1. 1 Day 12 Monday, 16th March 1998

    2 (8.30 am)

    3 THE REGISTRAR: I do not think the

    4 microphones are working. Case number IT-95-13a-T,

    5 Prosecutor versus Slavko Dokmanovic.

    6 MR. NIEMANN: My name is Niemann and I appear

    7 with my colleagues Williamson and Waespi and Sutherland

    8 for the Prosecution.

    9 MR. FILA: My name is Mr. Fila together with

    10 Ms. Lopicic and Mr. Petrovic, I am the Defence attorney

    11 for Mr. Dokmanovic.

    12 JUDGE CASSESE: Thank you. I would like to

    13 ask Mr. Dokmanovic whether he can hear me. Can you hear

    14 me? Thank you. Yes, Mr. Fila.

    15 MR. FILA: Your Honour, before the trial

    16 starts -- sorry, I just have one copy -- I would like

    17 to give you this famed memorandum that we spent so much

    18 time on with Mr. Wheeler, in the English language, so

    19 you can take it and put it in the library, but we have

    20 this one single copy in the English language.

    21 THE REGISTRAR: The French court reporter

    22 does not hear. Someone will come and check. (Pause).

    23 JUDGE CASSESE: We may proceed, Mr. Fila.

    24 MR. FILA: I have checked in your library and

    25 you do not have a copy of this memorandum. I brought

  2. 1 it so that you could have it. I do not know how to

    2 hand it over to you, from pages 95 to 140. That is the

    3 text of the memorandum so I can only give it to you as

    4 a present.

    5 MR. NIEMANN: On behalf of the court, we will

    6 gratefully accept it and make sure that it is put into

    7 the library and thank Mr. Fila very much for his kind

    8 donation.

    9 JUDGE CASSESE: Thank you, Mr. Fila. Before

    10 we move on to our next witness, I wonder whether I

    11 could ask the Prosecutor about the admissions because

    12 we were handed a document on 2nd March, "Draft

    13 Admissions by the Prosecutor" and Mr. Fila responded on

    14 5th March with a response on the draft admissions. I

    15 wonder whether Mr. Niemann could tell us to what extent

    16 the Prosecution is ready to accept the submissions made

    17 by Mr. Fila in paragraph 10(1) through 10(5) of his

    18 document.

    19 MR. NIEMANN: Your Honours, the admissions

    20 made by the Defence from 10(1) to 10(5) are acceptable

    21 to the Prosecution and we have a document which has

    22 being given to the Defence which incorporates those

    23 matters and it is just a matter of that document being

    24 signed by Mr. Fila and by the defendant and that will

    25 complete the matter. My only concern is that we want

  3. 1 to ensure that the Defence are fully aware of the

    2 effect of these admissions, that they -- I am not sure

    3 whether there is such a procedure under the law of

    4 Yugoslavia and it may be a procedure which is peculiar

    5 to the common law. The experiences that we have had in

    6 the Erdemovic case have certainly made the Prosecution

    7 very cautious of just proceeding into areas such as

    8 this, making an assumption that they are fully

    9 appreciated on the other side.

    10 I am not trying to be in any way rude to

    11 Mr. Fila and if I am, I apologise for that, but I am

    12 most concerned to ensure that both Mr. Fila and the

    13 accused are fully comfortable with these admissions so

    14 that we do not get into the situation which occurred in

    15 the Erdemovic case. I just say that; Mr. Fila has

    16 them. They are available for him to be signed and for

    17 his client to sign them and when he is ready hopefully

    18 they can be filed and they will take effect.

    19 JUDGE CASSESE: Thank you. Mr. Fila? Would

    20 you like to add anything?

    21 MR. FILA: Your Honour, in my response, I

    22 said what points I could accept, so I did not accept

    23 everything that you mentioned. 3, 7, 8, 10, 11 and

    24 14. I know what I am accepting. And all of this is

    25 within that which I admitted in the minutes.

