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?
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
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
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
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.
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
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
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,
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
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
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
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
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
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.
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
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
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
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
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
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.
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.
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
25 MR. IERACE: Excuse me for a moment, Mr. President.
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
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 --
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
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
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
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
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
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
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
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
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
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
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
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 content...it does not
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?
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
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
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
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,
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
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
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
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,
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
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
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]
13 Page 5207 – redacted – private session
13 Page 5208 – redacted – private session
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
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
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: "...to
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
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
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.
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.
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
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
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
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.
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
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,
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,
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
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
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
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
1 application to be accompanied by all the documents necessary for us to
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.
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
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
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
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
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.
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
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
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
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
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
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
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
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.
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
20 MR. IERACE: Mr. President, might I suggest an alternative
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,
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
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
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
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
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
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
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
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
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
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
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
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
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
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]
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
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
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
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
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
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
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.
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
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
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
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
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?
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
8 A. Yes, we did it together, Mr. Stankov and I.
9 Q. Can you recall who signed the report after you prepared it
11 A. Mr. Stankov.
12 Q. Now, if you saw that report again, would you be able to identify
14 A. Of course.
15 MR. STAMP: With your leave, Mr. President, could the witness be
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
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
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
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
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
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.
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
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,
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
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.
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.