAN: Mr. Glogovac, and I can now prove that's not true,
4 JUDGE AGIUS: Again, I think you can prove that and you will
5 obviously have all the facility to prove that later on when it's your turn
6 to prove anything, if I am using the correct term, and I don't think we
7 should raise it up now to reopen a chapter that I consider closed.
8 Yes, Ms. Korner?
9 MS. KORNER: Your Honour, I remind Mr. Ackerman he doesn't have to
10 prove anything at all.
11 JUDGE AGIUS: That's why I said if I'm using the correct words.
12 MS. KORNER: Your Honour, in respect of the 2 per cent aspect, we
13 absolutely accept that those words were not in Mr. Smailagic's statement.
14 However, this is an aspect of the case that appears in a number of
15 witnesses' statements and at one stage was actually specifically stated in
16 the indictment. It was removed on one of the amendments because it was
17 evidence, so it's not something Mr. Ackerman can say he was unaware of
18 that this was part of the Prosecution's case.
19 JUDGE AGIUS: Also mentioned by the previous witness.
20 MS. KORNER: Exactly. Your Honour, so far as that is concerned,
21 we agree with Your Honour. We are not asking for the aspect of Perka.
22 Mr. Ackerman did put his case quite clearly. He doesn't accept what
23 Mr. Smailagic says. The only thing I would mention is this business of
24 documents suddenly arriving from Banja Luka, all the evidence about the
25 Perka agency was contained in those statements. So Mr. Ackerman did know
1 well in advance. So I'm somewhat troubled by this question of documents
2 suddenly arriving. However, for these purposes, Your Honour, all we are
3 asking is that Mr. Ackerman put to Mr. Smailagic, if that is his case,
4 that these words were not used by Mr. Brdjanin. That is with respect to
5 the 2 per cent.
6 JUDGE AGIUS: That's how this Trial Chamber sees it, anyway.
7 Okay? We should only be restricted to this. So I think we can call in
8 the witness now. I hope he's been offered a coffee or something while he
9 has been waiting.
10 Yes, Madam Fauveau, wait before you bring in the witness.
11 MS. FAUVEAU-IVANOVIC: [Interpretation] Before the witness comes,
12 I would like to apologise on behalf of Maitre de Roux and ask you for
13 permission to continue with the cross-examination that he started
15 JUDGE AGIUS: I understand that you have the full trust and
16 confidence of General Talic.
17 THE ACCUSED TALIC: [Interpretation] Yes, Your Honour.
18 JUDGE AGIUS: Okay. So you can remain standing while the witness
19 is brought in, and you can proceed with your cross-examination.
20 [The witness entered court]
21 JUDGE AGIUS: Good morning, Mr. Smailagic.
22 THE WITNESS: [Interpretation] Good morning.
23 JUDGE AGIUS: The gentleman next to you is going to hand you the
24 same document in which there is a solemn declaration that you are kindly
25 asked to read out to us, please.
1 THE WITNESS: [Interpretation] I solemnly declare that I will speak
2 the truth, the whole truth, and nothing but the truth.
3 WITNESS: ZIJAHUDIN SMAILAGIC [Resumed]
4 [Witness answered through interpreter]
5 JUDGE AGIUS: You may sit down. If you look to your left, you
6 will see a lady lawyer standing, who will be putting questions to you.
7 This is a continuation of the cross-examination by the Defence team of
8 General Talic that was started yesterday shortly before we finished the
9 sitting. Madam Fauveau will be putting some questions to you. Yes,
10 please proceed, Madam Fauveau.
11 MS. FAUVEAU-IVANOVIC: [Interpretation] Thank you. Before
12 starting, the two statements -- could the two statements, the witness's
13 two statements be provided to him?
14 JUDGE AGIUS: Yes, Mr. Smailagic, do you have copies of your
15 statements in front of you?
16 THE WITNESS: [Interpretation] Yes, I have. I've received them.
17 JUDGE AGIUS: Thank you.
18 Cross-examined by Ms. Fauveau-Ivanovic:
19 Q. [Interpretation] Mr. Smailagic, Maitre de Roux asked you a series
20 of questions yesterday regarding your activities in 1992. I'm going to
21 continue with this series of questions. Yesterday, you said that when you
22 informed the international organisations, the authorities and the -- and
23 the authorities of Bosnia-Herzegovina of the situation in Banja Luka, you
24 were playing a political and humanitarian role. Do you remember this?
25 A. Yes, but not just a humanitarian role. We were politically
1 engaged as representatives of a certain people, group of people.
2 Q. Is it true that you played a role which was political and
4 A. Yes, when it was necessary.
5 Q. When you were being examined on the 19th of February, 2002, you
6 said that you hadn't received any military information.
7 A. No. We didn't gather any. But we didn't ask, we didn't seek to
8 gather any. We didn't take any action. It was just citizens who would
9 come, because they didn't have anyone else to address in Banja Luka apart
10 for us. And then we would find out this information and we would forward
11 it, regardless of the nature of that information.
12 Q. So you confirm that among the information that you received, there
13 was also military information?
14 A. Well, you could consider it to be such, as it was a military --
15 everything was under the army.
16 Q. So you are saying that there was military information that you
18 A. That depends on the information you are referring to. We were
19 only interested in, because there were quite a few Muslims and Croats who
20 were forced to -- to be mobilised. They were taken to the front, to the
21 battlefield. And that's what interested us most.
22 Q. I'm talking about certain information which concerns the Serbian
23 army's attacks or information concerning Serbian soldiers who were killed
24 at the front.
25 A. Yes. There was such information too, perhaps something about
1 attacks, and perhaps something about wounded, how many were brought into
2 Banja Luka, because we could hear this from the Serbs themselves. There
3 were quite a few people from Banja Luka of Serbian nationality; they
4 were in the army. Someone would be wounded from someone's family and
5 that's how we would find out this. And then -- but nothing special was
6 organised to gather information.
7 Q. You said that some of the faxes that you received or sent were
9 A. Yes, but I didn't know what the coded ones were about and I didn't
10 ask what they were about. Maybe there were two or three of them.
11 Q. So in fact there were messages, the contents of which were unknown
12 to you?
13 A. At the time, I didn't know. Later I found out, after the war,
14 that these messages were of a private nature sometimes, and so on. But
15 the real contents of these messages, no, I never found out what it was.
16 Q. Would you agree that among these coded messages, there were some
17 which contained military information?
18 A. I couldn't make a comment on that because I said I didn't know
19 what the content of these messages was.
20 Q. I am going to address another subject. Yesterday, you said that
21 many Serbs fled from Croatia and came to Bosnia. Do you remember that?
22 A. Yes. That was about 1991. They were civilians, mostly old
23 people. There were some young people but they were mostly old people and
24 women, and they were refugees.
25 Q. Could you have a look at your statement of the year 2001? I think
1 it's the statement number 2. On page 3, you also said that many Serbs
2 fled from Croatia and from different regions in Bosnia. The first
3 paragraph on page 3, the middle of the paragraph.
4 JUDGE AGIUS: Ms. Fauveau, if you have the B/C/S version in front
5 of you, perhaps you could direct him better, because I'm sure it will not
6 be the first paragraph on page 3 in B/C/S.
7 MS. FAUVEAU-IVANOVIC: [Interpretation]
8 Q. It's the first paragraph, the first entire paragraph, which starts
9 with the phrase, with the words, [In English] "The meeting was held."
10 A. Yes, I found it.
11 Q. [Interpretation] Do you agree that you said there were many Serbs
12 who fled from different areas in Bosnia?
13 A. Yes. But the first time they started arriving, they were mostly
14 from Slavonia or Posavena, Pakrac, Novo Gradiska, that area.
15 Q. Thank you, but it is the region of Bosnia that I'm interested in.
16 Could you tell us from which areas of Bosnia these Serbs fled from?
17 A. Later they came from Travnik, I think, and from Jajce, too.
18 That's more or less the situation. And then later on, we didn't even know
19 where they were coming from because there were quite a lot of refugees in
20 Banja Luka then.
21 Q. Do you know why these Serbs fled from their regions and came to
22 Banja Luka?
23 A. Well, because of the war, there was -- there was fighting there.
24 Q. You said at a hearing that the SDA party was a multi-ethnic party
25 in the start, the hearing on the 19th of February.
1 A. That's right.
2 Q. You said that some Serbs were members of the SDA party.
3 A. That's right.
4 Q. Could you tell us their names?
5 A. No, because of their security.
6 Q. And if we were in closed session and the information was
7 confidential in such a case, would you provide us with their names?
8 A. No, I wouldn't.
9 Q. You also said during the same hearing that some Croats were
10 members of the SDA before the formation of the HDZ.
11 A. That's right.
12 Q. After the HDZ had been founded, did a certain number of Croats
13 remain in the SDA?
14 A. No, no. They said thank you to us and they joined the HDZ party.
15 Q. And the Serbs who were members of the SDA, what was their fate?
16 A. They simply withdrew in silence, they didn't appear any more.
17 There was no sense in asking them to come to us, because there was fear
18 and we were afraid, as were the Croats and the Serbs were afraid too,
19 because there were quite a few Serbs who thought in a slightly different
20 way. If you have a look at the text of the decision on earlier relations,
21 you will see in one part it says, the Serbs who didn't turn up at the
22 plebiscite, there were quite a few Serbs who didn't respond to the
24 Q. During the elections in 1990, were there still Serbs and Croats or
25 that is Serbs, in the SDA party?
1 A. During the elections, at the time of the elections, no. They were
2 registered when the party was -- they were registered then but they
3 weren't active participants. They were members, though, and that was
4 known. Before the elections, and during the elections.
5 Q. So when the elections were held, the SDA party was already a party
6 which had a homogeneous national membership?
7 A. That's correct.
8 Q. Would you agree that when these elections were held, there were
9 left parties, the SDP and reformists, which had a multi-national
11 A. Yes, that's right. That's true. They were the reformist forces,
12 the League of Communists, the movement for Yugoslavia.
13 Q. Do you agree that the list of candidates for these parties was
14 also multi-national?
15 A. I can't remember that now, believe me, I really can't. I couldn't
16 confirm that.
17 MS. FAUVEAU-IVANOVIC: [Interpretation] Could the witness be given
18 the document DB31, the Defence Exhibit?
19 JUDGE AGIUS: It's one of the documents exhibited by you, Mr.
21 MR. ACKERMAN: I assume so, Your Honour.
22 JUDGE AGIUS: That is correct, Madam Fauveau, no?
23 MS. FAUVEAU-IVANOVIC: [Interpretation] Yes, yes, it's a
25 Q. Do you agree that this is the official bulletin of the
1 municipality of Banja Luka?
2 MR. ACKERMAN: Your Honour, I think maybe he's only been given the
3 English version and I think there is also a B version.
4 JUDGE AGIUS: I see from here, Mr. Ackerman.
5 THE WITNESS: [Interpretation] Yes, yes.
6 MR. ACKERMAN: Your Honour, there is a B version. It was
7 specifically given to the Registrar on Friday. So it's somewhere.