  4. 1 It is related to Ovcara, namely, that 200

    2 people were killed, that an exhumation was carried out

    3 and I have no objections to that with the exception of

    4 the ethnic composition which I mentioned, because,

    5 under point 4, I said that there were 5 Serbs; there is

    6 2 and I asked for the OTP to prove that they were not

    7 Serbs as they had been claiming, out of those 200, I

    8 mean, so what I said, these seven points, I am going to

    9 sign that and I know exactly what I am signing. And I

    10 also told the defendant about this, but not the rest.

    11 JUDGE CASSESE: Sorry, Mr. Fila, there was

    12 probably a slight misunderstanding. I was referring to

    13 point 10(1) to (5) of your own document where you make

    14 submissions to be accepted or not to be accepted by the

    15 Prosecution, and actually I think also Mr. Niemann was

    16 addressing this particular point. My question to

    17 Mr. Niemann was whether the Prosecution was prepared to

    18 admit your submissions as set out in those points or

    19 paragraphs of your confidential Defence response to the

    20 Prosecutor's draft admissions. Anyway, I think it is

    21 very clear now. I understand that you will consider

    22 carefully.

    23 MR. FILA: Then it is not quite clear. Then

    24 we have not understood each other correctly, because I

    25 understand Mr. Niemann differently, that he was talking

  5. 1 about the document that he handed to me so that I would

    2 sign it, but from 10(1) to (5), that is quite clear.

    3 Those are my own proposals and of course if he accepts

    4 that, then I am going to give up on 51 witnesses.

    5 MR. NIEMANN: I am sorry, your Honours. I

    6 have misspoken. I did not realise. I thought your

    7 Honour was talking about the admissions from the

    8 Defence, not the other way around. We are not in a

    9 position to comment on those at the moment. They are

    10 under consideration. That is part of the Defence

    11 case. I am sorry, your Honour. I did mis-speak. I

    12 did not mean to comment on those. The admissions from

    13 the Defence side, now that we are in the Prosecution

    14 case, those matters are in hand, but insofar as the

    15 Defence case is concerned, we will advise Mr. Fila of

    16 our position on that.

    17 JUDGE CASSESE: All right, it is clear that

    18 so far we have no agreement on the admissions and so

    19 therefore we will proceed and maybe in one or two days

    20 the Prosecution and Defence could come back and file a

    21 document, hopefully signed by the Defence counsel and

    22 the accused. Mr. Fila?

    23 THE INTERPRETER: Microphone, please.

    24 MR. FILA: I said in my response what I do

    25 accept and, since I said that I accepted it, I see no

  6. 1 reason why I would not sign it, so let us not waste any

    2 time over that. If I understand you correctly, your

    3 Honour, the whole point of this exercise was to speed

    4 up matters, so I accepted everything that was supposed

    5 to be presented and there is no dispute between us on

    6 that point. So 3, 7, 8, 11, 12 and 14 of the

    7 Prosecution's proposal, we agree on that, right?

    8 JUDGE CASSESE: All right. It is very clear

    9 now. Thank you. I wonder whether the Prosecutor is

    10 prepared to call his next witness.

    11 MR. WILLIAMSON: Your Honour, the first

    12 witness that the Prosecutor would call this morning is

    13 going to be presented via video link and we have

    14 requested a closed session in relation to this

    15 witness.

    16 JUDGE CASSESE: I understand there are

    17 problems in establishing the video link. I wonder

    18 whether, to save time, we can call another witness, if

    19 your witnesses are available.

    20 MR. WILLIAMSON: Your Honour, I think we

    21 would have to check on that. I understood that they

    22 were not going to arrive here until quarter to 9, with

    23 the Victim Witness Unit, so I am not sure if they are

    24 available at this point or not. Perhaps if we take a

    25 brief recess, we can check on that.

  7. 1 JUDGE CASSESE: I see. You have Mr. Fenwick

    2 who should be here close at hand.

