Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5172

 1                          Tuesday, 12 March 2002

 2                          [Open session]

 3                          [The accused entered court]

 4                          --- Upon commencing at 9.02 a.m.

 5            JUDGE ORIE:  Good morning to everyone.

 6            Madam Registrar, would you please call the case.

 7            THE REGISTRAR:  Case Number IT-98-29-T, the Prosecutor versus

 8    Stanislav Galic.

 9            JUDGE ORIE:  Thank you, Madam Registrar.

10            Before we resume the examination-in-chief of Mr. Sabljica, we have

11    a few items to deal with first.  I'd like to start first with the minor

12    ones.  I think there are two.  The Prosecution committed itself to giving

13    further information in respect of documents and tangible objects such as

14    shrapnel pieces, whether they could be located, orders, maps.  Mr. Ierace,

15    could you inform the Chamber.

16            MR. IERACE:  Mr. President, I have nothing further to add on the

17    topic of shrapnel, although I should add that the Defence was informed

18    last year, towards the end of last year, of what artifacts, if I could use

19    that word, generally were in our possession and available for inspection.

20    But as to shrapnel relating to the Markale market incident, I have nothing

21    further to add.

22            In relation to maps, in fact, I think that is the issue raised by

23    the Prosecution of orders, maps as a topic arose in that context.

24    Yesterday, I filed with the Registry a response in that regard.  Do you

25    have that, Mr. President?

Page 5173

 1            JUDGE ORIE:  I haven't seen anything that has been filed

 2    yesterday, no.

 3            MR. IERACE:  Excuse me.

 4            I may have some copies here, Mr. President, which I'll hand up.

 5            JUDGE ORIE:  Mr. Piletta-Zanin, did you receive

 6    already a copy or --

 7            MR. PILETTA-ZANIN: [Interpretation] Are we talking about a letter

 8    dated the 5th?  Because we received yesterday, Mr. Ierace -- are we

 9    talking here about a letter which is dated the 5th but which we received

10    yesterday?  Mr. Ierace.

11            JUDGE ORIE:  Mr. Ierace is trying to sort out things as far as I

12    can see.

13            MR. PILETTA-ZANIN: [Interpretation] Mr. President, I'm going to

14    insist on this.  We did receive a document which is dated the 5th, but we

15    received it yesterday, sometime during yesterday.  It's a document -- no,

16    it was the 11th.  It was the 11th.  We received it yesterday.  It's two

17    pages long.  I don't know if that's the document that Mr. Ierace is

18    referring to.

19            MR. IERACE:  It is, Mr. President.  I could provide copies within

20    five minutes, or I could just shortly summarise what that document

21    contains.

22            JUDGE ORIE:  Since both parties know what is in the documents, is

23    there any need to discuss them at this very moment.  If yes, I'd like to

24    have copies.  If no, then we'll see the copies sometime during this day.

25            MR. PILETTA-ZANIN: [Interpretation] Mr. President, since you

Page 5174

 1    yourself raised the question about the information of the shrapnel and the

 2    maps and orders, we've got to talk about it.  Because you yourself raised

 3    that issue.  There is an initial answer from the response, but it isn't a

 4    definitive answer.

 5            JUDGE ORIE:  So I do understand that this is not a satisfactory

 6    answer to the Defence, and they would like to discuss it.  Then, please,

 7    could you provide us with copies, Mr. Ierace.

 8            MR. IERACE:  Yes, Mr. President.  My case manager will provide

 9    copies in the next five minutes.

10            JUDGE ORIE:  Perhaps then meanwhile, we continue with the other

11    issues still.

12            MR. IERACE:  Yes.  Perhaps the 92 bis issue.

13            JUDGE ORIE:  Yes, but before going to that, Mr. Piletta-Zanin, we

14    still had an issue of yesterday which I'd like not to discuss in the

15    presence of the witness.  You objected against a leading question about

16    the shelling investigated by the witness on Dobrinja.  And it was a bit

17    different from what we usually do in this courtroom, and I invited you to

18    explain why this leading question was, in your view, inadmissible but not

19    do it in the presence of the witness.  So if you could give us any further

20    information about that.  We talked about disputed areas and areas not in

21    dispute, and I had some difficulties yesterday --

22            MR. PILETTA-ZANIN: [Interpretation] Mr. President, I don't quite

23    remember the specific passages.  I think that we're talking about an issue

24    of formulation.  We could go back into the transcript and see exactly

25    why.  But the idea was as follows:  I believe that we started from the

Page 5175

 1    principal that each time there were casualties, and we know as you have

 2    just said of among at least one of the three shellings that was mentioned

 3    in the chart that was supplied by the witness, there were no casualties.

 4            JUDGE ORIE:  Mr. Piletta-Zanin, I don't think it was about that.

 5    When the -- when Mr. Stamp yesterday moved from the shelling on the 5th of

 6    February to the shelling of the 4th of February, part of his question was

 7    whether the witness investigated a shelling on the 4th of February in

 8    Dobrinja.  And you objected against Dobrinja being part of the question

 9    and causing the question to be leading.  And the answer of Mr. Stamp was

10    that he was not aware that the fact that this shelling on the 4th of

11    February in Dobrinja was in dispute.  And since I'd rather not discuss

12    whether something is in dispute or not in the presence of the witness, I

13    gave you the opportunity to explain to us later why this certainly leading

14    element of the question was not acceptable to the Defence where many, many

15    other elements in question being just as leading were acceptable.  So it

16    was just for the better of the understanding of the Chamber that I'd like

17    to give you the opportunity to explain why this element was unacceptable.

18            Yes, please.

19            MR. PILETTA-ZANIN: [Interpretation] Mr. President, I go back to

20    what I said.  I've got to look exactly at what was said yesterday.  I'll

21    go back into the transcript if the Chamber gives me the opportunity to do

22    so.  But what was not acceptable was to ask a question in a very general

23    way about several incidents saying that there were casualties when some of

24    the incidents did not cause any casualties.  That is the thing which I

25    found to be leading.

Page 5176

 1            JUDGE ORIE:  Yes, I was asking you --

 2            MR. PILETTA-ZANIN: [Interpretation] But the Defence does not

 3    contest the fact that the shelling actually took place.

 4            JUDGE ORIE:  Yes, I was asking you a question about another

 5    objection, as a matter of fact.  But please look it up in the transcript,

 6    and whenever you have an answer to Dobrinja being a part of the -- being

 7    the leading element in the question, inform the Court.

 8            If you'd just give us two or three minutes so that we can read the

 9    answer of Mr. Ierace.

10                          [Trial Chamber confers]

11            JUDGE ORIE:  May I invite the Defence to give whatever comment

12    they would like to make at this moment or whatever observations they would

13    like to make in respect of the response, the written response, by the

14    Prosecution.

15            MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President.  I'll be

16    pleased to do so.  Thank you for giving me the time to try to confer with

17    my colleagues, because we did not receive a translation of the letter

18    dated the 11th, whereas we know how important that is for the Defence.

19    Therefore, General Galic sitting behind me was not even available to

20    become familiar with the contents of the documents which we received in

21    our mail box this morning apparently.

22            Mr. President, there are two points:  The mechanical elements

23    which we call shrapnel and the documentary elements which are the orders

24    and maps as regards to point A, which relates to the shrapnel, I note that

25    we asked on several occasions that the Prosecutor tell us how and when it

Page 5177

 1    was able to get those -- that information.  I did not single line, not a

 2    single word in point A which refers specifically to those interventions

 3    or, as the case might be, to the shrapnel itself.  Stated otherwise, the

 4    most essential elements for the Defence on which we could base ourselves

 5    in order to determine what actually happened during that incident in the

 6    Markale market, that information, through some kind of magic which I

 7    cannot explain, has vanished.  We know that the information exists.  We

 8    know that there are about 100 pieces of information but those elements

 9    have completely vanished.  And I must say, Mr. President, and say it

10    clearly that I increasingly have the impression that they do not want that

11    information to be delivered to us and be subject to an evaluation.  I

12    simply point out that the Prosecution is not in the position to provide

13    these elements which are vital for the Defence, and each person here must

14    take into account the fact that for us the most important information or

15    facts ascribed to his Excellency, General Galic, not one of the

16    documents could be found which the Defence could then produce for the

17    Chamber.  My personal conclusion is that I-- and I have no doubt that

18    that will be the same conclusion that the Chamber will come to also.

19            The second point, Mr. President --

20            JUDGE ORIE:  Perhaps we deal with the items separately.

21            MR. PILETTA-ZANIN: [Interpretation] Yes, yes, of course.

22            JUDGE ORIE:  Mr. Ierace, what does the Prosecution intend to do in

23    order to see whether the shrapnel pieces can be traced or what has been

24    done in order to come to your final conclusion that they cannot be

25    located?  I mean, what efforts are made, what efforts still will be made,

Page 5178

 1    to see whether they can be located and perhaps transferred to the OTP?

 2            MR. IERACE:  Mr. President, it's a subject of -- it has been a

 3    subject of inquiries of the relevant authorities in Sarajevo.  Certainly

 4    the impression I have is that there are no further inquiries that we could

 5    profitably make to obtain them.

 6            JUDGE ORIE:  Could you tell us when for the last time did you

 7    inquire of the local authorities on whether they could be found?  I heard

 8    there was a movement of buildings and they might be lost during the

 9    removal.

10            MR. IERACE:  Mr. President, I could do that.  I couldn't do that

11    today.  But if you wish me to report on that, then I certainly will.  It

12    would take me approximately one week to make those inquiries.  The

13    relevant investigator is not in The Hague at the moment.  I would like to

14    speak to him before I responded to the Trial Chamber.  So perhaps next

15    week I could inform the Trial Chamber of what steps have been taken to

16    recover those pieces.

17                          [Trial Chamber confers]

18            JUDGE ORIE:  Yes.  Well, Mr. Ierace, please inform the Chamber in

19    due time.  You said it would be approximately a week, on what exactly has

20    been done and what's the latest information and the latest steps you've

21    taken in order to obtain them.  At the same time, I address the Defence

22    that -- the Defence, of course, is entitled as well to try to get hold of

23    these pieces.  And as you know, in the system we are using in this Court,

24    it's not like in many civil law systems, that the other party is

25    responsible for the investigations and for the -- well, seeking the

Page 5179

 1    material to support its own case.  So I'd very much like the Defence also

 2    to take whatever necessary steps and inform the Chamber if they fail to

 3    achieve a positive result to inform the Chamber on what the Defence has

 4    done and whether the Defence needs in whatever way in accordance with the

 5    Rules of Procedure and Evidence the assistance of the Court.

 6            So please, Mr. Piletta-Zanin, proceed on the second item which is

 7    not the artifacts any more, but the documents.

 8            MR. PILETTA-ZANIN: [Interpretation] Thank you for giving me the

 9    floor again, Mr. President.  Short comment for the transcript, on page 6,

10    line 16, I was referring to the English transcript, I mentioned his

11    Excellency General Galic and it didn't come up that way in the text.  I

12    don't want there to be any mistakes there.

13            The other point, and I thank you for your concern in respect of

14    the Defence, the Defence will do, I should say, everything it can, it will

15    bend over backwards to find these documents, but your Chamber must be

16    aware of the fact General Galic's counsel are not welcome at the MUP, and

17    I don't think that we will find much cooperation from the Sarajevo

18    authorities.  But I will write to them personally, according to your

19    suggestion, and we will see what kind of answer I get.

20            Having said this, as regards to point B, that is, the documents:

21    Mr. President, I note one thing, that in fact that there were documents in

22    the possession of the Prosecution.  This is the result of this two-page

23    letter dated 11 March, 2002, and the Defence now discovers almost right

24    now we are being told that those documents will not be disclosed to the

25    Defence because they allegedly do not deal with the Sarajevo events in a

Page 5180

 1    more or less direct way or even an indirect way.

 2            This is the only reason, apparently, why the documents whose

 3    existence cannot be questioned today would not be disclosed.  And one must

 4    indicate, Mr. President, that that is to disregard completely

 5    unfortunately the structure of a modern army.  What we are asking is that

 6    we receive documents from the organisation which is at the very top of the

 7    command Hierarchy and pyramid.  That general staff, that's what it's

 8    called, gave instructions to various armies including the first army.

 9    These armies can move around.  Weapons can move around.  Human and

10    material resources can move around.  And therefore, what is very important

11    for the Defence to be able to determine and to understand is how the

12    troops moved around as well as the weapons and how the orders were given

13    in respect of this.

14            The reason for this is a simple one.  As the Prosecution blames

15    the General for having participated in a campaign -- not the campaign

16    itself but of setting up the campaign.  Therefore, Mr. President, at some

17    point we were able to demonstrate that there was a combat.  We could

18    demonstrate that the combat was significant, and that it took place on

19    certain dates close to or sometimes the same dates as those of the

20    incidents which are mentioned.  What we are saying is the following:

21    Among other things, during the combat phase, there were transports of men

22    and troops and resources.  We can show this thanks to the documents which

23    are today in the possession of the Prosecution and which deal with the

24    entire -- and I repeat -- the entire organisation at the top of the army.

25    And without being able to demonstrate what we have already indicated, we

Page 5181

 1    will find ourselves in great difficulty in order to do what we must do

 2    properly, that is, do our best for the defence of General Galic.

 3    Therefore, in order to divide this all up into different areas as if the

 4    army was blind in respect of the territorial departments it was composed

 5    of, and in some ways, this is an illusion and imagined.  There was not

 6    that system of compartmentalisation in this organisation or in any

 7    military organisation.  These are frequently interconnected and we

 8    absolutely must in light of the chain of command be in a position to have

 9    that information.

10            Therefore, Mr. President, as regards both these elements, that is,

11    those having to do with physical objects like the shells, the shrapnel,

12    and the documents, which have been put forward as being orders and maps

13    relating to those orders, that is all of the instructions that were given

14    from the staff to the various armies, we are officially asking that your

15    Chamber instruct the Prosecution as quickly as possible to produce those

16    documents and to give them, provide them, to the Defence.

17            We respectfully request the Chamber to do this now and for the

18    following reason:  That is, the witnesses we are examining now are, in

19    fact, the witnesses which have to do with the most important shelling.

20    And not putting us -- not giving us that information would not be fair; on

21    the contrary, in the opinion of the Defence, that would be contrary to

22    Articles 21 and 22 of the Statute, which should guarantee that whoever the

23    accused, whatever he be, whatever the crimes alleged, that is the right to

24    have a fair trial.

25            Mr. President, I have finished, and I thank you for listening.  I

Page 5182

 1    thank you Your Honour for having given me the floor.