8 MS. KORNER: Well, Your Honour, to save time, we were given a B
9 version so the witness can have ours.
10 JUDGE AGIUS: [Microphone not activated]
11 MS. FAUVEAU-IVANOVIC: [Interpretation] Thank you, Mrs. Korner.
12 Q. So you agree that this is the official bulletin of the
13 municipality of Banja Luka?
14 A. Yes.
15 Q. Do you agree that this official bulletin contains the electoral
16 list of various parties for the elections in 1990?
17 A. Yes.
18 Q. Could you have a look at page 5? There is a list of the
19 candidates of the Reformist Party.
20 A. Yes.
21 Q. Can you see that among these candidates there are people of
22 various nationalities, of all the nationalities?
23 A. Yes. This can be seen.
24 Q. And among the candidates, there are Yugoslavs, too?
25 A. Yes. You can see that there are.
1 Q. You said that there was a difference between Muslim and non-Muslim
2 names, and that one could tell whether a person was a Muslim on the basis
3 of that person's name and surname.
4 A. Yes.
5 Q. Could you have a look at this list and tell us if the majority of
6 Yugoslavs here are Muslims?
7 A. Most of the Yugoslavs Slavs here I would have to count them now --
8 Q. I'm going to help you, Mr. Smailagic. The person under number 6,
10 A. Number 6.
11 Q. This person is Yugoslav?
12 A. That's right.
13 Q. Is this person's name a Muslim name?
14 A. No.
15 Q. Person number 8?
16 A. Yes.
17 Q. Is this a Muslim name?
18 A. No.
19 Q. Person number 19?
20 A. Yes.
21 Q. Is this a Muslim name?
22 A. No, it isn't.
23 Q. I assume that the person under number 22 could be said to be --
24 could be said to have a Muslim name?
25 A. That's right.
1 Q. Person number 28?
2 A. Yes.
3 Q. Is this a Muslim?
4 A. No.
5 Q. You would certainly agree that the person number 30 and 31 could
6 be Muslims?
7 A. Yes.
8 Q. Person number 37, is this person a Muslim?
9 A. No.
10 Q. 44?
11 A. No.
12 Q. 48?
13 A. No.
14 Q. 49?
15 A. The name isn't Muslim but the surname is a Muslim surname.
16 Q. But you couldn't state that this person is a Muslim, you couldn't
17 confirm this?
18 A. Yes, but listen, on what basis is this confirmed? On the basis of
19 the name of the father and of the mother. We would then have to establish
20 this, because there were names after the Second World War. We would even
21 give people names such as Goran, Zlatko.
22 Q. This person is a woman?
23 A. That's right.
24 Q. You agree that women in Bosnia changed their names after they have
25 been married?
1 A. Now I'm talking about Banja Luka. There were quite a few mixed
2 marriages in Banja Luka and it would be -- it might be possible that this
3 woman was from a mixed marriage, that her father was a Muslim and her
4 mother a Croatian or Serbian and then they agreed what sort of name they
5 would give him. There were quite a few such cases.
6 Q. If you have a look at person number 51 now, is this a Muslim name?
7 A. No, it isn't.
8 Q. Number 53?
9 A. No.
10 Q. 63?
11 A. 53, no.
12 Q. 63?
13 A. 63; is that right?
14 MS. KORNER: Your Honour?
15 THE WITNESS: [Interpretation] No.
16 MS. KORNER: If it helps Madam Fauveau, she has made the point
17 very clearly, and I think Your Honours have seen the list.
18 JUDGE AGIUS: I hate to interrupt her but I think you are right.
19 MS. KORNER: We take the point very well, Madam Fauveau, and I'm
20 sure the Judges do.
21 MS. FAUVEAU-IVANOVIC: [Interpretation] Thank you.
22 JUDGE AGIUS: [Microphone not activated]
23 THE INTERPRETER: Microphone, Your Honour.
24 JUDGE AGIUS: I'm sorry.
25 MS. FAUVEAU-IVANOVIC: [Interpretation]
1 Q. Would you agree that the choice of nationality is a personal
2 choice? It's something that is private?
3 A. Yes.
4 Q. In this case, why were you -- why did you take the liberty of
5 treating Muslims, of treating people who had declared themselves to be
6 Yugoslavs as Muslims?
7 A. Maybe the term Muslim, maybe the term is wrong. Muslims are
8 people who -- whose religion is Islam but before the elections, and before
9 the law was brought, according to which Muslims were recognised as a
10 nation, it was possible to declare yourself as a Serb, a Croat, or not to
11 declare yourself, and this wasn't clear with all the people. And later,
12 the category of Yugoslav was introduced. And when "undeclared," the
13 undeclared category was withdrawn, then it was possible to declare
14 yourself as a Yugoslav. I think that on one occasion, I said that the
15 Muslims, not only in Bosnia and Herzegovina but also in Yugoslavia, the
16 category of Yugoslav was the one that they favoured the most. And many
17 people opted for this category. And some followed Mr. Ante Markovic. But
18 this did not bother us because we wanted to see exactly how many Muslims
19 there were, on the basis of their religion, on the basis of Islam.
20 Q. So when you say 52.000 Muslims in Banja Luka, you're talking about
21 people whose religion is Islam but not whose nationality is Muslim, so
22 today we would say people of Bosniak nationality?
23 A. Exactly. Exactly.
24 JUDGE AGIUS: We will need to break in a few minutes' time, so you
25 choose the time when you prefer to stop and then of course you will resume
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 afterwards. If you have a few more questions now, you have got about
2 three, four minutes.
3 MS. FAUVEAU-IVANOVIC: [Interpretation] I would prefer to stop now
4 because I'm going to start on another subject.
5 JUDGE AGIUS: Thank you. So we will break for 20, 25 minutes,
6 resuming at ten to 11.00. Thank you.
7 --- Recess taken at 10.28 a.m.
8 --- On resuming at 10.59 a.m.
9 JUDGE AGIUS: Please be seated.
10 Bring the witness in, please. Yes, Mr. Ackerman?
11 MR. ACKERMAN: While we are waiting for the witness, so I don't
12 forget to do it later, we have now provided the Registry with the B/C/S
13 versions of the documents that we submitted yesterday, 44 and 45, and I
14 would therefore move admission of the exhibits that I've used with this
15 witness, which would be 42A and 43 through 45, A and B.
16 JUDGE AGIUS: I thank you, Mr. Ackerman.
17 Yes, Mr. Smailagic, Madam Fauveau will be proceeding with her
18 cross-examination of you. And I wish to advise you also that when her
19 cross-examination ends, there are a couple of further questions that the
20 Trial Chamber is authorising Mr. Ackerman, counsel for Mr. Brdjanin, to
21 make to you, or to put to you. So you will be cross-examined further by
22 Mr. Ackerman, and then there will be time for re-examination, if it is the
23 case, and we take it up from there and see whether there are questions
24 that the Trial Chamber itself would like to put to you.
25 Madam Fauveau, please proceed.
1 MS. FAUVEAU-IVANOVIC: [Interpretation] Thank you.
2 Q. On the 22nd of February, 2002, the hearing of that date, during
3 your examination, you said that Celinac and Laktasi was part of the
4 municipality of Banja Luka during a certain period?
5 A. That's right.
6 Q. You also said that leaving this municipality, when this
7 municipality left the municipality of Banja Luka, was done in order to
8 change the structure of the municipality of Banja Luka?
9 A. That's right.
10 Q. You said that the ethnic structure of Celinac and Laktasi was
12 A. That's correct.
13 Q. Could you say what percentage of Muslims lived in Celinac?
14 A. I don't know the exact percentage.
15 Q. And in Laktasi?
16 A. I don't know the exact percentage in Laktasi. I know for the
17 village of Mahovljani, which was almost exclusively populated by
19 MS. FAUVEAU-IVANOVIC: [Interpretation] Could the Registrar give
20 the witness the document D1?
21 THE REGISTRAR: For the record, it's DT1.
22 JUDGE AGIUS: We need a further copy here. Do you have any
23 further copies? Because we are short of one copy here. I thank you.
24 MS. FAUVEAU-IVANOVIC: [Interpretation].
25 Q. Mr. Smailagic, do you agree that these are the results of the
1 census, of the population census?
2 A. Yes.
3 Q. Could you have a look at page 2 of this document? It's the
4 percentage of the population on the basis of nationality. If you have a
5 look at number 7, you have Celinac there. Could you tell us what the
6 percentage of Serbs was in Celinac?
7 A. 88.9 per cent.
8 Q. And the percentage of Muslims?
9 A. 7.7 per cent.
10 Q. Could you have a look at number ten? It's the municipality of
11 Laktasi. What was the percentage of Serbs there?
12 A. 81.7 per cent.
13 Q. And the percentage of Muslims?
14 A. 1.7 per cent.
15 Q. Could you tell us now how come, when this commune left the
16 municipality of Banja Luka, how could it influence in a negative way the
17 number of Muslims in Banja Luka?
18 JUDGE AGIUS: Have you understood the question, Mr. Smailagic?
19 Because I haven't. Could you rephrase it, perhaps, in a more clear way,
20 Madam Fauveau?
21 MS. FAUVEAU-IVANOVIC: [Interpretation] I will try.
22 Q. Sir, do you agree that this municipality has a majority of Serbs?
23 A. Yes.
24 Q. So the fact that this municipality is no longer, was no longer
25 part of the municipality of Banja Luka, how did this fact influence the
1 number of Muslims in Banja Luka? How did it affect the number of Muslims
2 in Banja Luka?
3 A. Well, listen, by leaving, when Laktasi left, Laktasi was not a
4 municipality. Other villages joined and these villages, the population
5 was exclusively Serbian. The same thing happened in Celinac, where
6 Serbian villages joined. They joined Celinac. It wasn't a municipality.
7 Whereas before this census, before 1991, that is to say when they were
8 part of Banja Luka, then Celinac was quite different.
9 Q. Could you have a look at the first page of this document? There
10 is a number of persons there of Serbian nationality, of Muslim and
11 Croatian nationality in Celinac. Could you say how many Muslims were
12 there in Celinac?
13 A. 1.440.
14 Q. And in Laktasi?
15 A. 506.
16 Q. So you agree that this is not a significant number?
17 A. It's not a very important number here, but, look, what's important
18 is what I wanted to say, that by -- when these municipalities left, Krupa
19 na Vrbasu joined Banja Luka, Prozani [phoen] and Mahovljani, and also
20 Ivanjska. I don't know if we mentioned this. It was a separate
21 municipality. In Ivanjska, the Croatian population was in the majority
22 and it joined the municipality of Banja Luka. So that's what changed the
23 situation in Banja Luka, In the municipality of Banja Luka.
24 Q. You agree that in the municipality Celinac and Laktasi, they have
25 -- they had a Serbian majority, a vast Serbian majority?
