Tribunal Criminal Tribunal for the Former Yugoslavia

Page 828

1 Wednesday, 10 December 2003

2 [Open session]

3 --- Upon commencing at 2.18 p.m.

4 [The accused entered court]

5 JUDGE ANTONETTI: [Interpretation] Madam Registrar, would you call

6 the case, please.

7 THE REGISTRAR: Your Honour, case number IT-01-47-T, the

8 Prosecutor versus Enver Hadzihasanovic and Amir Kubura.

9 JUDGE ANTONETTI: [Interpretation] Thank you.

10 May we have the appearances, please. The Prosecution first.

11 MR. WITHOPF: Good afternoon, Your Honours. Good afternoon,

12 Counsel. For the Prosecution, David Re and Ekkehard Withopf, with

13 Kimberly Fleming as the case manager.

14 JUDGE ANTONETTI: [Interpretation] Thank you.

15 The Defence.

16 MS. RESIDOVIC: [Interpretation] Good afternoon, Mr. President.

17 Good afternoon, Your Honours. For the Defence of General Hadzihasanovic,

18 Edina Residovic, attorney from Sarajevo; Stephane Bourgon, attorney from

19 Montreal; and Mirna Milanovic, legal assistant. Thank you.

20 JUDGE ANTONETTI: [Interpretation] Thank you.

21 And for Mr. Kubura, may we have the appearances, please.

22 MR. IBRISIMOVIC: [Interpretation] Good afternoon, Your Honours.

23 For the Defence of Mr. Kubura, Fahrudin Ibrisimovic, Mr. Rodney Dixon,

24 and legal assistant Nermin Mulalic.

25 JUDGE ANTONETTI: [Interpretation] Thank you very much. The

Page 829

1 Chamber would like to say good afternoon to all the people attending this

2 afternoon's sitting. Before the witness is brought in, I should like to

3 remind you of certain points with respect to procedure, procedure put in

4 place.

5 With respect to written motions, we were seized of this by the

6 Defence, an application from the Defence, with respect to access of the

7 archives of the ECMM. I should now like to call upon the Prosecution to

8 let me know in writing what their position is until 9.00 Monday morning.

9 Next Monday morning, 9.00, may we have that in writing please. Why?

10 Because we have to make a ruling as soon as possible. And in view of the

11 fact that we're going to have an interruption -- a break of three week's

12 time, we should like to know the position of the Prosecution as of

13 Monday, which will allow the Trial Chamber to make a ruling in the week

14 that follows; that is to say, next week. So unless we receive this by

15 9.00 on Monday morning from the Prosecution, we shall take it that the

16 Prosecution has no observations to make with respect to the motion filed

17 by the Defence.

18 Would the Prosecution like to say anything in that respect?

19 MR. WITHOPF: Your Honours, we just received the Defence motion.

20 We will file a response. It will likely be a very brief response, by

21 Monday at 9.00 at the latest.

22 JUDGE ANTONETTI: [Interpretation] Thank you.

23 We were also informed that there was a motion from the

24 Prosecution with respect to the list of witnesses and exhibits, and there

25 will be a deadline, which is the 12th of January, for the Defence to let

Page 830

1 us have their observations with respect to that list. I'd like to remind

2 them of that. So would they let us know in time.

3 There was a third point -- or rather, two other pending issues.

4 The Defence, with regard to the coming -- or rather, the Defence

5 indicated in the past few days that it would like to inform us of a

6 written motion with respect to testimony from other trials. So I'm

7 waiting for that motion to be filed by the Defence. And once again,

8 could they please do so in time and as soon as possible, in actual fact.

9 With respect to the other issue, allowing the Prosecution to

10 proceed to a cross-examination once a witness -- when the oral testimony

11 of a witness differs from his written statement, the Prosecution has

12 informed us in writing about that and I assume that Defence -- the

13 Defence will be provided with that document. I have just received it, so

14 I'm sure you will too. And once you have received it, I'll invite the

15 Defence to inform me of their position quickly so that we can rule. So

16 please do your best to respond as quickly as possible.

17 I should like to remind you all that when there are motions

18 concerning important problems, basic problems of law, written motions are

19 better than oral applications. It is more precise and exact, which means

20 that the response and answer will be more precise, rather than having an

21 oral ruling. Of course, if we can find oral solutions to matters that

22 are not as serious, then we invite oral applications, of course. But if

23 you feel that they are questions which have to do with the Rules of

24 Procedure and Evidence, and you feel that certain stipulations should be

25 included into the Rules and are not, then we invite written motions.

Page 831

1 If the parties have nothing more to add at this point - unless

2 the Defence of Mr. Hadzihasanovic would like to take the floor, or the

3 Prosecution - they're on their feet.

4 MR. RE: Yes. Thank you, Your Honour. Can I just correct

5 something. The motion which the Prosecution filed today, fairly -- I

6 think about an hour ago, is in fact a motion for reconsideration of your

7 -- of the Trial Chamber's ruling of last Wednesday, or in the

8 alternative, for certification for an interlocutory appeal. That is not,

9 in fact, the motion in respect of cross-examination of adverse witnesses.

10 The Prosecution is in the process of writing that motion. We clearly

11 couldn't have done it overnight or this morning, because it requires some

12 research and a bit more time. We will have that filed sometime early

13 next week, I would anticipate.

14 JUDGE ANTONETTI: [Interpretation] So you are referring to an oral

15 ruling given on Wednesday, are you? And could you explain what you mean?

16 Because I have the document before me, but we haven't had time to study

17 it. So what was the query?

18 MR. RE: There's no query. Your Honours seem to be addressing

19 the parties -- asking the Defence to respond to a motion Your Honour

20 thought we had filed in respect of my application last night at about ten

21 to 7.00, which was in respect of cross-examination or putting a --

22 cross-examination of a party's own witness.

23 Your Honours ruled on Wednesday, the 4th of December, in relation

24 to allowing the Prosecution to show a witness a prior statement given to

25 an OTP investigator for the purposes of refreshing memory. Today the

Page 832

1 Prosecution under Rule 73(B), if they wish to ask the Trial Chamber to

2 certify it as fit for an interlocutory appeal has seven days to do so.

3 There's some debate -- and it's not quite settled within the Tribunal

4 whether the seven days is today or tomorrow. To be on the safe side, we

5 filed it today, rather than filing -- asking Your Honours for a motion

6 asking for additional time. The motion is in two parts. It's firstly

7 asking Your Honours to reconsidering your ruling in the light of an

8 Appeals Chamber decision in the case of Simic and some other Trial

9 Chamber rulings: Martinovic, Milosevic, Blagojevic, which we have

10 referred Your Honours to. It's based upon the fact there was no proper

11 legal argument. It was an oral argument. It came up in the middle of

12 the trial. We're asking Your Honours to reconsider it in the light of

13 considered legal submissions. The Defence, of course, has the normal ten

14 days, or if Your Honours order a shorter period, to respond. So that's

15 that one.

16 The other motion we will file in writing, as Your Honours -- as

17 Your Honour, the Presiding Judge requested last night. It relates to my

18 application at about ten to 7.00. As I mentioned earlier, we just could

19 not do it and do it properly to the standard which would be acceptable

20 here. We won't be able to do that, because we're in trial at the moment,

21 until early next week. We can certainly provide the Defence with a

22 courtesy copy of this motion which we filed today if the Defence requires

23 it at the moment.

24 JUDGE ANTONETTI: [Interpretation] Thank you.

25 The Defence.

Page 833












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Page 834

1 MS. RESIDOVIC: [Interpretation] Mr. President, the Defence will

2 respect the deadline and will give its stipulations by the 12th of

3 January with respect to the requests made by the Prosecution, in view of

4 new witnesses and exhibits and evidence. And before the deadline of the

5 12th of January that the Appeals Chamber set -- that the Trial Chamber

6 set, we shall give our opinions as to the expert report. As we've

7 already said, we can do this five days after we have received the

8 translation -- or rather, the document in the B/C/S language. We have

9 not received a B/C/S version to date, so we should like to ask the

10 Prosecution to keep their promise and provide us with a copy by the 12th

11 of this month, as they said they would. We should also like to prevail

12 upon the Prosecution to send in the document to us that you have just

13 received so that the Defence can state its views regarding that document

14 too.

15 Before the Christmas break - that is to say, by the end of next

16 week - we shall file our own motion for exemption of the statements of

17 the accused given in other trials. We feel that this is a very important

18 question because the Prosecution has already sent you the expert report

19 which is based on those statements, although we previously said that

20 evidence of this kind and exhibits of this kind should not present -- be

21 presented before the Trial Chamber rules on our own motion. We shall do

22 our best to respond before the deadline set to the other Prosecution

23 motions or any other Prosecution motions. Thank you.

24 JUDGE ANTONETTI: [Interpretation] Thank you. I'd like to raise a

25 last point now: The Prosecution has informed us -- or rather, has

Page 835

1 disclosed a document to us which was the subject of the examination of

2 the witness, and the number has -- there's a provisional number, which is

3 P11 ID. It was marked for identification. The witness told us that he

4 had no knowledge of that document, so I should now like to ask the

5 Prosecution, which has produced this document, to tell us under what

6 circumstances it came by the document and, if they would like to tender

7 it into evidence and to present it, we should like to know where the

8 document comes from, how they got it, and of course the -- they can

9 present the document through another witness, because we just can't have

10 documents turning up out of the blue in this way, especially if the

11 witness says that he does not recognise it and has never seen it.

12 So I should like to ask the Prosecution to explain how they came

13 by this document, and of course if we don't admit it, you won't be able

14 to use it. So could you please explain to us what the provenance of the

15 document is. The Defence is well aware of this document. They've seen

16 it. They know what it is. But they don't know the contents of it. It

17 is number P11 ID; that is the number the document has.

18 Thank you. Very well.

19 MR. WITHOPF: Your Honours, we understand you're talking about

20 the instructions to the Muslim fighters. The Prosecution got this

21 document from different sources. One of the sources has been a search in

22 October 2000 in the library of the 7th Mechanised Brigade in Zenica. The

23 7th Mechanised Brigade in Zenica is a successor unit of the 7th Muslim

24 Brigade. The Prosecution got this document from additional sources as

25 well, and the one the Prosecution has marked for identification is the

Page 836

1 one which has been tendered into evidence by the Defence in the Kordic

2 case.

3 For the time being, we wish to have this document only be marked

4 for identification. The Prosecution will tender this document into

5 evidence via a different witness.

6 JUDGE ANTONETTI: [Interpretation] Very well. Would the Defence

7 like to say anything with respect to document P11? As we've just heard

8 from the Prosecution today, that the document was discovered in the

9 ancient headquarters of the 7th Brigade and that it can produce the

10 document through a different witness. And they have asked us for -- that

11 it be marked for identification.

12 The Defence has the floor.

13 MS. RESIDOVIC: [Interpretation] Mr. President, I see a document

14 in your hands -- or rather, the outside covers of the document, not the

15 whole document. So I want to know what is being tendered, the whole

16 document or just the cover. And the Prosecution themselves said that

17 they found the document in the library when it was searched in

18 2000-and-I-don't-know-what year. We're dealing with events that took

19 place in 1993. So that is not the right grounds for that, foundations.

20 The document was not recognised by the witness, so I don't think we even

21 have the necessary conditions to mark it for identification. Of course,

22 if the Prosecution has a way of producing the document through another

23 witness later on in the trial, I'm sure they'll do so, because they know

24 what their job is and I'm sure they'll do everything according to the

25 Rules.

Page 837

1 Thank you.

2 MR. IBRISIMOVIC: [Interpretation] We have an identical position

3 to the Defence of General Hadzihasanovic; nothing to add there. Thank

4 you.

5 MR. RE: [Microphone not activated]

6 THE INTERPRETER: Microphone, please.

7 MR. RE: Your Honour, a moment ago Your Honour I think said --

8 the transcript has just gone. The witness said something to the effect

9 of he hadn't seen it before. I'm just reading from the transcript.

10 I asked -- this is at page 42 of the running -- the running transcript.

11 I asked the witness:

12 "Q. I want you to tell the Trial Chamber what the document on

13 the left-hand side of the screen is."

14 His answer was:

15 "A. This document contained instructions that concerned the

16 religion of soldiers who perhaps were not familiar with

17 certain religious matters."

18 My next question was:

19 "Q. Who received this document?"

20 The answer was:

21 "A. Each and every soldier had access to this document.

22 "Q. Did you receive a copy of this document yourself?

23 "A. I consulted some of the literature that was available, but I

24 do not remember whether I had a look at this copy. I don't

25 remember whether I read it."

Page 838

1 I then asked him where it was kept and what he meant by "they had

2 access to it," and he said:

3 "A. You will just tort your hodza and see if -- the hodza would

4 make an effort to provide you with the literature required."

5 Now, at that point I intended to tender it. Perhaps I tried to

6 tender it a little bit too prematurely, because it was fairly apparent

7 from the exchange between the witness and me that he was familiar with

8 the document by his answer "each and every document -- soldier had access

9 to the document." The witness has in fact identified that type of

10 document. It would appear that he was referring to -- he wasn't sure

11 whether it was this exact copy, this precise copy, as opposed to

12 familiarity with the document of this source.

13 Now, that, in the Prosecution's submission, lays the foundation

14 for it to be tendered at a later point, which, as Mr. Withopf told you a

15 moment ago, we will attempt to do through another witness.

16 The reason -- the Defence seems to be slightly concerned that

17 Your Honours have a copy of it. It was marked for identification. The

18 registry asked us to provide the required seven copies, so we in fact

19 provided the required seven copies. Practices differ; in some Trial

20 Chambers or jurisdictions the Bench doesn't see a document until it is

21 actually tendered, unless there's some argument about its admissibility.

22 And of course, as professional Judges, in the Prosecution's submission,

23 it makes no difference. So that's why Your Honours have the document.

