Tribunal Criminal Tribunal for the Former Yugoslavia

Page 6166

1 Tuesday, 27 April 2004

2 [Open session]

3 --- Upon commencing at 9.04 a.m.

4 [The accused entered court]

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

6 the case, please.

7 THE REGISTRAR: Case Number IT-01-47-T, The Prosecutor versus

8 Enver Hadzihasanovic and Amir Kubura.

9 JUDGE ANTONETTI: [Interpretation] Thank you, Madam Registrar.

10 Could we have the appearances for the Prosecution.

11 MR. WITHOPF: Good morning, Mr. President. Good morning,

12 Your Honours. Good morning counsel. For the Prosecution, Daryl Mundis,

13 Ekkehard Withopf, and the case manager Ruth Karper.

14 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Withopf. And the

15 appearances for the Defence, please.

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

17 morning, Your Honours. On behalf of General Enver Hadzihasanovic, Edina

18 Residovic, counsel, Stephane Bourgon, co-counsel and Mirna Milanovic our

19 legal assistant. Thank you.

20 JUDGE ANTONETTI: [Interpretation] Thank you, Ms. Residovic. And

21 the other Defence team, please.

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

23 behalf of Mr. Kubura, Rodney Dixon, Fahrudin Ibrisimovic, and Nermin

24 Mulalic, our legal assistant.

25 JUDGE ANTONETTI: [Interpretation] The Trial Chamber would like

Page 6167

1 greet everyone present in the courtroom members of the Prosecution, Mr.

2 Withopf, Mr. Mundis. Defence counsel, the accused, and everyone else

3 present Madam Registrar, the usher, the court reporter, and all those who

4 are outside the courtroom and are contributing to the smooth running of

5 these proceeds.

6 As you are aware, we have to deal with the documents today. This

7 issue will be dealt with on the basis of the subjects that were defined

8 last week. The first subject about which the Prosecution will provide

9 clarifications for the Trial Chamber concerns the origin of the various

10 documents in all the binders we have at our disposal. And the Prosecution

11 will explain to us how within the framework of its investigation they were

12 in a position to obtain these documents. And as I said last Friday, these

13 documents come from various sources, the main ones come from the Sarajevo

14 archives, but there are also other sources for these documents, and the

15 Prosecution will provide us with all the necessary relating to the origin

16 of these documents.

17 In that the Defence has contested some of these documents on the

18 basis of unknown sources, that is to say, because some of the sources are

19 unknown or can be put into question. So the Trial Chamber would like to

20 be enlightened with regard to the origin of these documents. Likewise,

21 the Prosecution was requested to provide the Trial Chamber with

22 explanations of the authenticity of these documents, and we would like to

23 be informed of the reasons for which the Prosecution believes these

24 documents to be authentic. In addition, we should be informed to the

25 extent this is possible about the chain of custody within BH, the chain of

Page 6168

1 custody of these documents. We would like to be informed about this to

2 the extent that it is possible for the Prosecution to do this. We would

3 like to know the dates of the documents; we would like to know who the

4 authors of the documents are, and how they were distributed within units

5 because we have realised that for a number of documents there are some

6 documents that don't contain details about who they were distributed to.

7 This will enable us to have a clear idea about the origin and

8 authenticity of the document concerned. After the Prosecution has

9 presented its explanations, then the Defence will naturally also be in a

10 position to state its position. And the Trial Chamber, if it is

11 necessary, may also ask both parties any questions that are pertinent and

12 relate to the documents. If the Prosecution refers to the documents, we

13 have these documents before us, it would then suffice to indicate the

14 number of the document concerned, the binder in which the document can be

15 found, and that will then enable us to find the document that we have.

16 This should make it easier to follow the proceedings.

17 As I have said, the Defence will subsequently state its position

18 in a general sense, the Defence should take or can take as much time as

19 the Prosecution takes. But given the complexity of the issues to be dealt

20 with the Defence will be granted leave to go beyond the time allocated if

21 they deem that this is necessary.

22 As far as going beyond the time allocated is concerned, this is a

23 problem that arose yesterday. I would like to remind you that in order to

24 clarify this issue, when we have witnesses or expert witnesses or anyone

25 else who is testifying here, when conducting a cross-examination, you have

Page 6169

1 one and a half times the amount of time given to the Prosecution.

2 Sometimes there are problems, and it makes it necessary to go beyond the

3 time allocated. We should be asked to grant you leave to go beyond the

4 time allocated. We can then interrupt the Defence. We could say "you've

5 used up your time, and you may no longer proceed." This would be

6 unfortunate, but we can do this. To avoid this extreme, when preparing

7 your cross-examination, bear in mind the time allocated to you, and if you

8 encounter any difficulties, if you think that you will need more time,

9 inform us in advance and provide us with reasons for this. If you have 20

10 documents you would like to tender, whereas the Prosecution only tendered

11 one or two documents, tendering about 20 documents obviously will take a

12 lot of time. You have to show the document to the witness; you need to

13 give the witness time to read the document; it's necessary to hear what

14 the Prosecution has to say about the document. So if such difficulties

15 arise, do inform us of this.

16 Having said this, I will now let Mr. Withopf take the floor.

17 Mr. Withopf will provide us with clarifications concerning the first

18 issue.

19 MR. WITHOPF: Thank you very much, Mr. President, Your Honours.

20 As indicated on Friday and today, the first issue to address are the

21 sources of the documents. I will give a presentation on this issue

22 following the following structure: First, I will address the main source

23 of the Prosecution's document, in particular, the main source for the ABiH

24 documents and the main source is obviously the Sarajevo collection.

25 Afterwards, I will deal with the sources for the documents which

Page 6170

1 stem from the Croatian State archive in Zagreb. And finally, I will

2 address the documents which Your Honour, the Presiding Judge, specifically

3 detailed last Friday. The presentation will address a number of issues

4 the Trial Chamber raised on Friday and today. It will provide answers to

5 quite a number of such issues. Afterwards, Your Honours, we are prepared

6 to answer any questions to the extent possible.

7 If I may, please, start with the Sarajevo collection. The

8 Sarajevo collection is a document collection comprised of two distinct

9 collections; namely, the Sarajevo Collection I and the Sarajevo Collection

10 II. I will first address details in respect to the Sarajevo Collection I.

11 The Sarajevo Collection I is a document collection comprised of about

12 49.375 pages of documents. Assuming that each page -- each document has

13 an average 2.5 pages, the Sarajevo Collection I amounts to a total of

14 about 22.000 documents. The -- about 50.000 pages of documents,

15 Your Honours, were seized between 11 October and 19 October 2000 in three

16 premises in Bosnia and Herzegovina; namely, number one, the ABiH main

17 archive in Sarajevo, then located in the Ramiz Salcin barracks in

18 Sarajevo, the search and seizure operation took place between the 11th and

19 the 19th of October 2000.

20 The second premises are the presidential archives in Sarajevo,

21 then located in the Reisa Dzemaludina Causevica Street in Sarajevo. This

22 search and seizure operation took place between the 11th and the 18th of

23 October 2000. And finally, number three, the third premises were the

24 premises of the 7th Mechanised Brigade. This is the military unit

25 previously known as the 7th Muslim Mountain Brigade, headquarters in

Page 6171

1 Zenica. This part of the search and seizure operation was done on the

2 13th and the 14th of October 2000.

3 Mr. President, Your Honours, there is an important issue I wish to

4 very briefly address in private session, if we please may go for one or

5 two minutes in private session.

6 JUDGE ANTONETTI: [Interpretation] Very well. Madam Registrar,

7 let's go into private session.

8 [Private session]

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

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Page 6172

1 (redacted)

2 (redacted)

3 (redacted)

4 [Open session]

5 JUDGE ANTONETTI: [Interpretation] Mr. Withopf.

6 MR. WITHOPF: Thank you very much, Mr. President.

7 362 documents on the Prosecution exhibit list, Your Honours, stem

8 from the ABiH archive. Two documents, namely, numbers 55 and 119, stem

9 from the presidential archive. And seven documents, namely numbers, 56,

10 103, 104, 106, 308, 342, and 439 stem from the archives of the 7th

11 Mechanised Brigade headquarters in Zenica.

12 The documents on all premises, Your Honours, were seized as a

13 result of a consensual search operation, consensual in the sense that the

14 Bosnian authorities had been informed about the intended searches, had

15 been requested to provide to the OTP access to the authorities mentioned,

16 and the Bosnian authorities had given their consensus prior to the search

17 operation.

18 As a result of the consensus of the Bosnian authorities and the

19 agreement reached with them, they, for each of the promises, the Bosnian

20 authorities for each of the premises assigned a person responsible,

21 responsible to support the representatives of the Prosecution and to sign

22 over any, any documents to be signed as a result of the searches. The

23 respective designated people were the following: For the ABiH archive,

24 Major Suad Ramezic of the ABiH. He was the designated liaison officer.

25 And Major Adem Omerkic, he was the chief archivist at the time. For the

Page 6173

1 presidential archive, Mr. Bakir Sadovic. He was the designated from the

2 Bosnian authorities, designated liaison officer. And finally, for the

3 archive of the 7th Mechanised Brigade headquarters in Zenica, again,

4 Major Suad Ramezic, Mr. Edin Obradovic, and the archivist, namely

5 Mr. Smirko Sabahudin.

6 If I may provide the Trial Chamber with some more detail on how

7 the search and seizure operation was conducted. Mr. President,

8 Your Honours, in October 2000, 11 representatives of the Office of the

9 Prosecutor, including five investigators, two criminal analysts, one

10 military analyst, two research officers, and of course language

11 assistants, since the materials to be seized were in the B/C/S language.

12 Ten language assistants were used for the search and seizure operation,

13 these people under the direction and supervision of the then lead

14 investigator in this case, namely, Mr. Stephan Obers; another

15 investigator who is now the team leader of the Prosecution's investigation

16 team in this case, namely Mr. Peter Hackshaw, and myself searched the

17 document collections.

18 In compliance with the conditions of the Bosnian authorities which

19 at the time tried to avoid any public attention to the search operation

20 conducted by the OTP, in compliance with the conditions, the document

21 collections were searched during nighttime starting each and every day at

22 about 1900 hours in the evening and lasting to about 4.00 to 5.00 in the

23 mornings. This implies, Mr. President, Your Honours, that no other people

24 than the designated officers, liaison persons of the Bosnian authorities

25 and the mentioned representatives of the Office of the Prosecutor were at

Page 6174

1 the respective premises at the time the searches were conducted.