    3 MR. WILLIAMSON: I am not sure, your Honour.

    4 We can check and see. Mr. Fenwick's wife is extremely

    5 ill so he has been in and out and we had told him that

    6 he would be testifying tomorrow, so I am not sure if he

    7 is actually in the building or not. If the witnesses

    8 that are listed on the list as no. 2 and 3, if they are

    9 here and they are ready to proceed, it will just take

    10 us a moment to check. If your Honours want to wait, we

    11 can try to do that as everyone is here.

    12 JUDGE CASSESE: We can take a recess of, say,

    13 10 minutes.

    14 We stand in recess until 9 o'clock.

    15 (8.48 am)

    16 (A short adjournment)

    17 (9.07 am)

    18 MR. WILLIAMSON: I would ask at this time

    19 that perhaps -- I cannot tell if the witness has

    20 actually placed his earphones on or not so that he is

    21 hearing the translations. Can the witness hear me at

    22 this point? Very well, at this time, perhaps if the

    23 witness can make the solemn declaration.

    24 (Closed session with video link)

    25 (redacted)

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    6 (redacted)

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    8 (redacted)

    9 (redacted)

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    12 (Open session)

    13 JUDGE CASSESE: Mr. Niemann, I understand you

    14 may proceed.

    15 MR. NIEMANN: Thank you.

    16 JUDGE CASSESE: Good morning. May I ask you

    17 to make the solemn declaration?

    18 IVICA DODLEK (affirmed)

    19 JUDGE CASSESE: Thank you, you may be

    20 seated.

    21 WITNESS: Thank you.

    22 MR. NIEMANN: Could you please state your

    23 full name?

    24 A. I am Ivica Dodlek.

    25 Q. And your date of birth?

  2. 1 A. 22nd March 1961.

    2 Q. And your former profession?

    3 A. I used to be a professional policeman

    4 involved in criminology and now I am retired.

    5 Q. Perhaps you might tell us, when did you

    6 retire?

    7 A. 1st January 1998.

    8 Q. Before you retired, where were you

    9 stationed? Where did you work?

    10 A. I had several jobs from the beginning of my

    11 career; I wonder what you are particularly interested

    12 in.

    13 Q. Yes, perhaps we can just isolate it down to

    14 1992, in the middle of 1992.

    15 A. During 1992, I worked as a policeman at the

    16 police station in Vukovar. I was involved in crime and

    17 criminology.

    18 Q. And when did you enter the police force?

    19 A. In 1979.

    20 Q. Might the witness be shown MFI50, please.

    21 (Shown). Would you just look through MFI50, please,

    22 and can you tell me, do you recognise that document?

    23 A. Yes, I do.

    24 Q. And what is it?

    25 A. It is an official document on an official --

  3. 1 of an official conversation that was held with

    2 Mr. Dragutin Berghofer.

    3 Q. Can you go to the last page of the document

    4 and do you see your signature there?

    5 A. Yes.

    6 Q. And do you recall taking this statement?

    7 A. Yes, but I do not remember everything about

    8 it. I do not remember all the details, but, yes.

    9 Q. Where did you take this statement?

    10 A. I took the statement at the Plitvice Motel in

    11 1992 in the room of Mr. Dragutin Berghofer.

    12 Q. And why did you take it?

    13 A. It was not only me. It was my colleague who

    14 was working with me and myself and I did this because

    15 everything that we are familiar with had already taken

    16 place in Vukovar in 1991 and all of it was supposed to

    17 be collected and written down.

    18 Q. So this was part of an ongoing investigation,

    19 was it?

    20 A. Well, not exactly an investigation, but there

    21 were some elements of an investigation involved, yes.

    22 Q. And when you took this statement down, were

    23 you taking any notes contemporaneous with the

    24 discussion that you had with the witness?

    25 A. Yes, whatever the witness said -- rather not

  4. 1 the witness, but Mr. Berghofer, whatever he said, I

    2 wrote down in my notebook and after that, I put it all

    3 into this official document.