24 We were attempting to speed things up by perhaps shortcutting, because I

25 anticipated the witness was just going to identify it. And we showed it

Page 839












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Page 840

1 to him on the screen in Sanction also in an attempt to speed proceedings

2 up. That's why Your Honours have got several -- that's why it was shown

3 to him on the screen and Your Honours now have a copy of it. But as

4 Mr. Withopf says, we intend to fully tender it at a later point, so I

5 would just ask it to be -- remain marked for identification at the

6 moment.

7 MS. RESIDOVIC: [Interpretation] Your Honours, my learned

8 colleague quoted just part of the witness's answer, because the witness

9 was just looking at the first page that you yourself have just shown us.

10 And later on, during the examination, he was very uncertain as to which

11 document it was. But not to make a problem out of this. We don't have

12 anything against having it marked for identification and have this first

13 page included. Of course, the Prosecution will have to prove whether the

14 document was accessible to the members of the BH army, and if so, in what

15 way, in due course. Thank you.

16 JUDGE ANTONETTI: [Interpretation] Very well. While I have it in

17 mind, if -- and as far as I remember, in the first part of his

18 examination the witness gave certain indications to the document. With

19 respect to the examination, he went back to his assertions. And when I

20 asked him, his answer was that he had never actually seen the document.

21 So if we quote the beginning of a testimony, we ought to quote the

22 entirety as well. So it has been marked for identification as P11 ID.

23 Of course, the Prosecution will be able to reintroduce the document in

24 due course through other witnesses.

25 Having said that, let us now start the cross-examination of the

Page 841

1 witness in hand. And I'd like to ask -- unless the Prosecution, of

2 course, has anything to add.

3 I should like to remind you that we -- the sitting today will

4 last until 7.00 p.m. The witness has already been here several days.

5 But having said that, the floor is yours.

6 MR. RE: Yes. Thank you, Your Honour. The Prosecution is, of

7 course, entirely mindful of time constraints.

8 Yesterday, at the close of proceedings I realised that I had

9 neglected to ask the witness several questions after the alleged death

10 of -- sorry -- after the death of Zvonko Rajic relating to events in

11 Dusina. I left it there and went on to another one because of what was

12 happening. I just ask if I could perhaps be allowed to complete the

13 examination-in-chief in relation to that aspect of his evidence.

14 JUDGE ANTONETTI: [Interpretation] Very well. How much time do

15 you need?

16 MR. RE: Well, maybe ten minutes, 10 to 15 minutes.

17 JUDGE ANTONETTI: [Interpretation] Ten minutes?

18 MR. RE: I would think.

19 JUDGE ANTONETTI: [Interpretation] Has the Defence anything to

20 say?

21 MS. RESIDOVIC: [Interpretation] Your Honour, the Defence needs an

22 hour -- the Prosecution required an hour and a half for this witness, and

23 they've been questioning him for a couple of days. At the end of the

24 examination-in-chief the Prosecution said they had concluded the

25 examination-in-chief, and I don't think that additional questions can be

Page 842

1 asked in this manner. If there is the opportunity to do so during the

2 cross-examination, of course the Prosecution is at liberty to put

3 questions then. Thank you.

4 JUDGE ANTONETTI: [Interpretation] Yesterday the Prosecution did

5 tell us that they had finished with their examination, but they thought

6 they would have leave to ask other questions in the course of the

7 cross-examination with regard to an adverse witness. But as you know,

8 the Trial Chamber has not granted leave for this cross-examination, so it

9 seems fair to me to allow the Prosecution to have another ten minutes to

10 ask a few question and at five to 3.00 I will give the Defence the floor

11 to proceed with the cross-examination.

12 MR. RE: Your Honour, could I actually ask the clock actually

13 starts ticking when I ask my first question. By the time the witness

14 gets in here and we get started, we might be close to ten to 3.00.

15 JUDGE ANTONETTI: [Interpretation] Mr. Re, I can see the clock.

16 It's right in front of me.

17 [The witness entered court]

18 JUDGE ANTONETTI: [Interpretation] Witness, are you receiving

19 interpretation?

20 THE WITNESS: [Interpretation] Yes.

21 JUDGE ANTONETTI: [Interpretation] Very well. So you can hear the

22 interpretation.

23 Looking at the clock, you've got until two minutes to 3.00.


25 [Witness answered through interpreter]

Page 843

1 Examined by Mr. Re: [Continued]

2 Q. Witness BA, yesterday I was asking you some questions about what

3 happened in Dusina and some questions about -- and you marked on a

4 diagram where Zvonko Rajic's body was found. What I want to ask you is

5 what happened after Zvonko Rajic was killed.

6 MS. RESIDOVIC: [Interpretation] Your Honour, I object. The

7 witness never said that Zvonko Rajic had been killed.

8 MR. RE: I will rephrase the question.

9 Q. What happened after it was apparent that Zvonko Rajic, who had

10 previously been shot in the legs by you, was lying dead on the ground?

11 A. After that, I was withdrawn from the field with my group.

12 Q. Do you know a person called Geler?

13 A. Yes, I do.

14 Q. Who was Geler?

15 A. The public prosecutor from Travnik had more information about

16 that, on the occasion when I gave a statement to him.

17 Q. All right. That was on the 18th of December, 2000; you gave an

18 affidavit to the public prosecutor in Travnik about the events in Dusina,

19 didn't you?

20 A. Yes.

21 Q. And you sign add copy of the affidavit, didn't you?

22 A. I signed a copy, although I never read the entire document until

23 the time when you provided it to me here. That's the first time I saw

24 the entire copy of my statement.

25 Q. Now, Witness BA, I was just asking you who was Geler. What can

Page 844

1 you tell the Trial Chamber about who Geler is or was?

2 A. A soldier.

3 Q. Do you remember seeing Geler in Dusina on the 26th of January,

4 1993?

5 A. Yes.

6 Q. He was a soldier from what brigade?

7 A. I don't know. I think he was in the 7th Muslim Brigade.

8 Q. Where did you see him in Dusina on the 26th of January?

9 A. I saw him on the road.

10 Q. Which road?

11 A. The road up there. I don't remember exactly which part. The

12 road leading to --

13 THE INTERPRETER: The interpreter did not hear the name of the

14 place.

15 MR. RE:

16 Q. Just tell us -- the road was leading to where, please. Just

17 repeat that.

18 A. I don't know exactly which part of the road I saw him on. I

19 don't exactly remember the exact stretch of the road, so I wouldn't want

20 to say where it was leading to. I don't remember exactly.

21 Q. Do you remember being told something about Geler doing something

22 on that day?

23 A. I don't remember that anything was said about him having done

24 something on that day.

25 Q. When you say you don't remember, are you saying that you don't

Page 845

1 remember now?

2 A. I said that I don't remember what was told to me on that day when

3 I met him, when we were in that area.

4 Q. All right. Well, if you have recorded what someone told you

5 about what Geler had done in another document, would looking at that

6 document assist to refresh your memory as to what you were told about

7 Geler?

8 MS. RESIDOVIC: [Interpretation] Your Honours, this is the third

9 question I've heard, and it's a leading question. I'm only reacting now,

10 though, because the Prosecutor is yet again attempting to show the

11 witness documents from a previous case. And as we were told by the

12 Prosecution yesterday, he has spoken to the witness over a period of two

13 days and provided him with copies of the statements for him to review.

14 We have now been told by the witness that in a conversation before the

15 trial the Prosecution provided him with those statements. And I don't

16 think that there is any reason for providing the witness with documents

17 to refresh his memory. Thank you.

18 MR. RE: The Trial Chamber's ruling at page 89 on Wednesday last

19 week was that "to the extent to which the examination-in-chief is oral,

20 the previous statement should not be presented to the witness during that

21 stage and be used to possibly correct his answers. Therefore, it is not

22 possible to produce that type of document during the

23 examination-in-chief."

24 And my learned colleague, Mr. Withopf, asked Your Honour the

25 Presiding Judge for clarification of the decision and asked Your Honours

Page 846

1 to define the ambit of the ruling. This is at page 533 -- I said a

2 moment 89. I should have said 532.

3 Your Honours' definitive ruling is at page 533 of the transcript,

4 where Your Honour the Presiding Judge ruled: "No, it only applies --"

5 I'm sorry. I'll just go back to the question.

6 The question of Mr. Withopf was:

7 "Just for clarification, does this decision apply for prior

8 statements only or does it apply for different documents?"

9 And Your Honour the Presiding Judge's ruling was:

10 "No, it only applies to prior statements collected within

11 the framework of an investigation conducted by the Office of

12 the Prosecutor. Other documents obviously may be produced

13 during the examination."

14 Now, that's the -- that's the Trial Chamber's ruling. I'm not

15 attempting to ask the witness about any documents produced by the Office

16 of the Prosecutor in -- within the framework of an investigation

17 conducted by the Office of the Prosecutor. That's in respect of that

18 part of Mrs. Residovic's objection.

19 The second part is -- or the first objection was as to leading.

20 There is no other way of getting a witness to that point in relation to

21 another document unless you lead the witness to the fact that they have

22 made a statement and asked them about their memory. That is the only way

23 you could make -- you could actually get them to that point. So it has

24 to be leading. It's one of those exceptional areas where any party may

25 lead a witness to that point.

Page 847

1 JUDGE ANTONETTI: [Interpretation] As far as this issue is

2 concerned, with regard to the documents which are part of the list that

3 was provided to the Defence before the trial, naturally the Defence,

4 which had the opportunity of becoming familiar with this documents and

5 had no comments to make, in such cases the documents can be produced.

6 But the documents that the Defence has never seen can't be used by you.

7 You can't present them unless you have informed the Defence in advance

8 that you have the intention of presenting these documents. If necessary,

9 if the need arises, it's up to the Defence to raise objections. But when

10 a witness is being heard to present documents to the witness, documents

11 which the Defence has never seen, this raises a problem if the Defence is

12 not aware of the contents of these documents. This is what was said.

13 As far as leading questions are concerned, as you know you must

14 pose questions which are not leading or which don't suggest an answer

15 that would correspond to the question. It must be up to the witness to

16 judge the question and to answer the question freely. So there is an art

17 to phrasing questions which consist of, obviously, not posing leading

18 questions. So without asking a leading question, one can obtain a result

19 by posing a series of questions which will elicit an answer from a

20 witness. But if the question suggests an answer, then the Defence has

21 the right to object. And if the Defence proceeds in the same manner,

22 obviously the Prosecution will also object. So this concerns the way of

23 questioning a witness. You have to avoid suggesting answers. The

24 witness must answer the questions freely.

25 Very well. As the objections took three minutes, I grant you

Page 848

1 another three minutes, and we will conclude at three minutes past 3.00.

2 MR. RE: The Defence is fully aware of the contents of the

3 documents I'm referring to. They've been provided with them a long time

4 ago, and are fully on notice that they may form part of the testimony of

5 this witness at the appropriate point.

6 Q. My question was, Witness BA, about your recording your

7 recollection in relation to what happened in Dusina. Now, I'm asking you

8 whether you recorded your recollections of what happened in Dusina

9 anywhere, apart from in the statement you gave to the Prosecutor, the

10 Office of the Prosecutor in The Hague.

11 A. A statement was given to the public prosecutor in Travnik.

12 Q. A moment ago you told us you no longer had any memory of --

13 MR. RE: I'm sorry. I've just lost the question, Your Honour. --

14 Q. -- of being told what Geler -- of anything that Geler may have

15 done on the day. I wish to show you a copy of a statement which you

16 provided to the Travnik prosecutor, an affidavit, a signed affidavit.

17 JUDGE ANTONETTI: [Interpretation] Just a minute.

18 The Defence.

19 MR. BOURGON: [Interpretation] Thank you, Mr. President.

20 Mr. President, Your Honours, we are in a situation which is very

21 particular. I think that it requires the Defence to comment on the

22 situation at this stage. And I would prefer if the witness left the

23 courtroom for us to address this issue yet again, because it is only

24 having an adverse effect on the testimony that we're hearing.

25 JUDGE ANTONETTI: [Interpretation] Witness, you will leave a

Page 849

1 minute and you will come back a little later.

2 [The witness stands down]

3 JUDGE ANTONETTI: [Interpretation] Well, the Defence.

4 MR. BOURGON: [Interpretation] Thank you, Mr. President. First of

5 all, with regard to the witness who is with us today and who has been

6 with us for three days now, I'd like to draw the attention of the Trial

7 Chamber to the fact that the Prosecution has had contact with the accused

8 before he came to testify --

9 JUDGE ANTONETTI: [Interpretation] With the Prosecution or the

10 witness?

11 MR. BOURGON: [Interpretation] I'm sorry, with the witness,

12 Mr. President.

13 But in the course of this preparation for the testimony, which as

14 my colleague said was spread over a couple of days, they obtained from

15 the witness certain notes on the testimony and they were already aware of

16 the fact that the witness was going to make certain statements and they

17 knew that they wouldn't be the same as what was contained in the

18 statements that they possessed. So this new testimony of the witness --

19 this new statement, because these were notes that the Defence should have

20 been provided with -- the Defence was never provided with this new

21 statement. That's the first thing I want to say.

22 And the second thing I want to raise is that the Prosecution is

23 examining the witness and the Prosecution is well aware of the fact that

24 the members of the Trial Chamber have the statement which they were able

25 to see before the witness appeared in the courtroom. The Prosecution

Page 850

1 asks the witness a certain number of questions, and from the out-start,

2 at the very beginning, when the very first questions were being put to

3 the witness, the Prosecution was in a position to see that the witness

4 was not providing them with the responses that they wanted or with the

5 answers that one could have seen in documents that the Prosecution and

6 Defence possess. And the Judges have had the opportunity of seeing these

7 documents.

8 So this situation requires three comments on the part of the

9 Defence, apart from the fact that the Prosecution has concluded its

10 examination, but you decided to be fair and grant them more time to

11 proceed with more questions.