2 The document collections, Your Honours, were seized using a list

3 of search criteria. This applies to all three premises. Such search

4 criteria were identified based on the then knowledge of the broader

5 investigation, including search criteria which are relevant for ongoing --

6 still ongoing investigations. If the Trial Chamber wishes us to do so, we

7 can hand over the lists containing the search criteria used at the time,

8 in October 2000, either on an ex parte basis or in a redacted version. On

9 an ex parte basis or in a redacted version because these lists with the

10 search criteria do, in addition to the search criteria specifically used

11 for the investigations against the then three accused in the present

12 proceedings, such lists reveal search criteria that relate to still

13 ongoing investigations. If I may ask the Trial Chamber to provide some

14 guidance in this respect.

15 The documents which at the time, in October 2000, appear to fall

16 within these search criteria were taken. Documents which appeared to not

17 fit within these search criteria were left behind. A rough estimate, but

18 I wish to underline this is a rough estimate only and it addresses a

19 question raised by the Trial Chamber on Friday, a rough estimate is that

20 about 2 per cent, 2 per cent of the documents of the ABiH archive, and

21 about 5 per cent of the documents of the presidential archive were taken.

22 This is a rough estimate only, Mr. President, Your Honours.

23 A further question which was raised on Friday and also today by

24 the Trial Chamber is the issue whether originals or copies were taken, if

25 I may please briefly address this issue. The originals were taken at all

Page 6175

1 three archive locations. Such originals are still held by the OTP in the

2 chain of custody in the OTP's evidence vault. It is, however, the

3 practice before this Tribunal with very rare exceptions that tendered into

4 evidence are actually copies. Only if the Trial Chamber, however, wishes

5 the Prosecution to produce the originals, we are in a position to do so.

6 Copies of the originals were made and returned to the ABiH archive and the

7 7th Mechanised Brigade headquarters in Zenica between mid-November and

8 early December 2001. During the search of the presidential archive,

9 copies were made in the course of the search and seizure operation to

10 replace the seized originals. Therefore, it was not necessary obviously

11 to return copies to this location.

12 In this context, Mr. President, Your Honours, it is important to

13 note that in very few cases, no original was available in the archives;

14 only a copy existed. In such instances, the Prosecution has the copy with

15 the chain of custody as it was the only original, "original," available to

16 us. Once the documents were taken, they were logged in a logbook which

17 was signed each and every day. At the end of each and every day's search

18 and seizure operation by the designated representative of the OTP and the

19 person designated by the Bosnian authorities to do so. These logbooks,

20 Mr. President, Your Honours, with the signed receipts are available, and

21 we will hand them over now, the respective copies are available. We have

22 three logbooks, obviously one for each of the three premises. And we will

23 hand them over in a few seconds, please.

24 Mr. President, Your Honours, there are copies for the Judges.

25 There's a copy for the Chamber's legal officer. And there are obviously

Page 6176

1 copies for Defence counsel as well.

2 JUDGE ANTONETTI: [Interpretation] Just a small question for you,

3 Mr. Withopf: To the extent you are producing this logbook or these

4 logbook, is there any trace of the document that you didn't retain for

5 this particular trial but which are used for the purposes of other

6 investigations and which may figure in these logbooks?

7 MR. WITHOPF: Mr. President, Your Honours, to answer this

8 question, yes, in these receipts there's obviously reference made to

9 documents which may or may not be used in the course of ongoing

10 proceedings, including investigations.

11 JUDGE ANTONETTI: [Interpretation] Since you are producing these

12 logbooks and a copy for the Defence, too, the Defence may find that there

13 are other inquiries that are ongoing regarding other persons, and they may

14 make such a conclusion on the basis of this document because there are

15 documents that do not appear on your consolidated list. Could that be a

16 problem for you?

17 MR. WITHOPF: Mr. President, Your Honours, it won't be a problem.

18 And I will address this issue in a few minutes. Defence actually has been

19 given access to the full document collection, meaning that there's no

20 additional information on the receipts. I will address this particular

21 issue in a few minutes, please. Thank you, Mr. President.

22 In the course of the searches, plans of the ABiH --

23 [Trial Chamber and legal officer confer]

24 JUDGE ANTONETTI: [Interpretation] Mr. Withopf, a minor problem of

25 a technical nature. You have provided us with copies, but I must note

Page 6177

1 that unfortunately it is really difficult to read them. The quality of

2 the copy is not very good. There are entire passages that are entirely

3 illegible. When you photocopied these documents, the colour must have

4 been almost spent.

5 MR. WITHOPF: Mr. President, you're obviously right, and I do

6 apologise if the quality of the photocopies isn't that good as could be

7 expected. And we will certainly be able to produce copies with the

8 respective and necessary quality in the course of the -- today's court

9 proceedings.

10 JUDGE ANTONETTI: [Interpretation] These logbooks, are you asking

11 them -- are you asking that they be admitted into evidence so that we can

12 give them an exhibit number?

13 MR. WITHOPF: Mr. President, not at this point in time. It

14 depends on the further discussions on these issues in the course of the

15 proceedings.

16 JUDGE ANTONETTI: [Interpretation] Please continue.

17 MR. WITHOPF: In the course of the searches at the three premises

18 mentioned, Mr. President, Your Honours, search plans of the ABiH main

19 archive in Sarajevo and the ABiH -- and the archive within the

20 headquarters of the 7th Mechanised Brigade in Zenica were made. Such

21 search plans indicate as to where certain materials were found. These

22 plans are available and we will hand them over now, please.

23 Mr. President, I was just informed by my case manager that the

24 whole bunch of materials was handed over at once, so the search plans are

25 included in the materials you already got.

Page 6178

1 For the ABiH 3rd Corps archive room, there's in addition a

2 three-page explanation available, and it forms part of the materials

3 handed over which, in addition, explains where on the various areas the

4 binders containing the various documents were found.

5 On 19 October 2000, Mr. President, Your Honours, all materials

6 seized from all three archives were placed into large boxes and sealed

7 with chain of custody forms. There were 30 such large boxes, and they

8 were signed over to the head of the ICTY Sarajevo field office for the

9 purpose of transporting the documents from Sarajevo to The Hague. On 22nd

10 of October 2000, the documents with a truck were transported to The Hague

11 where they arrived on the 25th of October 2000. Investigator, now the

12 investigations team leader, Mr. Peter Hackshaw was present once the

13 documents arrived, and Mr. Hackshaw has confirmed that they arrived intact

14 and sealed.

15 The chain of custody of these documents from the time they were

16 seized until today can be shown if necessary. Each single one of the

17 several documents has its own individual chain of custody log referred to

18 as ERF, the evidence register form. If required, the Prosecution can for

19 each and every document obtain the respective ERF from the evidence unit

20 and produce them for the Trial Chamber.

21 The documents upon arrival here in The Hague were then processed

22 in the evidence unit in the usual manner; namely, they were ERNed. "ERN"

23 stands for evidence registration number. It means that each of the

24 documents was assigned a separate number. These are the numbers with the

25 16 digits one can see on each and every document the Prosecution is using.

Page 6179












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 6180

1 The documents were then scanned producing an image similar to an

2 electronic copy but not searchable. Once scanned, an optical corrector

3 recognition programme commonly referred to as OCR is then run over the

4 scanned image which has the capacity to convert the scanned image into a

5 text document which, depending on the quality of the original scanned

6 image, is searchable. Mr. President, Your Honours, I do not want to go

7 into the course of this presentation into much of the details of the pure

8 technical side of the processing of such documents. A comprehensive

9 overview of the procedure within the Office of the Prosecutor in relation

10 to these documents is contained in a declaration which forms part of the

11 materials which has been handed over. A declaration -- I do apologise,

12 Mr. President. The declaration will be handed over separately. It's a

13 declaration by Mr. Robert Reid. Mr. Robert Reid is the deputy chief of

14 investigations, and he was the deputy chief of investigations at the time.

15 This declaration on 1st of August 2001 was submitted in the course of the

16 proceedings against Kordic and Cerkez, and the document -- the declaration

17 will explain ion each and every detail the procedure within the

18 Prosecution's evidence unit.

19 This overview will also provide and will in addition provide the

20 Trial Chamber with information on how the documents were handled within

21 this unit. I don't think, Mr. President, Your Honours, I need to go in

22 any more detail in that respect. If, however, required to do so, I would

23 be in a position to explain further details. For the time being, I refer

24 to the declaration of Mr. Robert Reid.

25 I come now to an issue which Your Honours -- which Your Honour,

Page 6181

1 Mr. Presiding Judge, addressed earlier on today in the proceedings. The

2 full Sarajevo Collection I comprised of all documents was made available

3 on 30 January 2002 to Defence counsel. This disclosure certainly went

4 beyond the disclosure obligations of the Prosecution under Rule 66(A)(2)

5 and Rule 68. One of the policy considerations at the time was the fact

6 that it took the Prosecution some time to process the full collection, and

7 Defence should not suffer in their trial preparation from this fact.

8 The full Sarajevo Collection I was disclosed on that date, namely,

9 the 30th of January 2002, on seven CDs for each Defence team, meaning

10 fully searchable. I also wish to emphasise that due to the fact that

11 these documents were all in B/C/S, the Defence having B/C/S speakers

12 amongst them, was certainly earlier in a position than the Prosecution to

13 analyse the document collection provided to them. I also wish to inform

14 the Trial Chamber that the Prosecution on three occasions provided Defence

15 with thousands of translations of documents which stem from the Sarajevo

16 collections.

17 If I now, Mr. President, Your Honours, with your permission, may

18 proceed with details in respect to the Sarajevo Collection II. The

19 Sarajevo Collection II is comprised of 610 documents which result in

20 approximately 1.000 pages of documents. These 610 documents were again as

21 a result of a consensual search, were seized between the 15th and 19th of

22 April 2002. Again, this search was not only focussing on the two accused

23 in the present proceedings, but also included additional, ongoing

24 investigations. At this point in time, in April 2002, only the ABiH

25 archive which was located at new premises compared to October 2002 [sic],

Page 6182

1 the ABiH archive was now located in the Halida Nazecica Street 3 in

2 Sarajevo at this point in time this archive was searched. Different from

3 the first search and seizure operation, only copies - this time only

4 copies - were taken. The originals remained in the archive. The

5 respective logbooks, and again, the logbooks with the signed receipts, do

6 form part of the bundle we handed over earlier on today.

7 The person assigned by the Bosnian authorities to support the

8 representatives of the Office of the Prosecutor and to sign the receipts

9 this time was Captain Miralem Duranovic from the ABiH. 35 such documents

10 or 35 documents on the Prosecution's exhibit list stem from the Sarajevo

11 Collection II; namely numbers 165, 290 to 296, 298 to 300, 302 to 305,

12 309, 316, 322, 325, 327, 328, 333 to 337, 3 --

13 THE INTERPRETER: Counsel, slow down, please.

14 MR. WITHOPF: I do apologise.

15 I will continue with 337, 382, 415, 422, 424 to 427, 432, and 435.

16 Mr. President, Your Honours, this concludes the portion of my

17 presentation which has to do with the Sarajevo collection. A second main

18 source of the documents which form part of the Prosecution's exhibit list

19 were received from the Croatian State archives in Zagreb. And I make a

20 reference to the further detailed consolidated exhibit list in which all

21 these documents are indicated.