 2            JUDGE ORIE:  I do see in the second paragraph of the second page

 3    of the letter that the Prosecution has advised the Defence that it will

 4    check the material which the Defence has identified in order to confirm

 5    that it does not touch upon Sarajevo between April 1992 and September

 6    1994.  With what precision you have identified the documents that should

 7    be delivered by the Prosecution?  I do understand that you say there are

 8    certain documents that are of importance for the Defence, say whether they

 9    are in the hands of this Prosecution team in this case is not essential.

10    Essentially, it is that they are in the custody of the OTP.  Could you

11    tell us with -- is there any misunderstanding as to what documents you are

12    actually referring to?  I mean is it -- does Mr. Ierace understand exactly

13    what documents you're talking about?  Perhaps I should ask Mr. Ierace.

14            MR. PILETTA-ZANIN: [Interpretation] I can't answer for

15    Mr. Ierace.

16            JUDGE ORIE:  But certainly you'll have --

17            MR. PILETTA-ZANIN: [Interpretation] I could imagine, if I have

18    read his letter correctly, that Mr. Ierace knows what we're talking about

19    because he's refusing to give us those documents.  Therefore, generally if

20    one says no to something, it means that one understood the question and

21    they would ask you exactly what documents do you want to have.  I

22    myself did not personally concern myself with the location of these,

23    the precise description, of those documents.  That's my colleague who is

24    here who is responsible for that and she can tell us, if necessary.  But I

25    think that the Prosecutor knows what I'm talking about.

Page 5183

 1            JUDGE ORIE:  Could I ask you, it's about how many documents?  I'll

 2    first ask you how many documents did you identify?  Are we talking about

 3    20 or 200 or 2.000?

 4            MS. PILIPOVIC: [Interpretation] Your Honour, the Defence can point

 5    out that it is -- that it has information that the OTP has all the orders,

 6    directives, issued by the Main Staff issued to the Corps.  In a letter,

 7    my learned friend said that the documents disclosed in this case are not

 8    relevant to Sarajevo; however, the Defence points out that these

 9    documents, that is, the directives, orders, and commands of the chief

10    staff of the BH army, were sent to all the Corps.  And for that reason,

11    the Defence is requesting the OTP to disclose to it all the orders,

12    directives, and commands of the BH army chief staff to the 1st Corps, and

13    also the maps accompanying them which are in the possession of OTP when it

14    comes to the documents of the 1st Corps and in relation to all the

15    brigades of the 1st Corps as well as daily reports.  And when I say daily

16    reports, then I can say that these are daily reports which are -- which

17    cover the period between April 1992 to the end of August 1994, or rather

18    the 10th of August, 1994.  Likewise, the orders covering this whole

19    period.

20            However, at this point in time, I cannot say how many documents

21    that involves.  If my colleagues give me a list of these documents, then

22    we shall be able to know how many of these documents there are, and on the

23    basis of such a list, the Defence could single out the documents that are

24    indispensable to it.

25            JUDGE ORIE:  Let me just put it very bluntly to you:  Do you want

Page 5184

 1    to have the whole documentary history of the BiH army for the whole period

 2    of time irrespective of whether it's about Sarajevo or not?  So I would

 3    say that the whole conflict, all areas, total of the documentation as far

 4    as orders and maps attached to it are concerned?

 5            MS. PILIPOVIC: [Interpretation] Your Honour, the Defence primarily

 6    in relation to the chief staff of the BH army, the Defence primarily

 7    wishes to be disclosed all documentation relative to the 1st Corps of the

 8    BH army, that is, the main staff of the 1st Corps and all the brigades of

 9    the 1st Corps.

10            JUDGE ORIE:  Yes.  Let me now turn to Mr. Ierace.  I try to

11    understand what the Defence is seeking.  Could you please respond.

12            MR. IERACE:  Mr. President, it seems from what my learned

13    colleagues have said that they seek documents which emanate from the 1st

14    Corps Main Staff and the brigade which do not relate to the armed

15    conflict in Sarajevo, let alone during the indictment period.  In other

16    words, they seek documents which go beyond the scope of the Prosecution

17    case and, in my respectful submission, documents which could not be

18    material to the Defence.  One must keep in mind that the subject of the

19    indictment are alleged offences committed by the accused.  The Defence has

20    not demonstrated how the documents they seek could possibly be material to

21    the Defence, and I use the word "material" because that is the word

22    contained within Rule 66.

23            Mr. President, I make this broader observation:  Last year, the

24    Defence requested various orders and reports of the army of

25    Bosnia-Herzegovina for the period from April 1992 to December 1994.  Some

Page 5185

 1    months were occupied in exchanges between us in order to refine that

 2    period of time.  Ultimately that was done.  On the date that that material

 3    was made available to the Defence in the same letter, they then activated

 4    a request for further documents, taking it broader.  The Prosecution has

 5    done its best to accommodate the Defence reasonably.  But this request is,

 6    in my submission, well beyond the scope of Rule 66.

 7            Mr. President, it is important in my submission that this does not

 8    become a dynamic of the Defence having received something, then moves on

 9    to something else.  Perhaps I could go back to the earlier issue.  I will

10    do it very briefly.  In today's transcript, at line 25, page 9,

11    Mr. Piletta-Zanin said that he had repeatedly asked the Prosecution for

12    information as to the requests we have made of the Bosnian government

13    authorities for the pieces of shrapnel.  If one goes back to the Defence

14    submission of the 5th of March, one will see there is no such request.  If

15    one goes to the transcript of the 5th of March, you, Mr. President,

16    specifically asked Mr. Piletta-Zanin whether he had previously asked the

17    Prosecution of the details of the requests made by us for the shrapnel.

18    That appears in the Microsoft Word transcript at page 4.881 and

19    4.882.  You asked Mr. Piletta-Zanin on that; he didn't answer it.  You

20    asked him again.  He said he would consult with his colleague to find out

21    whether they had previously made such a request.  He conferred with his

22    colleague.  Again, he did not respond.

23            I am not aware of the Defence having previously made such a

24    request.  But Mr. Piletta-Zanin this morning said that he had repeatedly

25    made such requests.  Then you, Mr. President, no doubt assuming that that

Page 5186

 1    was correct, invited the Prosecution to respond on the spot as to what

 2    requests had been made.  And you have graciously given us time to do.  My

 3    point is that the smooth running of this trial depends on a degree of

 4    reasonable cooperation between the parties.  And in my respectful

 5    submission, that is not forthcoming from the Defence at the moment as

 6    illustrated by these two issues.

 7            Thank you, Mr. President.

 8                          [Trial Chamber confers]

 9            JUDGE ORIE:  The Chamber feels that it wants to take a bit more

10    time to discuss the issue raised and how to proceed in this matter.  We'll

11    do that today, but not on this very moment.

12            I think Issue C, the tapes, have been dealt with before.  It was

13    my understanding that the Defence at least accepted at that moment that

14    there were no tapes in the custody of the Prosecution concerning any

15    conversations of General Galic, and that's confirmed again in this

16    letter.

17            MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President.  Two

18    things regarding what I feel like a personal attack; no comment,

19    absolutely no comment.

20            And as for what regards the nonexistence of tapes regarding the

21    conversations, we shall take note of that.  Thank you.

22            JUDGE ORIE:  Thank you, Mr. Piletta-Zanin.  Before we move to the

23    92 bis, Mr. Piletta-Zanin, if it would assist you, the issue I mentioned

24    before, that was your objection against a question that was leading, I

25    find it in page 5154, line 12 and following.  I'll just repeat it to you.

Page 5187

 1    The question was: "May I take you, Mr. Sabljica, to the day before the 5th

 2    of February, 1994.  Now on that day did you investigate another shelling

 3    incident."  The answer was "Yes."  The question was: "Was this in the

 4    Dobrinja area?"  The answer was: "Yes."  And you then made the following

 5    objection: "This is a directly leading question, Your Honour.  I don't

 6    know whether it may be asked.  I think the witness should have been asked

 7    where it was instead of pointing to it."

 8            That was the issue I was referring to, and not anything else.

 9    Your response seems to have been on a different issue.  This is just in

10    order to assist you in finding it in the transcript.

11            We then move to the 92 bis issue.  Before inviting the parties to

12    see whether there's any further comment on what has been exchanged until

13    now in writing, I first have to establish that we have no formal request

14    at this moment to adduce any 92 bis statement, apart from one, and that is

15    the statement of the -- of a deceased witness.  But I've seen a request to

16    the Registry.  I've seen an exchange of views between the parties.  The

17    Chamber has received, although it has not been -- they have not been filed

18    as far as I can see, so therefore the status is a bit uncertain.  We have

19    received a lot of documents.

20            Mr. Ierace, after having established this, I'd like to first of

21    all invite the parties to see whether there were any further comments to

22    be made on the 92 bis exercise.  Please proceed.  Perhaps I give first the

23    floor to Mr. Ierace because he, at least, is responsible for not filing

24    the documents at this moment and being there no formal request.  Could you

25    please inform us.

Page 5188

 1            MR. IERACE:  Thank you, Mr. President.  Of course we will formally

 2    make the application, but clearly the issues can be dealt with in a

 3    predetermined fashion at this stage.  I do have some additional comments

 4    to make.  I will be very brief.

 5            Firstly, I think that one could divide the witnesses into two

 6    categories.  The first category are witnesses who essentially attest to

 7    the authenticity of certain documents.  If I could refer to those

 8    witnesses by number, that is the order in which they appear in the

 9    binders, they are witnesses 1, 2, 3, 4, 8, 9, 10, and 14, 19, 20, and 21.

10    I have nothing further to add to the written submissions in relation to

11    those witnesses.  In my respectful submission, the Trial Chamber will not

12    be unduly troubled by whether 92 bis statements should be accepted from

13    those witnesses.

14            JUDGE ORIE:  May I just ask you at this very moment, Mr. Ierace,

15    is it your intention to seek permission of the statements and the whole

16    lot of attachments to it?  Or do you seek, as you know it's permitted to

17    have a statement partially admitted, just in view of specific items or

18    even specific entries in the documents attached?  I mean, you'll

19    understand that if you seek the admission of the whole lot of items, that

20    if for -- just give an example, if one page would be not very well

21    legible, then we would first have to replace that, although it might not

22    be relevant at the end at all.  I mean what's the technique you intend to

23    use while formally seeking permission to adduce these documents in

24    evidence?

25            MR. IERACE:  Excuse me for a moment, Mr. President.

Page 5189

 1                          [Prosecution counsel confer]

 2            MR. IERACE:  Mr. President, in fact it is just select documents

 3    that will be relied upon by the Prosecution rather than the entire

 4    collections.

 5            JUDGE ORIE:  Yes.  And I have perhaps one further question to

 6    that:  Is it your intention to seek permission or only you'll seek

 7    permission if the authenticity is made an issue of by the other party?

 8    For example, I noticed that at least one of the documents attached to one

 9    of the statements has been presented in this courtroom a couple of days

10    ago to a witness.  There was no authenticity complained.  Would this cause

11    you to refrain from seeking admission, or would you say, no, we

12    nevertheless will -- whatever document has been shown to a witness, we'll

13    seek the evidence as far as the authenticity is concerned to be admitted?

14    So is it just an option if necessary, or do you want to seek the admission

15    of the statements?  Have you made up your mind already that you'll seek

16    them all?  You mentioned 1, 2, 3, 4, 5, 6, 7 -- 11 or 12 statements.

17            MR. IERACE:  Well, Mr. President, because there are particular

18    annexes to these statements which we'll seek to rely upon, that's probably

19    a better way of putting it, in due course, then it follows that the

20    relevance of those particular annexures will be established first before

21    the Trial Chamber before we then refer to the particular annexia. So

22    clearly, if there is no objection to the tender of, for instance, the

23    medical records for a particular victim, then there is no need for us to

24    rely upon the admission of the 92 bis statement.  But if there is an

25    issue --

Page 5190

 1            JUDGE ORIE:  Yes.

 2            MR. IERACE: -- then of course we would leak so rely upon the

 3    statement having been admitted.

 4            JUDGE ORIE:  So it means that your application will be made

 5    whenever it turns out to be necessary because of the objections in respect

 6    of the authenticity of the documents presented to a witness.

 7            MR. IERACE:  The difficulty in taking that course is it may result

 8    in a hearing of the 92 bis application in chapters rather than in one

 9    episode.

10            JUDGE ORIE:  Yes.

11            MR. IERACE:  And ultimately, that may prove to be inefficient

12    because we would all have to go back to the same arguments.  We would have

13    to revisit them.  My respectful submission is that it is appropriate that

14    we deal with the admissibility as one episode now, rather than as the

15    situation arises with particular medical records for the reason that

16    ultimately it will be a more efficient way of dealing with the issue.

17            JUDGE ORIE:  Yes.  On the other hand, how would you imagine to

18    deal with it in a rather general way?  But nevertheless not to cover

19    all the medical records attached because you said, well, only seek

20    admission as far as they relate to specific records.  So of course we do

21    not know in advance what medical documents you're going to present to the

22    witnesses, and so we do not know what selection you'll make.  And at least

23    until now we've seen not such a selection.  If, for example, we have 800

24    entries in a book with diagnostics or whatever it is, should we go through

25    all the 800 or do you give us your selection or -- you understand if we

Page 5191

 1    take a decision, if there's no further specification made, then we take a

 2    decision for all 800, then it should be a good decision for all 800.  So

 3    they should be all legible.  They should be all -- it's far easier to

 4    concentrate on those that are presented to witnesses unless you have any

 5    other evidentiary purposes with these documents.

 6            But it it's just authentication of specific medical documents or

 7    specific entries in medical records.  You understand the problem of the

 8    Chamber, which is your problem as well I'm afraid.

 9            MR. IERACE:  Mr. President, perhaps the answer to that dilemma is

10    to determine based on today's argument the issues -- most of the issues

11    which arise in relation to this application.  Indeed, all the issues but

12    legibility, that seems to be the primary concern.  Therefore, for

13    instance, the Trial Chamber could make a determination which contemplates

14    issues such as the authority of the individual to confirm records.  That's

15    one of the concerns to the Defence.  And then if it transpires that a

16    particular medical record is illegible, in due course, one that the

17    Prosecution relies upon, illegible to the point that it is not probative,

18    then the Trial Chamber may decline to admit -- either decline to admit

19    that document into evidence; alternatively, if they are admitted at this

20    stage, the Trial Chamber could withdraw that -- allow that tender to be

21    withdrawn or require it to be withdrawn.  That, in fact, is available

22    within the Rules.