12 The three comments are as follows: The first one, which is not

13 as important as the others, concerns the resources of the Tribunal. From

14 the very beginning of this trial, a number of arguments have been raised

15 by the Prosecution concerning the fact that it was necessary to save the

16 Tribunal's resources, that it was not necessary to waste time, and that

17 it was necessary to do everything to improve the procedure. So we

18 proceeded to examine a witness for a period of two day although we knew

19 very well that this witness was not providing the questions that the

20 Prosecution wanted to hear -- was not providing the answers that the

21 Prosecution wanted to hear. It has taken two days and now we are being

22 asked to say that the witness is an adverse witness; I think that's the

23 term they used. This is not the most important matter -- a hostile

24 witness. This is not the most important matter. The important matter is

25 that you have a witness who came before you in good faith. The witness

Page 851

1 was well informed, both by the Prosecution and by the Chamber, both by

2 the Prosecution and by the Chamber, that it was his duty to tell the

3 truth and that what was important was his testimony here before the Trial

4 Chamber. The witness was informed of this on a number of occasions.

5 We think, Mr. President, that the procedure followed by the

6 Prosecution amounts to undermining to a certain extent this witness's

7 testimony. If they want to claim that this witness is a hostile witness,

8 they could have done this at an earlier stage, but they examined the

9 witness for two days and this places the witness in a very difficult

10 situation since he has testified for two days. And now, instead of

11 stopping him when the first opportunity arose, instead of telling him,

12 "Witness, stop, we want to show you a document," instead of doing this

13 immediately, they wanted for two days to raise this matter. And this is

14 why I want to say that you can't play with witnesses like this, witnesses

15 who have been through quite terrifying experiences in the conflict in the

16 former Yugoslavia and witnesses who have come to testify before this

17 Chamber.

18 We have discussed this possibility. The Prosecution asked you to

19 declare that the witness was a hostile one. Following this request, you

20 said that we were now in a position to cross-examine the witness before

21 allowing the Prosecution to re-examine, which would be the normal

22 procedure and then afterwards to submit a written motion with regard to

23 declaring that the witness was a hostile one.

24 For our part, we have asked for this procedure to be confirmed

25 and we salute it because we believe that the cross-examination that we

Page 852

1 are preparing to conduct will make it possible to demonstrate the high

2 possibility that what he has stated before this Trial Chamber reflects

3 the truth, more than the statements that he may have made before an

4 investigator from the Tribunal. And this cross-examination -- well, we

5 informed you yesterday that it wouldn't take very long. But we believe

6 that it will be sufficient to allow you to come to the conclusion that

7 perhaps this witness -- that the fact that his answers do not correspond

8 to those that he may have given on some other occasion -- this does not

9 necessarily mean that the witness is not telling the truth. And today,

10 with regard to -- he has mentioned a new statement given to the public

11 prosecutor in Travnik. We believe, Mr. President, that this statement is

12 concerned by a new oral decision of last week, which -- according to

13 which we said that we would not use a statement to refresh the witness's

14 memory.

15 We could discuss the meaning of terms for a long time in order to

16 determine whether your decision covers all statements and that is the

17 Prosecution's intention, given that they are now submitting a request to

18 have this decision -- the Trial Chamber's reconsidered. So I do not

19 think that it is really the right time and place to try and discuss about

20 the meaning of the terms -- of the words of one of the Trial Chamber's

21 decisions.

22 With regard to important legal issues, it is necessary to have

23 this in written form, and we are preparing to do this, because we have

24 been informed that a motion has been filed by the Prosecution and we will

25 respond to it as rapidly as possible, as my colleague has said. The fact

Page 853

1 that we don't have the statement from the -- given to the prosecutor in

2 Travnik doesn't change anything. The decisions that have been taken

3 before this Trial Chamber means that the Prosecution has obtained certain

4 concessions. We are glad that the Chamber has granted the Prosecution

5 another ten minutes to go back to the subject and to try to undermine the

6 testimony of a witness who is before you. Our cross-examination will

7 allow you to see that perhaps the witness has not lied, which is what the

8 Prosecution is attempting to say before this Trial Chamber. Thank you

9 very much.

10 MR. RE: This is a complete misunderstanding as to what the

11 Prosecution was attempting to do. My learned friend Mr. Bourgon has

12 spoken for about ten minutes on something we weren't doing. Your

13 Honours's ruling is quite clear. As I said, Mr. Withopf specifically

14 asked Your Honours what it applied to, and Your Honours said we sought

15 that specific clarification, statements collected within the framework of

16 an investigation collected by the OTP.

17 The statement to which I wish to refer the witness is not a

18 statement made within the frameworks of the OTP. It is an affidavit

19 provided to the court in Travnik -- please let me finish,

20 Mr. Bourgon -- in the course of an investigation in Zenica during the

21 sorts of trials Mrs. Residovic referred to yesterday or the day before in

22 relation to the protective-measures application. The Defence are aware

23 of these trials and the investigations going on in Zenica and Travnik.

24 In relation to -- Mr. Bourgon, please let me finish.

25 In relation to whether or not the Defence have the statement, the

Page 854

1 Defence has the statement. It has been provided to them twice. We have

2 the receipts. My case manager is looking for the receipt now which the

3 two Defence or one of them signed for receiving a copy of it; firstly, on

4 the 14th of October this year and secondly, again, on the 4th of

5 December. In the context -- the second time was in the context of this

6 witness's proposed evidence.

7 The Defence are not being taken by surprise in any way. This

8 witness has given several statements. This second statement is not

9 covered by the earlier ruling of the Trial Chamber. And we had a very

10 specific ruling on that.

11 Mr. Bourgon also made a comment which is just completely

12 inaccurate, and that is -- he said, "The Prosecution was already aware,

13 after having a conference that the witness was going to make certain

14 statements and they knew that they wouldn't be the same as what was

15 contained in the statements that they possessed." I have no idea how Mr.

16 Bourgon could possibly know what was going on in my head when I

17 introduced the witness and started asking him questions and discovered

18 that some of them were a little bit -- the answers were different to the

19 answers he'd given me two hours before. I didn't know that, and I don't

20 know how Mr. Bourgon could anticipate that I could have known that.

21 I am not attempting to go behind Your Honours' ruling of last --

22 the Trial Chamber's ruling of last week. I'm attempting to refresh the

23 witness's memory from another document, which is not covered by Your

24 Honours' ruling in relation to showing a witness out out-of-court

25 statements. It's a completely different issue.

Page 855

1 Mr. Bourgon also addressed Your Honour as if I was trying to

2 undermine or have the witness declared hostile, despite Your Honours'

3 ruling last night. Nothing is further from the truth. I am simply

4 asking the witness, having established that the witness no longer has any

5 recollection of what happened in relation to Geler or what was said about

6 Geler, and that he has in fact recorded what happened in Dusina in

7 another document, whether looking at that document would refresh his

8 memory. I'm not attempting to undermine the witness in any way. I'm

9 attempting to do what is normal -- what is the established practice

10 before the International Tribunal: If a witness has forgotten something

11 and the recollection has been recorded somewhere else, first you

12 ascertain whether he has no memory; then, secondly, whether it has been

13 recorded somewhere; then whether looking at it would, in fact, revive his

14 memory; then you show him the document. That's all I was attempting to

15 do. That's a normal procedure. And as far as the Prosecution can

16 ascertain - and it's in today's filing - we've surveyed civil and

17 common-law jurisdiction, international ones, the East Timor Tribunal and

18 this jurisdiction -- in fact, this Tribunal, and it's permitted

19 everywhere. Your Honours have made a specific ruling about --

20 THE INTERPRETER: Could counsel please slow down a bit for the

21 interpreters.

22 MR. RE: -- about prior to OTP statements. We are sticking to

23 that ruling and we are staking to Your Honours' ruling last night. We

24 are attempting to do something completely different. And it relates to

25 the leave I sought from Your Honour in relation to Dusina and what

Page 856

1 happened afterwards.

2 MR. DIXON: Your Honour, if I may briefly.

3 JUDGE ANTONETTI: [Interpretation] Mr. Dixon first.

4 MR. DIXON: If I may briefly. And this might be of some

5 assistance. The Defence position is quite simply that this statement,

6 like any other statement, should not be put to the witness now to allow

7 him to refresh his memory. And that's, we submit, entirely in accordance

8 with Your Honours' previous ruling, which was clarified to the extent, as

9 Mr. Re has referred, that we are dealing here with prior statements

10 collected - I think "collected" is the important word - within the

11 framework of an investigation conducted by the Office of the Prosecutor.

12 So all statements that are collected within that investigation should not

13 be allowed to be put to the witness once he's in the witness box. And

14 that would include, in our submission, the statement which was collected

15 by the Prosecution during its investigation. It's appended to the

16 statement of the witness, and it concerns exactly the same events as are

17 in his statement.

18 And our simple submission is that Your Honour has ruled no

19 documents which are statements which allow the witness to refresh his

20 memory should be put to him during examination-in-chief.

21 The purpose of staying, as Your Honour did, that other documents

22 may obviously be produced in examination, in our submission, would mean

23 that exhibits, maps, documents that might come from the archives, your

24 ruling obviously was not there to prevent those kinds of documents being

25 put to a witness which the witness could introduce. And that is the

Page 857

1 interpretation which we think is clear and simple which should be put on

2 your -- Your Honours' ruling.

3 Of course, this matter might be litigated again in the future.

4 But as things stand, that is the ruling, and in our submission the

5 statement cannot now be put to the witness.

6 Your Honour, finally, just on the point of hostile witnesses, I

7 agree that this has nothing to do with hostile witnesses now, this

8 particular argument. However, I think it is significant that the

9 Prosecution have indicated to Your Honours that they wish to regard this

10 witness as a hostile witness, and that can only mean that they no longer

11 wish to rely on this witness as a witness of truth.

12 Put bluntly, if they were able to cross-examine him, they would

13 say that he is now lying. And they can't have it both ways. They can't

14 say he's a liar and then also start asking him questions about a -- a

15 previous statement, seeking to then rely on his evidence to prove their

16 case. It's one or the other. And at the moment they're somewhere in

17 between, in our submission.

18 MR. RE: Could I just correct something my learned friend Mr. --

19 I'm sorry.

20 JUDGE ANTONETTI: [Microphone not activated]

21 MS. RESIDOVIC: [Interpretation] Mr. President, I should wholly

22 like to join in what Mr. Dixon said. We agree; we consider all

23 statements that a person who appears as a witness before this Tribunal,

24 which were given to state organs, whether they be in Bosnia-Herzegovina

25 or the Tribunal, are witness statements. They are not documents. And as

Page 858

1 this is an important question and the Prosecution has also filed a

2 motion, I think that a different interpretation should not be accepted

3 until we hear a final ruling from you, Your Honours, or perhaps from the

4 Appeals Chamber.

5 Secondly, the Prosecutor, in response to the words uttered by my

6 colleague that the Prosecution prior to the witness's entering knew that

7 the witness would not be answering these questions asked how we knew

8 that. And the Prosecutor last night, in explaining the reasons for which

9 he is -- for which he wants to declare the witness a hostile witness - on

10 page 17 of the unofficial transcript - said that the witness at the

11 beginning would just make short changes to the statement, ones of

12 translation and things of that kind, but that by noon he began changing

13 the version he gave to the Prosecution. So my colleague, Mr. Bourgon, in

14 explaining the knowledge gained by the Prosecution started by quoting the

15 words uttered by the Prosecution before this Court. Thank you.

16 MR. RE: Your Honour, the only thing that happened between my

17 saying farewell to the witness, "see you in court", and him arriving in

18 court a conference with Defence counsel, Mrs. Residovic. Up until that

19 moment I had no idea when he came into the box that his evidence would be

20 any different to what he told me at noon when I said goodbye to him.

21 I just want to correct something Mr. Dixon said. It doesn't

22 necessarily follow if a witness is declared hostile that the Prosecution

23 would accuse the witness of lying. And in fact it's of very little

24 forensic purpose for the Prosecutor to suggest to the witness he is

25 lying. The purpose of a declaration of adversity or hostility such as to

Page 859

1 allow the Prosecution to examine, as opposed to examine -- ask

2 non-leading questions in examination-in-chief, is to elicit a reason for

3 any differences between a prior statement and a -- an in-court statement

4 and to try to assist the Trial Chamber in getting to the truth of the

5 matter.

6 I can assure the Trial Chamber, the Prosecution has no present

7 intention, and as long as I'm conducting the examination of Witness BA,

8 to suggest that he's lying. Nothing will be gained if the Prosecution

9 were to do that.

10 JUDGE ANTONETTI: [Interpretation] With respect to this debate

11 concerning the Defence and the Prosecution, it could go on for days,

12 because if one declaration leads to a response by the opposite side, and

13 that goes on and on, I'll have to limit you taking the floor. But I will

14 give you the floor one more time and then the Chamber will state its


16 MS. RESIDOVIC: [Interpretation] Your Honours, I was quoting the

17 words of the Prosecutor on page 38. And with your permission, at 2.15

18 Mr. Ibrisimovic and myself saw the witness for ten minutes. I hope that

19 the Prosecutor knew what he was saying when he said what he just said.

20 I have no further comment to make.

21 JUDGE ANTONETTI: [Interpretation] Very well.

22 The Chamber -- I would like to note the following situation:

23 This witness has, within the framework of a motion, said outside the

24 solemn declaration, said to a representative of the OTP -- or rather,

25 made statements to him which were mentioned in certain paragraphs. And

Page 860

1 it is upon this document that the Prosecution wanted to conduct an

2 examination-in-chief so that the witness could roughly state the weight

3 of that document. The Chamber, Trial Chamber, took note of the fact

4 from the very beginning that the witness said very few things and even

5 refused to answer certain very ordinary questions. However, the witness

6 seems to have taken up that position, a position taken under the solemn

7 declaration, under oath.