22 In respect to the Croatian State archives in Zagreb, I wish to

23 draw the attention of the Trial Chamber to the testimony of

24 Mr. Marko Prelec in the course of the trial against Martinovic and

25 Naletelic, commonly referred to as Tuta and Stela. Mr. Prelec is a member

Page 6183

1 of the OTP. He is a research officer and he testified for three days as a

2 Prosecution witness on exactly the issue of how documents were obtained

3 from the state archive in Croatia, and he testified on 25th of October

4 2001, 26th of October 2001, and 31st of October 2001. We are going to

5 hand over copies of this public testimony right now.

6 This testimony, as you will see, Mr. President, Your Honours, this

7 testimony covers the exact issues in question here, and the transcript

8 which will be handed over in a few seconds includes the

9 examination-in-chief, the cross-examination by the Defence for Tuta and

10 Stela, the re-examination of the Prosecution, and all questions asked by

11 the Judges. The main issues this Trial Chamber may be interested in were

12 addressed by the witness during the examination-in-chief on 25th of

13 October 2001. The transcripts just handed over, Mr. President,

14 Your Honours, will provide the Trial Chamber with a very comprehensive

15 picture on this source, this source which is identified as the Croatian

16 State Archive.

17 Very briefly, for ease of reference in the course of today's

18 discussion, I wish to summarise the most relevant portions of the

19 testimony of the Witness Prelec as follows: In April and May 2000, after a

20 series of RFAs, meaning requests for assistance, and binding orders by a

21 number of Trial Chambers, the Croatian authorities provided

22 representatives of the Office of the Prosecutor limited access to the

23 archive which is colloquially referred to as the HVO archive. In summer

24 2000, the Croatian authorities provided extended access to the HVO archive

25 and to other archives which came from the custody of various parts of the

Page 6184

1 Croatian Ministry of Defence.

2 Part of this big archive formed the HVO materials, obviously the

3 bigger part. The archive, however, included to a limited extent also ABiH

4 materials. The archive, as Your Honours will see from the testimony of

5 Mr. Prelec, the archive consists of over 10.000 items, an item being a

6 binder or a box containing loose materials. The archive is not a public

7 archive. Access to this archive is regulated by the Croatian authorities

8 and, following respective requests, is given to the same extent to both

9 Prosecution and various Defence teams. In practice, and this is in

10 compliance with an agreement between the Office of the Prosecutor and the

11 Croatian authorities --

12 JUDGE ANTONETTI: [Interpretation] Mr. Withopf, among the documents

13 you have handed over to us, you made copies for the Judges and the

14 Defence, but have the accused received copies? It appears that General

15 Kubura doesn't have a copy.

16 MR. WITHOPF: Mr. President, since these -- to be very clear, the

17 accused haven't received copies. They have not received copies. And the

18 materials are obviously in the English language only, which the accused at

19 least to the knowledge of the Prosecution don't understand. Therefore, at

20 this junction the Prosecution didn't consider it being necessary that

21 these materials be handed over and be translated into B/C/S to the

22 accused. In respect to the testimony of the Witness Prelec, however, if

23 the Trial Chamber requests the Prosecution to do so, the respective

24 audiotapes of the court session in the B/C/S language can be handed over

25 to the two accused.

Page 6185

1 JUDGE ANTONETTI: [Interpretation] Very well. Please continue.

2 MR. WITHOPF: Mr. President, Your Honours, I'm about to finish

3 this presentation on the Sarajevo archive and the Croatian State Archives

4 in Zagreb. However, I wish to very briefly address the issue on how in

5 practice the documents from the Croatian State Archives were received.

6 In compliance with an agreement between the Office of the

7 Prosecutor and the Croatian authorities, the OTP receives copies -

8 receives copies - of the materials, not the originals, as follows: A

9 representative of the OTP examines an item, as mentioned, a binder, for

10 example, identifies certain documents, marks them with a sticker, hands

11 the binder to a designated archivist designated by the Croatian

12 authorities, and the archivist takes care that the representative of the

13 Prosecution on the next day receives copies; again, copies, not the

14 originals of the documents he had marked.

15 Once this is done, the documents are handled by the ICTY field

16 office in Zagreb. They are indexed and summarised and finally they are

17 ERNed. As a quality control, the copies received from the archive are

18 checked by the representatives of the Office of the Prosecutor against the

19 lists that were made when the binder was handed over to the designated

20 archivist for photocopying.

21 Mr. President, Your Honours, I think that at this point in time,

22 Defence may wish to address the issues which have been addressed by the

23 Prosecution in the course of this presentation. And I would suggest that

24 once this is done, I will for the Prosecution provide further information

25 on the exhibits which Your Honour, Mr. Presiding Judge, have specifically

Page 6186

1 addressed in the course of the last Friday's court session. Thank you

2 very much.

3 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Withopf. Before

4 giving the floor to the Defence, I shall summarise as follows what you

5 told us: You have explained to us that the documents which were in the

6 possession of the Prosecution were collected through official channels

7 which entailed cooperation with the authorities of Bosnia and Herzegovina

8 and the authorities of Croatia. Concerning the archives, there was

9 Sarajevo I and Sarajevo II collections. You have explained to us that as

10 for the archives of Sarajevo I, you are in possession of the originals.

11 As for the Sarajevo II collection, the originals remained in the location,

12 and you made photocopies. This procedure resulted from a search carried

13 out during the night so as not to cause any public disorder. You

14 mentioned the perfect cooperation of the archivists and those officials

15 that cooperated with members of the OTP.

16 Then these documents were registered in conformity with judicial

17 procedure. And each document was given a number. And these documents, as

18 a result of the research procedure, do not allow for any calling in

19 question the regularity of the procedure applied in making that

20 collection.

21 Regarding the State archives of Croatia in Zagreb, you have

22 indicated that contrary to the Sarajevo I collection, you were not able to

23 obtain originals, but only copies. And that the procedure of obtaining

24 copies was carried out in the following manner: A representative of the

25 OTP reviewed the documents, marked them with a sticker attached to the

Page 6187

1 document that needed to be photocopied. The next day, the responsible

2 archivist provided copies. The investigator checked that the copy

3 corresponded to the original document. And it was under those conditions

4 that you carried out what you called "quality research." In support of

5 this procedure, you support -- you have handed over the testimony of an

6 official from the OTP, Mr. Marko Prelec, who testified in the

7 Martinovic-Naletelic case. The testimony took three days, and we have

8 been provided with the totality of that testimony in English. But there's

9 no problem for providing the accused with that testimony in their own

10 language. And this official described over a period of three days the

11 procedure applied. That would be a summary of your presentation. So we

12 have the Sarajevo I and the Sarajevo II collection, as well as a

13 collection from the archives of Croatia.

14 I wish to thank you for your very interesting presentation. And

15 before continuing regarding the other sources, have the Defence in view of

16 what has been said any observations to make. So I give the floor now to

17 Mr. Bourgon and Madam Residovic. I don't know who will speak. Mr.

18 Bourgon, you have the floor.

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

20 morning, Your Honours. Mr. President, at this stage we have heard from

21 the Prosecution explanations and arguments regarding the sources of the

22 documents that they wish to tender into evidence in the course of these

23 proceedings. When the Chamber identified the five topics that needed to

24 be addressed during these hearings on the admissibility of documents,

25 there were other issues that needed to be addressed under the broad topic

Page 6188

1 of the source. The Chamber then mentioned that the source included the

2 origin of the document, and also a number of precise questions were

3 addressed to the Prosecution regarding those documents.

4 At this stage, Mr. President, we would prefer to hear the

5 arguments of the Prosecution on the other questions because for us, the

6 question of Sarajevo archives and Zagreb archives only constitute a small

7 part of the submissions that we wish to address this morning. There are

8 other much more important questions, and we would prefer to hear the

9 Prosecution first on the other questions addressed to them, and then to

10 make our global presentation.

11 JUDGE ANTONETTI: [Interpretation] Very well. Thank you,

12 Mr. Bourgon.

13 I turn now to the other Defence teams and specialists for

14 documents. Mr. Dixon, you have the floor.

15 MR. DIXON: Thank you, Your Honours. I agree with Mr. Bourgon.

16 Our dispute about the documents has never been focussed on the legality of

17 the search itself or what happened after the search, the chain of custody

18 that the Prosecution then initiated. Our main point of challenge has

19 always been what happened before the documents got into the archive. How

20 did the documents originate and how did they get into the archive? That

21 is the key question for us. So what we've addressed up until now is not

22 in dispute, as Your Honour has said, an entirely regular procedure appears

23 to have been followed. And what we wish to focus on is what happened

24 before the documents arrived in the archive. Thank you, Your Honours.

25 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Dixon.

Page 6189

1 Mr. Withopf may take the floor again. He will certainly be

2 continuing. The Trial Chamber notes that at this point in time, the

3 Defence has no comments to make regarding the manner in which the

4 Prosecution obtained these documents. The procedure has been described;

5 and as far as the legality of obtaining these documents is concerned,

6 there are no problems in view of all the precautions taken by the OTP, who

7 closely collaborated with the Croatian, BH authorities. The Defence tells

8 us that the important issues have to do with what happened before these

9 documents arrived in the locations, the plans of which we have at our

10 disposal. We know the address of these locations, et cetera. The problem

11 is what happened before. So perhaps we could be told how these documents

12 were placed in the archives. Perhaps we could be told what procedure was

13 followed. And if Mr. Withopf is in a position to do so, perhaps he could

14 explain to us in concrete terms how these documents that belonged to the

15 3rd Corps, to other corps, arrived in the archives which were searched and

16 which enabled the Prosecution to obtain these documents.

17 And on the basis of the plans that we have been provided with, and

18 we have proof that the documents were categorised on the basis of a very

19 particular criteria, because when we enter the corridor in the left-hand

20 room on the ground floor where the archives of the 3rd Corps and Brigade

21 and Command are located, it mentioned 7th Corps. It says "1994" and

22 "1996." There's nothing to do -- nothing said about the 7th Corps. In

23 the next room, there are other documents. The following room is in

24 Gorazde. The room was apparently damaged by water there. And the next

25 room, we have the BiH. And then in the next room, it says as far as I can

Page 6190

1 read "the 2nd Corps," the 22nd and 28th Division. And then in room 17 to

2 the right, it's the military security cells, we don't know what that is.