1 A. Now that is the case, yes. Then in 1991.
2 Q. The day before yesterday, you mentioned people who had changed
3 their names?
4 A. Yes.
5 Q. You said that most of these persons were women?
6 A. Most of them were women. According to the information we had,
7 yes, there were quite a few women.
8 Q. I asked you a question a while ago, but I didn't receive a clear
9 answer. Do you agree that in Bosnia, women would change their names when
10 they got married?
11 A. Yes, in the majority of cases.
12 JUDGE AGIUS: Please try, as much as you can, not to repeat
13 questions, because you put this question to him earlier on, before the
14 break. And he gave you the same answer he's giving you now.
15 MS. FAUVEAU-IVANOVIC: [Interpretation]
16 Q. You also said that these persons who changed their names were
18 A. Yes. I was talking about Muslims who changed their names at that
20 Q. Did the Serbs change their names too?
21 A. I don't know about that. It was not necessary.
22 Q. Would you agree that certain Muslims changed their names but they
23 took other Muslim names?
24 A. No. That wouldn't be a change then.
25 MS. FAUVEAU-IVANOVIC: [Interpretation] Could the Registrar
1 provide the witness with the Prosecution's Exhibit P35 -- 135?
2 Q. Mr. Smailagic, it's a document that you saw yesterday, the
3 official registration certificate of people who had changed their names.
4 On the first page, you can see about 30 names. In the first column, would
5 you agree that most of these names are Serbian names? It's on the first
6 page, Mr. Smailagic.
7 A. Which page? That's right. Page 1, Elvir Delimehic; is that
9 Q. No, it's the page that starts with a change of personal name.
10 A. What's the page?
11 Q. There is no page. It's the first page.
12 JUDGE AGIUS: Ms. Fauveau, please let's make it simpler. The
13 document which I have in front of me, that is Prosecution document P135,
14 has got the first page, which has got very little information on it. The
15 second page, the same. And then the first page with real details has as
16 the first name, Elvir Delihramic. We start from there.
17 MS. FAUVEAU-IVANOVIC: [Interpretation] Apparently the Prosecution
18 has not given us the same document in this case.
19 JUDGE AGIUS: Ms. Korner, this is why, because I was getting
20 confused myself. I imagine that Madam Fauveau knew what she was talking
21 about. At the same time, I couldn't follow myself.
22 MS. KORNER: Your Honour, in fact, the witness didn't look at this
23 yesterday. I waived it, I think, generally, at Your Honour's saying here
24 is the document about change of names, and I explained that what we had
25 done -- because it's just a list of names, all we have done is translated
1 what the top of the column is and then selected a few of the entries. Not
2 all of it is translated. But it is a list of registered name changes, but
3 the full document is only in the B/C/S language; only parts have been
4 translated as an example.
5 JUDGE AGIUS: And the reference number, the exhibit number of one
6 and the other?
7 MS. KORNER: The exhibit number, it should say its disclosure
8 number will be 1.112 but it's been premarked with Exhibit number P135.
9 JUDGE AGIUS: So that would be this document which is a selected
10 -- selection from the totality of the list.
11 MS. KORNER: Of the B/C/S.
12 JUDGE AGIUS: And that document, has it been exhibited or not?
13 MS. KORNER: No, because it wasn't actually shown. It's been
14 premarked but you have not formally admitted it.
15 JUDGE AGIUS: You brought it over yesterday or the day before.
16 You did show it to us, however, and we did show it to a witness. I think
17 that's the document that we showed him yesterday, asking him whether that
18 was the document to which he was referring as existing in this archive
19 that he wouldn't tell us more about.
20 MS. KORNER: That's right. You're absolutely right. It came up
21 and it was shown during the course of Mr. Ackerman's.
22 JUDGE AGIUS: He was shown that.
23 MS. KORNER: He said he didn't recognise that. And in fact it
24 doesn't come -- it was seized - I can tell Your Honour in a moment - from
25 the CSB building in Banja Luka.
1 JUDGE AGIUS: So let's see if we can make sense out of it. Madam
2 Fauveau, are you making use of the full document at the present moment or
3 are you making use of the selected, the selection from the list, which is
4 marked as Exhibit P135?
5 MS. FAUVEAU-IVANOVIC: [Interpretation] I will use the document in
6 Serbo-Croat, which is complete, and I am just going to use the first page
7 of this document.
8 JUDGE AGIUS: Okay. I think what is important to know is the
9 witness's answer in any case, because you will be referring to names, I
10 would suppose, no? But it is important, Ms. Korner, that this document is
11 introduced in the records as an exhibit.
12 MS. KORNER: Your Honour has already admitted it because, Your
13 Honour, it was part of the Banja Luka collection of documents and Your
14 Honour has already formally admitted into evidence.
15 JUDGE AGIUS: And what is its exhibit number?
16 MS. KORNER: P135.
17 JUDGE AGIUS: P135 is the selected one. It's numbered P135 here.
18 MS. KORNER: Yes. No, Your Honour. The actual, the original
19 document and the translation are normally exhibited together. This is
20 P135A but it's a selective translation because in order to save the
21 Translation Unit, about which more will be said later by both Mr. Ackerman
22 and myself, we only asked for a selection of names to be translated
23 because it's just a list of names. But the two documents are together.
24 It's just that it's not a full translation. It's a selective translation.
25 But one is P135A, the B/C/S version. The Serbo-Croat version is P135B.
1 JUDGE AGIUS: It's important, Madam Registrar, that we have both,
2 because as far as I'm concerned, I only have P135 without distinguishing
3 whether it's A or B, and this would be A, and the other one would be B and
4 we don't have it. We did see it yesterday, obviously.
5 MS. KORNER: [Microphone not activated]
6 THE INTERPRETER: Microphone, please microphone, please.
7 JUDGE AGIUS: Microphone.
8 MS. KORNER: Your Honour, the both versions, the English
9 translation and the B/C/S, are in binder 1 of the Banja Luka binders which
10 Your Honours have, but probably not in court.
11 JUDGE AGIUS: Okay. Thank you. So please -- I have two and three
12 here because I only got the documents that were going to be referred to.
13 THE REGISTRAR: I have all of the binders with me and I took one
14 P135 from the Banja Luka binder and I have -- that's the version that
15 I've submitted to the witness. So I don't have the complete list.
16 JUDGE AGIUS: Anyway, Ms. Korner let's not waste time on it.
17 Please, as usual, take it in hand later on.
18 MS. KORNER: We will do this in the break, Your Honour.
19 JUDGE AGIUS: Exactly. Make sure that the position is
20 regularised. Madam Fauveau, I'm sorry to have interrupted you but it was
21 necessary. Please go ahead with your cross-examination.
22 MS. FAUVEAU-IVANOVIC: [Interpretation] I think this the witness
23 still doesn't have the right document. Could I ask for a pause, a ten
24 minute pause, in order to make a photocopy of the document that the
25 Prosecutor has provided us with.
1 JUDGE AGIUS: [Previous translation continues]... Ms. Korner will
2 make hers available and that will solve the situation, the problem.
3 MS. KORNER: Yes, I will. I think the witness has got the B/C/S
4 version, has he not? Yes, he has. So can I make it available to Your
5 Honours at the moment, to share?
6 JUDGE AGIUS: Thank you.
7 MS. FAUVEAU-IVANOVIC: [Interpretation]
8 Q. Do you have the first page where the first name is Mr. Zahirovic,
9 Fadil? Zahirovic, Fadil?
10 A. I don't have Zahirovic.
11 JUDGE AGIUS: Please, could you kindly -- [Microphone not
13 THE INTERPRETER: Microphone, please, Your Honour.
14 JUDGE AGIUS: Would you kindly bring the document the witness has
15 in front of him to me so that I double check that we are talking of the
16 same document, and possibly even find the right page for him so that we
17 don't waste more time?
18 Again, this is not the complete document. The complete document
19 that you gave me, Ms. Korner, or that you gave us, rather, starts from
20 page 1. The document that the witness has starts from page 31. And he's
21 being asked in relation to the first name that appears on page 1 of this
22 list. So what I would suggest is that this is returned to the witness.
23 For the time being, he ignores it. With your permission, Ms. Korner, I'm
24 going to -- please, please -- I am going to give him the same document
25 that you gave to us. We will be able to follow and then we will be able
1 to double check later. And we can proceed in that manner.
2 MS. KORNER: And I see the registrar appears to have found the
3 same document as well.
4 THE REGISTRAR: English.
5 JUDGE AGIUS: It doesn't matter that it's in English. The
6 important thing is that it starts with page 1 and finishes with page 40 or
7 something like that.
8 MS. KORNER: What we will do is we will arrange for a number of
9 copies to be made straight away.
10 JUDGE AGIUS: I thank you, Ms. Korner. In the meantime, I think
11 we can proceed. It should be easy now for you to coordinate your efforts
12 and finish this part of the cross-examination. Please proceed, Madam
14 MS. FAUVEAU-IVANOVIC: [Interpretation] Thank you.
15 Q. The first person's name is Zahirovic, Fadil. That's his real
16 name, the name he was born with?
17 A. Yes.
18 Q. Could you tell us what name this person changed his name to?
19 A. It says Suljic here but there is no name and Suljic, and as far as
20 I know, and I know this, was both a Serbian and -- there were both Serbs
21 and Muslims with this surname, and there are quite a few surnames which
22 belong to both nationalities.
23 Q. Would you agree that if the name does not -- if the surname does
24 not appear, the first name is the same -- has remained the same?
25 A. Yes.
1 Q. Could you have a look at number 24? Mahmutovic, Zijaneta. It's a
2 Muslim name?
3 A. Yes, that's right.
4 Q. She changed her name to Zijada?
5 A. That's right.
6 Q. Is Zijada a Muslim name?
7 A. It is.
8 Q. Number 27, Krnic, Zarfa?
9 A. Yes.
10 Q. She changed her name to Zarafa?
11 A. Yes.
12 Q. Do you agree that this is a Muslim name?
13 A. That's right.
14 Q. Number 27, Moralic, Hasib?
15 A. Yes.
16 Q. He changed his name to Hasan?
17 A. That's right.
18 Q. Do you agree that Hasan is a Muslim name?
19 A. It is.
20 JUDGE AGIUS: Madam Fauveau, I don't know if you prefer to
21 continue but I think you have made your point. The Trial Chamber doesn't
22 think it's important to have further information on this point. It is
23 obvious that some of these persons were changing -- actually one Muslim
24 name with another Muslim name. So if you have any further points to make,
25 please proceed. But otherwise, I would suggest that you move to your next
1 question dealing with another subject.
2 MS. FAUVEAU-IVANOVIC: [Interpretation] I have another question
3 about the first names but it doesn't concern Muslims. It concerns the
5 JUDGE AGIUS: Yes, please go ahead.
6 MS. FAUVEAU-IVANOVIC: [Interpretation]
7 Q. Could you have a look at the persons -- at the person under number
8 -- at the persons under number 2 and 3, 5, 6, 7, 8, 9, 11, 12, 13, 14,
9 15, 16, 17, 18, 20, 21, 22, 23, 24, 29 and 30?