8 The witness was cautioned and said that he could be held up for

9 false testimony, for perjury, and contempt of court. He was cautioned of

10 his rights and he said that protective measures had been accorded to him

11 so that nothing he said in the courtroom would be heard outside and this

12 -- that he didn't run any risks. He was also told that if he stated

13 certain things they couldn't be used in evidence against him before this

14 Tribunal, and we also added before national courts either. So the

15 witness was completely and comprehensibly informed of the different

16 facets of the problem. He was informed by the Prosecution of why he was

17 here, to confirm what he had stated earlier on. The Defence saw him for

18 a period of ten minutes. As we weren't there, we don't know what was

19 said. But he did see the Defence for a short period of time. And he was

20 under the solemn declaration and under oath, and it was under oath that

21 he made his testimony and answered questions from the Prosecution.

22 However, the Prosecution went as far as to qualify him as a hostile

23 witness at one point.

24 Three days later, at a certain point, the Prosecution wanted to

25 rely on a document that the Trial Chamber discovered which came from the

Page 861

1 Travnik court, and we heard your views. Both parties expressed their

2 views with respect to this document. It was produced -- the exhibit was

3 produced before the proceedings. I'm trying to find the said document.

4 The Prosecution tells us today that that testimony was recorded

5 under oath. It would be simpler for the Prosecution at the beginning of

6 the examination-in-chief to refresh the witness's memory by asking him

7 questions and asking him the following: Before coming to The Hague, did

8 you -- were you the object of an investigation? And give us a yes or no

9 answer. That would have been the question. Were you taken before a

10 magistrate; yes or no? Now, if he said yes, he was taken before a

11 magistrate, then the next question would have been: Did you testify

12 under oath? And then we could have had a yes or no answer. Could you

13 tell the Court what you said to the magistrate.

14 So that is how the affair could perhaps have been conducted, and

15 we could have learnt on that basis. Now, as we are having a pleading -

16 we weren't there, so we can't say - but the Defence is contesting the

17 production of a document of this nature, which of course hampers the

18 Defence in its cross-examination. But as I explained to you yesterday,

19 it would be possible if the Trial Chamber so decides to allow the witness

20 to come back, with other foundations laid. And I should like to remind

21 you that with respect to Rule 98 of the Rules of Procedure, supplementary

22 evidence, it too can decide to recall the witness. Therefore, if we find

23 that a witness is doing this, I don't think we need exert pressure on the

24 witness. And yesterday on several occasions we saw that the witness did

25 restrict his answers and did not wish to elaborate further. Therefore,

Page 862

1 if the Trial Chamber considers it necessary to recall the witness, to

2 have him come back to The Hague, we shall do so.

3 So we shall now put an end to this debate, because we need a

4 trial ruling on several motions.

5 It is now 3.30, and I think we ought to start the

6 cross-examination of this witness without further adieu. So I should

7 like to ask the usher to bring the witness into court. And I think the

8 witness said they would be taking half an hour. If they do so, they can

9 take a break at 4.00.

10 [The witness entered court]

11 JUDGE ANTONETTI: [Interpretation] Witness, you're now going to be

12 answering questions put to you by the Defence, and it is the Defence of

13 General Hadzihasanovic who's going to start off by asking you questions

14 and then you will hear from Mr. Kubura's Defence team. Later on the

15 Prosecution has the right to redirect.

16 The Defence has the floor.

17 MS. RESIDOVIC: [Interpretation] Thank you, Mr. President.

18 Cross-examined by Ms. Residovic:

19 Q. [Interpretation] Good afternoon, Mr. BA.

20 A. Good afternoon.

21 Q. My name is Edina Residovic, and I am Defence counsel for General

22 Hadzihasanovic. I saw you for the first time the day before yesterday

23 for ten minutes; is that right?

24 A. I don't think it was even ten minutes. It was barely ten

25 minutes.

Page 863

1 Q. Mr. BA, you and I speak the same language. We understand each

2 other. And you can answer my questions quickly. But I should like to

3 ask you to make pauses between my question and your answer, to wait for

4 the interpretation to finish because otherwise it will be very difficult

5 for the interpreters to interpret and for the other people in the

6 courtroom to follow the proceedings. Do you understand?

7 A. Yes, I do.

8 Q. I'm going to now ask, in order to facilitate conversation, our

9 communication, I should like to ask you to look at a map which shows the

10 Zenica area. The Defence has a sufficient number of copies for Their

11 Honours and for the Prosecution. So could you place the map in front of

12 you and on the ELMO as well so that we can see it on our screens.

13 Mr. BA, would you mark with a pencil the location of Zenica, and

14 put number "1" if you can; if you're able to do so.

15 A. [Marks]

16 Q. At the beginning of the war, you lived in the Zenica

17 municipality, did you not?

18 A. Yes.

19 Q. There were other ethnic groups living in Zenica too: The Serbs,

20 the Croats, the Bosniaks, Jews; isn't that right?

21 A. Yes.

22 Q. Zenica and Sarajevo, as the capital of the republic, was linked

23 by an asphalt road, and we called it the motorway, and it passed through

24 Kakanj and Visoko; is that right?

25 A. Yes.

Page 864

1 Q. Would you now please place an arrow on the map to mark that road

2 and place the number "2" beside the arrow.

3 A. [Marks]

4 Q. In April 1992, the Army of Republika Srpska temporarily occupied

5 the road from Visoko running to Sarajevo, and you couldn't go to Sarajevo

6 from Zenica taking that road; is that right?

7 A. Yes, that's right.

8 Q. You could reach Sarajevo by another road, the road running from

9 the confluence of the Lasva River, which was called the Lasva-network

10 road through Busovaca and Kiseljak; is that right?

11 A. Yes.

12 Q. Once the road via Busovaca was blocked, you could reach the area

13 around Sarajevo only by taking a mountain road via Lasva and Dusina; is

14 that right?

15 A. Yes.

16 Q. If the Lasva junction were to be blocked, you couldn't go to

17 Sarajevo from Zenica at all, could you?

18 A. I think that's right. I don't think you could, no.

19 Q. Now, from Zenica to Travnik - and Travnik is second-largest town

20 in the region - the main road led across the Lasva junction down the

21 Lasva River Valley through Vitez; is that right?

22 A. Yes.

23 Q. You testified before this Trial Chamber for two days, and during

24 your testimony here in court you said that it was the task of your unit

25 to provide security at the Lasva junction because it was such an

Page 865

1 important junction; is that what you said?

2 A. Yes, that's right.

3 Q. Now, from Zenica to Travnik you could take a mountain asphalt

4 road, which went via Ovnak, Guca Gora, and the surrounding hamlets; is

5 that right?

6 A. Yes, that's right.

7 Q. Is it also true and correct, Mr. BA, that in January 1993 the

8 HVO -- or rather, the Croatian Defence Council, blocked the road running

9 towards Busovaca and Vitez?

10 A. Yes, that's right.

11 Q. The HVO held checkpoints at Ovnak as well and so was able to

12 block the links from Zenica to Travnik; is that right?

13 A. Yes, that's right.

14 Q. By blocking the roads running towards Busovaca and the road

15 across Ovnak, Travnik and Zenica were completely cut off; is that right?

16 A. Yes.

17 Q. Now, let's go back a little bit, Mr. BA, to discuss the conflicts

18 that arose between the army of Bosnia-Herzegovina and the HVO. Do you

19 know that in the second half of January 1993 armed conflicts began

20 between the army of Bosnia-Herzegovina and the HVO in the area of

21 Busovaca and Kiseljak? Is that something you're aware of?

22 A. I'm not personally aware of that.

23 Q. During the examination-in-chief by the Prosecution, you said

24 before this Tribunal that the commander of your unit was Elvedin Camdzic;

25 is that right?

Page 866

1 A. Yes.

2 Q. You also said that you knew that in December 1992 in a battle at

3 Visegrad, together -- taking part together with you, that there were some

4 Mujahedin, foreigners taking part; is that right?

5 A. Yes.

6 Q. Mr. BA, you don't personally know where the Mujahedin came from,

7 nor under whose control they were placed in December 1992, do you?

8 A. That's something that I kept trying to explain to the Prosecutor,

9 but I'm afraid I wasn't successful.

10 Q. So what you want to say is that you don't know under whose

11 control and command they actually were; is that right?

12 A. Yes, that's right.

13 Q. However, you did know that in December 1992 the Mujahedin had

14 arrested certain officers from the 7th Muslim Brigade and officers of the

15 BH army from Visoko; is that right?

16 A. Yes.

17 Q. Mr. BA, you also said that on the 25th of January, 1993, in the

18 evening hours, following orders from -- you left Lasva in the direction

19 of Dusina; is that right?

20 A. Well, I don't know if that was the exact date, but thereabouts.

21 Q. At any rate, it was the day before the armed conflict broke out

22 between your unit and the HVO; is that right?

23 A. Yes, that's right.

24 Q. You also told us that you took a byroad going behind the hill to

25 reach the village of Lasva, is that right, a roundabout road?

Page 867

1 A. We didn't go to the village of Lasva.

2 Q. I apologise. I meant the village of Dusina.

3 A. Yes, that's right.

4 Q. You had received orders to take this bypass and not to move

5 through inhabited areas, Donja Visnjica and Brdo, for example, because

6 you didn't want an armed conflict to break out with the HVO or with the

7 local population; is that right?

8 A. Yes.

9 Q. Your orders were to reach the separation line without having to

10 enter into any fighting; is that right?

11 A. Yes.

12 Q. You knew that on the 25th of January in Dusina two members of the

13 BH army had been captured but at the time you didn't know their names; is

14 that what you told us?

15 A. Yes.

16 Q. You also knew that a member of your own unit had been captured;

17 that is to say, from the 7th Muslim Brigade by the name of Zijad --

18 Camdzic [phoen]; is that right?

19 A. I don't think I mentioned his name. I knew that there was one

20 member, but I don't know exactly.

21 Q. The armed conflict with members of the HVO began after the

22 members of the HVO had killed your commander, Elvedin Camdzic; is that

23 right?

24 A. Yes.

25 Q. The members of the HVO, after that, killed another fighter, who

Page 868

1 tried to come to Camdzic's assistance. Do you know about that?

2 A. Yes, I do.

3 Q. Asked by my learned colleague of the Prosecution, you said that

4 at Brdo there were about ten members of your own unit there; is that

5 right?

6 A. Yes.

7 Q. Among those fellow combatants was Abdullah Colakovic, Emir,

8 nicknamed Mire, and five or six other soldiers; is that right?

9 A. Yes.

10 Q. All the individuals whose names I mentioned knew that you were

11 engaged in another assignment and that you weren't a witness as to how

12 Zvonko Rajic died; is that right?

13 A. Yes, that's right.

14 Q. Although in your own unit there was a man called Dizdarevic,

15 nicknamed Camara, because he had other obligations that particular day he

16 wasn't in the area of Dusina that particular day.

17 A. I don't remember exactly.

18 Q. Mr. BA, I'm going to move on and ask you something else now. You

19 know that during that period of time in the area of Zenica there was a

20 large number of refugees and the population almost doubled? Were you

21 aware of that?

22 A. Yes, I was.

23 Q. Do you also know that there was a lot of theft, that private

24 property was being stolen, and that this was happening in large numbers?

25 A. Yes, I do know about that.

Page 869

1 Q. Do you know that your command, both of the battalion and of the

2 brigade, on several occasions issued orders prohibiting theft and other

3 unlawful acts?

4 A. Yes.

5 Q. On several occasions you were warned -- you were cautioned about

6 the necessity to adhere to the Geneva Conventions. That's what you

7 stated. Is that right -- is that correct?

8 A. Yes.

9 Q. Now, Mr. BA, you are aware of the fact that in 1993, especially

10 in the first half of that year, there was much abuse with regard to

11 wearing the insignia of the 7th Muslim Brigade.

12 A. That's what I said about the badges, the insignia. I said that

13 you could obtain them on the road. They were on sale.

14 Q. You are probably aware of the fact that some people before courts

15 in Zenica were prosecuted for having pretended to be members of the

16 7th Muslim Brigade. Do you know anything more about this?

17 A. I know about certain persons. I have information about certain

18 persons.

19 Q. Mr. BA, would it be correct to say that you didn't know

20 General Enver Hadzihasanovic and that you've seen him here in this

21 courtroom for the first time?

22 A. Yes, that's correct.

23 Q. Mr. BA, when my colleague Ibrisimovic and I spoke to you, did we

24 ask you to only speak the truth before this Trial Chamber?

25 A. Yes, you did.

Page 870

1 Q. Thank you very much.

2 MS. RESIDOVIC: [Interpretation] I have no further questions.

3 JUDGE ANTONETTI: [Interpretation] Very well. It's ten to 4.00.

4 It might be best to have a break right now. And we shall recommence at

5 4.20 and Mr. Kubura's Defence shall take the floor then.

6 --- Recess taken at 3.51 p.m.

7 --- On resuming at 4.19 p.m.

8 JUDGE ANTONETTI: [Interpretation] I'll now give the floor to

9 Mr. Kubura's Defence. You may proceed with your cross-examination.

10 MR. IBRISIMOVIC: [Interpretation] Your Honour, we'll only have a

11 few questions for the Witness BA. Since there's a document that might

12 reveal this witness's identity, could we go into private session?

13 JUDGE ANTONETTI: [Interpretation] We'll go into private session.

14 Madam Registrar, could with go into private session, please.

15 [Private session]

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 871












12 Pages 871 to 876 redacted, private session














Page 877

1 [Open session]

2 THE REGISTRAR: We are in open session, Your Honour.

3 MR. RE: Yes, thank you, Your Honours.

4 Re-examined by Mr. Re:

5 Q. Look -- Witness BA, His Honour Judge Antonetti just asked you a

6 question about a distinction between remembering and not knowing. Your

7 response was:

8 "A. Your Honour, I'm only proving interpretation of what was

9 recorded in previous statements. I'm only correcting things

10 that weren't properly recorded. On several occasions, I

11 tried to draw the attention to certain parts of the statement

12 in this case to the Prosecutor, but the Prosecutor just

13 ignored these items and spoke about what he was interested

14 in."

15 Now, Witness BA, I want to show you a document that you marked

16 during a conference between the -- sorry, after the conference we had on

17 Sunday. It's your statement which I gave you to take back to your hotel

18 and to mark on it anything you wanted corrected. Can I just show you the

19 statement with your markings on it, please.