3 And in room 18, the 4th Corps, the 5th Corps, and the 6th Corps.

4 So these documents were placed in the archives on the basis of

5 very specific criteria. Perhaps the archivist indicated how this took

6 place. As far as the 3rd Corps is concerned, the -- we have a plan for

7 the archives room. And these are very specific situations. There are

8 documents which were placed in or kept in vaults. There are very

9 organised plans which made it easy for everyone to find their bearings.

10 As far as the archives are concerned, the same is the case for the

11 7th Brigade. We also have on the first floor archives that relate to the

12 1st Corps and the 3rd Corps as well. That's what it says, to the left.

13 Mr. Withopf, you may continue either to respond to the comments or

14 to continue with your submissions concerning the other documents that come

15 from other sources.

16 MR. WITHOPF: Thank you very much, Mr. President, Your Honours.

17 If I may, please, briefly address the issue as to how these

18 documents came into the three archives. Your Honour, Mr. President, you

19 already mentioned the key to the solution of this issue, and the key will

20 be the archivists to the three archives. If necessary, the Prosecution

21 will call the archivists as witnesses, and these archivists are certainly

22 in a position to in very detail describe on how these documents came into

23 the three archives. At this junction, however, Mr. President,

24 Your Honours, I wish to emphasise that all archives, all three archives,

25 are official archives of the Bosnian authorities, and in particular, the

Page 6191

1 ABiH main archive in Sarajevo contains all materials that are officially

2 collected by the Bosnian authorities and officially archived in the ABiH

3 main archive. This statement, obviously, applies to the other two

4 archives; namely, and in particular, the presidential archive in Sarajevo

5 and the archive in the headquarters of the 7th Mechanised Brigade in

6 Zenica as well.

7 Again, if necessary, the three archivists can be called as

8 witnesses, which will be in a position to explain in far more detail on

9 how such materials were received by the respective three archives.

10 If I may, with the permission of the Trial Chamber, if I may now

11 please address, and I would like to follow the order of the Trial Chamber

12 in the course of last Friday's court session, if I may please address a

13 number of issues related to specific documents Your Honour, the

14 Presiding Judge, asked for further explanation.

15 JUDGE ANTONETTI: [Interpretation] Very well. So at this point in

16 time, the question, concern, raised by the Defence, that is to say, the

17 question as to when and how these documents arrived in the archives, you

18 are telling us that a reply could be provided by calling the archivists.

19 But the provisional conclusion I can draw is that at this point in time,

20 the Prosecution is not in a position to inform us how these archives

21 arrived, how these documents arrived in the state archives. If we take

22 the following example, all the orders issued at the 3rd Corps level in

23 Zenica in 1993, the search took place in the year 2000, that is to say,

24 seven years later. What happened between 1993 and the year 2000 with

25 regard to the 3rd Corps documents? Perhaps the archivist can inform us

Page 6192

1 about this, but the Prosecution is not in a position to tell us anything

2 about this today. They can't tell us about how the archives arrived

3 there.

4 MR. WITHOPF: That's correct, Mr. President. The Prosecution

5 plans, and it appears to be necessary at this junction, to interview the

6 archivists. In order to save court time, the Prosecution intends to

7 provide statements with a declaration following Rule 92 bis, which would

8 probably save a few days of court time.

9 JUDGE ANTONETTI: [Interpretation] Very well. In conclusion,

10 notwithstanding the abundance of precautions taken in order to collect all

11 these documents, the OTP didn't think it necessary when carrying out the

12 search in the year 2000 to take a written statement from the archivist

13 about how these documents arrived in the archives. This is not something

14 that was done.

15 MR. WITHOPF: Mr. President, this is correct. Of course, the

16 representatives of the Prosecution have talked to the archivists, and the

17 representatives of the Prosecution at this point in time got a certain

18 idea based on the information provided by the archivist. However, a

19 formal interview wasn't taken at this point in time.

20 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Withopf. Please

21 continue to deal with the other issues. You have a quarter of an hour,

22 and we will then have our customary, traditional break.

23 MR. WITHOPF: Mr. President, Your Honours, I think I can address

24 the particular documents Your Honour, the Presiding Judge, listed in the

25 course of the Friday's session within the 15 minutes left prior to the

Page 6193












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 6194

1 break. And again, I'm following the order of the Friday's court session.

2 The first proposed exhibit addressed by Your Honour, the

3 Presiding Judge, was number 354, the Blaskic trial Defence Exhibit D208/1.

4 The Prosecution did some researches on this document. And according to

5 the evidence unit records, it was the Defence witness Marko Buskalo

6 [phoen] who introduced this video into evidence.

7 The next document is number 409. It says "sensitive source." If

8 possible, the Prosecution would try to avoid the name of the sensitive

9 source. However, if the Trial Chamber has a very particular interest to

10 get to know who the sensitive source is, the Prosecution would be prepared

11 to in closed session reveal the name of the sensitive source.

12 Proposed exhibit Number 16B is a Sarajevo Blaskic Defence exhibit

13 obviously used by Defence counsel and tendered into evidence by the

14 Blaskic Defence.

15 Number 114, we did some further inquiries. Unfortunately, the

16 result has been that no further information on the source is available.

17 Mention was made of a document, of a number of documents which

18 stem from Madam Vidovic. As the Trial Chamber is very well aware,

19 Madam Vidovic was one of the two Defence counsel for the late accused

20 Alagic. Prior to being Defence counsel for the information of the Trial

21 Chamber, Madam Vidovic was the designated Bosnian liaison officer with the

22 ICTY in The Hague, and Madam Vidovic, in this capacity, at request of the

23 Office of the Prosecutor and on own initiative provided the Office of the

24 Prosecutor on -- at numerous instances with documents requested, usually

25 based on official and detailed requests for assistance. That implies that

Page 6195

1 the documents the Prosecution received by Madam Vidovic came through very

2 official channels from Bosnia and Herzegovina.

3 The next specific exhibit which was addressed on Friday last week

4 is Defence Exhibit -- is number 282. Again, these are exhibits used by

5 the, or tendered into evidence by the Blaskic Defence. This Defence

6 exhibit to the extent as the searches revealed was possibly introduced by

7 a witness with the name Martin Bell. In respect, if the need arises in

8 respect to this particular exhibit, Defence exhibit in Blaskic, the

9 Prosecution would be in a position to conduct further searches in order to

10 provide the Chamber with additional information. The information,

11 unfortunately, wasn't immediately available. It would take a bit more of

12 time to receive it.

13 Proposed exhibit numbers 212 -- sorry, 312 and 320 were obtained

14 from the Ministry of Defence of the Federation of Bosnia and Herzegovina

15 on 23rd of October 1993. It is very likely that these proposed exhibits

16 were received following official requests for assistance arising from the

17 investigations against the accused Blaskic.

18 Proposed Exhibit Number 352 was received from the Bosnian

19 Government. The same applies as in respect to the documents number 312

20 and 320.

21 Proposed Exhibit Number 512 the Prosecution received from the

22 Croatian Embassy in The Hague. The Prosecution on a regular basis sends

23 official requests for assistance to the designated liaison officers in the

24 area. These liaison officers are designated by the respective governments

25 of the states or entities, and these liaison officers provide the

Page 6196

1 Prosecution based on usually requests for assistance in written with the

2 material that has been asked for, and such materials are regularly

3 received via the relevant and the respective embassy.

4 Proposed Prosecution Exhibit 391, this stems from a witness, and

5 it's the witness Ivan Josipovic.

6 392 to 397, the same applies and -- as in respect to 352, and it's

7 a result of a request for assistance.

8 393, 394, and 395, such materials were received from the Travnik

9 prosecutor as indicated in our spreadsheet.

10 Proposed Exhibits 398, 399, and 401, materials which the

11 Prosecution received from the Humanitarian Law Foundation. Inquiries, and

12 these inquiries are still ongoing. However, to date, these inquiries

13 haven't revealed any further information to these documents.

14 Proposed Exhibit Number 403 which stems from the --

15 JUDGE ANTONETTI: [Interpretation] Mr. Withopf, at this point in

16 time, as far as 398, 399, and 401 are concerned, these are documents that

17 come from the Humanitarian Law Foundation. You told us that that's where

18 they come from. But on Friday, as I said, we would like to know what the

19 procedure was. Did they spontaneously send you these documents, or did

20 your investigators go knock on their door and ask them whether they might

21 have documents of any interest? How did this happen? Because you aren't

22 exactly telling us how this foundation provided you with these documents.

23 And this is in order to save time. Perhaps you're not able to answer this

24 question. Tell us if you can; if not, do likewise.

25 MR. WITHOPF: As indicated, Mr. President, the Prosecution, based

Page 6197

1 on the Friday's court session, made inquiries in respect to each and every

2 of the documents that were specifically mentioned by the Trial Chamber.

3 And as indicated, to date such inquiries have not revealed any further

4 information in respect to the proposed exhibits 398, 399, and 401. If

5 I --

6 JUDGE ANTONETTI: [Interpretation] So you are telling us that you

7 don't know how this happened. That is more or less the conclusion to be

8 drawn.

9 MR. WITHOPF: That's correct, Mr. President. At this junction,

10 I'm not in a position to give you any further information. If I may --

11 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Withopf. Do

12 continue.

13 MR. WITHOPF: Thank you very much, Mr. President.

14 403, that's a proposed exhibit stemming from the Croatian

15 Television. The inquiries of the Prosecution have revealed that this

16 videotape was obtained from Mr. Armija Ahmic, Mr. Armija Ahmic. As Madam

17 Vidovic, is a designated BH liaison officer with the ICTY. And at request

18 of the Office of the Prosecutor, he's the person who is forwarding the

19 requested information and materials to the Office of the Prosecutor.

20 406, if I may please continue, that concerns a videotape. This

21 videotape was obtained from a witness, namely Ivo Viskovic, and it was

22 obtained and handed over by this witness to the OTP investigator,

23 Mrs. Racine Manas in February 2001. The witness provided the videotape in

24 the course of his interview.

25 407, these are the photographs and videotapes resulting from the

Page 6198

1 crime scene mission which repeatedly was addressed in the course of the

2 Court proceedings. As repeatedly mentioned, the Office of the Prosecutor

3 in 2000, more concretely, in April -- sorry in 2002, more concretely, in

4 April 2002, conducted an extensive crime-scene mission with two Dutch

5 specialists who took the respective photographs of all crime scenes and

6 who also took a video from a number of the crime scenes. That means all

7 these photographs and videotapes result from a mission with a specific

8 purpose, to photograph and to videotape the crime scenes which do form the

9 basis of the indictment against the two accused. And the two Dutch

10 policemen, they are specialists in taking such photographs and in taking

11 such video materials, and this is the result of this mission.