10 A. Yes.
11 Q. Do you agree that these persons are not Muslim?
12 A. Yes.
13 Q. Do you agree that on this list, most of the persons who changed
14 their names were Serbs or Croats?
15 A. Yes. I can't distinguish this according to name. I can't
16 distinguish who is a Serb and who is a Croat on the basis of the names.
17 Q. I'm going to move to another subject. On page 3 of your statement
18 of the 15th of April, 2001, it's the first statement that you gave to the
19 Office of the Prosecutor.
20 A. I don't have it.
21 Q. Could we give the statement to the witness, the one he made on the
22 15th of April?
23 On page 3 of this statement, you said that the SDS no longer
24 recognised the SDA as an official party and that this was in November
25 1991. It's the third paragraph, if you're looking at the end of the page
1 -- from the end of the page.
2 JUDGE AGIUS: Have you found it, Mr. Smailagic?
3 THE WITNESS: [Interpretation] I'm sorry?
4 JUDGE AGIUS: Have you found the paragraph?
5 THE WITNESS: [Interpretation] No, I can't find it. I remember --
6 I can reply to the question in any case. They didn't officially stop the
7 work of the party. The SDA -- SDA's work was never forbidden in Banja
8 Luka, but on the basis of their behaviour, there was no more contact and
9 later on they avoided contact. They ignored us, they didn't even want to
10 talk to --
11 MS. FAUVEAU-IVANOVIC: [Interpretation]
12 Q. You also said that the SDA stopped contacting you.
13 A. The SDA?
14 Q. That the SDS stopped contacting you.
15 A. Yes. They had stopped contacting us.
16 Q. And this happened in November, 1991?
17 A. Yes, I think it was around November. As far as I remember, there
18 was a plebiscite in November. That's when these contacts --
19 Q. You also said that the only person on the SDA who continued going
20 to the SDS meetings was Muharem Krzic.
21 A. Well, his function was such, so he attempted to maintain certain
22 contact to the extent that this was possible.
23 Q. What was his function?
24 A. He was the president of the Party of Democratic Action.
25 Q. So you agree that the contact between the SDS and SDA continued
1 after November 1991?
2 A. Yes, but they were not really meetings. It was always at the
3 request of Mr. Krzic, with regard to what was happening in Banja Luka. In
4 1991, that's how things were developing then.
5 Q. Do you know whether the municipal assembly of Banja Luka continued
6 working after November 1991?
7 A. The municipal assembly of Banja Luka continued working but I know
8 that our delegates from the municipal assembly were withdrawn. I can't
9 exactly remember whether it was at the beginning of 1992 or towards the
10 end of 1991. I really can't remember this now.
11 Q. However, were there SDA deputies who continued going to the
12 meetings of the municipal assembly?
13 A. As far as I know, that was not the case, but as far as I can
14 remember, one of those delegates, I think he remained in the parliament,
15 and this was against the decision of the party. It was on his own
16 initiative. Whether he was there regularly or not, I can't remember.
17 Q. Would you agree that this person was Emir Busatlic?
18 A. Yes, he was a doctor, that's right.
19 Q. And Mr. Adem Gunic and Salko Hamdan, were they also SDA deputies?
20 A. Yes.
21 Q. Do you know whether they also continued in 1992 attending meetings
22 of the municipal assembly? I mean after April.
23 A. I know that Salko did not respect the decision made by the party
24 that he should withdraw from the parliament, and Mr. Adem Gunic, I think
25 he was the vice-president of the Banja Luka municipality and he wanted to
1 keep his job, so he stayed.
2 Q. Mr. Smailagic, you were a member of Merhamet?
3 A. Yes.
4 Q. And you were active in the Merhamet of Banja Luka from 1991 to
6 A. Yes.
7 Q. Do you agree that Merhamet was a Muslim humanitarian organisation?
8 A. Yes.
9 Q. Do you affirm that Merhamet was active throughout this period,
10 from 1991 to 1994, in Banja Luka?
11 A. Yes.
12 Q. On page 5 of your first statement, the one made in the year 2000 -
13 I think you have it here - you said that the curfew was imposed in 1992.
14 A. Yes, yes, a curfew was imposed.
15 Q. You said that the curfew was intended for all citizens but, in
16 fact, it was actually applied only to non-Serbs?
17 A. Yes.
18 Q. And how do you know it did not apply to Serbs?
19 A. Well, it was very easy to discover because I could see my
20 neighbours moving about from my window. They went out, they went to town
21 in the evening without any problems.
22 Q. On page 5 of the same statement from the year 2000, you said that
23 you heard that all Croats and all Muslims who did not respond to the
24 call-up or for work duty were imprisoned in centres.
25 A. Yes, whoever failed to respond to the call-up or to a summons to
1 go to work duty, they were detained, I think either in a police station or
2 in the basement of the Ministry of Defence. There they would spend the
3 night. Some people were kept there two or three days, and then they were
4 sent to work.
5 Q. Did you get this information about the arrest of non-Serbs who
6 failed to respond to the call-up, and when you got this information, did
7 you forward it either to the authorities of Bosnia and Herzegovina or to
8 some international organisation?
9 A. Yes, both to the government and to the Red Cross and other
10 international organisations, yes, we did forward this information.
11 Q. You, personally, did you respond to the call-up?
12 A. I received a draft notice, and I reported, but I brought with me
13 my document showing that I was retired, and then I was sent to the
14 Ministry of Defence, where I explained matters, and I was exempt from
15 military duty and then I went home. Later on, I received a summons to
16 respond to work duty.
17 Q. And did you then respond to the summons? Did you do work duty?
18 A. I explained yesterday what happened. I went there with the
19 document showing that I was disabled. Mr. Djuka did not want to accept
20 this. He demanded that I bring --
21 Q. Sir, my question was very simple. Did you respond? Did you go to
23 A. No, I did not go to work.
24 Q. Do you know whether Muharem Krzic responded to the call-up?
25 A. I couldn't be sure now. I'm not certain.
1 Q. Do you know whether he was mobilised or not?
2 A. Believe me, no, I never discussed it with him. If he was
3 mobilised -- well, if he had been mobilised, I would have seen him in
4 uniform. So I didn't see him in uniform before he left Banja Luka.
5 Whether he got a draft notice, I really don't know.
6 Q. Do you know whether Muharem Krzic did work duty?
7 A. As far as I know, he didn't.
8 Q. Were you arrested in 1992?
9 A. No, I wasn't arrested.
10 Q. And Muharem Krzic, was he arrested in 1992?
11 A. He was arrested in 1993.
12 Q. But my question was only about the year 1992.
13 A. As far as I know, he wasn't.
14 Q. Therefore, what you heard, that all non-Serbs who failed to
15 respond to the call-up or to report for work duty were imprisoned in
16 prison centres, this information was not correct, isn't that true?
17 A. How do you mean? You mean that they were detained? Some people
18 in Banja Luka were detained in the police station. That was set up in the
19 old army club, or in the basement of the building of the Ministry of
20 Defence, or they went to the so-called small camp, where they spent the
21 night. Some of them were detained there for two or three days and then
22 they were taken to work.
23 Q. I will reformulate my question. Do you agree that in Banja Luka
24 in 1992, there were persons who were not Serbs, who did not respond to the
25 call-up, and who were not sent to do obligatory work?
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 A. As far as I know, they were not sent to do forced labour but
2 perhaps they were given other duties or they left Banja Luka.
3 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, I have no
4 further questions.
5 JUDGE AGIUS: Thank you. Now, [Microphone not activated]
6 THE INTERPRETER: Microphone, please.
7 JUDGE AGIUS: I think, Mr. Ackerman, I think it's time for you and
8 for us to clear up the problem that we dealt with this morning. I would
9 suggest to you to proceed with an additional cross-examination of the
10 witness, limited to the point that we discussed. In other words, to the
11 part of his testimony dealing with the statement that according to him he
12 heard your client make on one or two occasions.
13 MR. ACKERMAN: Thank you, Your Honour.
14 JUDGE AGIUS: If it is necessary, we can read to the witness the
15 part of his testimony from his transcript or perhaps one could remind him
16 of what he stated.
17 MR. ACKERMAN: Your Honour, I have the transcript section found
18 here in LiveNote and I can --
19 JUDGE AGIUS: Ms. Korner, yes, please.
20 MS. KORNER: Your Honour, any statements we would submit that
21 relate to the attitude that Mr. Brdjanin, according to the witness, was
22 showing towards non-Serbs.
23 JUDGE AGIUS: Okay. You got the message, Mr. Ackerman?
24 MR. ACKERMAN: Yeah, I think we just expanded the horizon of my
25 cross-examination rather dramatically, but I can deal with that.
1 JUDGE AGIUS: Now, Mr. Smailagic, during your testimony of
2 yesterday and the day before, there were some allegations made by you with
3 regard to Mr. Ackerman's client, that is accused Radoslav Brdjanin. It
4 has been agreed, and permission has been given to Mr. Ackerman to question
5 you further about some of these statements of yours. Mr. Ackerman, you
6 may proceed.
7 MR. ACKERMAN: Thank you, Your Honour.
8 Further cross-examination by Mr. Ackerman.
9 Q. Mr. Smailagic, as we discussed yesterday, you, over the course of
10 your statements to representatives of the OTP, you spent the date of 15
11 April, 2000, and 4 and 14 June, 2001, and 19 August, 2001, being
12 questioned and answering those questions by investigators from the OTP,
13 either all or parts of those dates. That's correct, is it not?
14 A. Yes.
15 Q. And during those sessions, the investigators from the OTP were
16 asking you questions about matters in which they had an interest, and you
17 were answering those questions. That's true, isn't it?
18 A. Yes.
19 Q. And one of the matters in which the investigators of the OTP were
20 interested were Mr. Brdjanin and any statements you might have heard Mr.
21 Brdjanin make, either on radio, television, speeches, that sort of thing,
23 A. Yes.
24 Q. And in none of these sessions in 2000 and 2001, did you tell the
25 investigators that you heard Mr. Brdjanin make a statement about 3 to 5
1 per cent balijas would be kept in Banja Luka and made to do humiliating
2 jobs. You didn't ever say that in any of your statements to the OTP, did
4 A. You mean to the investigators?
5 Q. Yes.
6 A. I don't know whether I said that to the investigators or not, but
7 I know it's true. They even mentioned 2 per cent, then they said 3 per
8 cent, and then they said not more than 5 per cent. I could expand.
9 Q. My only question --
10 JUDGE AGIUS: One moment. Please try to answer Mr. Ackerman's
11 questions. His clear question is a very clear one. He's referring to
12 your statement, the second statement, that is the one made in 2001.