20 JUDGE ANTONETTI: [Interpretation] Stop there, please.

21 Yes, the Defence.

22 MS. RESIDOVIC: [Interpretation] Your Honour, you've just raised

23 the question of re-examination, which is in accordance with the Rules of

24 this Tribunal. Cross-examination [as interpreted] can -- must be

25 restricted to questions posed by the Defence in the course of its

Page 878

1 cross-examination. With regard to this question and showing the

2 statement, this is not a matter I addressed in the course of my

3 cross-examination. As far as we know, Mr. Kubura's Defence didn't do so

4 either. Therefore, I'm asking the Trial Chamber not to allow the

5 Prosecution to put such a question because it doesn't arise from the

6 Defence's cross-examination. This brings us back to the subject that we

7 discussed a while ago.

8 MR. RE: Well, it -- Your Honours, with great respect, Your

9 Honour the Presiding Judge asked a question. Re-examination occurrence

10 after -- Your Honours, of course, can ask questions at any time. The

11 normal practice before this Tribunal is if the Bench asks questions,

12 either party is given an opportunity to clarify anything which is in the

13 interest of that party with the witness, because as Your Honour the

14 Presiding Judge, correctly remarked last week, it's more of an

15 adversarial proceeding here than an inquisitorial one.

16 Re-examination, in one sense, relates, of course, to the

17 questions in cross-examination posed by the Defence. And I have several

18 questions I would ask the witness. However, I'm asking the witness to

19 clarify something as a result of a question Your Honour asked the witness

20 and something Your Honour would not have known of when Your Honour posed

21 the question to the witness, to clarify the issue which the witness

22 raised about the Prosecution not correcting certain matters which the

23 witness raised with the Prosecution. This is a -- an inquiry, a quest

24 for the truth.

25 And the document I wish to show the witness, only for the

Page 879

1 purposes of his telling -- informing Your Honours what he marked on it --

2 that is, the fact that he marked certain portions of the document -- I

3 don't want to go into it. It's only to clarify the question Your Honour

4 asked, which either party of course is entitled to do. And I wouldn't

5 object to my learned colleague Mrs. Residovic standing up and asking a

6 further question, with leave, as a result of Your Honour's question. The

7 Prosecution states on the record it certainly doesn't object to the

8 Defence seeking leave to request further questions.

9 JUDGE ANTONETTI: [Interpretation] Very well. As far as this

10 matter is concerned, the Defence is claiming that in the course of the

11 cross-examination the Prosecution can ask questions again but the Defence

12 says that these questions must regard questions that arose in the course

13 of the cross-examination.

14 According to Rule 85, it says that after the examination-in-chief

15 the witness can be cross-examined and re-examined. So it's not an

16 additional examination, it's additional examination [as interpreted] in

17 the French version. So I come to the conclusion that the Prosecution may

18 pose other questions, questions other than those that were addressed by

19 the Defence.

20 But having said that, there is another problem that arises and

21 that is that the Prosecution wants to show the witness, in order "to

22 refresh the witness's memory" - in invented commas - to Prosecution wants

23 to show the witness a document that the witness signed no later than last

24 weekend. This document concerns a statement taken by the OTP several

25 months ago. The last time, we decided that as the procedure was oral, it

Page 880

1 couldn't be presented at any stage -- that the witness's written

2 statement couldn't be presented to the witness at any stage. So I don't

3 see any reason to modify our position.

4 Moreover, within the framework of discussions between the witness

5 and the Prosecution or the witness and the Defence, there are rules

6 concerning confidentiality and normally one party, especially when

7 testifying, must inform the other party if the need arises of the

8 necessity of producing the said document. They must be informed in

9 advance. I have no proof that this was done and that the witness has

10 agreed to the matter, because the witness can always argue that his

11 confidence has been betrayed in the course of an interview which was

12 confidential and the right to this confidentiality is guaranteed.

13 So I won't grant leave for this document to be shown to the

14 witness, but you can ask questions concerning the document in order to

15 refresh the witness's memory. But we should add, as the witness said,

16 his memory is very good; I do not see why it would be necessary to

17 refresh the witness's memory, since he told us a while ago that he made a

18 distinction between main issues and secondary issues. And his encounter

19 with the OTP is certainly an important event for him, so he must remember

20 it.

21 Nevertheless, the Prosecution has leave to ask this witness

22 questions. You may take the floor.

23 MR. RE: I thank Your Honour. The Prosecution's issue is with

24 the witness saying "just ignored." That's the point of my questions. I

25 make it quite clear I'm not attempting to refresh the witness's memory in

Page 881

1 any way.

2 Q. Now, Witness BA, there's no dispute, I hope, in terms of my

3 leading, that we had a conference on Sunday and Monday before you gave

4 your evidence, during which you looked at a statement.

5 MR. RE: Is Mr. Bourgon objecting to leading? I -- I'm trying to

6 get to the point very quickly.

7 JUDGE ANTONETTI: [Interpretation] No. You should have asked him

8 whether you met a few days ago. The answer would have been yes. Or,

9 "Did I show you a document; yes or no?" But your question, in fact, is

10 suggesting an answer. I think that's what you were going to say.

11 Very well. You can sit down. We have saved some time. Please

12 continue.

13 MR. RE:

14 Q. Witness BA, did the Prosecution -- did you confer with the

15 Prosecution before you gave your evidence here over the last -- within

16 the last few days?

17 A. Yes.

18 Q. Was it -- can you tell the Court what day it was?

19 A. Sunday, Monday.

20 Q. Do you remember how long we conferred for?

21 A. The first meeting was short, and the second one lasted for three

22 or four hours, I think.

23 THE INTERPRETER: The interpreter did not hear what the witness

24 just said.

25 MR. RE:

Page 882

1 Q. Can you please repeat your answer. The interpreter didn't hear

2 you quite.

3 JUDGE ANTONETTI: [Interpretation] Yes, Mr. Bourgon.

4 MR. BOURGON: [Interpretation] Thank you, Mr. President. I see

5 it's necessary for me to intervene again. The questions asked by my

6 colleague are leading questions, the objective of which is precise;

7 either to make a distinction between what was said when they conferred

8 with the witness confidentially and what the witness said in front of

9 this Trial Chamber. If the Prosecution wants to use such a procedure,

10 this amounts to cross-examination.

11 For the Trial Chamber to allow him to do this I think the witness

12 should leave again so the Prosecution can explain what the objective of

13 these questions are, so that they can show why they're asking such

14 questions. If they are trying to establish that the witness did not say

15 -- tell the truth, that is the objective of cross-examination, and this

16 is not permitted in the course of re-examination.

17 Thank you, Mr. President.

18 JUDGE ANTONETTI: [Interpretation] I think that what the Defence

19 has said is pertinent, and the only questions that -- the only questions

20 that are allowed are for the witness to confirm that you met. You can

21 address certain issues. But it shouldn't go beyond that scope. But I

22 think the witness is quite prepared to say that you did confer with each

23 other. The conversations you had with the witness may have been private

24 and he might think that private conversations should not be discussed in

25 public.

Page 883

1 MR. RE: Your Honour, I don't know where Mr. Bourgon gets the

2 idea that I was attempting to cross-examine the witness. I was asking

3 the witness the questions Your Honour asked me or permitted me to ask in

4 accordance with Your Honour's directions as to whether or not I showed

5 him a document and whether he made any markings on it. That is it,

6 period.

7 The second point is in relation to the confidentiality or

8 otherwise of conversations with the witness. There are no confidential

9 conversations between a witness who is to give evidence before this Trial

10 Chamber as to the extent and scope of his evidence. The only thing which

11 could possibly be confidential may be things relating to his identity.

12 Everything that is said between the Prosecution, its investigators, and a

13 potential witness is disclosable under Rule 68 and Rule 66(A). The

14 contents of the proofing session are also matters which we should and

15 must disclose to the Defence if there is anything which deviates from the

16 information we have provided the Defence in advance that we intend to

17 call from a witness.

18 We did not provide the Defence with anything which indicated

19 there was to be a deviation because there was to be no deviation. There

20 were several minor corrections on matters which I wasn't even going to

21 lead.

22 In relation to the witness I called last week, after having a

23 conference with the witness, we provided the Defence with a proofing note

24 of an additional matter which had arisen during our conference. So can I

25 make it quite clear - the Prosecution makes it quite clear to the Trial

Page 884

1 Chamber and to my learned friends from the Defence - there are no

2 confidential discussions between witnesses and the Prosecution as to the

3 content of their evidence. Prosecutors have a duty to disclose the

4 content of their conversations with witnesses; that's why we take notes.

5 That's why we disclose them. And I -- that is not what I'm attempting to

6 ask this witness about. I'm only asking him, as Your Honour the

7 Presiding Judge directed me, in relation to whether I provided him with

8 the document and whether he marked it. And that is it.

9 JUDGE ANTONETTI: [Interpretation] I would like to ask the

10 Prosecution to tell me whether the questions it is asking are designed to

11 establish new evidence with respect to what we've already heard and

12 whether this examination will bring us any new elements, because if that

13 is the case then we'll come back to Rule 76(B); that is to say, if any

14 confidential matter was disclosed, I think during the meeting that you

15 had with him does bring up the question of a certain amount of

16 confidentiality. So if this was only used to establish new evidence,

17 then the Prosecutor must present evidence any testimony, document, or any

18 material so provided.

19 So it seems to me that the witness, who also enjoys rights, might

20 consider that his meeting with you was confidential and therefore to

21 reveal the contents of a private conversation he had with you might serve

22 to prejudice the witness. So I should like to draw your attention to

23 that particular point. You can, of course, ask him peripheral questions

24 to confirm that you actually saw him and had a meeting but not go beyond

25 that, especially as I've already said, that the witness could go back to

Page 885

1 the question, if we should so decide, and the Chamber always has the

2 power to have the witness recalled in due course, at a later date.

3 So the witness has told us that he remembers what happened very

4 well, that his memory does not need to be refreshed. He answered the

5 questions in a very precise manner and even gave us things that were

6 contested but were shown to be interesting with respect to the Defence,

7 that he was no longer a member of the 7th Muslim Brigade in June. So we

8 have a collection of elements which leads us to find that the witness has

9 told us a certain amount of truth. He's answered yes to your questions.

10 So you can go on -- or rather, we should end there, because it seems that

11 we're going to have another witness. The next witness is a mother; she

12 has children, and she has to get back home. So perhaps we could end

13 there and recall the witness in due course to come back.

14 MR. RE: Your Honours, there's -- Your Honour referred to Rule

15 76(B). There's no Rule 70 -- or sorry, the transcript says 76(B). There

16 is no Rule 70(B)-issue here of confidential information or using it to

17 generate --

18 JUDGE ANTONETTI: [Interpretation] I said 70(B), not 76(B), 70(B).

19 MR. RE: Thank you, Your Honour.

20 I can finish this very quickly. I only have two more questions

21 in relation to that and two which Ms. Residovic raised, and it's only --

22 the Prosecution just wishes to clarify the words "just ignored." That's

23 the limit of it.

24 Q. Witness BA, you told us that we had a conference on Monday and

25 Sunday. Did I provide you with a document on Sunday?

Page 886

1 A. Yes.

2 Q. And what was that document?

3 A. A statement.

4 Q. Whose statement was it?

5 A. Partially mine.

6 Q. Was it in B/C/S?

7 A. Yes.

8 Q. Did I give you instructions in relation to that statement, to do

9 something with it overnight?

10 A. To sign certain parts with which I did not agree.

11 Q. Did you make markings on the document, the statement I gave you,

12 on Sunday to bring back to the Prosecution on Monday?

13 A. I did.

14 Q. I just wish to show the document to the witness, have him

15 identify the markings, and have it marked for identification. I don't

16 propose to tender it, only for the purposes of a later application we

17 wish to bring. Just so we don't lose the document and the witness can in

18 fact identify that he mark add particular document; that's it. I'm not

19 trying to tender the evidence inside it.

20 JUDGE ANTONETTI: [Interpretation] I'm reading the English

21 transcript. And he said that he did have knowledge of the document but

22 that that document -- that there were certain elements that he only

23 recognised partially; that is to say, he didn't confirm all of it. So

24 you are -- went on to ask him whether he gave you back the document; he

25 said he did. So that is sufficient. You've no need to go beyond that,

Page 887

1 because otherwise he's going to say there was one part that I was in

2 agreement with, another part I didn't agree with, and we would enter into

3 a debate again. So let's leave the document. Now, if we recall the

4 witness at a later date, then we can go into matters further. But with

5 respect to the weight of the document, the witness said something -- the

6 contents of the document. I'm sorry -- He said that he read the document

7 but that he didn't recognise the document in its entirety. And that was,

8 I think, on line 56, at 16.23.

9 Now, if there are no further questions, would you like to respond

10 to remarks made by the Defence?

11 MR. RE: I just wanted it marked for identification so that if

12 the witness is recalled we don't lose the document and there's no dispute

13 between anyone as to what document he actually marked. That's all I want

14 to do; him to identify that he marked it and put it into the Court's

15 custody so the Prosecution doesn't have it any more.

16 MS. RESIDOVIC: [Interpretation] Mr. President, you have already

17 clearly stated to the Prosecution that he cannot introduce a document in

18 this way. The Prosecution has a completely different position than the

19 Defence. The Prosecution cannot introduce anything into the courtroom

20 without having disclosed it beforehand to the Defence, and the

21 Prosecution has clearly told us that he never disclosed a document marked

22 in that way to the Defence. So I think that you've already resolved the

23 issue, and could you please confirm your ruling and decision. Thank you.

24 JUDGE ANTONETTI: [Interpretation] I think that we have to follow

25 a certain procedure regarding this document. The document that was

Page 888

1 disclosed in its entirety to the Defence. But, of course, the Defence

2 doesn't have the markings that we're talking about now. So in view of

3 the fact that the witness introduced some changes, modifications, it

4 would be advisable if you -- to let the Defence see the document so that

5 they could gain all the necessary information and then file a motion in

6 writing after their observations and we will decide whether to admit it

7 into evidence or not.