    4 Q. How long after did you do that?

    5 A. Well, you have to take into account the very

    6 difficult circumstances that we were working under, but

    7 a few days later, three or four days after that at the

    8 maximum, after the conversation took place, I mean.

    9 Q. And did you discuss the notes that you had

    10 taken with Mr. Berghofer at the time in order to see

    11 whether or not they were taken down accurately?

    12 A. Yes, I remember that quite well. After

    13 completing my conversation with him, I read the notes

    14 once again to see whether he disagreed with something

    15 so that I would not write the official document that

    16 would be different from what he had said.

    17 Q. Now, I do not want you to go into details of

    18 the statement, but were names given to you and places

    19 and events described, things that were familiar to you

    20 at the time when you took this statement down -- some

    21 of the things, I should say. Some of the names and

    22 events and places described, were they familiar to you

    23 when you took the statement down?

    24 A. Yes.

    25 Q. What was the purpose of taking this statement

  5. 1 down according to the system under which you operated?

    2 Why did you take the statement down?

    3 A. The statement was taken down -- actually

    4 interviews were held with the witnesses who had the

    5 good fortune of surviving Ovcara and then after that,

    6 the courts would handle the matter.

    7 Q. I tender the statement, your Honour.

    8 JUDGE CASSESE: Thank you. Mr. Fila.

    9 Cross-examined by MR. FILA

    10 Q. First of all, I want to ask something, if I

    11 may. What did the witness show to Berghofer? His own

    12 notes or the official note when he was verifying it?

    13 A. My notes, the notes I jotted down when I

    14 was -- when I wrote this in my notebook. Then I read

    15 this out to him and then I copied it into the official

    16 documents so this is --

    17 Q. Oh, so you showed it to him at that point in

    18 time, what you jotted down, and then after that you

    19 entered this in your official note?

    20 A. Right.

    21 Q. Was Dokmanovic accused on the basis of that?

    22 Do you know anything about it?

    23 A. I cannot tell really. I just know that it

    24 was processed, that we handed the official note in and

    25 I do not know whether anything was raised on that

  6. 1 basis.

    2 Q. So I am opposed to tendering this as

    3 evidence. For the same reasons I mentioned previously,

    4 according to our law, this is inadmissible. That is

    5 the reason. There are no other reasons.

    6 MR. NIEMANN: Your Honour, according to the

    7 law of Yugoslavia is not the test. In our submission,

    8 the law of Yugoslavia is not the test that applies in

    9 this Tribunal and we are not bound by it. It really

    10 boils down to a question of weight for your Honours,

    11 and certainly there can be arguments as to the weight

    12 of the document, but in our submission, a foundation is

    13 being laid for it and we submit that it is relevant and

    14 admissible in relation to this witness and in

    15 particular, Mr. Berghofer, who has already attested to

    16 the fact that he gave a statement and this witness has

    17 attested to the fact that he has taken it. In our

    18 submission, it does not matter that according to the

    19 law of Former Yugoslavia it may not have been

    20 admissible or it may be admissible. That does not

    21 determine the issue.

    22 JUDGE CASSESE: Thank you.

    23 MR. FILA: Just one --

    24 JUDGE MAY: Before you mention anything,

    25 beside the law of the Former Yugoslavia, this is

  7. 1 effectively a previous consistent statement; is that

    2 not right?

    3 MR. NIEMANN: Yes, your Honour.

    4 JUDGE MAY: In common law jurisdictions, at

    5 least some common law jurisdictions, a previous

    6 consistent statement is not admissible as evidence of

    7 the facts in it. Why is it relevant here to know that

    8 the witness made an earlier complaint?