23            Either way, the issues can be efficiently dealt with today as they

24    pertain to the witnesses.

25            JUDGE ORIE:  There might be another problem as well, that is the

Page 5192

 1    following:  If we look at the documents, if you would just seek the

 2    admission into evidence of the -- well, let's say the authenticity of this

 3    document, that this is a document which also appears in hospital X, Y, or

 4    Z in the records, then just for these purposes, we would perhaps not need

 5    a translation of the document because the only thing we need is to be able

 6    to know whether this original document, this copy of a document, is the

 7    same as the document that still is in the archives in Sarajevo.  As soon

 8    as it comes to the content of the document, of course we would need a

 9    translation.  And therefore, there should always be some kind of a link

10    between specific documents.  And we've seen that.

11            Let me just give you an example.  We'll see that one of the

12    documents presented to the Witness Boskailo is among the documents, one of

13    the attachments.  Of course we received a translation of the document so

14    we could look into the content of the document.  Well, there has been no

15    objection against the authenticity, so even without the statement you're

16    now seeking to be admitted into evidence, it was -- the document as such

17    was admitted into evidence.  But then, of course, as soon as it comes to

18    presenting the specific document on which you seek now to establish the

19    authentic nature, then of course we come to the content of the document,

20    we would then need a translation.  Is that the technique you'd like to

21    use?

22            MR. IERACE:  Certainly, Mr. President.  That has always been our

23    intention.  In other words, the issue here is whether the document as

24    photocopied is the document which is in the records of the hospital or

25    ambulance station or whatever.  That is the ambit of the issue at this

Page 5193

 1    stage.

 2            JUDGE ORIE:  Yes, I do understand you.  But if the document would

 3    not be legible, could be not be legible in the original state as well, so

 4    that would not, then, perhaps -- should not be a problem or -- I might be

 5    afraid that the copying was not done properly or.

 6            MR. IERACE:  That's an issue I've referred to two or three times

 7    so far in the trial, and I've consistently said that the Prosecution of

 8    course must bear the consequences of that.  It's apparent to the

 9    Prosecution that the originals, in many instances, are not entirely

10    legible.  In other words, not 100 per cent of the words in the record are,

11    after so many years after the event, for whatever reason, legible.  So

12    from time to time the Trial Chamber will have to, in determining the

13    appropriate weight to be attached to the document, factor into the

14    detriment of the Prosecution on occasions the illegibility of some words

15    or parts of some words.

16            The Prosecution has taken steps to obtain the most legible

17    versions of the documents.  I think I've already indicated that a mission

18    was undertaken to Sarajevo in November of last year, whereby an

19    investigator revisited some of these institutions, to obtain more legible

20    copies.  In other words, what can be done has been done in that regard.

21            JUDGE ORIE:  Yes.

22            Perhaps then you turn to the second category of documents.  I'm

23    sorry for interrupting you but I thought it appropriate.

24            MR. IERACE:  I'll move very quickly through the remaining

25    witnesses.  The fifth witness is Sedeta Solak.  That relates to

Page 5194

 1    scheduled incident number 27.  The Trial Chamber has already heard from

 2    the investigator of that incident.  You may recall that he gave some

 3    evidence about a technique involving a tube, how the bullet had penetrated

 4    an awning, that is, a bullet fired at the same time, and some glass.  In

 5    other words, the evidence of that witness will be corroborative not only

 6    of the investigator, but also two other witnesses who will be called to

 7    give evidence before the Trial Chamber.  In that sense, it is

 8    corroborative, and I rely in particular upon 92 bis [A], 1 [A], that is a

 9    factor in favour of admission is that the proposed evidence is of a

10    cumulative nature and that other witnesses will give or have given oral

11    testimony of similiar facts.  This witness is the mother of the

12    boy.

13            Witness number 6, Smail Cekic, the Prosecution will call evidence

14    in due course as to the scope of civilian casualties in the indictment

15    period. There are various sources of material, categories of material

16    available, which are relevant to that issue, some conflicting as to the

17    ultimate figures.  This witness, who was the director of a research

18    institute, was involved centrally in administering a questionnaire to

19    household in Sarajevo in April of 1994.  There were certain questions in

20    the questionnaire which intended to bring out evidence of civilian

21    casualties.  The results of the questionnaire have been collated and they

22    are in the process of being further developed.  In due course, an expert

23    witness will give evidence as to that process and the results.

24            But Mr. Cekic's evidence really only goes to the background to

25    the construction and administration of the questionnaire, and that

Page 5195

 1    information is contained in his statement.  In my submission, that is not

 2    or should not be so contentious as to require him to be brought for

 3    cross-examination.

 4            And it is sufficiently removed from the acts of the accused as to

 5    not offend the terms of Rule 92 bis.

 6            Next witness I referred to, perhaps I could refer to three

 7    together, that's number 12, number 17, and -- at least 12 and 17, are two

 8    witnesses who give evidence in relation to what was previously proposed as

 9    a scheduled sniping incident, number 1, and now has been descheduled.  It

10    is proposed that the victim of that incident, it's a sniping incident,

11    give evidence, and that the statements of these two witnesses -- the third

12    witness is number 7, Deljkovic.  So the statements of these three

13    witnesses which are essentially corroborative be given in this form.  The

14    witness will give evidence as to where she was at the time she was shot,

15    the direction from which the shot came as she understood it.  These three

16    witnesses give some evidence as to known sniping areas at the time and

17    prior to the victim being shot.  So essentially it's corroborative.

18            Moving on, number 11, Fahrudin Isakovic, the school principal, I

19    make a point in relation to him and another witness at the same time, that

20    is the last witness, Oystein Strand who was an UNMO on the papa side, that

21    is the Bosnian government side, for four months in 1993.  Both of the

22    witnesses refer to the incident that we've already heard about where a

23    school or at least a class was shelled on the 9th of November, 1993, in

24    Alipasino Polje.  Mr. President, you and Your Honours may recall that

25    evidence being given about two weeks ago where two shells fell a hundred

Page 5196

 1    metres apart both resulting in casualties in that area.

 2            I don't rely on that part of the statement for these reasons:  He

 3    gives a date that is inconsistent, he is a day out, and also

 4    inconsistent with the statement of Mr. Strand.  And secondly, he was not

 5    an eyewitness.  It was something he heard about and that he saw on the

 6    news that night.  The connection is that, of course, the fact that it was

 7    an educational institution which was shelled, but we don't require on that

 8    particular paragraph of his statement.

 9            His evidence is also corroborative in a general sense as to

10    difficulties with schooling.  There has been direct evidence before the

11    Trial Chamber from a number of witnesses as to how schooling was disrupted

12    and the difficulties involved in transporting children and the terror

13    which was occasioned to adults and children.

14            Moving on, the next witness I would comment on is number 18,

15    Mr. Celic, who was a victim of the Markale shelling incident.  That is

16    also essentially corroborative in its nature.

17            And finally, the second-last witness, Karel Lindr who was an UNMO

18    on the Lima side between May and July 1993.  There will be other evidence

19    in the form of UNMOs throughout the period.  And in that sense, his

20    evidence is corroborative.  And to be candid, he is probably at the other

21    extreme in terms of admissibility.  The records from various hospitals

22    being, in my respectful submission, the most conservative aspect of this

23    application.  But still within the bounds of 92 bis.

24            Unless there's anything else I can assist Your Honours with, those

25    are my oral comments in relation to the 92 bis.  Perhaps just one minor

Page 5197

 1    correction to the written submissions, in the second-last paragraph I

 2    think it is, there is a word missing.  Paragraph 13 in the English

 3    version, line 5 from the bottom, sentence reads:  "It does mean that the

 4    actual content is ultimately true or correct."  That should read:  "It

 5    does not mean that the actual content is ultimately true or correct."

 6            JUDGE ORIE:  Could you please indicate the page again.

 7            MR. IERACE:  Yes, it's paragraph 1 of the response of the

 8    Prosecution, that is the response dated the 13th of February, 2002.

 9            JUDGE ORIE:  Yes.

10            MR. IERACE:  And the paragraph appears on the -- I think it's the

11    fourth page of the text.  It's a little over halfway down that paragraph.

12            JUDGE ORIE:  It does mean that the actual does not

13    mean.

14            MR. IERACE:  It should read "it does not mean."  There's another

15    error further on in the sentence, but I think that one's apparent.

16            Thank you, Mr. President.

17            JUDGE ORIE:  Yes.  I've perhaps one more question to you,

18    Mr. Ierace.  This category of statements, they go to the content of the

19    what the witness said, now and then we see that the statement to the

20    investigator of the OTP refers to an earlier statement given to the

21    authorities of -- well, let's say local authorities.  Then we find that

22    there are copies of these statements attached.  Is the evidentiary purpose

23    of, that just to establish that a statement was given to the local

24    authorities, or is it also the evidentiary purpose to refer to the content

25    of that statement?

Page 5198

 1            MR. IERACE:  It's the latter, Mr. President.  Usually, if not in

 2    all cases, the context of the reference to the earlier statement is to the

 3    effect "I confirm what I have told the earlier investigators."  And in

 4    that fashion the witness adopts those earlier comments.

 5            Where there is not a reference in those terms, that is,

 6    confirmation --

 7            JUDGE ORIE:  Yes.

 8            MR. IERACE:  -- it still is nevertheless a document which has

 9    emanated either directly or indirectly from the witness and is therefore

10    their account.  And by incorporating it in the 92 bis process, having

11    regards to the words of the affirmation, the witness is adopting the

12    contents of the earlier document.

13            JUDGE ORIE:  If it would be the intention of the Prosecution to

14    rely on these supporting statements as well, I think in order to

15    understand them, the Chamber would be very much assisted in having

16    translations of these statements as well since you might be aware that the

17    Chamber does not read or understand --

18            MR. IERACE:  I apologise for that, Mr. President.  I had

19    thought --

20            JUDGE ORIE:  We have no formal application yet.  So I said if it

21    would be the intention, then of course we would like to have translations

22    of these as well.

23            MR. IERACE:  Certainly that will be done.

24            JUDGE ORIE:  Having asked clarification on some items --

25            MR. IERACE:  Mr. President, I'm sorry, just before we move on, I

Page 5199

 1    had -- under the check I had done of the binders, I think there were

 2    translations for all but one document.  And I have translations of that

 3    document --

 4            JUDGE ORIE:  I think there were two, but they have not formally

 5    been filed, so we never know whether all the binders -- I'm not quite sure

 6    that utility binders have exactly the same content.  So it would be -- of

 7    course I didn't check all the binders of the colleagues and I don't know

 8    what has been presented to the Defence.  But that's also why my initial --

 9    one of my initial observations was that they have not been filed.  And of

10    course there could always be some dispute as to the content of the

11    documents if they have not been formally filed.  So we have no formal

12    application yet, so -- but at least you know that what could bother the

13    Chamber if an application would have been made formally with these

14    materials.

15            MR. IERACE:  Thank you.

16            JUDGE ORIE:  After having asked some clarification to you,

17    Mr. Ierace, Mr. Piletta-Zanin, as you've seen, we had some additional

18    questions for Mr. Ierace.  We have seen, of course, what his intended

19    application was about, what reasons he gave for it.  We of course also

20    have seen that although there was no formal application yet, that you

21    responded already to the idea that the Prosecution would seek admission to

22    adduce these written statements.

23            If there's anything you'd like to add to your written submissions

24    or to what has been clarified today by Mr. Ierace, please do so at this

25    moment.  Or of course, Ms. Pilipovic.  I should talk to the Defence, but

Page 5200

 1    it's so impersonal that either of you --

 2            MR. PILETTA-ZANIN: [Interpretation] I believe, Mr. President, that

 3    is usual, our team shares the work because, of course, lady cannot do all

 4    the work alone.  So of course I will talk of the general context, and

 5    Mrs. Pilipovic, who has the art of doing things well, will correct me if

 6    you allow me at a later stage.

 7            Thank you for giving us the floor, Mr. President.  Furthermore,

 8    because this is a pilot project in a way, if you will, because the Defence

 9    has no knowledge of a decision that would have been taken by one or the

10    other of the Chambers of the Tribunal in relation to a situation which is

11    comparable to this one.  There are two reasons for this:  First reason

12    being that I belong [sic] that there is no situation, examination of a

13    situation of this extent in Sarajevo.  The Chamber has treated other cases

14    other than the direct Sarajevo cases, and the reason -- and another reason

15    for this is the fragmentary character of the structure of the Prosecution.

16    When I say in fragments, I'm not trying to reproach anything to the

17    Prosecution but it is a technique that they are using.  They are

18    considering numerous elements in order to put all these fragments together

19    to make a coherent picture.  In other words, this is a mosaic technique.

20    If I say this, it's because it does bear a concrete weight.  It is

21    important and it is important for this case.  Of course I'm not

22    reproaching his Excellency General Galic to having taken a weapon and

23    having acted in a legal sense, but he allowed certain things to happen,

24    presupposing of course that he knew what was going on.  So this

25    fragmentary approach of course of the Prosecution makes, Mr. President,

Page 5201

 1    the determination of the acceptability, the acceptability of 92 bis much

 2    more difficult.  Why?

 3            Because, in this mosaic vision, if you will, each of the small

 4    elements which would be considered as part of a whole will each of

 5    these elements will have to be analysed as being something that is

 6    directly against General Galic, even if they are small elements, even if

 7    some element is small, small in respect of something else, perhaps in a

 8    situation of an isolated shooting or an incident at this place or that

 9    place.  All this put together will be inserted in a large picture in a

10    large mosaic and all this will depict a global picture which we'll have to

11    in the end render your judgment.  This is why, Mr. President, we have not

12    up until today seen in the decisions that we have read, for instance in

13    the Sikirica case, and I will repeat for the transcript, Sikirica, or when

14    we talk about other decisions, and I'm thinking here more particularly to

15     -- I'm thinking about the decision entitled Tuta, it is also a decision

16    that is cited in the Sikirica case, and in a decision, in this decision of

17    the Tribunal, we do not see a comparable situation.  So far up until

18    today, we have never, this Tribunal has not seen a comparable situation.

19            Mr. President, this being said, I will go back to elements that

20    will be told to you later in writing from the Prosecution, but I would

21    like to point a few things.  When we are told that the testimonies would

22    not add anything, would not shed more light or would not add anything to

23    the Prosecution case, meaning that they will have to prove the

24    responsibility of General Galic, but in totality this is not the case,

25    meaning to say that in the totality of most of the cases it is false

Page 5202

 1    because we have this mosaic technique that the Prosecution is using and

 2    each of these elements have to be taken into account as being an element

 3    which can determine the criminal responsibility of General Galic.