8 As I've already said, we don't exclude the possibility of having

9 this witness recalled in due course. So the document with its notes

10 should be communicated to the Defence because although they have been

11 disclosed, the document -- it was without the markings. So they can read

12 through the document with the markings and might have some observations

13 to make. If, by hypothesis, the document mentioned, for example, a fact

14 that took place when the witness was not present, then this challenges

15 the credibility of the document itself. That is a hypothetical.

16 But as it's already 5.00 p.m., would you like to say anything

17 with respect to the interventions made by the Defence a moment ago?

18 Because you said you did wish to respond to two observations made by

19 them. I'm not quite sure which. But you have the floor.

20 MR. RE: I'm not attempting to introduce it into evidence now or

21 at any point. I just want to witness to identify it. There is no -- the

22 witness has not written on it. He's just put yellow marks on it. That's

23 -- I just want him to identify that this is his so that we don't lose it

24 at any other point. Then the Defence can have a look at it. It doesn't

25 matter. That's all. I don't want it into evidence. Just so that we

Page 889

1 don't lose it.

2 JUDGE ANTONETTI: [Interpretation] Mr. Re, we've -- you've tried

3 to tender this document in the course of the past three days and the

4 Chamber has said no. Now, it's 5.00 p.m. You're trying again to raise

5 the debate again. What I told you was that we will have the Defence look

6 at the document and hear their views on it, and then we will make a

7 ruling. But for the moment the document will not be tendered into

8 evidence. We'll just give it an identification mark. But you've been

9 trying to force the issue, to force the Trial Chamber to accept the

10 document for the past three days. We said at the very outset that within

11 the frameworks of an examination-in-chief you can't produce a previous

12 statement, prior statement, a written prior statement. So we've already

13 broached the matter, and now you're coming back to it.

14 And I indicated that you should provide the Defence with the

15 document for it to be able to make its observations. There might be

16 certain paragraphs which seem to be wrong with respect to the document

17 produced earlier on, and there might be a point of law. So we'll have to

18 look into that. And we'd like to hear the observations of the Defence.

19 So the document is placed at standby. Let the Defence have a

20 chance to look at it. We'll ask for their observations. And then have

21 it admitted or not in due course.

22 MR. RE: Your Honour, I must correct the record. The Prosecution

23 has not been attempting to introduce this document into evidence at any

24 point. This is a copy, a B/C/S copy of the witness's statement in which

25 he made some markings, some highlights. That is all. I only want him to

Page 890

1 identify that he has marked it. That is as far as I want to go today, so

2 that we don't lose the document.

3 We seem to be at cross-purposes here. The Prosecution is not

4 attempting to tender it, only to have it marked for identification. It

5 doesn't go into evidence. Your Honour, I think, is talking about a

6 different document. That's as far as I want to go. He identifies it --

7 this is a document I marked. We show it to the Defence. And then if

8 there is a motion later, there's a motion later. And that's all.

9 JUDGE ANTONETTI: [Interpretation] The Defence.

10 MS. RESIDOVIC: [Interpretation] Your Honour, I have rarely been

11 placed in this kind of position. We don't want to have the document

12 shown to the witness, nor do we wish to have the document marked. You

13 made a ruling, a decision, and we should like to ask the Prosecutor to

14 understand that, to understand that you yourself have ruled on the issue.

15 MR. RE: Can we do it right at the very end, after I've finished

16 -- after I've asked my questions in re-examination and I don't have

17 anything else to ask him. Could it possibly be shown to him then for the

18 purposes of he marked it and that's it, so that there's no question of my

19 influencing the witness in any way or refreshing his memory. Could we do

20 it right at the end?

21 JUDGE ANTONETTI: [Interpretation] He's already answered the

22 question. He said he had a document but the document -- that he

23 recognised certain elements in the document, and he said that he

24 initialled the document.

25 Now, can the witness tell us that he had the document in his

Page 891

1 hands given to him by the Prosecution, and that he made certain

2 indications on the document? Can he tell us that; yes or no, Witness?

3 THE WITNESS: [Interpretation] May I say something in respect to

4 that?

5 JUDGE ANTONETTI: [Interpretation] Yes.

6 THE WITNESS: [Interpretation] As they said that time was running

7 out and I was a little tired, I don't think I marked in everything. He

8 asked me questions about the portion that I have marked.

9 And I would like to add one more thing: I do not wish to have my

10 identity disclosed, and I was shown this ten minutes before I entered

11 court.

12 THE INTERPRETER: The interpreters really apologise, but they're

13 just not able to follow the witness because they can't hear him. There's

14 something wrong with the microphone.

15 MR. RE: Your Honours, that's answered the question I was asking

16 of the witness.

17 JUDGE ANTONETTI: [Microphone not activated]

18 THE INTERPRETER: Microphone, Your Honour, please.

19 JUDGE ANTONETTI: [Interpretation] Did you have a document given

20 to you by the Prosecution and did you place markings with your own hand

21 on the document? So it's yes or no.

22 THE WITNESS: [Interpretation] Yes.

23 JUDGE ANTONETTI: [Interpretation] Very well. We take note that

24 the document that has been placed on standby was marked by the witness.

25 However, the witness said that his principal preoccupation was not to

Page 892

1 have his identity disclosed; he was worried about that. The Chamber

2 reassured him. We told him that all necessary protective measures had

3 been undertaken so that nobody had access to the contents of the meeting

4 and that he was never referred to by name. He was always referred to by

5 a pseudonym, by initials. So we issued assurances to the witness that

6 confidentiality would be -- would remain intact and his identify would

7 not be revealed.

8 Now, if there are no further direct questions for the witness,

9 we're going to allow the witness to leave the courtroom. I should just

10 like to tell him that he might be recalled one day in due course, at a

11 later date, and that the Chamber will decide that based on various facts

12 and that if he is recalled he'll be asking questions by the Trial

13 Chamber.

14 Has the witness understood?

15 THE WITNESS: [Interpretation] Yes.

16 MR. RE: The Prosecution wishes to re-examine the witness. Those

17 last questions were, with leave, on two areas which Mrs. Residovic raised

18 in her cross-examination. It will only take a few minutes, Your Honour.

19 JUDGE ANTONETTI: [Interpretation] Two questions then, with

20 respect to the cross-examination, what was covered in the

21 cross-examination.

22 Go ahead with your questions. Let's hear the question and we'll

23 see whether it's already been asked.

24 MR. RE:

25 Q. Witness BA, Mrs. Residovic asked you about information you had on

Page 893

1 several people who had been prosecuted for pretending to be members of

2 the 7th Muslim Mountain Brigade. I'm seeking clarification of that, to

3 assist the Trial Chamber in its determination of the truth.

4 What can you tell the Trial Chamber about the courts in which

5 these people were prosecuted, who these people were, and who prosecuted

6 them?

7 JUDGE ANTONETTI: [Interpretation] Witness, would you answer the

8 question, because it refers to a question posed by the Defence, whether

9 you knew that anybody had been prosecuted. If you know about that, tell

10 us. If not, tell us again; say you don't.

11 THE WITNESS: [Interpretation] I don't know who those people were.

12 I don't know their names.

13 MR. RE:

14 Q. Witness BA, Mrs. Residovic started her questioning to you by

15 saying that she hadn't met you before and met you only once for ten

16 minutes. I want to ask you whether you have had any contact with either

17 Mr. Ibrisimovic before or any investigators or legal people connected

18 with the Defence.

19 JUDGE ANTONETTI: [Interpretation] Witness, before answering the

20 question, the question deals with your personal life and the issue of

21 confidentiality. So if you think you can answer, go ahead. If you don't

22 think you can, then don't answer. It was just a question to know whether

23 you ever met anybody from the Defence earlier on. You've met them here

24 for a period of ten minutes. But the question is whether you ever met

25 them earlier on. So it's up to you to answer or not to answer, because

Page 894

1 it has to do with the issue of confidentiality.

2 The Defence has the floor.

3 MS. RESIDOVIC: [Interpretation] Your Honour, the Prosecutor is

4 insinuating something he insinuated earlier on in the course of the

5 afternoon. And I should first, with the Court's indulgence, like to

6 state -- to give the names of my investigators so that the witness could

7 be able to answer the question, whether he met those individuals before

8 or not, if he wishes to answer. So do you give me permission to do so?

9 JUDGE ANTONETTI: [Interpretation] If you want to communicate

10 that, it's up to you. You're free to do so. I don't want to authorise

11 you to do so or to prevent you from doing so. If you wish to state the

12 names, go ahead; you're free to do so. And then we're going to ask the

13 witness whether the names mean anything to him, whether they ring a bell.

14 MS. RESIDOVIC: [Interpretation] Mustafa Polutak and Vesna Kreso

15 are the names.

16 JUDGE ANTONETTI: [Microphone not activated]

17 THE INTERPRETER: Microphone, please, Your Honour.

18 JUDGE ANTONETTI: [Interpretation] Witness, you've heard the names

19 spoken by the Defence. They gave you two names, Mustafa Polutak and

20 Vesna, and they are members of the investigating Defence team. So have

21 you ever met them or not; yes or no, or you have nothing to state?

22 THE WITNESS: [Interpretation] No, I have not met them.

23 MR. RE: That doesn't fully answer my question. My question was

24 Mr. Ibrisimovic or any legal people, not just investigators.

25 Q. So the question, Witness BA, was have you met --

Page 895

1 JUDGE ANTONETTI: [Microphone not activated]

2 THE INTERPRETER: Microphone, please, Your Honour. Microphone

3 for the President.

4 JUDGE ANTONETTI: [Interpretation] I should like to tell the

5 Prosecution that it is a delicate matter because it has to do with the

6 rights of the Defence. So we're asking attorneys to say what they do,

7 who they meet, and so on, and that seems to me to give rise to problems.

8 But let's hear what the Defence has to say.

9 MR. IBRISIMOVIC: [Interpretation] Your Honours, the witness

10 already said yesterday -- or rather, in the course of this afternoon, he

11 said that he met the Defence for less than ten minutes the first time,

12 and I can repeat the names of my investigators: Amila Imamovic and Lejla

13 Sijercic. If those names seem familiar to the witness at all.

14 JUDGE ANTONETTI: [Interpretation] So does the witness know the

15 assistants of the Kubura Defence? Does he recognise the names; yes or

16 no?

17 THE WITNESS: [Interpretation] No.

18 MS. RESIDOVIC: [Interpretation] Your Honours, I should like now

19 to enter into the record that this is improper behaviour on the part of

20 the Prosecution because he is hurling accusations and conducting an

21 investigation into the conduct and behaviour of the Defence, and I call

22 upon Your Honours to defend the rights of the Defence teams. Thank you.

23 MR. RE: Your Honour, Mrs. Residovic put into issue in her first

24 question to the witness the fact that she had met the witness for ten

25 minutes only once and at the end said to the witness, "Didn't I tell

Page 896

1 you -- can't we tell you to tell only the truth during your evidence?"

2 The Defence put this into issue. I'm entitled to ask the witness to

3 clarify whether he has met -- and she -- and her question was directed

4 towards her -- to clarify whether he had at any time met other members of

5 the Defence. That's as far as I wish to take it. And it's go so far --

6 Mr. Ibrisimovic hasn't said --

7 JUDGE ANTONETTI: [Interpretation] Very well. I think we should

8 end the debate there. The witness told us that he had a ten-minute

9 interview with the Defence and the Defence confirmed that they met the

10 witness for ten minutes. Let's leave the matter. There. That completes

11 the examination.

12 Witness, you'll be able to go back home. I don't know when you

13 have your flight home, but the relevant service will see to that. As

14 I've already told you, I think, we might have occasion to see you back

15 here. But anyway, bon voyage back home.

16 [The witness withdrew]

17 JUDGE ANTONETTI: [Interpretation] I think that you're going to

18 introduce a new witness, Prosecution, aren't you? It's quarter past

19 5.00. We can go on working until -- or rather, we're going to take a

20 break in about 25 minutes and then resume at 6.00.

21 The Prosecution has the floor.

22 MR. WITHOPF: All right. Your Honours, may I suggest to take the

23 break now and then we can use the remaining time more efficiently.

24 However, there's one -- another issue my colleague wants to raise.

25 MR. RE: Yesterday I attempted -- I foreshadowed tendering three

Page 897

1 photographs, P16, P17, and P18. I was just trying to do it before the

2 witness left in case there was any difficulty. We have provided copies

3 to the registry. The requisite numbers. May I formally tender those

4 three photographs, P16, P17, and P18 into evidence.

5 JUDGE ANTONETTI: [Microphone not activated]

6 THE INTERPRETER: Microphone, please, Your Honour.

7 Microphone, for the President, please.

8 JUDGE ANTONETTI: [Interpretation] I was saying that we had three

9 exhibits, P16, 17, and 18. They are photographs taken from the air of

10 the area. I don't suppose the Defence has any objections to having these

11 photographs tendered into evidence.

12 May we have the numbers, Madam Registrar.

13 THE REGISTRAR: Exhibit P16: Photograph bearing ERN number

14 01249067; Exhibit P17: Photograph bearing ERN number 01249070; Exhibit

15 P18: Photograph bearing ERN number 01248907.

16 JUDGE ANTONETTI: [Interpretation] Very well. The exhibit

17 number -- P16 becomes P17; P17 becomes P18; and P18 becomes P19.

18 We're now going to take a break for 25 minutes and shall resume

19 at quarter to 6.00. So back here in court at quarter to 6.00.

20 --- Recess taken at 5.19 p.m.

21 --- On resuming at 5.51 p.m.

22 JUDGE ANTONETTI: [Interpretation] We are in open session. It's

23 ten to 6.00. And we will work until 7.00 p.m., and we will stop at 7.00

24 p.m. As you know, the interpreters have to finish at 7.00.