13 MR. ACKERMAN: Actually both of them, Your Honour.
14 JUDGE AGIUS: But your question was more or less directed to this
15 one: In which you do mention statements made by Mr. Brdjanin and others,
16 meaning, according to Mr. Ackerman, that you were being asked as to
17 whether you had heard such statements or statements forthcoming from Mr.
18 Brdjanin and others, and you are being asked to explain whether you had
19 specifically referred to the instance where Mr. Brdjanin, as you told us
20 yesterday, and maybe others, mentioned that the number of Muslims in the
21 Banja Luka municipality would eventually have to be reduced to either 2 or
22 3 or 5 per cent. Did you mention it to the investigators? This is his
23 question. And the next one will be, if you didn't, why didn't you mention
24 it? So you can answer both.
25 THE WITNESS: [Interpretation] I don't know whether I mentioned it
1 or not. I think I did, but I'm not sure. If it's not in the statement,
2 then probably I didn't. But the reason I didn't do so was that I wasn't
3 asked. The question wasn't asked.
4 MR. ACKERMAN:
5 Q. Well, now, you just told us that you were asked by the
6 investigator from the OTP about statements you heard Mr. Brdjanin make.
7 Now you're saying you weren't asked. Which one is the truth, Mr.
8 Smailagic? Are you telling the truth the first time or the second time?
9 A. No, no. I'm not saying -- I'm just saying I don't remember
10 whether the question was asked and whether I answered it or not. If it
11 was asked, then I think I gave the same answer as I'm giving now. If it
12 was not asked, if he didn't ask me this, then, well, I would have said so
13 if I'd been asked. But I'm not sure now whether we talked about it or
14 not. I don't know whether it's in the first statement, the one of the
15 15th of April.
16 Q. You just told us a few moments ago that the question was asked.
17 Why are you telling us now that it wasn't?
18 A. I didn't say that. I'm -- what I'm saying now is that at this
19 moment, I can't remember whether it was asked or not.
20 Q. But five minutes ago, you could remember that you were asked about
21 statements by Mr. Brdjanin. Now you've forgotten. Is that what you're
23 A. What I'm saying is that now, at this moment, I cannot remember,
24 but I know about this fact.
25 Q. Do you remember at this point whether you were -- whether you told
1 the investigator that you had heard Mr. Brdjanin say, "If you're not with
2 us, you're against us"? Because that's not in your statement either, is
4 A. Well, when I talked to the investigators, I couldn't remember
5 everything. Time had elapsed. There were many events, a lot of things
6 had happened.
7 Q. Well, a great deal more has happened and a lot more time has
8 elapsed since you gave these statements, between the time you gave these
9 statements and coming here. All of a sudden, here, you can remember all
10 these things that you claim Mr. Brdjanin said that you couldn't remember
11 in four days of conversations with the OTP investigator; correct?
12 A. I know that I told the investigators some of these statements,
13 which I remembered at the time, but I tried to avoid thinking about what
14 happened in Banja Luka, and then the memories surface on their own and I
15 remember what people said. So it just comes into my head.
16 Q. Well, when Ms. Richterova was questioning you on the 19th of
17 February, page 1941, line 6 of the transcript, you were asked a question,
18 not what you remembered about Mr. Brdjanin saying but the question is
19 referring to Mr. Brdjanin: "Did he ever said how many of Serbs should
20 leave Banja Luka? Said of non-Serbs should leave Banja Luka?" Now, you
21 must have told Ms. Richterova before coming to this courtroom that you had
22 heard that statement. When did you tell her that you had heard that
24 A. Believe me, now I can't concentrate. I know I heard the gentleman
25 say that in 1992. He wasn't talking about how many of them should leave
1 Banja Luka but how many should stay.
2 Q. My question is, when did you tell Ms. Richterova that you had
3 heard such a statement?
4 A. I don't know. Maybe here in the courtroom. I really don't know.
5 But I stand by what I said. But now I'm on the edge.
6 Q. Do you want a short break to just sort of think for a moment?
7 A. Well, as for thinking, I would need ten days to calm down and to
8 concentrate now, because this has been exhausting for me.
9 Q. I'm sure it has. But I think the Court would give you some time
10 to compose yourself if you think you need it, and all you would have to do
11 is ask for it. If you don't, then I must proceed with my questioning.
12 A. You may proceed.
13 Q. I take it that prior to your walking in here and taking the oath
14 and starting to testify, that you had had conversations with Ms.
15 Richterova about the testimony you would give. That's true, isn't it?
16 A. Yes.
17 Q. And in the course of those conversations with Ms. Richterova, she
18 must have asked, or you must have told her, that all of a sudden you
19 remember Mr. Brdjanin making this statement about 3 to 5 per cent of
20 balijas remaining. Did you tell her that?
21 A. I don't know now when I told her that, but when I talked to her,
22 she gave me my previous statements to read through. They had been
23 translated into Bosnian and I was asked whether I accepted them. I made
24 two or three corrections and then I said at one point, "A person can't
25 remember everything he saw and heard all at once." The memories surface
1 spontaneously. And then I noticed that this statement about the
2 percentage was not in the statement, the percentage of people who could
3 stay. And even as we are talking now, some things surface in my memory
4 which will perhaps disappear again tomorrow. And I think I did mention it
5 about this percentage, yes.
6 Q. To Ms. Richterova? Is that what you're saying?
7 A. Yes. When I was looking through the statements and making
9 Q. Mr. Smailagic, would it be a fair statement that because of the
10 passing of time and because of your confusion, that you don't know, as you
11 sit here today, whether you heard Mr. Brdjanin make such a statement or
12 you heard someone saying that Mr. Brdjanin had made such a statement?
13 A. I heard him say this personally. I will never forget it.
14 Q. Isn't it the truth that someone told you this after you had spoken
15 to the OTP and you just added it to your testimony?
16 A. No, no. That's not true.
17 Q. Isn't it the truth that all these things that you claim that you
18 heard Mr. Brdjanin say were things that you've heard from other people and
19 that you didn't hear him say any of them?
20 A. Personally, I heard it myself from his own mouth.
21 MR. ACKERMAN: That's all I have, Your Honour. Thank you.
22 JUDGE AGIUS: I would imagine there is a re-examination?
23 MS. RICHTEROVA: No, Your Honour, there is no question for
25 JUDGE AGIUS: I can't -- yeah, the microphone is on but yes,
1 please go ahead.
2 MS. RICHTEROVA: I would only -- I want to put into formally put
3 into evidence our exhibits P464, P465, and P466. I didn't do it -- I
4 didn't do it after I finished my direct examination.
5 JUDGE AGIUS: Yes. We have -- we have them already. We have used
6 them during the testimony of Mr. Smailagic. They are being admitted:
7 464, 465, 466. Is that all?
8 MS. RICHTEROVA: Yes.
9 JUDGE AGIUS: They are being admitted. Mr. Ackerman, Madam
10 Fauveau, we are talking about the indictment of Mr. Smailagic, of witness
11 and others, for espionage in --
12 MR. ACKERMAN: Your Honour, I'm familiar with the documents and I
13 have no objection. I had earlier offered Exhibits 42A and 43 through 45,
14 A and B, and Your Honour hasn't ruled whether they are admitted or not.
15 JUDGE AGIUS: They are being admitted.
16 MR. ACKERMAN: I just want the record to show that.
17 JUDGE AGIUS: Yes, Madam Fauveau?
18 MS. FAUVEAU-IVANOVIC: [Interpretation] I have nothing to say
19 about the admission of these documents and I would like to provide the DT1
20 document and have this admitted into evidence.
21 JUDGE AGIUS: Yes, it is also being admitted as evidence in this
22 case, being marked Exhibit DT1. Madam Registrar, now it's important to
23 keep these documents distinct, DB and DT.
24 THE REGISTRAR: Yes.
25 JUDGE AGIUS: Thanks. So there are no -- there is not going to be
1 any re-examination.
2 MS. RICHTEROVA: No, I only want to ask you whether you wish --
3 JUDGE AGIUS: I think so, Madam Richterova. I think it would be
4 useful, just for the records purposes, so we can in our deliberations
5 actually figure out whether what appears in page 1 recurs in page 2, page
6 3, page 4, or whether it's just a coincidence that everything happened on
7 page 1 and not in the subsequent pages. I am in the habit of checking
8 everything, inside out.
9 MS. RICHTEROVA: It must have disappeared somewhere between the
10 Prosecution and the Registry, but we submit a photocopy.
11 JUDGE AGIUS: It's no problem. You don't have to furnish any
12 justification or explanation.
13 The Chamber hasn't got any questions to put to the witness.
14 Mr. Smailagic, I realise that this has not been easy for you, that
15 the days you have spent in this Chamber must have tired you out. The
16 Trial Chamber, however, would like to thank you for your kindness, for
17 your patience, and also for all the information that you have furnished to
18 this Trial Chamber. You may now withdraw, and I take it that your
19 presence in The Hague will no longer be needed and arrangements will be
20 made to escort you to wherever you need to go.
21 MS. KORNER: Your Honour, may I just mention, I had intended to
22 call the investigator next to explain the system because I think it's
23 important, but I've had Mr. Dzonlic waiting. I wonder would Your Honours
24 care to take the break now rather than a little later so I can just --
25 JUDGE AGIUS: I have this problem, Ms. Korner. I had arranged to
1 give a short lecture at 12.30, when we break, to all the persons that were
2 outside in the gallery until a few minutes ago. They are being addressed
3 by someone on my behalf in the meantime and I will be addressing them in
4 -- at 12.30. So it will only be for 20 minutes. That's the -- I was
5 dedicating my break to address them.
6 MS. KORNER: All right. In that case, Your Honour, I think what I
7 will deal with, then --
8 THE INTERPRETER: Microphone, please.
9 JUDGE AGIUS: Yes, Mr. Smailagic, you may withdraw. I thank you
10 once more.
11 THE WITNESS: [Interpretation] Thank you.
12 [The witness withdrew]
13 MS. KORNER: Your Honour, I understand the problem is that the
14 investigator may not be outside court because I originally said 10.00
15 until we had our discussion. I appreciate, even if it's only five
16 minutes, perhaps Your Honour would care to rise.
17 JUDGE AGIUS: Certainly. We will wait outside until he turns up
18 and then we will resume.
19 MR. ACKERMAN: [Microphone not activated]
20 MS. KORNER: Yes. Would Your Honour forgive me just one moment?
21 [Prosecution counsel confer]
22 MS. KORNER: Your Honour, the investigator will, I hope, be told
23 -- we told him not to watch television when it became clear that he would
24 be giving evidence in relation to this.
25 Your Honour, can I raise, however, the translation issue that Mr.
1 Ackerman has referred to? Like Mr. Ackerman told you that he suddenly had
2 these documents returned to him with no notification, just to show that
3 there is equality of arms in this Tribunal, I was informed this morning
4 that the Translation Unit had returned, without notice to us, to Mr.