 4            When we say this, Mr. President, and of course I am referring

 5    precisely to point 87 and 8 of the document handed to the Prosecution, the

 6    answer of the Prosecution which is not dated February 13th but February

 7    12th, we see very well that the Prosecution is trying to say or is saying

 8    that these testimonies would only be corroborative testimonies, that they

 9    will only have a corroborative nature.  But this cannot be the case.  And

10    I would like to remind the Chamber that according to 92 bis, it expressly

11    excludes the admissibility of statements that are filed this way when one

12    tries to prove something that could be directly related to the nature of

13    the indictment against General Galic in our case.

14            JUDGE ORIE:  Mr. Piletta-Zanin, exactly indicate where Rule 92 bis

15    says so, because --

16            MR. PILETTA-ZANIN: [Interpretation] Absolutely, Mr. President.

17            JUDGE ORIE:  If you are referring to, but I'm now -- I've got only

18    the English text in front of me.  If you're referring to 92 bis [A] where

19    it says the acts and conduct of the accused, I am just wondering what the

20    French version says.

21            MR. PILETTA-ZANIN: [Interpretation] Absolutely, Mr. President.  I

22    will find it in both languages.  But I would like to quote it therefore in

23    French what is allowed, permissible, as to show, and I will quote, to

24    prove a point, other than the actions and the behaviour of the accused

25    such as alleged in the indictment, and we're talking about the Article 92

Page 5203

 1    bis [A] at the end of the first sentence:  And it must be the same wording

 2    in English that I will find --

 3            JUDGE ORIE:  It's perfectly clear.  You did not use the words "the

 4    acts and the conduct" but that's what you refer to.  You used different

 5    words, but it's perfectly clear to me now that you refer to the last part

 6    of the last line of 92 bis under [A] before the small i's start.

 7            MR. PILETTA-ZANIN: [Interpretation] I'm terribly sorry,

 8    Mr. President, but this is what I meant to say.  Thank you.

 9            If we go back to what we were taking, a certain number of

10    witnesses would only be called, according to the Prosecution, in order to

11    try to determine the origin of fire from the positions held by the SRK.

12    I'm quoting what the Prosecution is saying:  "Of fire from SRK

13    positions."

14            The simple fact, Mr. President, that according to this vertical

15    structure, paramedial structure of commandment, to say that the

16    testimonies would only be there to prove the origin of fire from positions

17    held by the SRK meant [sic] position, in other words, held by the Romanija

18    Corps, this would of course imply that General Galic is responsible

19    because he is reproached with the fact of having been a commander there

20    and then.  And in this type of statement, we can see that those statements

21    cannot be accepted as having a cumulative factor, but would directly mean

22    that there are some facts that would be reproached to General Galic in

23    those statements.  And the same comments can be made also for numerous

24    amount of witnesses that we wish to call, and that the accusation through

25    the Prosecution, and it is obvious and you mentioned, Mr. President,

Page 5204

 1    earlier of the authenticity, the question of the authenticity of

 2    documents, and we've seen yesterday to what extent it is important that

 3    these documents can very often be submitted not only to our

 4    cross-examination, but also to the questioning and the cross-examination

 5    of the Chamber because there was some translation yesterday that we've

 6    seen that were not very satisfying.

 7            Mr. President and Your Honours, in all the decisions that we know

 8    so far, I have cited two of those earlier, we have -- generally we are

 9    dealing with another type of situation.  It is a type of a situation where

10    witnesses have already been called and heard before a Chamber of this

11    Tribunal, and witnesses who have already cross-examined either once or

12    more than once.  So those are statements of witnesses that are filed and

13    not just simple statements as such.  There is a very important difference

14    between the two.  There is a difference in the form and a difference at

15    the basis of it.

16            The difference in the form is the following:  Formally the

17    statements that would be submitted would be statements in which the

18    person who actually drafted the statements was not called and was not

19    invited to be under oath, to say something under oath according to which

20    the person will tell the truth.  And of course the same goes for the

21    interpreters and translators, and this is why I must say that this kind of

22    necessity is important, that this is why when a witness is called to the

23    bar, the witness has to give a solemn declaration.  So we have sometimes

24    statements that are not even signed or statements are signed in a language

25    which is not the language of the person that were heard.  We have seen the

Page 5205

 1    difficulties that this can cause because very often the statements are

 2    signed in English, whereas these people who gave the statements do not

 3    even speak English.  And we can see that this causes an additional

 4    problem.  But at any rate, the oath is not given and they have not given

 5    their oath.  And I'm thinking of Cicero who said at the time something

 6    like this:  The oath is a religious obligation of a religious nature.  We

 7    do not have any longer any religious obligations of that nature and there

 8    is no sermon but there is an oath.  And this oath is also very important

 9    in view of the general principles.

10            Mr. President, I would like to draw the attention of your Chamber

11    to something I have noticed that the Prosecution took almost half an

12    hour.  But I will of course be more brief.

13            JUDGE ORIE:  If you say I can do it in a couple of minutes, I

14    think we could continue.  If not, we would have the break first.  So it's

15    not in order to limit you.

16            MR. PILETTA-ZANIN: [Interpretation] Mr. President, I think that

17    maybe it would be perhaps better if we took the break right now, and then

18    we will go on for another ten minutes at most.

19            JUDGE ORIE:  You're on your feet.

20            MR. IERACE:  If indeed you will be taking the break now, could I

21    just very briefly say, briefly comment in relation to two matters.  I

22    withdraw the application in relation to [redacted].  Steps have been

23    taken for her to attend this week.  Therefore we will call her.  Secondly,

24    perhaps something to contemplate over the morning break:  The Prosecution

25    sought protective measures for [redacted].  That application was dated

Page 5206

 1    the 25th of January, 2002.  There are some administrative reasons why the

 2    Prosecution would be grateful for a response from the Trial Chamber in

 3    relation to that application.

 4            Thank you, Mr. President.

 5            JUDGE ORIE:  What's the name you just mentioned, we're seeking the

 6    protection -- I have to check.

 7            MR. IERACE:  That has to be redacted.  I apologise for that.

 8            JUDGE ORIE:  Yes.

 9            Madam Registrar, could I sign the decision -- yes.  That will then

10    be redacted.

11            Then we'll have a break until 11.00.  Would the parties please --

12    after the break, the Defence continues what has to be said on behalf of

13    the Defence in respect of what we discussed before.  I'd then very much

14    like to hear from you as well, if you're able to do so, any response to

15    the one and only formal application on 92 bis, and that's about the

16    deceased witness, whether the Defence objects or not.  Of course you could

17    do it in writing.  Still you've got a few days.  But if you could express

18    yourself, that would speed up our decision.

19            So if you would please pay attention to that after the break, then

20    we'll now adjourn until 11.00.

21                          --- Recess taken at 10.31 a.m.

22                          --- On resuming at 11.12 a.m.

23                          [Private session]

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20   [redacted]

21                          [Open session]

22            JUDGE ORIE:  Please proceed.

23            MR. IERACE:  Mr. President, just before the break, as a result of

24    some email traffic, I informed the Trial Chamber that I withdrew the

25    application for the evidence of Sadeta Solak to be presented by way of 92

Page 5210

 1    bis.  During the break, I've learned that the interpretation I placed on

 2    the email traffic was incorrect, and I maintain the application by the

 3    Prosecution, that her evidence be submitted by way of 92 bis.  Thank you.

 4            JUDGE ORIE:  Yes.  Mr. Ierace, I refrained from commenting that

 5    since there's no formal application, there's no reason to withdraw, but of

 6    course now you still a reason to include her in any formal application

 7    you'll make.

 8            Yes, Mr. Piletta-Zanin, I think it's up to you to continue your

 9    observations in respect of the 92 bis.

10            MR. PILETTA-ZANIN: [Interpretation] The Chamber can be assured

11    that there will not be that kind of problem with the Defence since we

12    don't have an email connection.  But having said that, let me go back to

13    where wed left off before the break, Mr. President.  I said there were

14    three decisions.  I remind you of them.  I'm sure you know them.  These

15    three decisions might be the closest to what were discussed, and they are

16    the following:   The first is the decision called Sikirica, IT-98-1, and

17    then a decision which is known as Natetilic.  Also known as Tuta,

18    IT-98-34.  And the third is most important, the decision which is known as

19    Delalic, IT-96-21-A, 20-02-01.

20            When we look at those three decisions, we see that there really

21    was no decision which was comparable to the one which we are concerned

22    with today because these dealt mostly with tendering statements which had

23    already been the subject of a solemn declaration, that is to tell the

24    truth the whole truth and nothing but the truth, and statements which are

25    the result of cross-examinations and questions asked by the Chamber

Page 5211

 1    itself.

 2            Referring to these three decisions, I would like to mention some

 3    of the points in them, in particular the decision which I referred to as

 4    the Tuta decision, that is, the Naletilic decision.  That decision

 5    acknowledged that the Chamber could or even should refuse the

 6    implementation of the specific procedures of 92 bis when the probative

 7    value of the statements was much lower than the need for guaranteeing a

 8    fair trial.  The English text for that last part of it states:  "

 9    ensure a fair trial."

10            This is the Sikirica decision, which is cited in Tuta at point 6.

11    This need for guaranteeing a fair trial must be analysed in respect not

12    only of the exhibits but also in respect of the situation.  Going further,

13    the decision which I've just mentioned stated and recalled that in

14    application of Articles 20, 21 of the Statute, a fair trial must be

15    guaranteed, but especially that Chamber accepted that if the documents at

16    issue could constitute the proof of a critical factor of the thesis of the

17    Prosecution, the cross-examination is necessary.  Otherwise stated, the

18    right to a cross-examination could not be refused to the Defence when at

19    issue is admitting an element which could be as stated in the decision the

20    proof -- the proof of a critical element against the accused.

21            This, Mr. President, is where this Prosecution's mosaic-like

22    structure takes on a particular importance, because we must look at that

23    as a totality in respect of the very structure of the indictment as wished

24    by the Prosecutor.  The mere fact, for instance, that each time it says

25    that this or that shooting came from this or that area located in a

Page 5212

 1    territory under the authority of General Galic is already this type of

 2    dalebunte [phone] Therefore in application of the precited decision could

 3    not be admitted.

 4            What the Prosecution wants is to conceal completely the objective

 5    factor of the situation and is trying to dilute the responsibility in some

 6    way of the accused in favour of the theoretical admissibility of the

 7    facts, even if they were repetitive without the Defence being invited to

 8    demonstrate the opposite of what has been said.  As regards the

 9    decision -- the Delalic decision, I will cite it again, this is one which

10    is 20 February, 2001.  Mr. President, Your Honours, there are things which

11    we have learned in this courtroom, in particular at the time of and thanks

12    to the cross-examination.  Before I have give the floor to my colleague,

13    I'd like to give some examples that all of us have in mind.

14            We are thinking about the incident Kapor where we saw that in

15    the cross-examination we discovered there was a military objective or

16    target -- target very close to the incident.  Here, too, we will -- we

17    found during the cross-examination the presence of an object which is

18    within the very axis of the window with the consequences that that

19    entails, or can entail.  I'm referring to your own request dated 4

20    February 2001 in respect of the documents as stated by Your Honour Judge

21    Orie, and I said relating to these documents which have been produced

22    before the Chamber:  "Highly regrettable that there are differences."  Let

23    me remind you that there were differences between the English and Serbian

24    language documents and whereas, it was a witness who had signed the

25    statement in a language he had not really understood, that is English, and

Page 5213

 1    we are basing ourselves only on those documents.  And you pointed out that

 2    there were significant differences between the two versions.

 3            I would also mention the Witness Mirsad Abdurahmakovic who further

 4    to a question asked by Judge El Mahdi allowed us to see that there was

 5    near that incident a Golf-type vehicle, in fact, it was a Golf, that was

 6    used for moving about the mortars and carry out the firing from that type

 7    of car.  And then on the 5th and 6th of February, in -- there's another

 8    question of translation problems because that witness said that she had

 9    never said that her husband had never been a military official or a

10    military commander.  And we could mention two other examples, I'm talking

11    now only about an inexhaustive list, the witnesses Kadric, where we saw

12    that there were all the other problems, because those witnesses in

13    the end acknowledged that one of the people it questioned was a military

14    person carrying out a military-type of mission at the time of the incident

15    and as late as yesterday, the taxi driver witness we heard,

16    Mr. Esad Hadzimuratovic, declared that he was a military person and

17    further to a question by the Chamber acknowledge that his civilian vehicle

18    has been used as such during the war by the armed Sarajevo forces.

19            All of this, Mr. President, represent examples only, examples

20    only, but they do demonstrate why and to what extent the cross-examination

21    is something which is absolutely imperative.  In a little while, my

22    colleague will tell you that in respect of the witnesses who are in --

23    going to testify in respect of casualties, how important that testimony is

24    because otherwise we would not have been able to ask questions.  In other

25    words and in conclusion, we will speak -- we already mentioned mosaics.

Page 5214

 1    But in the -- in painting, there are two very important things, one is

 2    what is known as a shortening things, that is to show perspective in a

 3    shorter version and then you have a morphosis.  That is to show another

 4    image than the one looks at the object in front of you.

 5            So we have the impression that not only is the Prosecution seeking

 6    to establish a kind of mosaic-type work, but also in some ways trying to

 7    shorten things using that method so that we don't look at the entire

 8    dimension of the matter but to create something which is shortened at the

 9    same time that it wants to give to the reality of the facts a distortion,

10    a different vision, of what is at issue.  And that is why the Defence

11    cannot accept this and why it objects to the tendering of all of those

12    exhibits covered by those things which are requested by Rule 92 bis.

13            JUDGE ORIE:  May I, before your colleague continues, ask whether

14    this would mean that you withdrew the approval of three witnesses in your

15    written observations, your written submissions, I find that you agreed

16    with three witnesses.

17            MR. PILETTA-ZANIN: [Interpretation] No, Mr. President, I was

18    carried away.  Not necessarily.  We insist on all of our conclusions, and

19    that also includes these three.