25 Tomorrow and the day after we won't be having hearings, since

Page 898

1 there is a Plenary Session. We will see each other again on Monday at

2 2.15. We will work until Friday and then we'll have a three-week recess.

3 The Trial Chamber will hand down its decisions very rapidly with regard

4 to the motions submitted. And as far as the pending motions are

5 concerned, I invite the parties to comment on them.

6 We have a new witness; could we have the witness in the

7 courtroom, please.

8 As far as this witness is concerned, how long does the

9 Prosecution think their examination will take?

10 MR. WITHOPF: Your Honour, the Prosecution anticipates that the

11 examination-in-chief will last about one and a half hours.

12 [The witness entered court]

13 JUDGE ANTONETTI: [Interpretation] Madam, could you please stand

14 up. Could you please tell the Trial Chamber what your first and last

15 name is.

16 THE WITNESS: [Interpretation] My name is Katica Kovacevic.

17 JUDGE ANTONETTI: [Interpretation] What is your date of birth?

18 THE WITNESS: [Interpretation] The 10th of October, 1973.

19 JUDGE ANTONETTI: [Interpretation] Are you married or single?

20 THE WITNESS: [Interpretation] Yes, I am.

21 JUDGE ANTONETTI: [Interpretation] Do you have any children?

22 THE WITNESS: [No audible response]

23 JUDGE ANTONETTI: [Interpretation] What are you by profession?

24 THE WITNESS: [Interpretation] I'm a housewife.

25 JUDGE ANTONETTI: [Interpretation] A housewife. Very well.

Page 899

1 Which town do you live in?

2 THE WITNESS: [Interpretation] Where? In which town?

3 JUDGE ANTONETTI: [Interpretation] Which town do you live in?

4 THE WITNESS: [Interpretation] In Virovitica.

5 JUDGE ANTONETTI: [Interpretation] Very well. Thank you.

6 You're going to read out the solemn declaration now.

7 THE WITNESS: [Interpretation] I solemnly declare that I will

8 speak the truth, the whole truth, and nothing but the truth.


10 [Witness answered through interpreter]

11 JUDGE ANTONETTI: [Interpretation] Very well. I'd like to inform

12 the witness that she has just taken the solemn declaration and will be

13 asked questions first by the Prosecution and then by the Defence. The

14 witness has the duty to tell the truth. If the witness gives false

15 testimony, she could be prosecuted and proceedings may be initiated for

16 contempt of court. In order to avoid such measure, it would be better to

17 speak the truth.

18 Witness, I think I have -- I think you have some children. You

19 have a family situation which is such that you can't stay over the

20 weekend. You have to return; is that correct?

21 THE WITNESS: [Interpretation] Yes, that's correct.

22 JUDGE ANTONETTI: [Interpretation] And you won't be able to return

23 -- you won't be able to come back here on Monday.

24 THE WITNESS: [Interpretation] Yes.

25 JUDGE ANTONETTI: [Interpretation] Given the situation, we'll

Page 900

1 commence with the examination and we have to find another date for the

2 witness to return. She is a housewife. She has to look after her

3 children.

4 There are no objections to be raised by the Defence? Very well.

5 Madam, please sit down. And the Prosecution is going to ask you

6 some questions. The Prosecution has an hour at its disposal.

7 Examined by Mr. Withopf:

8 Q. Good afternoon, Mrs. Kovacevic.

9 A. Good day.

10 Q. Mrs. Kovacevic, you have just been asked by Your Honour, the

11 Presiding Judge, when you -- when you were born. Can you please repeat

12 it.

13 A. The 10th of October, 1973.

14 Q. Can you please tell the Chamber where you were born.

15 A. In Miletici.

16 Q. Can you please tell us what's your maiden name.

17 A. Pavlovic.

18 Q. Mrs. Kovacevic, where did you live in the beginning of April

19 1993?

20 A. In Miletici.

21 Q. And for how long have you lived in Miletici in April 1993?

22 A. Until the attack against my village.

23 Q. In April -- in early April 1993, Mrs. Kovacevic, who were your

24 family members, parents, brothers, and sisters, if any?

25 A. I had my parents, my brother, and a sister.

Page 901

1 Q. And were your family members living with you in Miletici?

2 A. No. They were living abroad.

3 Q. In early April 1993, was your brother with you living in

4 Miletici?

5 A. Yes, he was.

6 Q. Can you please inform the Trial Chamber about the name of your

7 brother.

8 A. Vlado Pavlovic.

9 Q. The village of Miletici, Mrs. Kovacevic, in which municipality is

10 it located?

11 A. In the municipality of Travnik.

12 Q. Can you please tell the Trial Chamber - a rough estimate is

13 efficient, Mrs. Kovacevic - how long villagers were living in Miletici in

14 the beginning of 1993 -- in the beginning of April 1993.

15 A. 20 or 25, something like that.

16 Q. Were these 20 or 25 villagers all of the same ethnicity?

17 A. Yes, they were.

18 Q. And what ethnicity were they?

19 A. Croats.

20 Q. Can you tell us whether there have been any further Croat

21 villages in the immediate neighbourhood of Miletici.

22 A. No.

23 Q. Were there any Muslim villages in the immediate neighbourhood of

24 Miletici?

25 A. Yes, there were.

Page 902

1 Q. Can you please describe to the Trial Chamber how the relationship

2 between the Croats in Miletici and the Muslims in the immediate

3 neighbourhood in early April 1993 has been.

4 A. Well, the relationships were good up until the attack.

5 Q. You were talking about the attack. Can you please tell us,

6 Mrs. Kovacevic, what you have done on the 24th of April, 1993.

7 A. Well, as usual, we were working in the house, working on the

8 land, performing house chores; that sort of thing.

9 Q. And what have you done, Mrs. Kovacevic, in the evening of the

10 24th of April, 1993?

11 A. We were drinking coffee at home.

12 Q. Whilst you were drinking coffee, what did happen?

13 A. We heard that these people had arrived in our village, and

14 someone went to the village. My mother went, and we followed her. And

15 we did not return home after that.

16 Q. Mrs. Kovacevic, you are referring to "these people." Who are

17 "these people"?

18 A. I'm referring to Akif Suljic and Dedo Suljic.

19 Q. What happened after these two people have arrived in Miletici?

20 A. Well, they came to us up there and they said that the Mujahedin

21 had gone to see their girlfriends in the Skomorje village.

22 Q. And what did you do, Mrs. Kovacevic, after you got this

23 information?

24 A. Well, we spoke to them there. They said they wouldn't do

25 anything to us. They said we shouldn't be afraid, that we shouldn't be

Page 903

1 upset. And after a while you could hear the sound of shooting.

2 Q. Where have you been when you could hear the sound of shooting?

3 A. Well, we were there in the middle of the village, with them.

4 Q. Mrs. Kovacevic, I'm now going to show you a photograph, and I

5 wish you to identify the photograph and to describe what you can see on

6 the photograph. It will appear on the screen as well.

7 MS. RESIDOVIC: [Interpretation] Your Honour Mr. President, I

8 would like to ask my colleague, before he proceeds with his examination,

9 could he tell us who took this photograph and when. Thank you.

10 MR. WITHOPF: Your Honours, my learned colleagues from the

11 Defence side, the photograph was taken in the course of the investigation

12 against the accused. It was taken in April 2002, and it was taken by

13 Dutch photographers on behalf of the Prosecution.

14 Q. Mrs. Kovacevic, the photograph in front of you, can you please

15 tell the Trial Chamber what you can see on this photograph.

16 A. I can see the place that we were in. I can see the house that we

17 rented. That's where they took us.

18 Q. Can you please first tell the Trial Chamber what village we are

19 seeing on the photograph.

20 A. This is the village of Miletici.

21 Q. Can you please describe - and I would like you to use the numbers

22 on the photograph - where you went after you got the information on the

23 arrival of Mujahedin and other soldiers.

24 A. Well, we were in the middle of the village. I can't see the

25 number here. We went into the house, number 2.

Page 904

1 Q. Mrs. Kovacevic, there are numbers in blue and in red. Can you

2 please clarify for the Trial Chamber which number, either in blue or in

3 red, you are referring to.

4 A. In red.

5 Q. What was the time, Mrs. Kovacevic, when you ran to the house

6 which is marked as number 2 in red on that photograph?

7 A. I don't know at what time we went there. When they attacked our

8 village, we fled to that house, but I don't know at what time.

9 Q. Was it in the morning? Was it in the afternoon? Or was it

10 towards the evening?

11 A. It was after 1800 hours. It was in the evening.

12 Q. And who was the owner of the house at the time you were just

13 identifying as the house marked with the red number 2?

14 A. The owner of the house was Stipo Pavlovic.

15 Q. Mrs. Kovacevic, can you please with a big black texter write on

16 the photograph that the house identified as red number 2 is the house of

17 Stipo Pavlovic.

18 A. Should I mark it here?

19 Q. You can mark it at the very bottom of the photograph, where you

20 have the white space.

21 A. [Marks]

22 Q. The house to the left of the house of Stipo Pavlovic, the house

23 with a grey roof, who was the owner of this house?

24 A. I don't know whether you mean the small house here or the one

25 over here, which is a little further up.

Page 905

1 Q. There's one house to the left of the house which is marked with a

2 red number 2. It has a grey roof. Who was the owner of this house?

3 A. Does it have a number, the one up here?

4 Q. Right. Can you, however, tell us who has been the owner of that

5 house at the time?

6 A. Well, if it has a number, if it's number 1, then the owner was

7 Bozo Pavlovic.

8 Q. Mrs. Kovacevic, I'm referring to the house on the left side, on

9 the other side of the house with a red marking number 2.

10 A. Sreco Pavlovic.

11 Q. Is this the house between the red marking number 2 and the red

12 marking number 3?

13 A. Yes, that's Sreco Pavlovic's house.

14 Q. Can you please again write this at the very bottom of the

15 photograph and encircle the house, please.

16 A. [Marks]

17 Q. And finally, Mrs. Kovacevic, can you please tell the Trial

18 Chamber who was the owner at the time of the house which is marked with

19 the red number 3.

20 A. Ivo Pavlovic.

21 Q. Can you again, Mrs. Kovacevic, write at the very bottom the name

22 of the owner with the house encircled with the red number 3.

23 A. [Marks]

24 Q. And can you please draw lines between the houses, between the

25 three houses you just have identified, and the names you have written at

Page 906

1 the bottom of the photograph.

2 A. [Marks]

3 Q. Mrs. Kovacevic, I'm asking you to draw a line between the

4 name -- the names -- you have written at the very bottom of the

5 photograph and the respective house which you have identified. So if you

6 have, for example, the house number 2 marked with a red number 2, you

7 draw a line between the house with the red number 2 and the name of the

8 owner of that house.

9 A. [Marks]

10 Q. And can you do the very same with the two other houses, please.

11 A. [Marks]

12 Q. Very well. Thank you.

13 MR. WITHOPF: The Prosecution wishes to tender this photograph

14 into evidence.

15 JUDGE ANTONETTI: [Interpretation] Madam Usher, would you show the

16 photograph to the Defence counsels and the accused. Show it to the

17 accused as well, please.

18 You wish to intervene?

19 MS. RESIDOVIC: [Interpretation] The Defence has no objections,

20 but I think that for us to be able to follow the exhibits better, it

21 would perhaps be a good idea if the witness sign the document and place a

22 date by the signature as well. But if she doesn't do so, we don't have

23 any objection to the exhibit being tendered into evidence.

24 MR. WITHOPF: Right. Can the photograph please, again, be given

25 to the witness to sign it and to date it, please.

Page 907

1 THE WITNESS: [Interpretation] Will you tell me what the date is

2 today, please.

3 MR. WITHOPF: Today, Mrs. Kovacevic, is the 10th of December.

4 THE WITNESS: [Marks]

5 JUDGE ANTONETTI: [Interpretation] Madam Registrar, may we have a

6 number, please.

7 THE REGISTRAR: The exhibit number is P19.

8 JUDGE ANTONETTI: [Interpretation] So we have the exhibit, which

9 has now been numbered, and it is P19. Thank you.

10 Please continue.

11 MR. WITHOPF: Very well. Thank you.

12 Q. Mrs. Kovacevic, when you gathered between the houses you just

13 have identified, what was happening?

14 A. When we gathered there, in the middle of the village, what

15 happened was that they attacked. And we fled to take refuge in the house

16 of Stipo Pavlovic.

17 Q. Who was attacking the village of Miletici?

18 A. The Mujahedin attacked and the army, the Bosnian army.

19 Q. The Mujahedin, how can you describe individuals which are -- you

20 are referring to as Mujahedin?

21 A. Well, they were dark. They had beards. And they couldn't speak

22 our language very well.

23 Q. Do you have still a recollection, Mrs. Kovacevic, of how many

24 soldiers attacked Miletici on the 24th of April, 1993? I'm talking about

25 rough numbers, please.

Page 908

1 A. No. I can't remember that. We fled into the house. We were in

2 shock. And I really don't know. I can't say.

3 Q. In which house have you fled?

4 A. We fled to Stipo Pavlovic's house.

5 Q. And beside you, who fled in Stipo Pavlovic's house?

6 A. There was also my brother, my parents, my sister, and there were

7 some other local inhabitants. I can't give you their names. I don't

8 know everybody who was there, but all my family were there.

9 Q. Was Stipo Pavlovic himself in that house as well?

10 A. Yes, he was. He was in his own house.

11 Q. After you found shelter in the house of Stipo Pavlovic, what

12 happened then?

13 A. What happened was that they said we should open up. We didn't

14 dare open up and we stayed there. They bashed on the windows. We didn't

15 dare open. And Stipo Pavlovic went to the door. He had a rifle and he

16 killed one of them. And then they took us all outside.

17 Q. What happened to Stipo Pavlovic after he had killed one of the

18 Muslim soldiers?

19 A. Well, what happened was that they threw a bomb inside and

20 Stipo Pavlovic was dead on the spot.

21 Q. Who threw a bomb inside?

22 A. What did you say?

23 Q. My question was: Who threw a bomb inside?

24 A. Well, we don't know who threw the bomb. We were in the other

25 room, and we don't know who threw it in.