5 Dubuisson in this Tribunal, the diary which, as Your Honour knows, has
6 been the subject of considerable problems because it's an important
7 document both to the Defence and the Prosecution, and, I understand, with
8 a message that they could no longer translate any further pages. They had
9 translated -- we prioritised the pages. In other words, we said, "On the
10 face of it, this seems to be the important section." We had somebody read
11 through it who understands the language, but clearly the Defence asked,
12 and rightly, that they wanted the whole diary translated. And that, as I
13 understand it, was agreed.
14 Your Honour, I am now making a complaint - and I know Mr. Ackerman
15 wants to raise something else - because firstly, it is not right for it to
16 be returned without notification or discussion; secondly, this is so
17 important. I appreciate that the Milosevic trial is an important one, but
18 it cannot be right that translations, just as important for the cases of
19 other defendants, are being, as it were, put on back burner. And I'm
20 asking Your Honours, in fact, to make an order at this stage. Your
21 Honours have power to make such orders.
22 JUDGE AGIUS: And we will make it.
23 MS. KORNER: That this diary must be translated.
24 JUDGE AGIUS: Yes. Mr. Ackerman?
25 MR. ACKERMAN: Well, Your Honour, there are all kinds of
1 interesting things here. One of the people --
2 JUDGE AGIUS: Never a dull moment.
3 MR. ACKERMAN: One of the people from the Milosevic case told us
4 yesterday that they were told that many translations they are waiting for
5 cannot be done because there are many other cases that are going on that
6 are taking up their time. So perhaps they are just sitting there, doing
7 nothing. I'm not sure. I know they are not doing nothing. I know they
8 are extraordinarily busy.
9 There is an order in this case, entered by Judge Hunt as Pre-Trial
10 Judge, regarding this diary, and that order is that the 1992 portions of
11 that diary that are relevant to this case be translated in full and
12 provided to the Defence and that the witness may not be called by the
13 Prosecution until that is completed and until the Defence has had a full
14 opportunity to completely review the diary. That's the order of Judge
15 Hunt, and I don't have it in front of me so I can't give you the complete
16 language. But my recollection is that's exactly what it says.
17 There is an additional problem - I hesitate to raise it at this
18 point, but I think I have some confirmation of it at least - and that is
19 that the translation department has now said that they will translate no
20 more books or newspaper articles. Now, if that's the case, then I would
21 think the Prosecution should not be permitted to use any newspaper
22 articles as evidence in this case because CLSS translated their newspaper
23 articles and are now refusing, apparently, to translate ours, which would
24 be an egregious denial of equality of arms that the Prosecution would get
25 to use their newspapers articles and we couldn't. Some solution has to be
1 found to these problems. We can't go on with a trial with these kind of
2 things going on. I know it would be convenient to try to ignore these
3 things, but we just can't do it.
4 JUDGE AGIUS: No, Mr. Ackerman, I can assure you that this Trial
5 Chamber will not ignore these things. What this Trial Chamber would
6 require of you is to be very specific. There is only one way in which we
7 could present the importance of this matter. Please tell us, let us know,
8 which documents, being newspaper cuttings, you have asked to be translated
9 and you had your request turned down. We will present it as a measure
10 that is being taken that would deprive you of being treated equally. In
11 other words, it would be in violation of the equality-of-arms principle,
12 and we will give an order to that effect because we will not allow a
13 situation to obtain in which the Prosecution is treated one way -- I'm not
14 saying that you have even tried to be treated differently. I mean, don't
15 misunderstand me, but we will not allow a situation to obtain whereby
16 there is this discrepancy in treatment or difference in treatment between
17 now and before and between you and the Prosecution or vice-versa.
18 MR. ACKERMAN: This is not something being done by the
19 Prosecution, Your Honour, and I fully understand that.
20 The other thing I need to inform you for the record and other
21 purposes is that after Mr. Von Hebel suggested that we needed to do an
22 index of these documents and send them back to CLSS, the ones that I
23 wanted translated, I have -- we are in the process of doing a review of
24 the newspaper articles, because they are extensive, and trying to
25 eliminate as many as we can, and we are in fact succeeding in eliminating
1 some of the articles. So the onus won't be quite as high as it was when I
2 originally sent them there. So when I finally get that done and get the
3 index completely prepared, then we will know exactly what we are sending
4 to them.
5 JUDGE AGIUS: But in regard to that bundle of documents,
6 Mr. Ackerman, let me be clear. As you may have noticed, we did not raise
7 the matter again, although you know we know that at some point or another
8 it was going to be raised and it was going to be dealt with and
9 determined. The question is, we have postponed raising this matter further
10 pending the arrival of this index that you are supposed to make. It's
11 important because, in all fairness, before we can reach a decision or
12 before we can even form an opinion, we have to accept that the CLSS
13 department be furnished with this index, because it's on the basis of this
14 index that we can evaluate then whether their objection to have these
15 documents translated was at face value, at least prima facie, founded or
17 After that, there are ways and means of dealing with the matter.
18 There is the informal translations that you discussed with the Senior
19 Legal Officer, and there are other means. However, there is also the
20 principle of equality of arms, and particularly I think we ought to direct
21 our attention more on this diary business than on anything else for the
22 time being.
23 So what I am doing now, Mrs. Jarvis, I would suggest that in the
24 break you find for me, for us, the decision or the order made by Judge
25 Hunt to which Mr. Ackerman has referred and we will follow up precisely
1 from that order. You will have all the support you require, Ms. Korner,
2 from this Trial Chamber in your regard.
3 MS. KORNER: Thank you very much, Your Honour. I'm told the
4 investigator is now here, so we can carry on. Your Honour, may I ask that
5 Mr. Dupas come into the courtroom? If Your Honours have before you the
6 statements that Mr. Smailagic made, you will see in those his name appears
7 on them.
8 JUDGE AGIUS: Richard Dupas?
9 MS. KORNER: Correct.
10 JUDGE AGIUS: There is also Yves Roy.
11 MS. KORNER: I'm going to explain to Your Honours what happened
13 JUDGE AGIUS: On the 19th of August.
14 [The witness entered court]
15 JUDGE AGIUS: Mr. Dupas, you are going to be kindly asked to make
16 a solemn declaration that you will tell us the truth. Please proceed.
17 THE WITNESS: I solemnly declare that I will speak the truth, the
18 whole truth, and nothing but the truth.
19 WITNESS: RICHARD DUPAS
20 JUDGE AGIUS: You may sit down. I would imagine you are familiar
21 with some faces in here.
22 THE WITNESS: Yes, Your Honours.
23 JUDGE AGIUS: Yes, please proceed, Ms. Korner.
24 MS. KORNER: Yes.
25 Examined by Ms. Korner:
1 Q. Could you give us your full name, please?
2 A. Your Honours, my name is Richard Dupas.
3 Q. And do you work in the Office of the Prosecutor as an
5 A. Yes, Your Honours.
6 Q. For how long have you been working here?
7 A. I've been working here for approximately 2 and a half years, Your
9 Q. Before that, were you a police officer in Canada?
10 A. Yes, Your Honours.
11 Q. And for how long have you been a police officer in Canada?
12 A. I've been a police officer for approximately 13 years.
13 Q. Now, Mr. Dupas, I want to ask you some questions, please, about
14 the method by which statements are taken from potential witnesses, and
15 then direct your attention to two statements that you dealt with. Can you
16 explain to Their Honours, first of all, the method by which a statement is
17 actually written down, that is, taken from a witness?
18 A. Your Honours, after briefing the witness as to what our intentions
19 are for that particular interview, once we get into the actual interview
20 process, if I am the investigator, I will direct a question to the
21 interpreter in English, and then the interpreter will redirect the
22 question to the witness in B/C/S. Once the witness answers in B/C/S, the
23 interpreter will then relay his or her answer in English. And I will
24 write that answer down.
25 Q. Once the process is finished of question and answer, is the
1 statement read back to the witness?
2 A. Upon completion of the interview, the statement is read back to
3 the witness in B/C/S.
4 Q. Now, is it the case that the statement is read back to the witness
5 immediately at the end of the question-and-answer session or, on
6 occasions, does something else happen?
7 A. As a general rule of thumb, Your Honours, we try to complete the
8 interview upon meeting the witness for the first time but it does happen
9 on occasion that the statement will not be read back.
10 Q. Can you give Their Honours some examples of reasons why a
11 statement may not be read back on the same occasion?
12 A. There are several reasons, the first one being that there simply
13 isn't enough time to complete the full interview. Therefore, the
14 statement will not be read back. On other occasions, such as in the
15 course of an ongoing investigation where we will be seeing subsequent
16 witnesses on the same mission or later on, the statement will not be read
17 back until the full matter is properly investigated. It may also happen
18 that the witness, upon completion of an interview, may decide suddenly
19 that he or she does not want to sign the statement. I think those are the
20 primary reasons why a witness would not -- or why the statement will not
21 be signed during the interview.
22 Q. Are there occasions when witnesses produce documents?
23 A. There are occasions, Your Honours, when witnesses will present
24 documents, such as a diary that he or she may have written, in which case
25 the statement will not be read back, simply because we don't have an
1 available translation of that document. Therefore, we must return to the
2 office and have that document properly translated before completing the
4 Q. Now, when the witness is asked to sign the statement, that is
5 after it has been read back to him?
6 A. Yes. In general, yes.
7 Q. The statement he is asked to sign, is that the statement that you
8 have taken in English or a translation?
9 A. I will write the statement in English, but the statement will be
10 read back to the witness in B/C/S.
11 THE INTERPRETER: Could the counsel for the Prosecution please
12 make a slight pause after the answer?
13 MS. KORNER: Sorry. That's now thrown me.
14 Q. The statement itself which the witness is signing, is therefore in
16 A. Yes. It is in English. However, there is a witness
17 acknowledgement in B/C/S that the witness will be asked to sign.
18 Q. Now, other than the procedure under Rule 92 bis, where a witness
19 is asked to attest to the truth of the contents of the statement, when is
20 the first time normally that a witness will see a B/C/S version of the
21 English statement?
22 A. Before we actually complete the Rule 92 bis declaration, before
23 it's sworn in, the witness will be asked to read his or her statement in
24 B/C/S prior to completing the Rule 92 bis procedure.
25 Q. But for a witness who is going to be giving evidence live in this
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 courtroom, when is the first time normally that they will see a version of
2 the statement in a language that they can understand?
3 A. Under normal circumstances, the witness will be given a copy of
4 his or her statement upon arrival here in The Hague, and normally during a
5 proofing session.
6 Q. The translation of the English statement is made by whom, the
7 interpreter who did the interpreting or by a member of the Translation
8 Unit in this building?
9 A. The translations are always prepared by certified translators here
10 at The Hague.
11 Q. So if we just summarise that, Mr. Dupas, and as we are going to
12 see with Mr. Smailagic, you can have one interpreter working on the
13 occasion when the investigator is taking down the statement; is that
15 A. Yes, Your Honours.
16 Q. If, for whatever reason, the statement is not signed on the day
17 that it is taken and has to be read back at a later stage, that can be
18 done by a different interpreter and indeed sometimes with a different
20 A. Yes, Your Honours.
21 Q. And then there is a third interpreter involved in the sense of the
22 translation of the statement?