20            JUDGE ORIE:  Then Ms. Pilipovic.

21            MS. PILIPOVIC: [Interpretation] Good morning, Your Honour.  Thank

22    you for giving the Defence the floor at this point in time and allowing my

23    colleague and me, representing the Defence, to say certain things which we

24    believe are of fundamental importance with regard to the application of

25    Rule 92 bis.

Page 5215

 1            First I'd like to add that in our application of the 4th of

 2    February, which was submitted to the Chamber and the reasoning of the

 3    Defence, that in it we said that three witnesses for whom our learned

 4    friends want to tender death certificates from Sarajevo, we said that we

 5    were agreeable to tendering these three death certificates, but we also

 6    point out that these death certificates can prove that somebody has died

 7    but not how that person died, because these documents do not indicate the

 8    cause of death.

 9            And I'd also like to refer to the quality of evidence submitted to

10    us by the Prosecution with these death certificates, and we can see how --

11    we cannot see how authentic these documents are because the law

12    envisages -- the law defines what is the proof of death, and we have

13    already said that it was a death certificate from the Book of Deaths.  But

14    otherwise, the notification of that does not quote the cause of death and

15    the fact of death.  So this is the view of the Defence with regard to

16    documents and admission of statements of three witnesses through which our

17    learned friends wanted to produce the death certificates, that is, we

18    question the quality of this evidence which will no doubt add to the

19    overall load of this case.

20            What the Defence also wishes to point out and to touch upon is a

21    submission which my learned friends filed to respond to the Defence's

22    response regarding Rule 92 bis.  Under Item 4 of this submission, our

23    colleagues say that the production of evidence under 92 bis is based on

24    the wish to expedite the proceedings and that in such a case, the Chamber

25    should be allowed to admit the statements of the witnesses who are not

Page 5216

 1    proving acts and conduct of the accused with which General Galic is

 2    charged.  In Item 4, they are referring to Judge Hunt's decision in the

 3    Vasiljevic case, IT-98-32-T of the 17th of September 2001.  We wish to say

 4    the Defence has nothing against saving time, but likewise, we wish to say

 5    that the economy of time cannot be at the expense of justice and fair

 6    trial to which General Galic is entitled.

 7            We wish to point out that in this case, the Prosecution sets out

 8    to prove General Galic's guilt, responsibility, whereas the indictment

 9    does not describe a single act of the accused which the Prosecution sets

10    out to prove, and it resorts all the time to circumstantial evidence.  We

11    therefore point out that there is no difference between witnesses we have

12    heard so far and who have appeared in this Court and those witnesses whose

13    statements the Prosecution wishes to introduce by way of Rule 92 bis.  So

14    why do these witnesses need to personally appear here, both Mrkovic and

15    Dzubur Ferhazeta and Deljakovic Alije and Isakovic Fahrudin and Brkanic

16    Hamdo and [indiscernible].

17            THE INTERPRETER:  The interpreters unfortunately do not have the

18    lists of names of these witnesses.  And they therefore apologise for their

19    mispronunciation.

20            MS. PILIPOVIC: [Interpretation] So in order to be able to -- in

21    order to solve the problem of names, I shall try to mark them with

22    numbers, except that I do not have at hand the submission with numbers.

23            JUDGE ORIE:  Ms. Pilipovic, would it be possible that you provide

24    to those who work on the transcript in the evenings a list of the names

25    you just mentioned so that they can check while listening to the tape what

Page 5217

 1    names you mentioned.

 2            MS. PILIPOVIC: [Interpretation] Yes, Your Honour.  I can supply

 3    the list of these witnesses later except that these witnesses --

 4            JUDGE ORIE:  [Previous translation continues]...

 5            MS. PILIPOVIC: [Interpretation] Yes.  I won't repeat them now.

 6            JUDGE ORIE:  Could you please do that not later, but approximately

 7    at the end of today's session.  Yes, please proceed.

 8            MS. PILIPOVIC: [Interpretation] Yes, Your Honour.  Thank you.

 9            Therefore, why is it necessary for all these witnesses to appear

10    before this Court?  Although the Defence will indicate broader relations

11    concerning every one of these witnesses and we did so in our application

12    of the 4th of February, 2002, we wish to say that in those statements all

13    these witnesses speak about events in which individuals were injured, and

14    in some of these statements, they speak very vaguely about incidents, and

15    they do not know when they happened, where they happened, who was involved

16    in these incidents.  And it is, therefore, necessary to question these

17    witnesses directly.

18            And my colleague has said in his presentation, has analysed

19    several witnesses in his presentation and explained why his direct

20    examination was necessary and also why the Defence should be enable to

21    cross-examine them.  We also wish to point out that if the Prosecution

22    wishes to -- that is, if it wishes to introduce the statements of the

23    witnesses in line with the 92 bis and to prove the scope and the number of

24    casualties, then obviously it has to do with what the General Galic is

25    charged with here.

Page 5218

 1            Therefore, we think that the Prosecution should not be allowed to

 2    produce such evidence without enabling the Defence to check who is the

 3    victim, whether this victim was possibly a member of the armed forces, or

 4    other forces taking part in armed operations or contributing to such

 5    operations without enabling it to establish where and when such incidents

 6    happened, as well as other facts of relevance for the verification of

 7    credibility of these witnesses, because the credibility of these witnesses

 8    whose statements would be introduced in line with 92 bis in no way can be

 9    verified which is absolutely always goes to the detriment of the accused

10    himself, and also affects the fairness of the trial.  The Defence can say

11    that if the Prosecution believes that saving of time is of primary

12    concern, the Prosecution can save time by not calling these witnesses or

13    using their statements.

14            I'd merely like to say a few words to mention how worried is the

15    Defence when 92 bis is applied to a (ii).  It has to do with the

16    statement which the Prosecution wishes to produce, and these are the

17    statements of Alisa Deljkovic and Mrkovic, and Cankovic.  We heard today

18    that our learned friends wish to call here as a witness a lady for whom

19    protection measures were sought and who will appear as a witness, who was

20    a victim of an incident.  The Prosecution claims that it happened on the

21    7th of November, 1992, and that incident is not covered by the list of

22    incidents.

23            First, we wonder whether the Prosecution is allowed to produce in

24    evidence before this Court in view of the decision of Judge Rodrigues,

25    that the introduction of new incidents in the evidence is not introduced,

Page 5219

 1    but even if we take that the Prosecution is allowed to do that, but then

 2    the Defence is also entitled to cross-examination.  In other words, we are

 3    worried by such a solution, that is, that the Prosecution can introduce

 4    circumstantial evidence in this manner without, however, introducing any

 5    evidence through direct and immediate examination.

 6            The Defence should like to point out in particular the production

 7    of statements of witnesses as to circumstances about which some witnesses

 8    have already testified.  In other words, here the question arises

 9    concerning the production of statements of Salko Zametica, Brkanic Hamdo,

10    Mr. Strand, Mr. Lindr Karel.  All of them in their statements speak about

11    sniping and shelling incidents, and they speak about them as

12    eyewitnesses.  For these reasons, the Defence needs to cross-examine

13    them.  Likewise, my learned friend, in his opening address, said why

14    Srdjan Cankovic need not to be examined directly and personally.  The

15    Defence points out that in his statement, Mr. Mersockavic [phoen] Also

16    refers to incidents which are not attributed, that is snipings and

17    shellings, and during the period of time for which Mr. Galic is charged.

18    We are particularly worried when it comes to Celic's statement.  He was an

19    eyewitness to an incident and who was wounded on that occasion; that is, I

20    go back to the Defence's position which I've already explained at the

21    outset, that it is necessary to examine -- to call all these witnesses to

22    appear in person because the Defence needs to be given the possibility to

23    directly hear these witnesses.

24            As for the medical documentation, I'd merely like to point out,

25    and it says so in the record, that medical documentation is illegible,

Page 5220

 1    that copies are such that one cannot establish matters of relevance for

 2    the case.  That is, the medical documentation does not lend itself to

 3    complete verification; that is, one cannot establish what kind of injury,

 4    what kind of type because the copies are illegible, and they are simply

 5    unacceptable.

 6            Yesterday, we were all in a situation to see how important it is

 7    to see the original of a document and how useful original documentation

 8    can be.  And another thing I wish to point out is the death certificates

 9    and medical documentation which the Prosecution wishes to introduce via

10    Rule 92 bis, and let me quote Witness Safeta Krestalica, through this

11    witness, the Prosecution wishes to introduce the documentation covering

12    the period of 1995 and November of 1994.  Likewise, through other

13    witnesses, there is a great deal of medical documentation which is not

14    relevant for the period that we are talking about here.

15            In other words, I wish to emphasise once again that it is in the

16    interests of justice and fair trial that the written application -- that

17    the introduction of statements by way of Rule 92 bis be denied.

18            JUDGE ORIE:  Thank you, Ms. Pilipovic.

19            MS. PILIPOVIC: [Interpretation] Your Honour, the Defence still

20    owes you an answer regarding the introduction of the statement of the late

21    Hamdija Cavcic.  The Defence objects to the admission of this statement

22    because this, again, runs counter to Rule 92 bis [A] since to admit

23    somebody's statement and to assess the testimony of a witness, such

24    testimony needs to be subjected to cross-examination, and we are unable to

25    do that because Mr. Cavcic died.  And we, however, object that this

Page 5221

 1    statement be admitted in evidence under Rule 92 bis.

 2            JUDGE ORIE:  You are referring to 92 bis [A], or...

 3            MS. PILIPOVIC: [Interpretation] Yes, Your Honour.  In this

 4    statement, in Mr. -- statement of -- to put it that way -- late Mr. Cavcic

 5    refers to incidents and facts which are relevant for the period that

 6    General Galic is charged.  That is why we are against the admission of the

 7    statement, because the Defence is unable to -- because the Defence cannot

 8    subject the statement to cross-examination.  In the statement which was

 9    disclosed to the Defence, one reads about acts and conduct of the

10    accused.  And for this reason -- I'm looking at the Rule 92 [C].

11    Evidently, that is the rule that is referred to by my learned friends.

12            JUDGE ORIE:  Yes, by referring to Rule 92 [A] I do understand that

13    you take the position that all the requirements of 92 [A] have to be

14    fulfilled, although the form 92 [B] prescribes might not be fulfilled.

15            JUDGE ORIE:  Mr. Ierace, unless there's something very critical to

16    respond to, I would rather close the debate on this issue.  But I'll give

17    you opportunity to touch upon --

18            MR. IERACE:  Mr. President, there's nothing I wish to add about

19    the 92 bis argument.  I simply say that -- say this, however:  My friend

20    mentioned the status of the sniping incident which I described as

21    previously sniping incident number 1.  And my friend said that it was

22    troubling that we were leading evidence on that contrary to the judgment

23    of the Pre-Trial Chamber.  In fact, in that judgment, the Pre-Trial

24    Chamber expressly allowed us to lead evidence in relation to that

25    incident, and the witness who we are calling, who was the victim, is the

Page 5222

 1    subject of a 65 ter summary.  So my friends should not be caught by

 2    surprise for both those reasons.  Thank you.

 3            JUDGE ORIE:  Yes.  Well, Ms. Pilipovic, I'd rather --

 4            MS. PILIPOVIC: [Interpretation] Yes, Your Honour, I've just

 5    explained why all these witnesses should be cross-examined.  I believe

 6    I've understood what my learned colleague has just said.

 7            MR. IERACE:  Mr. President, there is the matter of Mr. Cavcic. I

 8    did not make that the subject of any submissions.  If the Trial Chamber

 9    requires some submissions from the Prosecution in relation to the

10    admissibility of that statement, then I'd be happy to provide that

11    or Mr. Stamp.

12            JUDGE ORIE:  Yes.  If we think we need any further clarification

13    in that respect, we'll ask for it, Mr. Ierace.

14            Let me just close this debate on 92 bis, which was a bit of an odd

15    debate because it was without any application formally made.  But that's

16    what we can expect soon I take it, from the Prosecution.

17            I'd like to stress that the Chamber would be very pleased to have

18    a thoroughly structured application, not a kind of puzzle where we have to

19    find whether all these statements in the Eta station are also attached to

20    the Eta station where we have to wonder whether those not attached would

21    not be part of the application and -- well, I indicated already similar

22    issues like any attached document not being translated, would it serve the

23    evidentiary purpose of the content or just of the existence of the

24    statement.   So therefore, the Chamber would very much like to have all

25    these aspects clearly set out in the application, then of course the

Page 5223

 1    application to be accompanied by all the documents necessary for us to

 2    decide.

 3            And I made a few observations as well on the issue of medical

 4    records and whether all of them were relevant or part of them were

 5    relevant, how to introduce them.  Of course, we leave it to the

 6    Prosecution.  But well-structured application is very much preferred by

 7    the Chamber.  Also, and that's the second observation I'd like to make,

 8    that we'll have to apply Rule 92 bis in -- which is especially paragraph A

 9    is of major importance for the decision.  The Defence has already pointed

10    to -- let me just try to summarise it, what they call the critical

11    elements, and they also made reference to the acts and the conduct of the

12    accused, because that in its literal wordings is one of the criteria that

13    is mentioned in 92 [A].

14            The Chamber also thinks that this is very important to be precise

15    on this criteria in view of the charges brought against the accused, which

16    are to some extent charges under Article 71, and on the other hand,

17    charges under Article 73.  And I can imagine if you are talking about

18    the acts and the conduct of the accused, that it might be of some

19    importance to differentiate between whether you are talking about Article

20    71 charges or Article 73 charges.  I'm not going to tell the Prosecution

21    what they should include in their application, but -- well, some problems

22    were raised in this courtroom, and the only thing I'd like to stress is

23    that apart from a solid structure, that proper attention is paid to all

24    the legal problems attached to the application of Article 92 bis in this

25    specific case.

Page 5224

 1            I'll leave it to that unless, Mr. Ierace, you'd like to ask or

 2    comment on anything.

 3            MR. IERACE:  Mr. President, I have two points of clarification.

 4    Given that we are required to file multiple copies of the statements as

 5    part of our formal application, might I inquire whether the Trial Chamber

 6    requires multiple copies of the attachments?  Because they are, indeed,

 7    voluminous, in particular the attachments to the statements of

 8    recordkeepers.  Would it be acceptable to file less than the usual

 9    required number of annexures?

10            JUDGE ORIE:  We even have been considering another solution, and

11    that is to return the binders to you, take out all comments we did write

12    in it, and provide you with -- I'm just talking for the Judges -- nine

13    binders, documents, still clearly identifiable to what statement they

14    relate.  If that would be a solution so that we have it nicely structured

15    and you also the copies already made.

16            MR. IERACE:  I'm grateful for that, Mr. President.  That would be

17    a great help.

18            The second question relates to your observations in relation to 71

19    and 73, and the first part of 92 bis.  Do I understand you, Mr. President,

20    to be inviting some further submissions in writing from the Prosecution

21    accompanying the formal application, and those submissions would canvass

22    or perhaps even recanvass the basis upon which the Prosecution submits the

23    statements are admissible?