12 408 is a videotape which was recovered by the HVO officer Branko

13 Knezevic. This videotape was obtained from this individual by the OTP

14 investigator Mr. Tom Parker. He obtained this video when taking the

15 witness statement in January 2003.

16 411 is an intercept of a conversation. These intercepts were

17 provided to a previous OTP investigator with the name Nikolaj Mihajlov in

18 respect to an official request for assistance in the context of a

19 different investigation, different from the investigation which led to the

20 indictment against the two accused.

21 420 and 421, materials from the Zenica cantonal court --

22 THE INTERPRETER: Microphone, please, for the Presiding Judge.

23 Microphone, please.

24 JUDGE ANTONETTI: [Interpretation] Yes, I was saying that it's

25 necessary to have the break now. During the break, try to think about the

Page 6199

1 questions raised by the Trial Chamber about this conversation that was

2 intercepted. You said that it was provided to an investigator. You have

3 informed us of the investigator's name. His name is Nikolaj, but I don't

4 have the second part of the name. It's not in the transcript. Mihajlov,

5 the interpreter has told me the name is Mihajlov. But the question is how

6 did this investigator obtain this intercept? Who did it come from? Who

7 did he get it from? How was it obtained? Who intercepted the

8 conversation? So we have a series of questions here, and we expect to be

9 provided with some responses. You've told us that the investigator

10 received the tape, but that's not enough. Who did you receive it from?

11 How? What is the framework within which this intercept that was made? So

12 we have an entire series of questions there.

13 We'll now adjourn. It's half past 10.00 and we will resume at 5

14 to 11.00.

15 --- Recess taken at 10.32 a.m.

16 --- On resuming at 11.01 a.m.

17 JUDGE ANTONETTI: [Interpretation] The hearing is resumed. Just

18 before the break, there was a problem raised linked to the intercept of a

19 telephone conversation, and I asked the Prosecution whether they could

20 provide more specific information regarding Document 411.

21 MR. WITHOPF: Mr. President, Your Honours, if I may please do so,

22 this document as mentioned was received as a result of a request for

23 assistance because of a different investigation. It was received by the

24 OTP's investigations team leader Mr. Nikolaj Mihajlov. The intercept was

25 produced by the AID. The AID is the Agency for Information and

Page 6200

1 Documentation. It's basically a secret service. And in many cases for

2 this Tribunal, many documents have been used and have been tendered and

3 have been relied upon which stem from the AID. A quick look at the

4 document itself reveals that the conversation between the accused

5 Hadzihasanovic and Mr. Halilovic was intercepted by the Ministry of the

6 Interior on the 3rd of July 1993. This is the information, Mr. President,

7 Your Honours, I can provide you in respect to this intercept at this point

8 in time.

9 If I may, with the permission of the Trial Chamber, please

10 continue, and I'm basically about to finalise and to finish this portion

11 of the presentation. I think I already mentioned it prior to the break,

12 proposed Prosecution Exhibits 420 and 421 materials from the Zenica

13 cantonal court. These documents were obtained by the OTP in response to a

14 request for assistance sent in 2001.

15 Proposed Exhibits 454 and 456, the same applies as already

16 mentioned earlier on today in respect to the photographs taken in the

17 course of the crime-scene mission in April 2004. And quite a number of

18 such photographs have already been used in the course of the present

19 proceedings, and some of them are already tendered into evidence as

20 Prosecution exhibits.

21 467, Mr. President, Your Honours, this is again unfortunately one

22 of the rare exhibits the Prosecution can't at this point in time provide

23 any further information. As it is written in the recent filing, there's

24 no further information available at this point in time.

25 479, these are materials, documents, the Prosecution received in

Page 6201

1 the context of having approached Amnesty International. OTP's

2 investigator, Mr. Tom Parker, in December 2000, interviewed a

3 representative of Amnesty International. And in the course of this

4 interview, these documents were used.

5 And finally, and that's the last one I have on my list, it's 582,

6 the source is identified as the Zenica War Crimes Committee. There's

7 no -- there's unfortunately no further concrete information available, but

8 it is likely that this video was obtained during the investigations

9 leading to the trials of Blaskic and Kordic at some point in time in 1997.

10 Mr. President, Your Honours, this concludes the further

11 information I can provide the Trial Chamber with at this point in time

12 regarding the documents which were specifically identified and mentioned

13 by the Trial Chamber on last Friday.

14 JUDGE ANTONETTI: [Interpretation] Yes. Just three more minor

15 points: In the list that I gave you last Friday, I also mentioned some

16 other documents that you have not indicated the source of, 468 -- 469,

17 470, 472 [Realtime transcript read in error "412"]. It is indicated

18 ABiH. Where are those documents from? Also 473, 474, 475, it says "Rob

19 Cooper." Who is he? Is he an investigator? I don't know.

20 Three other documents: 581, 585, 586, "source unknown" is

21 indicated. Does that mean that an investigator received these documents

22 and forgot to mention the source, or are they documents you received from

23 an anonymous source? How can one explain this indication "source

24 unknown"? There's a small error in the transcript. It's not 412, but 472

25 on line 14, page 34. So there are three groups of documents, the BiH

Page 6202

1 Collection, OTP Rob Cooper, and unknown source.

2 MR. WITHOPF: Mr. President, Your Honours, the BiH collection is

3 actually the Sarajevo collection, either Sarajevo Collection I or Sarajevo

4 Collection II. Mr. Rob Cooper, in order to answer this question, Mr. Rob

5 Cooper is the military analyst who is working and has worked since a

6 number of years for this particular investigation against the two accused.

7 He's obviously a member of the Office of the Prosecutor. He's part of the

8 military analysts' team, and he has a military background.

9 In order to answer the last question, whenever the source is

10 identified as "source unknown," it means what it actually says. The

11 source is not known to the Prosecution. It's not an anonymous source; the

12 Prosecution is not in a position to further clarify from whom, from where,

13 and at what point in time the materials were received. That's what

14 "source unknown" means.

15 JUDGE ANTONETTI: [Interpretation] Very well. Thank you for

16 providing all this information which is extremely useful. And of course,

17 the Defence is going to tell us at this stage of the proceedings what

18 they -- what their reaction is regarding these latest indications. So I

19 turn to Mr. Bourgon.

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

21 JUDGE ANTONETTI: [Interpretation] Since you're putting the pulpit

22 in front of you, I assume you're going to speak at length.

23 MR. BOURGON: [Interpretation] Mr. President, the Defence would

24 like to make a few observations regarding the admissibility of documents

25 as requested by the Chamber and following instructions provided last week.

Page 6203

1 First of all, Mr. President, the Prosecution was asked to fill in

2 certain gaps, to answer certain questions regarding the first topic, and

3 that is the topic of origin or source. The Prosecution was asked to speak

4 of the origin or the source of the documents. Also, the Prosecution was

5 asked to tell us the way in which the documents were obtained. And there

6 was a specific question also, and that is why the Defence had certain

7 documents which the Prosecution did not appear to have in their

8 possession. I think that these three questions have been replied by the

9 Prosecution.

10 However, there are two matters of very great importance for the

11 Defence for which answers were not provided. The Chamber asked the

12 Prosecution to tell us why they believed that the documents which they

13 were producing should be -- to be admitted into evidence were authentic

14 documents. And we have not received a reply to that question by the

15 submissions made by my learned friend. Also, the Chamber asked the

16 Prosecution to address a specific question regarding military orders.

17 That is, the drafting of military orders. Were they verbal orders,

18 written orders, or other types of orders? And how those orders were

19 distributed.

20 With all due respect, Mr. President, we feel that the Prosecution

21 has not responded to this question.

22 A second remark before I proceed has to do with the five topics

23 chosen by the Chamber which in the opinion of the Defence are very useful,

24 both for us, for us to prepare the Defence case, but also for the Chamber,

25 regarding the admissibility of documents. Mr. President, in our view,

Page 6204

1 more than one of the five criteria are necessary. And in some cases, all

2 five criteria need to be fulfilled in our opinion in order to be able to

3 decide on the admissibility of documents. Today, we have addressed three

4 of those five criteria; the first, the source, and a bit later the

5 criterion regarding technical problems as well as the question of

6 relevance. However, Mr. President, with respect, we feel that it would be

7 necessary to wait for the assessment and the submissions of both parties

8 regarding Topics 5 and 6 before being able to take a position regarding

9 the admissibility of certain documents.

10 In agreement with the Rules of Evidence and Procedure and the

11 position taken by the Chamber concerning the admissibility of documents,

12 and that is my third observation this morning, the submissions presented

13 by the Defence are limited to the admissibility of documents. The

14 arguments that we will present today do not refer to the weight which may

15 be subsequently given to the admitted documents, and no reference is made

16 either to the inculpatory or exculpatory nature of those documents. We

17 will simply limit ourselves to the questions put by the Chamber; that is,

18 the criteria that have a direct bearing on the admissibility of documents.

19 To do that, it would be useful to briefly refer to the

20 jurisprudence of the Tribunal. And I will begin with the decision in the

21 Tadic case, a case bearing number IT-94-1, and entitled "Decision on the

22 admissibility of hearsay evidence," a decision dated the 5th of August

23 1996. In this decision, the Chamber felt that it was implicit in the

24 Rules of Procedure and Evidence, and especially in Rule 89(C) that the

25 admissibility included the criteria of reliability or trustworthiness,

Page 6205

1 that this was a component which needed to be judged when a document is

2 declared admissible.

3 I will refer to another decision in the Delalic case, a decision

4 dated -- that decision is dated the 19th of January 1998, and it is

5 entitled "Decision on the motion of the Prosecution for the admissibility

6 of evidence." In this decision, Mr. President, the Chamber found that the

7 only two criteria that needed to be assessed when determining the

8 admissibility of a document was, according to Rule 89(C), relevance and

9 probative value. The Chamber defined relevance at the time as being the

10 relationship that may exist between two facts. The Chamber also used

11 as -- for probative value the following definition: The tendency of a

12 piece of evidence to establish the submission, the claim made by a party,

13 and for which it is being tendered. This is a loose translation because

14 the text I was working with is in English.

15 In the same ruling, the Chamber expressed its agreement with the

16 decision in the Tadic case of the 5th of August 1996, according to which

17 it is implicit in the Rules of Evidence and Procedure that the

18 trustworthiness of a document is an inherent component of relevance and

19 probative value, for it is quite clear that if evidence is not

20 trustworthy, it cannot be relevant, nor can it have probative value. So

21 again, this is a free translation of an English text.