23 A. That is correct, Your Honours.
24 Q. Can we deal, then, please, with Mr. Smailagic's statement? I
25 don't know whether you've brought them with you, Mr. Dupas. If not, we
1 will give them to you.
2 A. No, I have not.
3 Q. Now, Mr. Dupas, we can see that your name appears on the first
4 statement dated the 15th of April, 2000, when you had as the interpreter
5 a lady whose name we can see there. Was that statement taken down and
6 signed -- read back and signed on the same day?
7 A. Yes, Your Honours.
8 Q. So if we then take the second statement, again, you were the
9 investigator dealing with the witness. He was seen on the 4th of June,
10 the 14th and the 19th. Now, did you see him on the first and the second
12 A. Yes, Your Honours, that is correct.
13 Q. On the first occasion, was a -- was what he said written down by
15 A. Yes, Your Honours.
16 Q. Was the statement signed on that occasion?
17 A. No, Your Honours, it was not.
18 Q. And very briefly, can you just tell Their Honours what the reason
19 was why it was not signed on that occasion?
20 A. As I mentioned earlier, Your Honours, in this particular case, I
21 met the witness on the 4th of June and I wanted to continue with the
22 investigation, and that is the reason why the statement was not read back
23 to the witness on the 4th of June. I continued with my investigation
24 between the 4th and the 14th of June, 2001, and I went back to see the
25 witness on the 14th, to ask him some additional questions. In this
1 particular case, the statement was not signed, simply because I did not
2 have the time to have the statement signed. Therefore, I took some
3 handwritten notes on that particular day.
4 Q. Did you then return to The Hague?
5 A. Yes, Your Honours, I did return to The Hague.
6 Q. And on the 19th of August, did a different investigator, whose
7 name we can see, a Mr. Yves Roy, return with a different interpreter,
8 whose name we can see, and was the read-over then done by that
9 investigator with that interpreter and the statement was then signed?
10 A. Yes, Your Honours.
11 Q. Perhaps you can just very briefly tell the Court where were you on
12 the 19th of August?
13 A. I was on holidays at that time, Your Honours.
14 Q. So was this investigator simply asked to deal with the reading
15 over and the signing of the statement?
16 A. That is correct.
17 MS. KORNER: Yes. Thank you, Mr. Dupas.
18 JUDGE AGIUS: Yes. Mr. Ackerman.
19 THE INTERPRETER: Microphone, Your Honour, please.
20 MR. ACKERMAN: Thank you, Your Honour.
21 JUDGE AGIUS: How many questions do you have?
22 MR. ACKERMAN: How many?
23 JUDGE AGIUS: Questions.
24 MR. ACKERMAN: I have some.
25 JUDGE AGIUS: I think you will put them after the break, if you
1 don't mind.
2 MR. ACKERMAN: Yes, I would.
3 JUDGE AGIUS: We'll resume at roughly 1.00, just before 1.00.
4 Thank you.
5 --- Recess taken at 12.30
6 --- On resuming at 1.15 p.m.
7 JUDGE AGIUS: My apologies. Let the accused come in first. My
8 apologies to everyone for this delay. Anyway, my apologies. Yes,
9 Mr. Ackerman?
10 MR. ACKERMAN: Your Honour, Ms. Maglov is back in the courtroom
11 and I took the liberty of asking her to come back but I need to get your
12 permission for her to remain here.
13 JUDGE AGIUS: Yes, I have personally, for the moment, nothing to
14 add to what we added last time. I have to inform you that matter has been
15 referred to the office that deals with the -- to the Registry, anyway, to
16 the Registrar, and as soon as we get some kind of feedback from there, we
17 will take the matter up.
18 MR. ACKERMAN: Thank you, Your Honour.
19 JUDGE AGIUS: What was important was that during the evidence of
20 Mr. Smailagic --
21 MR. ACKERMAN: That was my interpretation.
22 JUDGE AGIUS: Exactly. And the rest will -- we will talk about
23 later if we need to. So can you call the witness in, please? Thank you.
24 Yes, Mr. Ackerman?
25 Mr. Ackerman, by the way, Mr. Dupas, is counsel for Mr. Brdjanin.
1 THE WITNESS: Yes, Your Honour.
2 Cross-examined by Mr. Ackerman:
3 Q. Good afternoon, Mr. Dupas.
4 A. Good afternoon.
5 Q. How are you?
6 A. I'm fine. Thank you.
7 Q. I have just very few, I think, questions to ask you. The process
8 that you have described the way these statements are taken, you ask a
9 question, the witness through a translator answers, and then you write
10 down the answer. I assume you write it down in longhand or do you put it
11 on a computer or how do you do that?
12 A. It depends. In certain circumstances, Your Honours, I would take
13 handwritten notes. In other circumstances, I can type live. That is to
14 say, when the interpreter gives me an answer in English, I will type the
15 answer directly on the computer.
16 Q. And do you do this -- do you just make a note or do you write down
17 word for word what the witness says?
18 A. It's always word for word. That is to say word for word, the
19 answer that the interpreter relays from the answer of the witness, of
21 Q. And are you suggesting to the Chamber that there are frequent
22 errors with regard to interpretation?
23 A. I'm not suggesting that, Your Honours. I don't know if it's a
24 mistake with the interpretation or not, as I don't understand the language
25 of the witness. All I can say is that the answer that the interpreter
1 will give me after a witness answers a question, I will type the answer
2 given to me by the interpreter.
3 Q. So we start with a question in English that is translated into
4 B/C/S, that is then answered in B/C/S and translated back into English and
5 then typed on to a paper, and then given to someone who has no association
6 with that process at all, to translate it back into B/C/S? That's the way
7 it works, isn't it?
8 A. I'm not sure I've understood everything you've asked but I will
9 say -- I can repeat the process once again, that is when I ask a question,
10 the interpreter will relay my question. I always ask my question in
11 English and the interpreter will always relay my question in B/C/S. The
12 witness will answer in B/C/S. And then the interpreter will relay his
13 answer in English to me and I will type the answer given to me by the
14 interpreter on to either a piece of paper or I will type it on a
15 computer. I'm not sure that that answers your question.
16 Q. That's close enough. Has anybody ever suggested that it might be
17 a good idea to record what the witness says in B/C/S so that we can have
18 an accurate record of what the witness says?
19 A. I'm not really sure I know what you're asking.
20 Q. When I say "record," I mean electronically record what the witness
21 says in B/C/S so the witness won't then be able to come here and claim
22 that they didn't say it?
23 A. Right. Your Honours, I did understand that part. What I didn't
24 understand, if -- has someone ever suggested to me that this was the way
25 to do it. I'm not really sure what you're asking there.
1 Q. Okay. Has someone ever suggested that that's the way to do it, to
2 you or to anyone else, to your knowledge?
3 A. Suggested, no. This is the process that I've just described to
4 Your Honours is the process that is adopted by the Office of the
5 Prosecutor, and that is the process that we use.
6 Q. So you do not record what the witness says in B/C/S?
7 A. In this particular statement, I record in English. I record it in
8 English the answers given to me by the interpreter.
9 Q. But the recording won't have the witness's answer in B/C/S on it?
10 A. The statement will reflect the answers given to me by the
11 interpreter and I presume that this is the answer given to the interpreter
12 by the witness.
13 Q. Well, now I'm confused. Do you have an electronic device that
14 records what the witness says when you're taking these statements?
15 A. No, Your Honours. In this particular case, if we are talking
16 about Mr. Smailagic's statement, I did not have an electronic recording
17 device. The only electronic device that I had was my computer.
18 Q. So you are saying that with regard to some statements, you in fact
19 do record what the witness says in his own language or her own language?
20 A. There are processes. There are instances, when we interview a
21 witness, where that interview will be recorded, that is audio recorded.
22 Q. It must be that it is not a secret in the Office of the Prosecutor
23 that this process of multiple translations is less than satisfactory. It
24 just -- I just don't understand why it hasn't -- there hasn't been a
25 process to record the statements in the original language from the very
2 MS. KORNER: Your Honour, I don't think that's really for this
3 investigator to answer. It's a matter of policy which if Mr. Ackerman
4 wants to take it up with those in charge --
5 JUDGE AGIUS: I was going to stop him, Ms. Korner, and I will now.
6 MR. ACKERMAN:
7 Q. I take it, then, when I look at a statement, and it says, "I was
8 receiving threatening phone calls at my home almost on a daily basis,"
9 that those, to the best of your ability, are the exact words at least that
10 you heard from the translator who was translating the witness's answer?
11 A. That would be the answer, or that is to say, the response to a
12 particular question. In this case, would have been the answer given to
13 me, relayed to me by the interpreter, and I would have typed it down word
14 for word.
15 Q. Now, when you get to the point where the statement has been typed,
16 and you are showing it to the witness to get him to sign it, what do you
17 do when the witness says, "Well, here on page 7, that paragraph is
18 incorrect"? Do you then completely redo do the statement?
19 A. No, I wouldn't completely redo the statement, Your Honours. I
20 would ask the interpreter, or I would ask the question, pose the question
21 to the witness, what exactly isn't correct in the paragraph or the line
22 that the witness wants to correct. And I would clarify that part of the
24 Q. But I'm looking at a piece of paper that has a statement on it. I
25 assume this is the piece of paper that is translated to the witness and
1 the witness is asked to sign. Correct?
2 A. That is correct, yes.
3 Q. And if the witness says on page 7, paragraph 3, "That is not what
4 I said, that's not correct," what do you do?
5 A. When you meet a witness for the first time, or in this particular
6 case, when I met a witness, if I was to meet a witness and we're actually
7 doing the read back that particular day, that is to say completing the
8 full interview, and a witness during the read back would point out
9 something that isn't correct or that the witness would like to change in
10 his statement, then you would make the correction before reading back the
11 statement, before the witness actually signs it.
12 Q. And I don't notice in any of these statements that something is
13 crossed out and something added. Do you completely retype the statement
14 at that point?
15 A. No. As I previously mentioned, Your Honours, during the read
16 back, if the witness is unsatisfied with something, with an answer that is
17 read back to him, I would make the correction right there and then and
18 retype the part of the statement that the witness would like to be
20 Q. Well, I'm sorry, I'm confused, Mr. Dupas. If you'll look at the
21 statement that we are looking at, for instance, the first statement of
22 this witness Mr. Smailagic, it goes from page 1 through 7, and then there
23 is -- actually, there is 1 through 8 because there is acknowledgements at
24 the end?
25 MS. KORNER: Your Honour, it may help because of the time, I know
1 that we have been strictly enjoined to finish by quarter to 2, if I -- I'm
2 giving evidence but I would ask the investigator to confirm it. The read
3 back - that may be the confusion - is done from a computer screen, not a
4 piece of paper. There is no printed out. In other words, when the
5 interpreter reads back to a witness the statement, it's the computer
6 screen they are reading.