    9 MR. NIEMANN: Your Honours, in our

    10 submission, the common law objection to previous

    11 consistent statements, in our submission, falls into a

    12 similar category to the objection based on the fact

    13 that it is not a document that would be admitted under

    14 the law of Yugoslavia, albeit for very different

    15 reasons. The law in the Former Yugoslavia, as I

    16 understand it and I do not profess to be an expert in

    17 that, but it goes to the fact that a second statement

    18 is obtained by the court itself, by an investigating

    19 judge, and the objection to this being tendered is

    20 because of that. It does not go to the issue, as I

    21 understand it, of prior consistent statements.

    22 In this jurisdiction, your Honours, it is

    23 admissible, we would submit, under the Rules. There is

    24 no provision in the Rules which of themselves say,

    25 prior consistent statements are not admissible. In

  8. 1 many respects, the objection to the tendering of such

    2 matters at common law relates to issues connected with

    3 the jury. One is more concerned about statements or a

    4 number of statements being provided in this way,

    5 because one may be concerned about the reaction that

    6 the jury might have to it, and for those reasons, under

    7 the common law, the system of Rules relating to

    8 evidence has developed.

    9 We submit that is not appropriate here

    10 because your Honours are trained judges and you can

    11 receive a whole range of evidence which you can take

    12 into account and it really does boil down to, at the

    13 end of the day, how much weight you may attach to it.

    14 The primary concern in our submission that

    15 your Honours should have would go to its reliability,

    16 and it seems to us that if your Honours cannot be

    17 satisfied on reliability, that may be a factor which

    18 impacts upon its admissibility, because the court does

    19 not want to be in a situation where it has to make

    20 those sorts of judgements on a document which seems

    21 manifestly unreliable. Once that test is satisfied,

    22 which I submit it clearly has been in this case, then

    23 your Honours can consider it along with something else,

    24 along with any other piece of evidence that may come

    25 before you, and the restriction and very restrictive

  9. 1 rules of evidence that apply in the common law system

    2 need not apply in this jurisdiction, because your

    3 Honours are no longer being concerned with a jury which

    4 is untrained in the law, being exposed to a range of

    5 evidence which they may not fully comprehend the

    6 significance of and may not be able to weigh and test

    7 in the same way that your Honours are trained to do.

    8 At the end of the day, as I say, your Honours

    9 may well take it upon yourselves to attribute to the

    10 document very little weight and say it is just not a

    11 matter which is going to be determinative on any issue,

    12 but your Honours should not approach it on the basis,

    13 in my respectful submission, of: let us exclude that;

    14 let us keep that out because there is some common law

    15 rule that might do that. In my submission, your

    16 Honours should let the document in and then deal with

    17 it, as I say, as a matter of weight.

    18 JUDGE MAY: There is an objection here from

    19 the Defence and clearly you are right, when you say

    20 that the common law rules of evidence do not apply

    21 here, but clearly they are going to be of some use when

    22 you come to assess whether the document should be

    23 admitted. The issue in this case, as far as the

    24 particular witness is concerned, is identification, is

    25 it not? Therefore, the question is: is it going to

  10. 1 assist us to know that a similar complaint was made in

    2 1992? Is it relevant? Is it going to assist? I

    3 suppose there is a more general question as to whether

    4 these documents, these statements, prior consistent

    5 statements, should generally be admissible or not. If

    6 we admit this document in this case, is this going to

    7 be taken as a precedent for always admitting prior

    8 consistent statements?

    9 MR. NIEMANN: As I understand, your Honour

    10 may have an objection based on prior consistent

    11 statement, but I do not understand that to be the

    12 objection of the Defence.