22 The Chamber continued in saying that this assertion regarding

23 trustworthiness being an inherent component does not make it necessary for

24 the Chamber to determine the authenticity of a document or the identity of

25 the author, or the credibility of evidence. And this in the admissibility

Page 6206

1 stage. The Chamber offered two reasons for this: The Chamber first said

2 that the authenticity of a document as well as proof of the identity of

3 its author were elements which would be of greater importance when the

4 Chamber assesses the weight to be attached to each piece of evidence,

5 which means subsequent to admissibility. The Chamber also took a position

6 regarding the standard for the admissibility of documentary evidence which

7 shouldn't be too high because generally speaking, documents tendered by a

8 party are not designed to prove the guilt or innocence of an accused; but

9 rather, to establish a context and complete the image presented by the

10 totality of the evidence collected.

11 Consequently, Mr. President, the Chamber in the Delalic case said

12 the more a piece of evidence contributes to establishing a fact, the

13 higher the standard should be at the admissibility stage. I come then,

14 Mr. President, to the decision in the Brdjanin and Talic case. It is a

15 case with the number IT-99-36, a decision of the 15th of February 2002

16 entitled, and I'll quote it in English "decision on the standards

17 governing the admission of evidence."

18 In this decision, Chamber II made the following ruling: First of

19 all, it said, regarding documentary evidence, when a question of

20 reliability is posed, it should not be considered as a first stage

21 separate from the admissibility stage. Also in the opinion of the

22 Chamber, one should not confuse the verification of reliability prima

23 facie with the proof. This seems to go -- to be in contradiction with the

24 arguments of the Defence. Also, the Prosecution needs to establish the

25 relevance and probative value of a document for it to be admitted into

Page 6207












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Page 6208

1 evidence. It is not necessary, however, to prove the authenticity or the

2 identity of a document, nor even the source. A very important decision

3 which is to some extent in contradiction with what we have said so far.

4 Also, the Chamber said at the end that it could ask the

5 Prosecution to provide a minimum of proof which would be sufficient to

6 establish the reliability of an evidence prima facie if a document

7 requires such proof.

8 These criteria which we have found in the documents addressed to

9 the Chamber, and this is attached to our submissions, that is the

10 necessity to establish a prima facie case for reliability if a document

11 requires such proof. Secondly, in this way, we read the decision of the

12 Chamber dated the 23rd of April according to which the Prosecution was

13 requested to present their submissions regarding the authenticity of

14 documents, that is, the reason for which the Prosecution says that the

15 documents they are producing are authentic. And regarding the preparation

16 of military order, their signature attached to the -- and the affiliation

17 with a particular military command.

18 The position of the Defence as we have said many times is that a

19 prima facie reliability of documents goes to the very heart of the topics

20 established by the Chamber, particularly the topic of source. For us,

21 reliability consists of four elements: The two principal elements being

22 the provenance, or the origin, that is, where the document was drafted;

23 and secondly, the criterion of safeguarding the document, that is, from

24 the moment it was created and -- to the moment it was produced in court,

25 was that document the same? Was it altered in any way to modify the

Page 6209

1 weight that may be given to it subsequently?

2 The third stage, Mr. President, is the criterion of authenticity.

3 Is a document authentic? Mr. President, we consulted various opinions in

4 an effort to present a clear and transparent and simple definition for the

5 authenticity of a document. In Black's Law Dictionary, and in the Robert

6 dictionary, the following criteria appear to be mentioned: "The

7 authenticity of a document requires that we know who is the author that

8 the document is attributed to." Let me rephrase that. A document which

9 establishes who the author is or a document that is in conformity with its

10 appearance. A contrario, a document that is not false, that is not

11 suspect, and a document that is not uncertain.

12 Regarding the question of reliability for us, this criterion is

13 applied in a specific manner to all orders which may have been issued by

14 various military units that were present on the ground. The authenticity

15 of documents in our view, Mr. President, requires an evaluation of the

16 signature on the document, who is the author of the document, not to prove

17 the identity, but if a document uses a block signature, Major X, it is

18 necessary for us to be able to say that the document regardless of the

19 truthfulness of its contents is indeed a document issued by Major X. The

20 sending of the document is also proof of its authenticity. In other

21 words, to whom it was addressed, then how it was used. The reception of a

22 document is also evidence or an element of evidence which could assist the

23 Chamber in determining its authenticity. The drafting is also very

24 important. Who drafted the document? Who signed it? And who authorised

25 it?

Page 6210

1 The closeness of the document to the accused is also an important

2 factor. By way of an example, a document produced by a headquarters which

3 has absolutely no link with the unit, the place of work of the accused in

4 our view would reduce the authenticity of the document. Of course,

5 together with certain other criteria.

6 The number on a document can also be used to judge its

7 authenticity. We have to have evidence of the system of numbering of

8 documents that was used at the time. The way in which documents were

9 drafted and why a document was drafted. The instructions given to the

10 person who drafted the document, as well as the sources used by that

11 person.

12 So, Mr. President, at this stage, those would be our main remarks

13 regarding the source, for the source includes this element of reliability,

14 also the criterion of authenticity. And to address the matter in a more

15 specific manner category by category, the documents produced by the

16 Prosecution will be addressed category by category.

17 First of all, Mr. President, there are documents that come from

18 the archives. My colleague from the Prosecution has provided us with

19 information about documents that come from the Sarajevo archives, the

20 Zagreb archives, and the 7th Brigade archives. I don't think that my

21 colleague mentioned documents from the archives of the Prosecutor's office

22 in Travnik. But, Mr. President, as far as the question of archives is

23 concerned, the Prosecution has submitted a number of arguments. And they

24 stated that on the basis of the archives from which documents were taken,

25 from that point in time up until a point in time the documents arrived in

Page 6211

1 the Tribunal, we have various sorts of information.

2 Mr. President, we have the document, its origin. The origin of

3 the document is important if we want to establish a minimum of

4 reliability. If we are to believe that the document is authentic, it is

5 necessary to know who produced the document. It's necessary to know what

6 the purpose of the document was. And it's necessary to know whether the

7 document was actually used before it ended up in the archives.

8 A while ago we mentioned, or rather my colleague mentioned the

9 possibility of having the three archivists appear before the Chamber. The

10 Defence doesn't want to waste any time, Mr. President. We don't want to

11 slow down the proceedings. What my colleague suggested is quite

12 acceptable. We could discuss this with the Prosecution. We could accept

13 this possibility.

14 Nevertheless, what is important in our opinion is that at the time

15 the document was created, how was that document preserved within the 7th

16 Brigade, in the 3rd Corps headquarters or another military unit, and how

17 did this document get to the archives, arrive in the archives? But first

18 of all, it is necessary to examine the document itself.

19 The next category of documents, Mr. President, concerns documents

20 for which no sources have been indicated. In our opinion, Mr. President,

21 a document for which the Prosecution can't tell the Trial Chamber about

22 the source, if that is the case, the document should not be admitted

23 because there is no proof of the reliability of such a document, not even

24 a prima facie proof, not even prima facie proof of its authenticity.

25 My colleague mentioned documents that came from the Blaskic case,

Page 6212

1 documents which were filed in another case. Mr. President, there are no

2 rules contained within the Rules of Procedure and Evidence that deal with

3 the admissibility of documents that were admitted into evidence in another

4 case. It's our opinion, Mr. President, that if the Prosecution wants to

5 tender a document from another case, it should do so in the same manner

6 that it tenders all other documents. The Prosecution should not assume

7 that the document should be admitted in this case. If the document comes

8 from the Blaskic case or from another case, it nevertheless has to satisfy

9 the same conditions. In such a case, the Prosecution, pursuant to Rule 92

10 bis (D) could submit part of the testimony of the person through whom the

11 document in question was tendered. That's one example. There are other

12 manners that could be followed. A document admitted in the Blaskic case

13 should have a sufficient amount of reliability in order to be admitted in

14 this case.

15 The following category of documents, Mr. President, concerns the

16 documents that were provided to the Prosecution by witnesses on a number

17 of occasions. My colleague has referred to documents provided by

18 witnesses or by individuals who at some point in time were potential

19 witnesses. Nevertheless, Mr. President, we would like to point out that

20 in certain cases with regard to documents that the Prosecution wanted to

21 tender into evidence, the documents were obtained by witnesses who have

22 testified before this Chamber, and the documents weren't produced on such

23 occasions. We believe, Mr. President, that if the Prosecution receives a

24 document from a witness who appears before this Trial Chamber, and if the

25 Prosecution doesn't bother to present the document, tender the document

Page 6213

1 into evidence through this witness, this document shouldn't be admitted

2 following the testimony of the witness concerned.

3 Mr. President, as far as the documents obtained from governments

4 are concerned, a document obtained from a government must likewise satisfy

5 certain conditions in order to be admitted into evidence in this specific

6 case. The document obtained from a government in the Defence's opinion is

7 different from a document obtained from the archives of the same

8 government because when this document is provided, it is provided for a

9 very specific reason. As the Trial Chamber said quite rightly last week,

10 either it's the Prosecution who requested the document or the government

11 offered to provide the document. In both cases, this is important

12 information. My colleague mentioned earlier on that it is very likely, or

13 to use the English words, it is very likely that the documents concerned

14 were obtained following requests for assistance. That's what he termed

15 the RFA, the request for assistance. We believe that for the document to

16 be tendered into evidence in the course of these proceedings, this request

17 for assistance should be attached to the document. The request made by

18 the Prosecution in order to obtain the document. Or, on the contrary, if

19 the document was offered by the government itself, it's necessary to know

20 on what occasion and why the document was provided to the Prosecution.

21 The following category of documents that I would like to deal

22 with, Mr. President, concerns documents from private sources, from persons

23 who were met on different occasions either in the field by investigators

24 or at other points in time. Mr. President, we need to know the source of

25 these documents, and we need to know the reason for which the document was

Page 6214

1 provided to the Prosecution. These are two of the criteria that have to

2 do with the admissibility of a document.

3 We then have documents from the UN, Mr. President. The Trial

4 Chamber has noted that for all these documents, the Defence never

5 contested any of these documents. UNPROFOR documents haven't been

6 contested by the Defence either. All the documents from the ECMM mission

7 haven't been contested by the Defence either. Why? Because we believe

8 that these documents satisfy the criteria established; that is to say, we

9 have on the basis of the documents itself, on the evidence presented here,

10 we have the document. We know how the document was drafted. We know the

11 context within which the document was produced. And likewise, we know the

12 source of the documents.

13 All these details, in addition to the proof established in the

14 course of the proceedings, allow us to believe that these documents are

15 reliable. And when we say that a document is reliable, Mr. President, and

16 I'll go back to what I said at the beginning, we mean that the document is

17 reliable because it can be used by the Trial Chamber. But this has

18 nothing to do, no relation to the weight that may be attached to the

19 document. The weight attached to the document is to be assessed

20 subsequently by the Trial Chamber.