24            JUDGE ORIE:  Yes.  I think the Defence made objection

25    specifically -- they have given their view on how the phrase "acts and

Page 5225

 1    conduct of the accused" should be understood when applying Rule 92 bis.  I

 2    can imagine that your view on the structure of the charges, I mean, it has

 3    been explained by the Defence on how they look at these charges and what

 4    the structure is and what -- perhaps if supplying the Chamber with an

 5    answer or your views, perhaps your differing views, on that issue, that it

 6    might assist the Chamber to come to a quicker decision on the application

 7    and would prevent us from, in a second round, ask for clarification of

 8    these issues.  And I just identify a few who seem to be of a rather key

 9    importance in the view of the Defence for the decision to be made.

10            MR. IERACE:  I understand that, Mr. President.  I'm led to believe

11    that there will be a judgment delivered in the next week or so from one of

12    the other Trial Chambers on 92 bis.  If it's convenient, I'll wait until

13    that judgment comes down because I could then incorporate it in those

14    submissions if you would assisted by that, or would you prefer that we

15    proceed immediately?

16            JUDGE ORIE:  Let me give you an answer to that after the break.

17            MR. IERACE:  Thank you, Mr. President.

18                          [Trial Chamber confers]

19            JUDGE ORIE:  First of all -- yes, Mr. Piletta-Zanin.

20            MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President.  Perhaps

21    before -- well, if you're going to confer, before you give your opinion,

22    would you allow me to give the Defence position in respect of some of the

23    points.

24            JUDGE ORIE:  The first thing I did, as a matter of fact, is to see

25    whether we would deal with it at this moment or at a later stage.  And of

Page 5226

 1    course you have the opportunity to give your observation,

 2    Mr. Piletta-Zanin.

 3            You can do it now, yes.

 4            MR. PILETTA-ZANIN: [Interpretation] We'll do it in a little while,

 5    Your Honour.  A little while.  Thank you very much.

 6            JUDGE ORIE:  Yes, thank you.

 7                          [Trial Chamber confers]

 8            JUDGE ORIE:  Mr. Ierace, Mr. Piletta-Zanin, the Chamber as such

 9    has no problem to wait until the decision is granted.  So unless the

10    Defence would come up with some objection which would convince us that you

11    would have to do it earlier, you may wait until next week.

12            MR. IERACE:  Thank you, Mr. President.  There was also another

13    issue that you indicated you would like dealt with this morning.  That was

14    the expert witnesses.  Do you still wish me to throw some light on that

15    issue --

16            MR. PILETTA-ZANIN: [Interpretation] Mr. President.

17            JUDGE ORIE:  Yes.  But let me just first see what

18    Mr. Piletta-Zanin has to...

19            Yes, please.

20            MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President.  You would

21    note that the Defence has prepared itself, depending on what the

22    Prosecution planned to submit or not to submit, and therefore we have

23    based our resources on the procedure which the Prosecution wants and not

24    based on anything else.  And this means that if, by chance, we were to

25    agree that the Prosecution can again file new submissions on that same

Page 5227

 1    subject, it is clear that the Defence should first be so informed and to

 2    prepare itself accordingly.  That seems clear to me.  I regret personally

 3    that this was not done all at once, but it is clear that our position will

 4    be to state clearly that we must know how the Prosecution intends to

 5    complete its points each time, and if necessary, to take a position

 6    against that.  That's one point.

 7            The second point in respect of the decision that will come --

 8            JUDGE ORIE:  May I just ask you a question, Mr. Piletta-Zanin.

 9            MR. PILETTA-ZANIN: [Interpretation] Yes, Your Honour.

10            JUDGE ORIE:  The submission you just made, is that in relation to

11    92 bis?  Yes, that's clear to me now.  Please proceed.

12            MR. PILETTA-ZANIN: [Interpretation] Bis [A].  I'm talking about

13    that.  And we should be invited to take a decision, because this

14    opportunity has been offered by your Chamber to the Prosecution.  The

15    other point, Mr. President, is to review whether or not it is necessary to

16    wait until the decision mentioned comes -- is issued.  The decision which

17    the Prosecution mentioned a little while ago.  What I mean by this is as

18    far as the Defence knows, no decision has come about, unless we're talking

19    about the Milosevic trial, and in that case we would find ourselves in an

20    identical position.  If it isn't part of the Milosevic trial, I don't

21    think that we're talking about a comparable situation, that is, the

22    production of statements of people who were not heard previously as

23    witnesses.  That is an essential factual distinction between the two

24    situations, that is, persons who have been heard orally and those who have

25    not according to the rules.

Page 5228

 1            I thank you.

 2            JUDGE ORIE:  [Previous translation continues]...disclose to us

 3    in what case you expect a decision or is this?

 4            MR. IERACE:  The situation is that it involves a confidential

 5    judgment.

 6            JUDGE ORIE:  Okay.  We'll not -- would there be a problem to --

 7    perhaps you need it commissioned first from the other Chamber to even in

 8    private session to disclose to the Defence in what case it would be.

 9            MR. IERACE:  Yes.  I anticipate there will be a redacted version

10    made public in the next week or so.

11            JUDGE ORIE:  Yes, and then you'd provide the Defence with a copy.

12            MR. IERACE:  Of course.

13            JUDGE ORIE:  Yes.  I'd then like to close the debate on the 92 bis

14    issue.  What is still there is the expert witnesses.  We heard something

15    about it from Mr. Stamp last week, I think, although perhaps not in every

16    detail.  And there's another issue, there's the request from the Defence

17    to give orders in respect of the orders, the military orders, and the

18    documents containing military orders and eventually maps attached to it.

19            Perhaps since we dealt with it this morning, we'll deal with that

20    first.  Perhaps, Mr. Ierace, may I just first ask for a clarification in

21    respect of the letter you -- or the response you gave to us this morning

22    which you said you filed yesterday.  On the first page, last

23    paragraph, it reads:  "At subsequent meetings with the Defence, the

24    Prosecution made clear that it has disclosed the existence of the relevant

25    ABiH orders and reports."  Did you disclose merely the existence of the

Page 5229

 1    relevant orders or did you also disclose the orders themselves?

 2            MR. IERACE:  Mr. President, the Prosecution made available to the

 3    Defence the index of the orders that we possessed and invited the Defence

 4    to select from that index the documents which they -- which they wished to

 5    have copies of.  And that was done.

 6            JUDGE ORIE:  Yes.  I also do understand by now that the Defence

 7    takes the position that in other cases, orders have been admitted into

 8    evidence, orders which do not appear on the list and of which you say they

 9    are not in any relation to Sarajevo and are therefore irrelevant and of

10    which the Defence says that they are material to the Defence.  And I also

11    see that on the second page, that you've indicated to the Defence that

12    you'll check the material which the Defence has identified in order to

13    confirm that it does not touch upon Sarajevo between April 1992 and

14    September 1994.  This means that there is a dispute as to the materiality

15    of these documents for the Defence.  At this very moment, the Chamber

16    gives no specific orders given the undertaking of the Prosecution to check

17    the material any further.

18            Am I right in understanding, then, if you check this material,

19    that you'll come up with some kind of a list, present it to the Defence so

20    that the Defence could indicate that documents on this list, even if,

21    perhaps, not on earlier lists, are material and for what reasons they are

22    material to the Defence?  Is my understanding right that it would take you

23    a couple of weeks to prepare that?

24            MR. IERACE:  I would not propose to include our explanation as to

25    why it is material to the Defence or why it may be material to the

Page 5230

 1    Defence.

 2            JUDGE ORIE:  No, but the Defence can of course comment.

 3            MR. IERACE:  So I would provide an index of any documentation

 4    which is relevant to what occurred in Sarajevo between April of 1992 and

 5    September of 1994.

 6            JUDGE ORIE:  Yes.  The Chamber wonders -- first of all, may I ask

 7    you, as we are talking about orders from the General Staff, and we heard a

 8    distinction made between orders by the General Staff of the BiH army

 9    generally addressed to I would say all parts of the army, and those

10    specifically given to the 1st Sarajevo Corps.  Two questions in that

11    respect:  The first one is, were all orders given to the Sarajevo Corps

12    disclosed to the Defence as far as they are in your custody or under your

13    control?

14            MR. IERACE:  Mr. President, I would feel more comfortable if I had

15    a little time to make some further inquiries before I responded to that.

16    But my understanding is that we have searched only for documents which

17    relate specifically to the Sarajevo campaign, rather than documents which

18    relate more broadly to the 1st Corps.  And that is because of the words

19    material to the Defence which occur in Rule 66.

20            JUDGE ORIE:  Yes.  I do understand.  I also understand that

21    there's as a matter of fact the dispute where -- are all orders to the 1st

22    Sarajevo Corps relevant for the situation in Sarajevo, or just those

23    specifically dealing with the campaign as it appears in the indictment in

24    Sarajevo at the relevant time.  We feel that there are general orders

25    given to all parts of the army, which would include, although not

Page 5231

 1    specifically addressed to the 1st Sarajevo Corps, and we see other orders

 2    that might be specifically given to the 1st Sarajevo Corps.  Of course,

 3    the problem of the Chamber but also the problem of the parties is that if

 4    you do not know the content of the orders, it's not easy to assess how

 5    material they are.  I mean, it's still possible that something happens at

 6    a distance of 200 kilometres, but which might be of major importance for

 7    what happened in Sarajevo.  That's -- I'm just talking on a general

 8    level.  I'm not on any specific issue.

 9            Because we would expect that general orders that were given to all

10    parts of the army, including the 1st Sarajevo Corps, might be relevant as

11    well.  I say "might be relevant as well."  I don't know whether they are

12    relevant or not.  That's the first issue.

13            And the second one is what kind of orders are there which, as you

14    say, are not specifically related to the charges but are addressed to the

15    1st Sarajevo Corps might be relevant as well.  I'd rather try to see what

16    kind of lists you can produce, what lists you already produced, and then

17    see whether the Defence is able to indicate what the materiality of these

18    documents for the Defence would be, just as I would expect from the

19    Defence that when they identified any specific documents that have been

20    produced in other trials, that they would indicate clearly to the

21    Prosecution what documents they are referring to.

22            May I just give the opportunity now to Mr. Piletta-Zanin to...

23            MR. PILETTA-ZANIN: [Interpretation] Thank you, Mr. President.  And

24    for two reasons I thank you.  One, for giving me the floor.  First, I

25    would like to assist the Prosecution and say that the Defence will give an

Page 5232

 1    answer to the question you asked, and that's the following:  No.  All the

 2    orders dealing with the 1st army were not disclosed to the Defence.

 3    That's the first point.

 4            The second point is the list of orders, it is difficult for us in

 5    this disorder -- I don't want to use that word but I'll say it anyway --

 6    it is difficult for us in this disorder to get this kind of list because

 7    we're talking about material that the Prosecution has in its possession,

 8    and therefore it's difficult to get the indications.  But what is more

 9    important is this:  It is only once we have seen the contents of these

10    orders that we will be able to determine clearly with our experts as to

11    the relevant or less relevant content of those orders.  The first step is

12    to provide them to us.  It will be a great deal of work for the Defence,

13    but it will do the work and depending on what we find, we will say this is

14    pertinent, relevant or not.  However, this is not done, and I see

15    apparently one doesn't want to do this.  The Defence is put into a

16    position where it cannot cross-examine the witness normally because

17    important information might be lacking, information that it might have

18    found in the documents which are now in the possession of the

19    Prosecution.

20            So we can try to cooperate with the drawing up of lists.  We

21    are willing to do that.  But to compare a complete exhaustive list is

22    something we cannot do, not because we don't want to, but because the

23    information physically is somewhere, somewhere to where we do not have

24    access.  I think there's nothing further to add to that, and once again, I

25    thank you.

Page 5233

 1            JUDGE ORIE:  What we see, as a matter of fact, is that we have to

 2    draw a line between what would in the end turn out to be a fishing

 3    expedition on the one hand other, and on the other hand side, what would

 4    be a reasonable effort in order to disclose to the Defence what the

 5    Defence would need to properly defend the accused.  That's not easy.

 6            I gave some observations.  I see that the Prosecution is making

 7    new efforts in order to see whether we can proceed on this issue.  I'll

 8    not give any specific orders at this time, but I think there's still some

 9    fruits to be expected from exchange of view between the parties.  We would

10    like to be informed immediately again if this would not result in any

11    progress in reaching an agreement on what could be expected from the

12    Prosecution to additionally find out and where the wishes of the Defence

13    reach a point where we would say this is too large, this is too broad, we

14    cannot expect the Prosecution to put more efforts in that.

15            May I -- you said it would take you another couple of weeks to

16    complete what you intend to do.  May I just first invite the parties to

17    discuss this matter again and inform the Chamber, but then -- well, let's

18    say in not more than five minutes any dissatisfactory development in these

19    discussions.

20            MR. IERACE:  Mr. President, might I suggest an alternative

21    course.

22            JUDGE ORIE:  Yes.

23            MR. IERACE:  You directed two specific questions to the

24    prosecution whether we have disclosed orders which relate to the army as a

25    whole and secondly whether we have disclosed or made available the orders,

Page 5234

 1    all of the orders of the 1st Corps.  Naturally both of those are qualified

 2    by the documents we have, rather than those that might exist somewhere.

 3            JUDGE ORIE:  Yes.

 4            MR. IERACE:  It may be beneficial if I respond to those specific

 5    questions, say, on Friday morning, and that may be a helpful step in

 6    defining any further search that should be conducted.  I say that because

 7    if the Trial Chamber takes the view ultimately that further documents

 8    should be disclosed, it would be helpful to the Prosecution to know that

 9    before we finalise the search which we are presently doing.  And it's

10    apparent to me that the gulf between the Prosecution and Defence on this

11    issue really will probably require some direction from the Trial Chamber.

12    So if we do that first, then perhaps we can crystalise what remaining

13    dispute there is.  It shouldn't take me long on Friday morning to inform

14    the Trial Chamber.

15            JUDGE ORIE:  We have now more or less identified the problem and

16    drawn the attention to some aspects of it.  And I think, having not given

17    any orders at this moment, it would be fair that you have an opportunity

18    next Friday morning to inform the Chamber in further detail, and then see

19    whether any order is still sought or how to proceed on from Friday

20    morning.