    13 JUDGE MAY: That does not matter.

    14 MR. NIEMANN: But I do not think I have to

    15 address the position in the Former Yugoslavia and it

    16 seems to me, your Honours, that we run into all sorts

    17 of difficulties if we find ourselves obliged to follow

    18 the laws of the Former Yugoslavia when it comes to the

    19 admissibility of evidence. It is a completely

    20 different regime and we have investigative prosecutors

    21 and judges working together in the formation of a

    22 dossier --

    23 JUDGE MAY: Can I interrupt? I follow that

    24 point entirely. Clearly the Rule is that here there is

    25 no other jurisdiction which governs the Rules of

  11. 1 Evidence here. The Rules of Evidence here are the

    2 Rules of the Tribunal as it develops. The point that I

    3 was taking was the much narrower one based on the

    4 common law rule about prior consistent statements. It

    5 so happens that the rule in the Former Yugoslavia would

    6 apparently have the same effect, or might have the same

    7 effect. The danger might be if we admit this

    8 particular statement, and my mind is not made up at

    9 all, but I wish to address the point, is this going to

    10 lay a precedent for the admission of such statements

    11 normally --

    12 MR. NIEMANN: Your Honours, --

    13 JUDGE MAY: Is that desirable?

    14 MR. NIEMANN: In my submission, it is

    15 entirely desirable, yes, because you are a totally

    16 different Tribunal to one where you are having

    17 lay persons determine the questions of fact based on the

    18 evidence that is put before them. There is much more

    19 sensitivity associated with filtering the evidence that

    20 goes before a jury because of the fact that they are

    21 not trained to deal with it, notwithstanding how

    22 detailed and careful a judge may be in directing the

    23 jury as to how they should treat the evidence. It is

    24 always open to the possibility that the jury may do

    25 with the evidence something that results in a

  12. 1 miscarriage of justice.

    2 In my submission, your Honours should not

    3 approach the prosecutions in this case on that basis,

    4 relying on that criteria, because it is inappropriate.

    5 Your Honours, at the end of the day, need to carefully

    6 consider the totality of the evidence that is put

    7 before you and almost in a similar way to the admission

    8 of evidence de bene esse, your Honours should be not so

    9 restrictive in my respectful submission, in taking the

    10 evidence before you and then dealing with it on the

    11 totality. Otherwise we will be in a situation where

    12 the search for the truth, which is so fundamental to

    13 this jurisdiction, will be hampered by not being open

    14 to the ready acceptance of the evidence put forward by

    15 the parties. I do not think I can take it much

    16 further.

    17 JUDGE CASSESE: Thank you. Judge Mumba would

    18 like to ask a question.

    19 JUDGE MUMBA: I just wanted to be clear in my

    20 mind, that the statement which this witness took was

    21 from Mr. Berghofer, the witness who had come?

    22 MR. NIEMANN: Yes.

    23 JUDGE MUMBA: The witness who had come to

    24 testify here?

    25 MR. NIEMANN: Yes.

  13. 1 JUDGE MUMBA: This statement according to

    2 this witness was taken in 1992.

    3 MR. NIEMANN: Yes, your Honour.

    4 JUDGE MUMBA: At the motel in the witness's

    5 room? In the witness's room? I mean -- no, in

    6 Mr. Berghofer's room.

    7 MR. NIEMANN: I think it was a hotel. I think

    8 the witness was a refugee at the time in a hotel in

    9 Zagreb.

    10 JUDGE MUMBA: Yes, because what bothers me is

    11 the fact that Mr. Berghofer was before the court and

    12 gave evidence in this very case and why the Rules here

    13 are not aligned to Yugoslavia or mainly the common law,

    14 I am worried about having a witness testify viva voce

    15 and then later on, having a statement which the same

    16 witness has taken earlier before the witness came

    17 before the court, because that puzzles me. I do not

    18 see why that should be the case here.

    19 MR. NIEMANN: I can only say that it is -- as

    20 long as the issue of whether or not your Honours are

    21 satisfied that it is a credible and reliable piece of

    22 evidence, the fact that it is taken in 1992 and the

    23 fact that the witness has testified should not, in my

    24 respectful submission --

    25 MR. FILA: Objection --

  14. 1 MR. NIEMANN: -- be a basis for rejecting the

    2 evidence, but I think I have taken the matter about as

    3 far as I can and I accept that this is the first time

    4 certainly I have been involved in tendering it, so

    5 perhaps there is an issue involved in admitting it.