21 Mr. President, with regard to certain comments on various types of

22 documents, various types of comments were made by the Prosecution. First

23 of all, Mr. President, we have documents that come from the 3rd Corps.

24 There are orders that come from the 3rd Corps. These orders were

25 established in what was probably a standard manner in the military, but we

Page 6215

1 don't know anything about this. We know that a military document, and now

2 I'm referring specifically to military orders, we know that in the case of

3 a military document, there is a person who issues an order, there's a

4 person to whom the order is addressed, and the order has a certain

5 content. The person issuing the order appears in the document itself.

6 There's the block signature at the bottom of the document, if there is

7 such a signature naturally. It's important to know whether this document

8 was really an order issued by the person whose signature is at the bottom

9 of the document. It's not a matter of proving who the author of the

10 document is, but it's a matter of establishing sufficient indicia for

11 reliability. In order to do so, it's necessary to establish that if a

12 document is being tendered and bears the printed signature of the author,

13 it's necessary to have indicia that shows that this order is actually an

14 order issued by the accused.

15 There are a number of ways of verifying this, either on the basis

16 of the signature or on the basis of the signature of another person who

17 may have been authorised to sign orders on behalf of the accused, or

18 through other means.

19 Nevertheless, Mr. President, in order to have the necessary proof

20 concerning the drafting of orders or the manner in which orders were

21 drafted or the manner of which this was established in headquarters, this

22 is necessary if a document is to be admitted. The Prosecution has the

23 burden of proof to show the Trial Chamber how a document was drafted in

24 order for us to know whether the document we have, with the printed

25 signature, with the signature that we can sometimes identify and sometimes

Page 6216

1 can't identify, this is necessary in order to establish whether it's

2 really an order that was issued by the person whose signature is contained

3 in the document. The document will only be considered authentic if the

4 document was used. If it's a document that should remain internal, it's

5 necessary to identify the factor -- to identify the fact that the document

6 was to remain in headquarters. If it's an order, it's necessary to know

7 who the order was addressed to. This is necessary in order to have a

8 minimum of probative value which would allow the Trial Chamber to use the

9 document, whatever the purpose may be.

10 So the problems we have are of several kinds. There are documents

11 that have no signature. In our opinion, this constitutes indicia that the

12 document is not reliable, unless we have information on duplicata which

13 the Trial Chamber explained last week. Then we have documents for which

14 we don't know whether they were sent or not. An order addressed to

15 someone but we do not know whether the person received the order or

16 whether the order was actually sent to the person.

17 In other words, Mr. President, did the document just remain in the

18 headquarters without any effect, or did it serve a purpose? This is an

19 important criteria that has to be assessed when deciding on the

20 admissibility into evidence of the document.

21 In our opinion, the Trial Chamber has noted that when the document

22 contains a signature that hasn't been identified, when a document doesn't

23 mention the addressee or whether it was received, there is no proof about

24 this, these are arguments that we will address tomorrow and have to do

25 with Rule 89(D).

Page 6217

1 Mr. President, the Trial Chamber has also noted that when the

2 signature of the accused is identifiable on a document, in some cases, if

3 there's no proof that the document was sent or received, the document was

4 admitted. Naturally, nothing was said about the weight that would

5 subsequently be attached to the document concerned.

6 The next category of documents, Mr. President, concerns the

7 documents that come from outside the 3rd Corps. A document comes outside

8 the 3rd Corps, is exterior to the 3rd Corps if it was produced by a unit

9 that has no link with the 3rd Corps as far as the usefulness of the

10 document is concerned. As an example, Mr. President, a document that may

11 have been sent by one of the operational groups attached to the 3rd Corps,

12 a document sent to one of the brigades that is under this corps, under

13 this operational group, I apologise. And if there is no mention in the

14 document stating that a copy was mentioned to the 3rd Corps for its

15 information, or if on the document the headquarters of the 3rd Corps was

16 mentioned as one of the addressees on the document, the same criteria

17 applicable, Mr. President. Who the document was sent to, whether it was

18 received, et cetera. We think the standard should be even higher in this

19 case because it's a document that doesn't even concern the accused who

20 worked in the 3rd Corps headquarters. What did the accused know about

21 this document, a document of this type, unless we know who it was sent to,

22 who received it and who authorised it. In such a case, it could be used

23 to prove something against the accused. But if we don't know who signed

24 the document and if we don't know who it was sent to and if we don't know

25 who receive the document, if we don't know why the document was drafted,

Page 6218

1 in such a case such a document that comes from outside the 3rd Corps

2 requires us to proceed with a lot of caution before we use such a document

3 as evidence against the accused.

4 The following category of documents I would like to address,

5 Mr. President, are documents that come from the HVO. These documents come

6 under the heading of documents that come from outside the 3rd Corps.

7 Nevertheless, there's an important difference to be made here -- important

8 distinction to be made here. The HVO was the enemy of the 3rd Corps, the

9 enemy of the BH army. A document which was drafted, which was produced

10 within the HVO and which is never received by the accused, a document that

11 the accused were never familiar with, before using such a document,

12 indicia of reliability must be even higher with regard to the signature,

13 the person who received the document, the person who sent the document,

14 and the drafting of the document.

15 In the course of these proceedings, we have already seen various

16 evidence that concern propaganda campaigns. A document drafted by the HVO

17 which, for example, comes under the heading of the addressee made mention

18 the European Mission, it may mention the British Battalion, it may mention

19 the 3rd Corps headquarters, and then a list of persons who it was

20 addressed to internally. In such a case, such a document should have been

21 sent to the accused. But if we don't have any details that show that the

22 document in question was sent or received by one of these persons, we

23 don't have the minimum indicia of reliability which would enable us to use

24 this document against the accused because this document may very well have

25 been written within the framework of a propaganda campaign or as internal

Page 6219

1 evidence, and it may have been produced for a very specific reason.

2 If the Trial Chamber has no other information, in such a case, in

3 our opinion, it should not admit such a document into evidence.

4 On the other hand, in one of the addressees, for example, if the

5 ECMM received a copy of the documents, in our opinion, that would be

6 sufficient to say that the document has an indicia of reliability that is

7 quite sufficient. And in such a case, the Judges could adopt the

8 document, and the document could be admissible. But when assessing the

9 weight, then it's necessary to know whether we have proof that the accused

10 received the document in question. But that would be at a subsequent

11 stage.

12 Mr. President, thus referring to a document sent to a number of

13 addressees, and we don't know if any of the addressees received the

14 document; we don't even know whether the document concerned was sent.

15 The following category of document, Mr. President, concerns

16 operational logs. Some of the documents presented by the Prosecution to

17 be admitted into evidence are logs which were kept on a daily basis in the

18 headquarters. These logs were certainly established on the basis of a

19 well-known modus operandi within the headquarters itself. Nevertheless,

20 we do not know about this. We need to have knowledge about this in order

21 to have a minimum indicia of reliability. We need to know not the

22 identity of the person, but we need to know the position of the person who

23 established the log held. We need to know what the person's instructions

24 were. We need to know what the sources used were. We need to know the

25 sources used when compiling the log. We need to know the conditions in

Page 6220

1 which it was compiled. Was it on the basis of information received over

2 the telephone? Or on the basis of information received over the radio?

3 Or information received through people who visited the 3rd Corps? Was

4 everything noted down or not? And in addition, Mr. President, such

5 documents are handwritten documents. This is an issue that we will

6 address a little later.

7 These operational logs, Mr. President, in our opinion must be

8 presented in their entirety. If the Prosecution wants to tender a log,

9 just presenting part of the log or a day from the log can't be reliable if

10 we don't have the rest of the log. If there's something concerning what

11 was noted down at 3.10 Sunday evening, well, this might be followed by

12 other information that is important that might support the document in

13 question or might -- in order to tender logs, we believe, Mr. President,

14 that the Prosecution must provide us with more information in order to

15 give these operational logs a minimum of reliability.

16 The following category of documents concerns the issue of war

17 diaries. We don't know what a war diary is. I personally know because of

18 my previous military experience what a war diary is. I could provide a

19 definition on the basis of what I did when I was engaged in the military.

20 But this has nothing to do with the debate. It's still necessary to know

21 before admitting a war diary whether it was a diary that was drafted at

22 the time of the events themselves; was it a diary that was kept after the

23 events; or was it a corporal at the bottom of the command chain who

24 established the war diary? What sources were used? Or was it a

25 high-ranking officer? Or were instructions issued with regard to the

Page 6221












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Page 6222

1 drafting of the diary? And once more, with regard to a war diary,

2 incomplete entries or choosing one page and not the rest of the diary in

3 our opinion greatly diminishes the reliability of the evidence being

4 presented.

5 Mr. President, I'll now address telephone intercepts. With regard

6 to this topic, Mr. President, my colleague mentioned, I think, the AID or

7 the Agency -- I don't have the term before me. But it was a secret body

8 of the Ministry of the Interior, of the MUP. And they intercepted certain

9 telephone conversations. When we examined the document tendered,

10 Mr. President, we note that it's not as I thought up until yesterday, the

11 interception of a conversation that was recorded on a tape; it's an

12 electronic intercept. That is to say, in appearance -- apparently, it was

13 someone who was listening to a conversation and took notes while listening

14 to the conversation. So as far as reliability is concerned,

15 Mr. President, this is very different from a telephone intercept for which

16 we would have transcript, recorded on tape. We don't know why the

17 Ministry of the Interior engaged in electronic surveillance, electronic

18 intercepts in its own army. This is very important. This is a very

19 important factor to be taken into account before such an intercept is

20 admitted. It's necessary to provide many indicia of reliability for such

21 proof presented by the Prosecution, proof concerning how the conversation

22 was intercepted. We need proof about the reliability of the intercept.

23 The person who was taking notes, was that person really in a position to

24 hear the conversation? Were the notes handwritten? We don't know

25 anything about the document itself. There's no stamp, no indication of

Page 6223

1 its origin.

2 Mr. President, this is the type of document that was obtained from

3 the archives, and we believe, according to some documents, we have an

4 electronic intercept, but we don't know anything about the context within

5 which this conversation was recorded. The person speaking, were they

6 actually identified? The conversation, the transcript of the

7 conversation, was this really a conversation between the two persons

8 mentioned in the document? We have no idea on the basis of the document

9 itself about this. And this diminishes all the more the reliability of

10 this document or the way in which the Trial Chamber could use such a

11 document. And that is why tomorrow, we will be arguing that such a

12 document makes it absolutely necessary for a witness to come to testify

13 about such documents in order for such a document to be admitted into

14 evidence.