21            Yes, Mr. Piletta-Zanin.

22            MR. PILETTA-ZANIN: [Interpretation] Yes.  Yes, thank you,

23    Mr. President.

24            It is being stated that Friday morning, I may unfortunately not be

25    here, because that is the 15th and I had scheduled something else.  If I

Page 5235

 1    can get free, I will be here.  But if I can't, I won't.  We'll try to get

 2    closer to the Prosecution for the umpteenth time, and if I could make some

 3    suggestions, the Prosecution should open its files to us and show us the

 4    documents, show us the orders and we could say prima facie this is of

 5    interest to us, we don't have it.  This is of interest to us and so on.

 6    It's a simple exercise.  It would take a few hours but we would find after

 7    the hearing and we would move forward very quickly.

 8            JUDGE ORIE:  [Previous translation continues]...on the basis of

 9    reciprocal disclosure that whatever documents are in the custody of the

10    Prosecution, you'll be allowed to inspect them.  Am I wrong in my

11    understanding?

12            MR. IERACE:  With respect, Mr. President, you are wrong because we

13    are confined by the words in the Rules, "which are material to the

14    preparation of the Defence."  And this is the difficulty:   My friend

15    cannot demand these documents without explaining how they are material to

16    the Defence.  One has regard to the pretrial brief from the Defence, and

17    when one looks at that document filed by the Defence, it is not clear at

18    all how these documents relate to that Defence.  But I'll take the first

19    step in the next few days.  I appreciate my friend will not be here on

20    Friday. I'll attempt to do it on Thursday morning, but then the ball

21    passes to my friend to explain how these documents are material to the

22    Defence filed.

23            JUDGE ORIE:  Yes.  Of course then the problem is he can only do it

24    in general wordings since he has not seen the documents and that's the

25    dilemma we're in and that's also the difficulty to draw a line between a

Page 5236

 1    fishing expedition and what I said before, what would be a reasonable

 2    request from the Defence to have additional documents disclosed.

 3            I'll then disclose this debate, and we'll then proceed later on --

 4    and we still have the -- after the break, yes.  That would be -- we'll

 5    have a break at half past 12.00.  We have three minutes left.  Would that

 6    be enough for the experts, Mr. Ierace?

 7            MR. IERACE:  I'll do my best.  I'll move through them fairly

 8    quickly, Mr. President.  I have before me the names and categories which

 9    you identified on the 5th of March.  So going through that list, the first

10    name that you identified, Mr. President, was Commander John Hamill, who

11    is an UNMO, and you wondered whether he is being called as an expert.  He

12    is not.

13            The 65 ter summary refers to two areas where at that stage we

14    contemplated he would give evidence.  The first was the role he played in

15    the preparation of the United Nations' report on Markale.  The second was

16    in relation to the first scheduled shelling incident, the football game at

17    Dobrinja.  The Prosecution will not lead evidence from him in relation to

18    the first scheduled incident, only in relation to Markale.

19            The Prosecution calls him to explain what he did and to confirm

20    the conclusions which he arrived at in the report in relation to Markale.

21    Now that report was prepared for the United Nations, not for the

22    Prosecution and the Tribunal, and that is the important distinction in

23    determining whether he is called now by the Prosecution as an expert

24    witness.  I should say that generally in relation to each of these

25    individuals, the Rules, in particular 94 bis, contemplates that some

Page 5237

 1    witnesses are called as experts, but in fact many witnesses who are called

 2    by the Prosecution and the Defence in the Tribunal in effect give expert

 3    evidence on various points.  And from time to time they have to be

 4    qualified before they can give that opinion, whatever it is.  So really

 5    what we're talking about is a more fundamental distinction between who is

 6    an expert and who is not.

 7            Moving on, the second name that was mentioned was Sabljica, and of

 8    course that has been dealt with.  The next one was Higgs, warrant officer

 9    Higgs.  There was a 65 ter summary for him which identifies him as an

10    expert in relation to mortars, and he is an expert for the purposes of 94

11    bis.

12            A report is in the process of being prepared, and I anticipate

13    that --

14            THE INTERPRETER:  Please slow down.

15            MR. IERACE:  I will slow down.  I anticipate that -- indeed, it

16    has been filed.  Therefore, I move on.

17            Richard Philips will be an expert of the analyst type.  We will

18    comply with Rule 94 bis in relation to his evidence.  Likewise,

19    Dr. Turner, and we have already done so in relation to Robert Donia.

20            JUDGE ORIE:  Yes, we've seen that.

21            MR. IERACE:  Witness AD, we have discussed earlier.  That's now

22    Witness Q, although the relevant 65 ter summary is listed under the name

23    "Witness AD."  The evidence of that witness falls into the same category

24    of that of Commandant Hamill, that is he is not an expert in relation to

25    94 bis, but rather who will give evidence as to findings which he came to

Page 5238

 1    on earlier relations in relation to scheduled and unscheduled incidents.

 2            We then move to Ismet Cekic.  I discussed him in a different

 3    capacity earlier this morning and for the same reasons that I advanced on

 4    that occasion, I say that he is not being called as an expert witness.  I

 5    referred earlier to there being a statistics expert who would be called

 6    to give evidence in relation to the collated results of that questionnaire

 7    and some other material.  That witness has been identified by the

 8    Prosecution and is in the process of preparing a report.  There is a

 9    considerable volume of material to be processed and to be referred to in

10    the report.  And it is probably still some weeks before that report will

11    be filed pursuant to 94 bis.

12            Mr. President, you also referred to the 65 ter summary for sniping

13    expert.  That witness has been identified and is in the process of

14    preparing his report.  I wish that witness to have available to him in

15    summary form the evidence of the witnesses who the Prosecution has called

16    and will be calling in relation to the scheduled sniping incidents.

17    Therefore, his report will not be ready until those witnesses have all

18    been called.  I anticipate he will give evidence towards the end of the

19    trial.  And through him also will come some maps of each of the sniping

20    incidents with expert evidence as to the distances.  Those distances are

21    being obtained by the use of professional instruments.

22            I should also indicate that I anticipate the Prosecution will seek

23    leave to add a further name for the witness list in relation to the

24    preparation of the maps, that is, the maps for each of the sniping and

25    shelling incidents, to give evidence as to how those maps were developed

Page 5239

 1    and determined.

 2            I move on to the 65 ter summary for the artillery expert.  In a

 3    similar fashion, we're not likely to tender that report until towards the

 4    end, perhaps after the end, of the shelling component of the trial.  There

 5    were two entries, 65 ter summaries, for ballisticians.  One is described

 6    as a ballistic physicist and the other as a ballistician.  We will combine

 7    those into one expert, that is, a ballistician.  The evidence of that

 8    witness will pertain largely if not entirely to the Markale market

 9    incident.

10            Mr. President, that leaves one, perhaps two, witnesses.  The

11    command and control expert and Rick Butler.  There was some discussion of

12    Rick Butler's status and report timetable on the 5th of March.  There's

13    nothing further I can add today to that.  The command and control expert

14    will have access to the report of Rick Butler, and therefore of necessity,

15    must follow him.  As well, it makes good sense for the command and control

16    expert to have regard, at least in summary form, to much of the evidence

17    which the Trial Chamber is hearing.  And therefore, his testimony and his

18    report of necessity must come at the very last stage of the trial.  We are

19    working on that.

20            So, Mr. President, essentially most of the witnesses will be

21    treated by the Prosecution as 94 bis witnesses, except with the exceptions

22    I have already mentioned in terms of a list of names that you provided.

23    Thank you.

24            JUDGE ORIE:  Thank you for your clarification, Mr. Ierace.

25            I think that we then dealt with all the subjects that were still

Page 5240

 1    pending at this very moment, and that after the break, we can resume the

 2    examination of the witness Mr. Sabljica.

 3            We'll then adjourn until five minutes to 1.00.

 4                          --- Recess taken at 12.34 p.m.

 5                          [The witness entered court]

 6                          --- On resuming at 12.56 p.m.

 7            JUDGE ORIE:  I would say good morning, Mr. Sabljica  but

 8    unfortunately I have to say good afternoon.  We apologise, but it took us

 9    a long time this morning to deal with some legal issues we had to deal

10    with first.  So you had to wait.  I indicated to the Victims and Witness

11    Unit that it would not be at 9.00.  I hope that this message came to you.

12            Mr. Ierace, I see that you're standing, where I expected

13    Mr. Stamp.

14            MR. IERACE:  Mr. President, with your leave, I would like to make

15    two very quick points in relation to those earlier topics and then I will

16    lead.

17            JUDGE ORIE:  You'll see that I tried to finished before the

18    break.  But just briefly check.  One more moment, Mr. Sabljica.

19            MR. IERACE:  I addressed the issue of Mr. Cekic. I should also say

20    in relation to Mr. Ceric because he was the psychiatrist who is not being

21    called by the Prosecution as an expert witness according to 94 bis.

22    That's my first point.  And secondly, in relation to expert reports

23    generally, where they are filed and subsequent evidence is contradictory

24    to the presumptions of the report, then of course the Prosecution will

25    file an amendment or invite the expert witness to amend his conclusions

Page 5241

 1    accordingly, if that is required.  Thank you, Mr. President.

 2            JUDGE ORIE:  Yes.

 3            Mr. Piletta-Zanin.

 4            MR. PILETTA-ZANIN: [Interpretation] Mr. President, I just wanted

 5    to draw the attention of the Prosecution to the fact that if we grant

 6    names or if we say names rather, it is better not to say them out loud in

 7    front of witnesses.  That is all.

 8            JUDGE ORIE:  In general I would agree with you.  I don't think

 9    that any harm was done at this very moment.

10            Then, Mr. Stamp.  Mr. Sabljica, may I remind you that you are

11    still bound by the solemn declaration you gave yesterday.  You'll not find

12    any screen behind you because the situation in this courtroom is different

13    from what it is in the other courtroom.  But the protective measures are

14    still effective.

15            Yes, please, Mr. Stamp.  Proceed.

16            MR. STAMP:  Thank you very much, Mr. President.  May I proceed,

17    may I just inquire if the Court has a record of how long I have been in

18    examination-in-chief.

19            JUDGE ORIE:  I haven't got it in my mind.  I'm sure Madam

20    Registrar could present it to you.  Please proceed.  As soon as Madam

21    Registrar -- we have to check it, I think, from yesterday's transcript.

22            Please proceed.

23            MR. STAMP:  Thank you very much, Mr. President.

24                          WITNESS: MIRZA SABLJICA [Resumed]

25                          [Witness answered through interpreter]

Page 5242

 1                          Examined by Mr. Stamp:  [Continued]

 2       Q.   Now, you said last time that the investigating magistrate would be

 3    one of the persons responsible for checking casualties.  Could you, from

 4    your record in respect of the incident of the 4th of December, 1994, tell

 5    us who that investigating magistrate was.

 6            MR. STAMP:  Could the witness, with your leave, Mr. President, be

 7    handed Exhibit P2247A.

 8       A.   The investigating magistrate in this case was Mr. Zdenko Eterovic.

 9       Q.   Thank you.  Just a matter of clarification before I go

10    on, in respect of the incident of the 5th of February, 1994, in which

11    direction is Marsal Tito Street in respect to the Markale market, to the

12    north, south, east, or west?

13       A.   In respect to the Markale market, the street Marsal Tito is

14    situated south of the market.

15       Q.   Thank you.

16            MR. STAMP:  And finally, Mr. President, with your leave, may I

17    proceed to show the witness a video which have been produced by the

18    Defence to the Court but which we have given to the Defence.  It is marked

19    D64.

20            JUDGE ORIE:  Madam Registrar, could you...

21            Yes, D64.

22            Mr. Stamp, meanwhile, I can inform you that it's a bit over two

23    and a half hours.

24            MR. STAMP:  Very well, Your Honour.  I beg your pardon,

25    Mr. President.  I am indeed very mindful of that because we have witnesses

Page 5243

 1    here, and next week we have obligations in respect to the videolink, so we

 2    need to dispose of these witnesses who are here.

 3            JUDGE ORIE:  Yes.

 4            Thank you, Madam Registrar.  We have the video ready to be

 5    played?  Yes, I see it's on our screen now.  Yes.

 6                          [Videotape played]

 7            MR. STAMP:  Could I ask that we start again.  I'm afraid I

 8    didn't...I have it now.

 9                          [Videotape played]

10            MR. STAMP:  Stop here, please.  Could you take it back just a

11    little.  And stop there, please.

12       Q.   The gentleman on the right, could you say who that person is?

13            JUDGE ORIE:  Yes, Mr. Piletta-Zanin.

14            MR. PILETTA-ZANIN: [Interpretation] Mr. President, I'm terribly

15    sorry to interrupt, but we have seen on another cassette video that at

16    times, we can see conversations, or there's an exchange between different

17    people who are filmed.  These exchanges are very often important for the

18    case.  I do not know if the interpreters can hear those conversations that

19    are taking place.  If they hear them well enough, I was wondering if they

20    could interpret.  I don't really know what means the interpreters have,

21    but this is a suggestion perhaps.

22            JUDGE ORIE:  Of course.  First of all, Mr. Stamp, you're using the

23    video now.  Is it about the pictures or is it about the conversations?

24            MR. STAMP:  I'm using the video to show images, Mr. President, and

25    I am trying to move pretty quickly.  I would ask if there is anything in

Page 5244

 1    respect to what is said on the videos, I would like it to be inquired

 2    about during cross-examination.

 3            JUDGE ORIE:  Yes, you can do it during cross-examination,

 4    Mr. Piletta-Zanin.  Please proceed, Mr. Stamp.

 5            MR. PILETTA-ZANIN: [Interpretation] Very well.  Thank you.

 6            MR. STAMP:

 7       Q.   Who is that person on the screen to the right?

 8       A.   That is myself.

 9            MR. STAMP:  Could you please proceed with the video.

10                          [Videotape played]

11            MR. STAMP:  Would you stop there, please.

12       Q.   The blackening and burning that is depicted on this frame, could

13    you be briefly describe what it is or what would have caused it?

14       A.   It was caused by a projectile, a mortar shell, that fell right

15    next to that wall.  So we see the damage caused to the wall.  It is the

16    fragments of the grenade that caused this damage, and you can see parts of

17    earth and mud and the fumes coming out from gun powder.

18       Q.   Thank you.

19            MR. STAMP:  Please proceed.

20                          [Videotape played]

21            MR. STAMP:  Can you stop there, please.  Stop there.

22       Q.   Could you describe what you see in that frame, please.

23       A.   On this photograph, we can see the stabiliser of the mortar shell,

24    the calibre is 120 millimetres.  It is embedded in the centre of the

25    crater.