    6 But what I do say is that I do not think that your

    7 Honours need to be too concerned about the precedential

    8 effect of it, because I say that circumstances differ

    9 from case to case and what may appeal to the court as

    10 being admissible in one case may not in another, and I

    11 do not think that any decision made by your Honours on

    12 this would be binding.

    13 JUDGE CASSESE: Thank you. Before we make a

    14 ruling, I will turn first to Mr. Niemann and then ask a

    15 question of Mr. Fila.

    16 Mr. Niemann, of course this is based on the

    17 assumption, as was pointed out to my colleagues, my

    18 fellow judges, that of course we are not bound by any

    19 Rules of evidence of the Former Yugoslavia or common

    20 law countries or civil law countries. We have our own

    21 basic Rule 89 on the evidence and on the taking of

    22 evidence and on the probative value of evidence and of

    23 course this will govern our proceedings.

    24 However, Mr. Niemann, what is the relevance

    25 for the Prosecution of this particular statement? May

  15. 1 I understand what is for you the relevance? Why do you

    2 regard this particular document relevant to your case?

    3 MR. NIEMANN: Your Honours, it becomes more

    4 relevant, obviously, if we have an allegation of recent

    5 invention and then the Prosecution would be in a much

    6 stronger position in tendering a prior consistent

    7 statement in such circumstances. In our submission, it

    8 is very relevant that a witness said something to a

    9 police officer in a formal setting in 1992 and

    10 subsequently said it later on. It is relevant and it

    11 shows consistency. It shows that what the witnesses

    12 are saying is reliable. It means that your Honours can

    13 read this and compare it with what he said in the

    14 witness box and say, "There is a strain of consistency

    15 there which reinforces reliability." When your Honours

    16 look at it, you can say, "He said that then and he says

    17 it now, so that is reliable." My principal concern is

    18 just saying, "It is excluded by the common law, so

    19 therefore we ought to follow it automatically".

    20 JUDGE CASSESE: Thank you.

    21 Now, Mr. Fila, may I ask you to tell the court

    22 about the reasons why or the rationale behind the

    23 inadmissibility of the tendering of such documents

    24 under Yugoslav law so that we are clear about the

    25 position of your legal system?

  16. 1 MR. FILA: Your Honours, I am glad that we

    2 have a witness here who is a policeman so you can check

    3 on everything I say with him. This is an official

    4 note. I would kindly ask the interpreters to be as

    5 literal as possible. This is not a statement or a

    6 testimony. Mr. Niemann is talking about a statement

    7 that was taken from Mr. Berghofer. No statement was

    8 taken from him. If a statement had been taken from

    9 Mr. Berghofer, that statement would have been signed by

    10 him under our law in the common law in any jurisdiction

    11 and it would have the same weight under our legal

    12 system in the Former Yugoslavia, which was based on

    13 German law. We are not as intelligent as to have our

    14 own independent creation.

    15 Law enforcement bodies do not conduct

    16 investigations. They do not take statements. They

    17 just conduct interviews. This is called a preliminary

    18 interview with the witness. On the basis of what is

    19 written here, the investigating magistrate summons

    20 people and examines them and only then can they give a

    21 statement that Judge May is referring to. The police

    22 cannot take such formal statements. They just conduct

    23 interviews on the street, on a roof, on a tank, on a

    24 lorry -- wherever.

    25 So the precedent you are about to create is

  17. 1 very dangerous. That is why I am vigorously opposing

    2 this, although the contents of this document are more

    3 to my advantage than to Mr. Niemann's. I will show you,

    4 whenever you ask me to, all the statements that

    5 prosecution witnesses, when they were interviewed in

    6 Sretiska Mitrovica, gave to the police and those

    7 statements were signed by them. This does not have any

    8 value under our system. If you do this now, I will

    9 then tender those statements as evidence and it is

    10 obvious that such statements were taken under duress,

    11 so that is why this is a potentially very dangerous

    12 precedent and that is what I wanted to explain to you.