7 MR. ACKERMAN:
8 Q. So that's the case, you're reading -- they are reading from a
9 computer screen?
10 A. That is correct, Your Honour.
11 Q. So when is the witness actually handed a hard copy and asked to
12 sign it?
13 A. Once the read back has been completed, and the witness agrees that
14 all of the information in the statement that was taken there and then is
15 correct, then the investigator should give a copy, that is to say a hard
16 copy, of the statement and the witness is asked to sign the statement once
17 everything is agreed upon, that is to say the facts in the statement are
19 Q. So you have a printer with you, you can print it out right there
20 on the scene?
21 A. That is correct.
22 Q. Okay. Now, you took one statement from Mr. Smailagic on 15 April,
23 2000 and then went back in June of 2001 to talk to him some more. And he
24 has indicated that at that time you suggested to him that some of the
25 things he'd said in his first statement were apparently untrue. For
1 instance, the -- his assertion that Brdjanin's wife was named Perka. And
2 what you do, I guess, after you take a statement from a witness is make
3 some effort at least to check out some of the things that have been said,
4 and then take the opportunity to inform the witness that there are some
5 things the witness said that may not be correct and give the witness a
6 chance to correct those things. Is that a fair statement? That's a
7 pretty long statement. I'm sure you heard it all.
8 A. If I understood you correctly, Your Honours, I think Mr. Ackerman
9 wants me to -- the question that you're -- that Mr. Ackerman is asking me,
10 is if I go back once -- I go back to The Hague and I verify some of the
11 facts that the witness has given me and/or told to me, and once I verified
12 those and I find out or I discover that some of the facts that the witness
13 has relayed to me are inaccurate or not complete, then I would go back and
14 meet the witness and clarify. If that's what Mr. Ackerman is asking me,
15 then that is correct.
16 JUDGE AGIUS: That is what he --
17 MR. ACKERMAN:
18 Q. That's exactly what I asked, yes.
19 A. That would be a fair statement, Your Honours.
20 Q. Okay. Thank you. When you actually do record, electronically
21 record, the statements of a witness in their native language, I take it
22 you preserve those recordings?
23 A. Well, the preservation of the -- Your Honours, the preservation of
24 the witness statement is not in his or her -- in the witness's language.
25 It's always in the English language. And there is an electronic version
1 of the statement that is kept in our team files.
2 Q. Actually, what I'm referring to is when you not record on computer
3 but record the actual voice of the witness. When you make actual voice
4 recordings or video recordings of a statement of a witness, I assume those
5 voice recordings or video recordings are preserved. Is that true?
6 A. When there is an audio recorded interview of a witness, Your
7 Honours, taken, there is a copy that is preserved, yes.
8 MR. ACKERMAN: That's all I have, thank you.
9 JUDGE AGIUS: Maitre Pitron or Madam Fauveau?
10 MR. PITRON: [Interpretation] Mr. President, we don't have any
11 additional questions for the witness.
12 JUDGE AGIUS: I thank you, Maitre Pitron. I think if there are no
13 further questions, the witness may withdraw. I thank you, Mr. Dupas. You
14 have been most helpful.
15 Yes, Ms. Korner.
16 MS. KORNER: Well, Your Honour, I was going to suggest, I hope --
17 JUDGE AGIUS: I was hoping to give the order with regard to the
19 MS. KORNER: Right. In that case, Your Honour, there is clearly
20 no opportunity to call the next witness, so he can be released.
21 JUDGE AGIUS: I think the diary issue is more important. I think
23 MS. KORNER: Yes.
24 JUDGE AGIUS: So let's start from here because this will be an
25 oral order that we will have to make. You informed the Trial Chamber this
1 morning that you had received a diary from -- would you again repeat the
2 information that you gave to the Trial Chamber this morning with regard to
3 this diary.
4 MS. KORNER: Your Honour, this morning our office, the person
5 responsible for translations, received two packages -- I'm sorry, three,
6 I'm corrected by Ms. Richterova, three packages containing the remaining
7 part of the diary. As I understand the matter, it was accompanied by a
8 note from Mr. Dubuisson -- no, in that case I think Ms. Richterova dealt
9 with it, if she explains it.
10 JUDGE AGIUS: Yes.
11 MS. RICHTEROVA: Yeah, we received, it wasn't this morning, it was
12 yesterday, we received three packages with a memo from Christina Zoric
13 from CLSS, addressed to Mark Dubuisson, and it was a memo stating that
14 CLSS cannot deal with these translation, and on these three packages was
15 yellow stickers, stating the name of the person from trial support,
16 without any explanation why these three packages ended up in the trial
17 support. That's all. And we were advised by Registry that there is a
18 memo with an explanation, but we have never got such an explanation.
19 THE REGISTRAR: Thank you, Your Honours. I spoke with
20 Mr. Dubuisson, who is my chief and chief of court management and support
21 services section. He explained to me the following. First, the diary was
22 given to CLSS in three parts. One was the first priority, which was
23 completed. The second group, they are still working on the translations.
24 And the third part of that diary, which consists of 500 to 700 pages, was
25 given back to the Prosecution, explaining that they were unable to
1 complete the translation at that moment. And I'm waiting for the memo to
2 be produced.
3 He also informed me that they have a working group dealing
4 with these issues on translation and document control, in order to
5 prioritise documents and in order that they are translated. So this is
6 the official response from the Registry. Now, I explained to him that in
7 fact you may want to issue an oral order based on the information, and
8 that he said there is no problem with giving back the third batch of
9 documents or, excuse me, the third part of the diary to be translated. I
10 guess the issue then becomes when you will get it back from translation.
11 I think that's the critical issue at this moment.
12 JUDGE AGIUS: So --
13 [Trial Chamber confers]
14 JUDGE AGIUS: Let's go slowly because [Microphone not activated].
15 This has to be oral [Microphone not activated].
16 JUDGE AGIUS: Let's go slowly. I will be trying to summarise
17 first the information that is -- has been given by the Prosecution. In
18 the course of this morning's session, the Prosecution informed this Trial
19 Chamber that it had received three bundles of documents forming part of
20 the diary that the CLSS has been translating, a diary to which previous
21 proceedings in the Pre-Trial stage refer, with an intimation that the CLSS
22 was not in a position to continue translating the remaining pages of the
23 said diary.
24 For the time being, does that more or less reflect correctly,
25 more or less, what you have reported to this Trial Chamber?
1 MS. KORNER: Yes, Your Honour.
2 JUDGE AGIUS: Thank you. This Trial Chamber has also been
3 informed that there is a memo purporting to explain the reason behind the
4 decision of the CLSS to return the said documents to the Prosecution,
5 although no one has been in a position to show this memo to the Trial
6 Chamber this morning.
7 The Trial Chamber wishes to refer to the decision of -- to its
8 decision of the 15th November, 2001, in which inter alia, in paragraph 5
9 of the same it was decided that, "It is certainly only fair that counsel
10 for Brdjanin should have the entire diary translated into English in
11 sufficient time before he has to cross-examine Witness 7.207." "...the
12 issue as to whether it should be permitted to call Witness 7.207 at all in
13 the circumstances which have been related can only be determined at the
14 stage it is known when the entire diary will be or has been translated
15 into English and an assessment can be made as to how long Brdjanin's
16 counsel will reasonably need to read it for the purpose of cross-examining
17 the witness."
18 The Trial Chamber further notes that it was possible to start this
19 trial on schedule and it was previously possible to fix a schedule for the
20 commencement of this trial precisely because there was forthcoming an
21 assurance to this Trial Chamber of a steady flow of translations of this
22 diary forthcoming from the CLSS on a regular basis and as indicated by
23 CLSS and the Prosecution.
24 The Trial Chamber is of the opinion that any interruption in the
25 flow of the process of translation of this diary at this stage or at any
1 further stage of these proceedings would, given the present circumstances,
2 seriously compromise the progress of this trial and has the potentiality,
3 if not the certainty, of bringing this trial to an undesirable halt.
4 The Trial Chamber further feels, or is of the opinion, that the
5 decision of the CLSS to return the diary, or the remaining parts, the
6 untranslated remaining parts of the diary to the Prosecution with the said
7 intimation that they would not be proceeding with the translation of same
8 at any identified time runs counter to the above-mentioned decision of
9 this Trial Chamber of the 15th of November, 2001, and in effect would
10 nullify the whole purpose for which the same decision was handed down.
11 The Trial Chamber therefore requests the Prosecution to return the
12 said documents to the CLSS and is giving instructions to the same
13 department, CLSS, to proceed with -- to proceed with the translation of
14 the remaining part of the diary that has not yet been translated, and to
15 conclude the exercise in good time without prejudicing the progress or
16 continuation of this trial.
17 For the purpose of this order, it is suggested to the CLSS to
18 coordinate with the Prosecution and with the Defence, which should be in a
19 position to give an indication as to how early the complete translation is
20 required for the purposes of this trial.
21 I think we could leave it at that. I can't give you anything
22 better than this because I would have to sit down and write a judgement,
23 an order, and I don't think we should waste more time on it. It deserves
25 MS. KORNER: Thank you, Your Honour.
1 JUDGE AGIUS: We will continue tomorrow, we will resume tomorrow
2 -- sorry, not tomorrow, on Monday. We will resume on Monday with the
3 evidence, testimony of Mr. Dzonlic. And I would suggest that you more or
4 less agree on the documents that would be made use of, at least by the
5 Prosecution, for the purpose of the examination in chief of this witness.
6 MS. KORNER: Your Honour, that's been done and Your Honour has
7 been given a list.
8 JUDGE AGIUS: We have, yes. I don't know whether the Defence has.
9 Okay, I thank you once more and we will have a nice weekend, long weekend,
10 and we will all meet on Monday morning. Including Maitre Pitron?
11 MR. PITRON: [Interpretation] Mr. President, as Mr. de Roux said to
12 you, I think, the Defence, the French Defence team shall maintain in
13 permanence or quasi-permanence the presence of Natasha Fauveau-Ivanovic.
14 That will be guaranteed. And Mr. De Roux and myself shall come here
15 regularly to continue with our efforts and to try to persuade you. It's
16 probably that on Monday and Tuesday, I will be absent. On Monday, I will
17 be absent but we will be here during the second part of the week, and what
18 I suggest out of courtesy is that we should inform you, in advance, which
19 members of the Defence team, of the French Defence team, will be present
20 at your hearings.
21 JUDGE AGIUS: That would be appreciated, Maitre Pitron, and it
22 would also be appreciated if you keep your client informed precisely on
23 what the plans are, because it is important and he has a right to know.
24 MR. PITRON: [Interpretation] Of course, Mr. President.
25 JUDGE AGIUS: We will meet on Monday.
1 --- Whereupon the hearing adjourned at
2 1.42 p.m., to be reconvened on Monday, the 25th day
3 of February, 2002, at 9.00 a.m.