Page 5245

 1            MR. STAMP:  Could you proceed, please.

 2                          [Videotape played]

 3            MR. STAMP:  Could you stop here, please.

 4       Q.   You had indicated what this was in respect of the photographs.

 5    But can you observe the stabiliser fin of the mortar round in this

 6    photograph, in this frame?

 7       A.   Yes, it is clearly seen right here, right under the map of the

 8    city.  Right above it, actually.

 9       Q.   Do you see to the right of the compass the arrow that you had

10    placed there?

11       A.   Yes.  There is a white arrow.

12       Q.   Do you observe any comparison between the angle in which the

13    mortar fin is embedded in the ground and the direction in which the arrow

14    points?

15            MR. STAMP:  I think we have a problem here.

16            JUDGE ORIE:  I think the technical booth solved the problem

17    meanwhile.  I see on many screens around me the picture we last had.

18            Would you please then answer the question of Mr. Stamp.

19       A.   The angle under which the tail of the projectile was found is not

20    relevant with regards to the direction of the -- the direction from which

21    the projectile was fired.  What is really important is to see all the

22    traces that are present on the asphalt, and this determines the way it

23    fell on the asphalt, determines the direction from which it came.

24            MR. STAMP:

25       Q.   Thank you.  Now, you recall viewing the photographs of the mortar

Page 5246

 1    crater in respect of the Markale incident.  And in that incident, you

 2    pointed out to where there was a tunnel in which the stabiliser fin was

 3    embedded.  Here it seems a little bit more exposed.  Can you comment on

 4    that.  Is it unusual or is it something you see occasionally in the many

 5    cases that you've investigated?

 6       A.   During the examination, you have to take into account the surface

 7    on which the projectile falls.  It did happen that during some

 8    examinations we were able to find remnants of projectiles or a

 9    projectile.  Precisely in this position as we see it on this picture.

10       Q.   And I take it, then, that on occasion you may find it in a similar

11    deeply embedded position as you saw it in the pictures in respect to the

12    5th of February, 1994?

13       A.   Of course.  There are other factors that come into play right

14    here, but we did not examine them in our reports, such as the angle under

15    which the projectile fell and similar criteria.

16       Q.   But what I'm asking, is it unusual or is it uncommon for sometimes

17    the stabiliser fin to be deeply embedded and sometimes it may not be as

18    deeply embedded as it is in this frame?  Does it vary?

19       A.   No, it is not unusual.  It does vary, as I said.  It depends of

20    the surface on to which the projectile fell, and there are also other

21    factors that one could take into account.

22       Q.   Thank you.

23            MR. STAMP:  Could we proceed with the video.

24                          [Videotape played]

25            MR. STAMP:  Could you stop here, please.

Page 5247

 1       Q.   That area to the top right of the screen beyond those two

 2    individuals, is that the parking garage that you refer to in your report?

 3       A.   It is actually a garage, municipal garage.  It is not a parking

 4    garage.

 5       Q.   All right.

 6            MR. STAMP:  Please proceed.

 7                          [Videotape played]

 8            MR. STAMP:  Stop there, please.  Just a little bit back.

 9            JUDGE ORIE:  Mr. Piletta-Zanin.

10            MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President.  Perhaps

11    before we go any further, for the transcript, could Mr. Stamp please say

12    what is mentioned -- what is on page 74 and onwards so that we can find

13    it in the transcript, in relation to the tape.

14            JUDGE ORIE:  It might be difficult now to go back to the whole

15    tape.  What we see at this very moment is time indicated on the tape,

16    13.51.  And as far as I can see, there was no interruption in playing the

17    tape backwards for some five or six minutes, so that perhaps could

18    identify what was on the tape.  And at this very moment, we see in the --

19    at the bottom of the screen we see what seems to be a map and a compass,

20    and the time at this moment is 13.51 indicated on the screen.

21            I think this would assist whoever will look at the transcript

22    later on and...but perhaps, Mr. Stamp, it is true that if you now and

23    then indicate what you see on the screen, unless it's just running and if

24    you pay no specific attention to any of the issues on it.  Please

25    proceed.

Page 5248

 1            MR. STAMP:  Thank you, Mr. President.

 2       Q.   At the bottom of the screen, you see a map of Sarajevo with your

 3    compass on it.

 4       A.   That's right.

 5       Q.   It is beside a crater with a stabiliser fin in it.

 6       A.   Yes, the shell stabiliser is embedded in the centre of the

 7    crater.

 8       Q.   And beside it a number 1 placed on the ground.

 9       A.   That's right.

10       Q.   Is that the crater at the edge of the asphalted area which you

11    referred to in your report?

12       A.   Yes, it is.

13            MR. STAMP:  Please proceed with the video.

14                          [Videotape played]

15            MR. STAMP:  Could you stop now, please.  Thanks very much.

16       Q.   Now, Mr. Sabljica, if I could turn your attention a little bit

17    further back in time and proceed to the 22nd of January, 1994.  On that

18    day, did you investigate any particular shelling incident?

19       A.   Yes, I did.

20       Q.   Can you say where it was that you investigated this shelling

21    incident?

22       A.   In Alipasino Polje locality, on the corner of Cetinska and Klare

23    Zetkin Street, and around the Rade Konicara square.  But these are old

24    street names.

25       Q.   When you went there, I take it, with a team of investigators?

Page 5249

 1       A.   Yes, and my senior colleague, the late Borislav Stankov was

 2    another ballistics man on the team.

 3       Q.   Now, did yourself and Mr. Stankov conduct ballistic examinations

 4    and analyses on -- of the shelling incident?

 5       A.   Yes, we did.

 6       Q.   Did Mr. -- did you prepare a report in respect of the shelling

 7    incident?

 8       A.   Yes, we did it together, Mr. Stankov and I.

 9       Q.   Can you recall who signed the report after you prepared it

10    together?

11       A.   Mr. Stankov.

12       Q.   Now, if you saw that report again, would you be able to identify

13    it?

14       A.   Of course.

15            MR. STAMP:  With your leave, Mr. President, could the witness be

16    handed.

17            JUDGE ORIE:  Yes, Mr. Usher, would you please.

18            MR. STAMP:  Exhibit P2171.

19            JUDGE ORIE:  Mr. Usher.

20            MR. STAMP:  And for the record, the translation is P2171.1.

21       Q.   That document that you have in front of you, is that the report

22    prepared by yourself and Mr. Stankov and which was signed by Mr. Stankov?

23       A.   Yes, it is.

24       Q.   Quickly looking through that report, how many shells did you

25    investigate?

Page 5250

 1       A.   Three shells, and we found one stabiliser, but the place of impact

 2    was not on the ground, of the third -- that is fourth one.

 3       Q.   In respect to these three shells that you investigated, did you

 4    have any information that there were any casualties in respect of this

 5    incident?

 6       A.   Yes, the investigating magistrate was told that children who were

 7    playing with their sleds had been killed.

 8       Q.   And that investigating magistrate is Zdenko Eterovic.  From your

 9    report, you would be able to remember it?

10       A.   Yes, and the report says so.

11       Q.   Now, the method which you used to investigate these three impact

12    sites, was that the same or a different method from which you used to

13    investigate other incidents?

14       A.   Yes, completely.

15       Q.   Completely the same or completely --

16       A.   Identical.

17       Q.   -- identical.   Thank you.

18       A.   Identical, identical.

19       Q.   Now, in respect to the site in front of number 3 Cetinska Street,

20    was it your finding that the shell came from the direction of the west?

21       A.   Yes.

22       Q.   And you said that is the direction of the Institute of the Blind?

23       A.   Yes.

24       Q.   Now, the shell -- and I wish to take you very quickly through

25    this.  That impact point was on the asphalt traffic lane at 3 Cetinska

Page 5251

 1    Street?

 2       A.   Yes.

 3       Q.   You investigated a second shell which fell in front of number 4

 4    Klare Zetkin Street?

 5       A.   Yes.

 6       Q.   And was it your finding that it came from a west-northwest

 7    direction?

 8       A.   Correct.

 9            JUDGE ORIE:  Mr. Piletta-Zanin.

10            MR. PILETTA-ZANIN: [Interpretation] Mr. President, I'm sorry, but

11    I note that this is not an expert.  This is a witness, and my impression

12    is that there was a series of questions where proper names and place names

13    and so on and so forth as given by these seem to me to be leading

14    questions.  And of course, Mr. President, I stand to be corrected if I'm

15    wrong.

16            JUDGE ORIE:  Yes, Mr. Stamp.

17            MR. STAMP:  I have only asked him what is written here in the

18    document which he has already indicated that he participated in preparing.

19    I am quickly trying to get him to confirm parts of it, just for the

20    record, so I can move on.  I am not leading the witness into anything that

21    is not before him already.

22                          [Trial Chamber confers]

23            JUDGE ORIE:  It is a leading question; at the same time, it merely

24    asked the witness to confirm whether it is correct what he stated in his

25    report.  So that extent, the question is admissible.  Please proceed.

Page 5252

 1            MR. STAMP:  And I will be guided by that.

 2       Q.   Can you confirm what is recorded in the report in respect to the

 3    shell at number 4 Klare Cetkin Street, that it fell on the curb between

 4    the traffic lane and the sidewalk?

 5       A.   Yes, that is correct.  I can -- I mean I confirm it.

 6       Q.   Now, in respect to these first -- or I shouldn't say "first."

 7    These two shells which you have spoken of, that which fell at 3 Cetinska

 8    Street on the asphalt traffic lane and that which fell at 4 Klara Cetkin

 9    Street --

10            JUDGE ORIE:  Mr. Piletta-Zanin.

11            MR. PILETTA-ZANIN: [Interpretation] I'm really very sorry, but I

12    wish to check certain things.  Once again I don't know if you follow too

13    closely, but if one look at 00268180, then this is completely legible, and

14    possible there are some interpretation -- translation problems.  Of

15    course, the Defence can perfectly read Serbian, but we wonder if there was

16    some translation problem.  The Defence also has a copy which might be more

17    legible.

18            JUDGE ORIE:  Mr. Stamp, we experienced yesterday that although it

19    has not been established yet that perhaps because of the bad copies,

20    subsequently translation suffered from that as well.  Do you have any

21    better available copy of especially I would say 0026-8182.

22            MR. STAMP:  We have to make an effort to find a better copy.

23            JUDGE ORIE:  As a matter of fact, Mr. Stamp, I noticed several

24    times now that bad copies are produced where better copies could have been

25    available.  It looks as if while copying, no one looks at the result,

Page 5253

 1    which is not what we expect someone who copies documents does.

 2            I think the Defence is not in a position to check the -- whether

 3    there's a correct translation of this, and we do not know whether this

 4    translation has been produced on the basis of these bad copies or on

 5    better copies.  So what do you intend to do about it?  It's not acceptable

 6    as it is now.

 7            MR. STAMP:  We will make efforts to have the best possible copies

 8    for the Defence for tomorrow.  I don't think I'll be able to --

 9            JUDGE ORIE:  Yes, I can't imagine that you'll be able to use the

10    three  minutes.  Can you use the three minutes' time for other purposes?

11            MR. STAMP:  Yes, I shall do so.  But may I say something which I

12    said I think it was Friday or Monday.  If there's a part of a document

13    which we give to the Defence which they have a problem with, we are

14    available, and we could proceed much more quickly.  I say so because we

15    are under huge pressures now with these witnesses.

16            JUDGE ORIE:  I do understand.

17            Mr. Piletta-Zanin, could you indicate to us whether when you were

18    with -- for the first time with a copy of Exhibit P2171 whether it was as

19    badly legible as this one.

20            MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President.  I don't

21    really know when.  I can check that.  But what I'm trying to say that on

22    several occasions or at least on one occasion I interceded with the

23    Prosecution saying be careful because this system does not work because

24    your copy -- copies of poor quality.  We talked to technicians and

25    explained that to the Prosecution, and the answer was that it wasn't the

Page 5254

 1    time.  And I am -- and I will satisfy myself with this, but

 2    we simply cannot work like this.  We simply cannot work like this --

 3            JUDGE ORIE:  Mr. Piletta-Zanin, what I'm trying to find out is

 4    that since you know that this document would be used in Court, and you

 5    have good reasons to complain about the quality, whether you could have

 6    done it prior to the presentation of this document in Court.  I mean as

 7    you might have noticed, I blame the Prosecution for producing a bad copy

 8    if there's a better one available.  If this bad copy would have been given

 9    to you prior to this Court hearing, I blame you for not asking for a

10    better copy.  And so I would say I would blame both parties, then, for

11    losing time in Court, the one by producing bad copies; the other one by

12    not indicating it at an earlier stage.

13            Well, Mr. Stamp, I don't think it's of any use to start a new

14    subject for just one minute and a half.  It's not the first time that we

15    are confronted with this problem.  So would you please at the beginning --

16    I mean, the Chamber can't see it because we're only confronted with these

17    documents at the very moment of tendering them and presenting them to the

18    witness.  But everyone else could have seen it or could have asked for a

19    better copy once they noticed it.

20            We've got one minute left.  Is there anything you'd like to say?

21            MR. STAMP:  Just to emphasise that we are prepared to facilitate

22    Defence as much as possible.  All we need to do is to be told.  The

23    Defence got this document in 2000, another copy in November 2001, and

24    about a month ago, they were informed that we would be seeking to

25    introduce this document through this witness.

Page 5255

 1            JUDGE ORIE:  Yes, I think that all that has to be done first of

 2    all is that good copies are made, and second that you're informed if the

 3    quality of the copies is not satisfactory.

 4            MR. STAMP:  Indeed.

 5            JUDGE ORIE:  So it comes down to both parties at this moment as

 6    far as I can see.

 7            Yes, please, Mr. Piletta-Zanin.

 8            MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President.  I repeat

 9    this:  I generally said at the very beginning of this case, I indicated at

10    the very beginning, that the copies simply do not allow us to work

11    properly.  It's really too much work in view of the 41.000 documents that

12    we received.

13            JUDGE ORIE:  Once you know that a document will be used, if it's

14    not legible, I expect you to raise the issue prior to the hearing with the

15    Prosecution and not come up with it at the very moment when presented.

16            Mr. Sabljica, we will resume your examination by the parties

17    tomorrow.  When I say 9.00 this time, I really intend it to be 9.00.  Once

18    again apologies that you had to wait for such a long time.

19            We'll adjourn until tomorrow morning, same courtroom, 9.00.

20                          --- Whereupon the hearing adjourned at

21                          1.45 p.m., to be reconvened on

22                          Wednesday, the 13th day of March, 2000,

23                          at 9.00 a.m.