    13 JUDGE CASSESE: Thank you.

    14 (Judges confer).

    15 JUDGE CASSESE: Pursuant to Rule 89(d), a

    16 chamber may exclude evidence if its probative value is

    17 substantially outweighed by the need to ensure a fair

    18 trial. The trial chamber rules that the tendering of

    19 this document in evidence is inadmissible.

    20 Mr. Niemann?

    21 MR. NIEMANN: I have no further questions of

    22 the witness, your Honour.

    23 JUDGE CASSESE: I understand there is no

    24 objection to the witness being released. Thank you for

    25 coming. You may be released.

  18. 1 WITNESS: Thank you. Goodbye.

    2 JUDGE CASSESE: I suggest that we now take a

    3 recess. Mr. Niemann?

    4 MR. NIEMANN: Yes, your Honour. I will just

    5 say that I will not now call my next witness, which

    6 would have been doing the same thing, but I would like

    7 to indicate that to the court.

    8 JUDGE CASSESE: Let us have a 20-minute

    9 recess and then we will reconvene.

    10 (10.22 am)

    11 (A short adjournment)

    12 (10.45 am)

    13 JUDGE CASSESE: Mr. Niemann? Mr. Williamson.

    14 MR. WILLIAMSON: Your Honour, at this time,

    15 we would call Marin Vidic and we have requested this

    16 witness testify in closed session, but he will be using

    17 his real name and no other protective measures will be

    18 necessary.

    19 JUDGE CASSESE: Mr. Williamson, while we are

    20 waiting for the witness, may I ask you whether you

    21 intend to call two witnesses tomorrow?

    22 MR. WILLIAMSON: That is correct, your

    23 Honour, yes.

    24 JUDGE CASSESE: And one on Thursday?

    25 MR. WILLIAMSON: That is correct.

  19. 1 JUDGE CASSESE: That is all?

    2 MR. WILLIAMSON: Well yes, sir. This will be

    3 our last witness.

    4 JUDGE CASSESE: So no more witnesses today?

    5 MR. WILLIAMSON: It is likely that this

    6 witness will go to the end of today.

    7 JUDGE CASSESE: I wonder whether you can make

    8 an effort to come to a decision on the submissions by

    9 the Defence counsel, the five points I mentioned this

    10 morning, to decide whether or not you are ready to

    11 admit.

    12 MR. WILLIAMSON: We will speak with the

    13 Defence as soon as court concludes today and try to

    14 resolve the outstanding issues.

    15 JUDGE CASSESE: Yes, because we hope to do

    16 some planning this week for the future steps to be

    17 taken to see when the Defence counsel can start calling

    18 his witnesses.

    19 MR. FILA: As soon as the Prosecution has

    20 concluded their case, I have prepared my opening

    21 statement, but it is still in Serbian because I could

    22 not finish it because I did not know what would happen

    23 these days, so when the Prosecution concludes its case,

    24 you will receive my opening statement. You will also

    25 receive the order of my witnesses and my expert

  20. 1 witnesses for the month of April. Within five days

    2 after the conclusion of their case. Is that

    3 acceptable?

    4 JUDGE CASSESE: Thank you.

    5 Good morning, Mr. Vidic. May I ask you to

    6 make the solemn declaration?

    7 MR. MARIN VIDIC (affirmed)

    8 Examined by MR. WILLIAMSON

    9 (In closed session)

    10 (redacted)

    11 (redacted)

    12 (redacted)

    13 (redacted)

    14 (redacted)

    15 (redacted)

    16 (redacted)

    17 (redacted)

    18 (redacted)

    19 (redacted)

    20 (redacted)

    21 (redacted)

    22 (redacted)

    23 (redacted)

    24 (redacted)

    25 (redacted)

  21. 1












    13 Pages 1447 to 1511 redacted - in closed session





    18 (Hearing adjourned at 1.15 pm until 9 am

    19 on Tuesday, 17th March 1998)