Page 909

1 Q. Can you tell us whether it was one of the attacking soldiers?

2 A. Well, yes. Yes, it was one of them. But I don't know who,

3 whether it was the Bosnian army or whether it was the Mujahedin. I don't

4 know who actually threw the hand grenade inside, but one of them did.

5 Q. You just told us a few seconds ago that you -- after Stipo

6 Pavlovic has been killed you went out. Where did you go to?

7 A. They took us out underneath Sreco Pavlovic's house.

8 Q. Mrs. Kovacevic, I am now going to show you a further photograph.

9 The respective photocopies are available.

10 JUDGE ANTONETTI: [Interpretation] Could the Prosecution tell us,

11 please, who took the photograph and when, because I'm sure the Defence

12 wants to know because they wanted to know for the P19 exhibit.

13 MR. WITHOPF: Right, Your Honours. This is the very same

14 situation as with the previous photograph; it has been taken in April

15 2002 by the Dutch photographers on behalf of the Prosecution in the

16 course of the investigation against the accused.

17 Q. Mrs. Kovacevic, you were telling us that you were gathering

18 underneath Sreco Pavlovic's house. Can you please first tell the Trial

19 Chamber what you can see on the photograph which is now in front of you.

20 A. Well, I can see the village. I can see houses. I can see

21 Sreco's house, the one we were taken to below.

22 Q. Right. Which village are you referring to?

23 A. I'm referring to the village of Miletici.

24 Q. Right. You were just telling us that you can see Sreco

25 Pavlovic's house. Can you please encircle the house you can identify as

Page 910

1 Sreco Pavlovic's house.

2 A. [Marks]

3 Q. Can you please again write the name of Sreco Pavlovic at the very

4 bottom of this photograph and draw a line between the house and the name.

5 A. [Marks]

6 Q. Very well. Can you please now describe and tell the Trial

7 Chamber where you gathered.

8 A. We gathered just below this house, Sreco Pavlovic's house.

9 Q. Who was gathering there and how many people?

10 A. Do you mean when they took us out of the house or before that?

11 I'm not quite sure what you mean.

12 Q. I mean after you have been taken out of the house and after the

13 killing of Stipo Pavlovic.

14 A. Well, they took us all out below that house, those of us who were

15 there.

16 Q. How many people are you referring to?

17 A. I'm referring to 20, 25 perhaps. I'm not quite sure how many

18 local inhabitants lived there, how many of us were there. 20; 25.

19 Q. Were all Croat villagers gathering at this spot -- on this spot?

20 A. Well, they took us all out and brought us there.

21 Q. After you had gathered on the spot you were just describing, what

22 happened to you then?

23 A. Well, they tied our hands, and we had to stay there.

24 Q. Have the hands of all Croat villagers which were gathering at the

25 spot you were just detailing been tied up?

Page 911

1 A. Yes. They tied all our hands.

2 Q. At this point in time, Mrs. Kovacevic, was your brother -- at

3 this point in time, Mrs. Kovacevic, was your brother Vlado with you?

4 A. Yes, he was.

5 Q. Can you tell the Trial Chamber what --

6 A. Yes. What do you want me to say?

7 Q. Can you please tell the Trial Chamber, Mrs. Kovacevic, what at

8 this point in time happened to your brother Vlado.

9 A. Well, he was tied too. They called him out and took him off,

10 made him kneel down.

11 Q. Mrs. Kovacevic, do you need a break at this point in time? The

12 Trial Chamber is certainly very well prepared to have a short break.

13 A. No. I can carry on.

14 Q. Can you tell the Trial Chamber what happened to your brother or

15 what your brother Vlado did prior to him being selected to kneel.

16 A. When they took us out of the house, my brother started to escape.

17 And one of them hit him in his head and brought him in front of us to

18 kneel down.

19 Q. One of them; who are "them"?

20 A. One of the Muslim army members. I don't know which one.

21 Q. Talking about yourself, Mrs. Kovacevic, and talking about the

22 other Croat villagers, what happened to you?

23 A. We stayed there. They brought my brother down there. And we had

24 to kneel down, all of us, underneath that house.

25 Q. And whilst you were kneeling down, what happened to you?

Page 912

1 A. They tied us up. We were lying down. They threatened us. They

2 took some pieces of rope as if they were about to hang us. They showed

3 us their long knives and they placed their knives underneath our throats

4 to show us that they would slit our throats.

5 Q. Again, Mrs. Kovacevic, please feel free to ask whether you wish

6 to have a break.

7 A. No, thank you. I can continue.

8 Q. In your answer you've just given to me, answering my last

9 question, you were saying "they threatened us. They took some pieces of

10 rope as if they were about to hang us." And "they showed us their long

11 knives," and so on and so on. Who are "they"?

12 A. Well, the Mujahedin did that and their army did that too. We

13 didn't remember them. Both of them did that. I don't know -- I can't

14 remember all the details now.

15 Q. Do you know a person called Ante Petrovic?

16 A. Yes, I do know him.

17 Q. Was Ante Petrovic at this point in time with you?

18 A. I don't remember whether he was with us at that time. All I know

19 is that he didn't make it -- they didn't make him kneel down with my

20 brother and the rest of us. He wasn't tied up there with us. They had

21 set him apart.

22 Q. Prior to them setting him apart, what happened to Ante Petrovic?

23 A. Ante Petrovic was higher up, up there. I don't know, actually.

24 But he wasn't there with us, and they didn't line him up with the rest of

25 us. I don't know.

Page 913

1 Q. Ante Petrovic prior to the attack, did he have a weapon?

2 A. Yes. Ante Petrovic had brought a rifle and he asked whose the

3 rifle was. He said it was his. And as far as I was able to see, he had

4 a sticker on it, a sticker on the rifle, like a chequer-board emblem.

5 And they took him away.

6 Q. When they took him away, did Ante Petrovic still have his weapon?

7 A. I don't know. I don't know. I can't say, because I don't know.

8 Q. Some minutes ago, Mrs. Kovacevic, you were mentioning that your

9 brother Vlado had to kneel down. Can you please describe to the Trial

10 Chamber how it happened that your brother Vlado had to kneel down.

11 A. He was with us up there, and they called our people out one by

12 one and they had to come out and kneel. And at one point they called out

13 a man's name - Ivo Pavlovic - and my brother was above him and he pointed

14 to my brother, and my brother said, "You mean me? Do you want me to come

15 out?" And he said yes, and told him to leave the line and kneel down.

16 Q. And again, who have been the people who ordered your brother to

17 kneel down?

18 A. Well, I don't know who they were, whether it was the Mujahedin

19 who ordered him to do that or the Bosnian army. I really don't know. We

20 were in shock and we waited to see what would happen to us. So I don't

21 know who actually ordered him to step out and kneel.

22 Q. Other than your brother Vlado, were there other people ordered to

23 kneel down?

24 A. Yes. There were others. Tihomir Pavlovic and Franjo Pavlovic.

25 Q. For clarification, the three people ordered to kneel down were

Page 914

1 Tihomir Pavlovic, Franjo Pavlovic, and your brother Vlado Pavlovic?

2 A. Yes. Yes.

3 Q. Mrs. Kovacevic, can you please show us on the photograph of the

4 village of Miletici you still have in front of you the spot the place

5 where these three people have been ordered to kneel down.

6 A. [Marks]

7 Q. And can you please at the very bottom of the photograph write

8 down "place where Franjo Pavlovic, Tihomir Pavlovic, and Vlado Pavlovic

9 have been ordered to kneel down."

10 A. Do I have to mark whose house this is? Do I have to write that

11 down too?

12 Q. Please feel free to do so. Draw a line again between the spots

13 where they were ordered to kneel down, please. And at the very bottom in

14 the white area of the photograph would you please write down "place where

15 Franjo Pavlovic, Tihomir Pavlovic, and Vlado Pavlovic have been ordered

16 to kneel down."

17 A. [Marks]

18 Q. And can you please draw again a line between this place --

19 A. I apologise. I forgot.

20 Q. Very well. No problem.

21 A. [Marks]

22 Q. Very well. Thank you very much.

23 After the selection of Franjo, Tihomir, and Vlado Pavlovic, do

24 you know what happened to them? I mean on the evening of the 24th of

25 April, 1993.

Page 915

1 A. We don't know what happened to them. They lined us up two by two

2 to go to Mehurici and they stayed behind us in this kneeling position.

3 MR. WITHOPF: Your Honours, I wish to tender the map which has

4 been marked by the witness into evidence.

5 And again, can I please ask the witness to date and sign it.

6 JUDGE ANTONETTI: [Interpretation] Could the witness put her

7 initials there and the date.

8 THE WITNESS: [Marks]

9 JUDGE ANTONETTI: [Interpretation] Very well. Show the Defence

10 and the accused the document.

11 Very well. The Prosecution has another five minutes.

12 Give it a number.

13 THE REGISTRAR: The exhibit number is P20.

14 JUDGE ANTONETTI: [Interpretation] So it will be P20.

15 Please continue.

16 MR. WITHOPF: Very well. Thank you. Taking into account that

17 there are only five minutes left for today, I will now show the witness

18 two further photographs and will ask the witness to identify what she can

19 see on these photographs. The respective photocopies are available.

20 Again, this photograph has been taken during the very same period

21 of time in April 2002 in the course of the investigation against the two

22 accused by Dutch photographers on behalf of the Prosecution.

23 Q. Mrs. Kovacevic, can you please tell the Trial Chamber what you

24 can see on this photograph.

25 A. I can see Stipo Pavlovic's house and Sreco Pavlovic's house in

Page 916

1 this photograph. We were a little below these houses.

2 Q. Can you please tell which house is Stipo Pavlovic's house.

3 A. This one here.

4 Q. Can you please again mark this house with a cross and write at

5 the bottom of the photograph "Stipo Pavlovic's house."

6 A. Where should I place the cross?

7 Q. Wherever you wish; just to identify the house of Stipo Pavlovic.

8 And then please draw a line between the cross -- very well, between the

9 cross and your comment at the bottom of the photograph.

10 A. [Marks]

11 Q. Very well. Thank you very much.

12 MR. WITHOPF: The Prosecution wishes to tender this photograph

13 into evidence as well.

14 JUDGE ANTONETTI: [Interpretation] The witness has -- can the

15 witness mark this with her initials and the date.

16 THE WITNESS: [Marks]

17 JUDGE ANTONETTI: [Interpretation] Could you show the photograph

18 to the Defence and to the accused.

19 Could I have a number, Madam Registrar.

20 THE REGISTRAR: Exhibit Number P21.

21 JUDGE ANTONETTI: [Interpretation] So this document is P21.

22 It is five to 7.00. It is time to adjourn. Do you have a last

23 question or have you finished with your questions?

24 MR. WITHOPF: With your permission, Your Honours, I today would

25 like to show the witness a further photograph. It will take us two to

Page 917

1 three minutes. And then once the witness is back I will continue.

2 Q. Mrs. Kovacevic - and again, for the information of the Chamber

3 and for the information of the Defence, this photograph has been taken

4 again in April 2002 in the course of the investigation against the

5 accused by the Dutch photographers on behalf of the Prosecution.

6 Mrs. Kovacevic, can you tell the Trial Chamber what you can see

7 on this photograph.

8 A. I can see Ivo Pavlovic's house in this photograph.

9 Q. Can you please, in order to save time, just write the name of Ivo

10 Pavlovic on the house. There's the white house. There's efficient space

11 to write the name on it.

12 A. [Marks]

13 Q. And finally, can you please again date and sign this photograph.

14 A. [Marks]

15 JUDGE ANTONETTI: [Interpretation] Could you show the photograph

16 to the Defence and to the accused.

17 Madam Registrar, could we have a number.

18 THE REGISTRAR: [Previous translation continues] ... P22.

19 JUDGE ANTONETTI: [Interpretation] This document is document P22.

20 Any further questions?

21 MR. WITHOPF: I understand, Your Honours, Mr. President, it's now

22 two to 7.00. The Prosecution will continue the examination-in-chief once

23 the witness will be back. We suggest that the witness will be called

24 after the winter recess, again to continue the examination-in-chief.

25 JUDGE ANTONETTI: [Interpretation] Thank you.

Page 918

1 Madam, it will be necessary for you to return to The Hague at a

2 date that has yet to be set since your family situation is such that you

3 have to return home. You will be informed in good time of the date on

4 which you should return. When you return, we will continue with the

5 examination. The Trial Chamber understands that it is difficult for you

6 to testify here, since it brings back memories of difficult events that

7 you lived through. Everyone is aware of this fact, that you have faced

8 up to this. You will probably return in January and we wish you a good

9 return home.

10 Could the usher please accompany the witness.

11 [The witness stands down]

12 JUDGE ANTONETTI: [Interpretation] The Prosecution has no more

13 comments to make?

14 MR. WITHOPF: Not at this point in time. Thank you very much.

15 JUDGE ANTONETTI: [Interpretation] And the Defence?

16 MS. RESIDOVIC: [Interpretation] Your Honours, we have no

17 objections to raise. But since we have a schedule for witnesses only for

18 the following week, we would be grateful if the Prosecution could provide

19 us with a list for the witnesses it intends to call in January. Thank

20 you.

21 MR. IBRISIMOVIC: [Interpretation] Your Honours, we have no

22 objections to raise.

23 JUDGE ANTONETTI: [Interpretation] Very well. It would be good if

24 we had a plan for the month of January, which would allow the Defence to

25 prepare itself. So since communication is established between the

Page 919

1 parties in this manner, we will proceed without any problems and we'll

2 avoid the sort of tension we had a while ago.

3 I would like to thank everyone, and until Monday.

4 --- Whereupon the hearing adjourned at 7.01 p.m.,

5 to be reconvened on Monday, the 15th day of

6 December, 2003, at 2:15 p.m.