15 The question of videos, Mr. President, this is a question that we

16 have already addressed earlier on in the proceedings. There are certain

17 videos which have been proposed by the Prosecution. We are of the

18 opinion, Mr. President, that the applicable rules to a videotape are of

19 the rules that apply to material evidence. And within the framework of

20 material evidence, physical evidence which is slightly different from the

21 rules applicable to the production of documents, the indicia of

22 reliability are even more important, and the standard of reliability has

23 to be higher.

24 Through videos, a representation is being produced which is

25 allegedly in conformity with the truth about certain evidence. The

Page 6224

1 proposed videos are accompanied by sound recordings, so with one document

2 two things are sought after, to provide a representation of the truth

3 regarding a series of events, and also a commentary on the events that are

4 shown on that video.

5 Regarding video evidence and reliability, we have to know who made

6 the video, we need to know in what context the video was made, and we need

7 additional proof so that it should have a minimum of reliability. If I go

8 to the internet today, I could find several videos that are accessible

9 which are propaganda videos produced by various associations. Those

10 videos, Mr. President, we don't know who prepared them, how they prepared

11 them, why they prepared them. Those documents have absolutely no

12 reliability, especially in the case of a trial before an international

13 tribunal. The video produced here by the Prosecution, some are propaganda

14 videos which, in our submission, have no indicia of reliability and which

15 may be used by the Chamber when judging the total proof provided.

16 If a video is produced by an investigator of the OTP, we believe,

17 and we'll come back to tomorrow, without having someone who can recognise

18 that video, the video will not have any reliability, as we are asked to

19 take as given a picture of which we don't know the source. And this was

20 something that the Chamber raised.

21 Finally, Mr. President, when we come to photographs, the same

22 applies. We have several photographs that have been tendered by the

23 Prosecution as admissible. All those photographs in our judgement were

24 taken long after the events. An important index of reliability of a

25 photograph is that it should have been taken at the time the event took

Page 6225

1 place. A photograph taken ten days subsequent to the event has no indicia

2 of reliability, and it cannot be of any use to the Chambers unless it is

3 supported with additional evidence.

4 THE INTERPRETER: Interpreter's correction, ten years, not ten

5 days after the event.

6 MR. BOURGON: [Interpretation] When talking about photographs and

7 videos of crime sites where crimes were allegedly committed, without

8 knowing the source and without additional proof, these elements do not

9 meet the criteria of minimum reliability, the prima facie proof of

10 reliability which would allow those elements to be used.

11 This completes the presentation of General Hadzihasanovic's

12 Defence regarding the source. But as the Chamber has been able to note,

13 we have focussed our presentation both on prima facie proof of reliability

14 as well as on authenticity, which comes within the framework of

15 reliability. We have also -- we also have some arguments to present

16 regarding documents. If the Chamber wishes to hear those submissions, we

17 have some specific documents that we should like to show and use by way of

18 an example. Thank you, Mr. President.

19 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Bourgon. The

20 other Defence counsel, please.

21 MR. DIXON: Thank you, Your Honours.

22 To add only a few points to what Mr. Bourgon has already covered

23 very extensively, Your Honour, our basic submission is that the documents

24 that the Prosecution proposes to introduce do not become more reliable

25 simply because they have been collected or received in a proper manner by

Page 6226

1 the Office of the Prosecutor or by some international organisation or

2 grouping that has then handed the documents over to the Prosecution. What

3 is important is what occurred before the documents were received by the

4 Office of the Prosecutor.

5 And in that regard, our fundamental point is that the Prosecution

6 today have not offered any further evidence of the real source of the

7 documents. That's both the documents that come from the archive of Bosnia

8 and the other archives, and also in respect of the individual categories

9 of documents that my learned friend from the Prosecution referred to.

10 Your Honour, it is for that reason that we understand that

11 Your Honours were interested when Your Honours set out the directions for

12 this hearing, to find out from the Prosecution, especially in relation to

13 the military documents and orders which are crucial for a case like this,

14 a command-responsibility case, that Your Honours requested that

15 information be provided about how those documents were prepared, how were

16 they distributed, how were they received, and how were they used by the

17 armed forces involved.

18 In our submission, those elements are all crucial for determining

19 the reliability of the document, especially so because this is a case that

20 concerns commanders and what issues they ordered, what notice they had,

21 what actions they took.

22 I know, Your Honours, this is a matter that's to be addressed

23 tomorrow, but the bottom line of all of this is that it appears that the

24 Prosecution will not be able to provide that kind of information

25 themselves, but that some witnesses will have to be called to address

Page 6227

1 those issues. And it will be for the Prosecution, in our submission, to

2 determine which are the most important documents for their case and which

3 are the ones where witnesses are required. It is, of course, impossible

4 to call a witness for every document. We will be here until next year.

5 But it's a question of prioritising and proving the issues that are

6 essential for proving the allegations of the Prosecution's case.

7 In that regard, it is encouraging that the Prosecution has

8 indicated that statements could be taken from the archivists for the

9 different archives that were mentioned today. And in our submission, that

10 would be an important first step to be taken in order to determine how

11 documents in general were collated by the Bosnian Army.

12 In respect of the 7th Brigade in particular, our main concern, and

13 there's no secret about this, is that our understanding is that there was,

14 in fact, no archive for the 7th Brigade in 1993 and for a long time

15 thereafter. It is important for us to know how documents that were

16 allegedly circulating within the 7th Brigade were, in fact, collected from

17 1993 onwards and kept in a central place. The obvious point being what

18 were the potential avenues in which documents could have found their way

19 into an archive and whether those are authentic and reliable documents.

20 It was a war situation. Organisation of documents was not a priority.

21 And we are most interested to know how documents were collated and, of

22 course, what were the possibilities of contamination of those documents or

23 documents arriving there that simply were never, ever part of the proper

24 chain of command.

25 The same could apply to the Bosnian archive, and likewise with the

Page 6228

1 HVO archive, which was one that was not initially kept in Bosnia, but one

2 that was gathered from Bosnia over a period of time and then transported

3 to Zagreb. And to know how that process took place is also important in

4 establishing whether the documents are reliable.

5 So those statements from the archivists or other persons are

6 important for us to establish at a general level how the documents were

7 collated. And it may well be as occurred in the Stela and Tuta case that

8 cross-examination of those witnesses will be necessary. But of course,

9 that will be kept to whatever is absolutely essential in putting the

10 Prosecution to the proof of their case.

11 Moving from the general level, then, to the particular documents,

12 Your Honours, beyond what evidence an archivist can give, in our

13 submission, it would be necessary for evidence to be called in relation to

14 particular documents of the Bosnian Army. There are a number of orders,

15 reports - Your Honours would have seen these listed in the consolidated

16 list - which are potentially relevant to the issues in this case. That's

17 another matter which we're going to have to address separately. Some of

18 those were allegedly signed by the accused, but many of them were not.

19 They were signed by other parties. And the Defence is simply not in a

20 position at this stage to say anything about whether those signatures are

21 authentic; also, whether or not those orders were part of the operations

22 of the different brigades, in Mr. Kubura's case, the 7th Brigade. And

23 when it is quite clear that these documents were prepared allegedly by

24 somebody and signed by somebody, in our view, it would be possible to call

25 a witness to explain the document and to clarify how the document was

Page 6229

1 prepared and where it was sent.

2 So there's a limited category of Bosnian Army documents where the

3 author or another witness could be called.

4 In relation to the documents that were purportedly signed by

5 Mr. Kubura, there are a few of these. We notice that there are some

6 different signatures that have been used. For example, in the proposed

7 Exhibit Number 8, there's a signature there that is very different to the

8 other signatures which were used by Mr. Kubura. And in respect of those

9 documents, and I can go through the details if Your Honours want more

10 detail about that, we would require that further evidence be led on

11 documents where the signature is different to the one used by Mr. Kubura.

12 There are also documents that are signed on behalf of Mr. Kubura,

13 which he didn't himself sign. There, again, we would need to know who was

14 the person who signed those documents and hear evidence about when that

15 document was prepared and how it was used.

16 So Your Honours, we are looking both at the organisation of the

17 army documents at a general level, but then we have to come down to

18 particular documents, and especially documents prepared by third parties;

19 in other words, not the accused. In our submission, it is essential in

20 order to authenticate those documents that evidence is heard on them and

21 that it's clarified exactly who prepared them and how they were then used

22 within the chain of command.

23 Turning to the particular categories, and I'm most grateful for

24 Mr. Bourgon's explanation of all the various categories that we highlight

25 when contesting a number of these documents, and I don't wish to repeat

Page 6230

1 them. We support all the categories that he has raised. There are one or

2 two additional ones that I did wish to mention. The first is that there

3 are some documents that are on the list that have not been disclosed to

4 us. For example, numbers 585 and 586, which are the district prosecutor's

5 registers of cases that were brought in 1993 and 1994 in Travnik and

6 Zenica. These are registers we haven't received yet. And in addition to

7 that, we've already had a witness from the Travnik district military

8 court, and the opportunity was not used at that time to introduce those

9 registers.

10 There are other examples of where both HVO witnesses and Bosnian

11 Army witnesses have been called, and yet the opportunity has not been used

12 to show those witnesses documents, even if they were not able to identify

13 the particular document but to authenticate the form in which the document

14 was used and to indicate information on the document which would show how

15 it was sent, how it was received, what was the usual way in which

16 documents passed through the chain of command. It is, of course, not too

17 late. The Prosecution's case is still underway, and it is of course for

18 the Prosecution to decide whether or not it wishes to use the opportunity

19 to call evidence in order to seek to authenticate the documents that it

20 wishes to rely upon.

21 Then there's another category of documents which relates to

22 witnesses who have been withdrawn by the Prosecution. And in our

23 submission, some of those witnesses who are so-called insider witnesses

24 who could have provided information about many of these documents, that

25 those documents should not be admitted in a situation where the document

Page 6231

1 was initially introduced because the witness was to testify and was to be

2 one of the documents of that witness. If the witness is not called, in

3 our view, another witness must be called in order to introduce that

4 document. And this is especially the case if the witness who was

5 withdrawn was, in fact, the author of the document. Then in our view,

6 those documents should be withdrawn as the witness was withdrawn.

7 Another category which Mr. Bourgon touched upon was that of

8 exhibits in other cases. In our submission, Rule 92 bis could be used,

9 but only in situations where the information contained in those documents

10 did not comment upon the conduct and acts of the accused. As Your Honours

11 will know, that is the test set out in Rule 92 bis. And from our

12 examination, these documents do go directly to the acts of the accused,

13 especially in the context of being charged for the alleged crimes of their

14 subordinates.

15 Your Honour, and lastly, this is a category that applies

16 specifically to Mr. Kubura, and it might be one that goes to the issue of

17 relevance, but I thought it useful to outline it now so that we know what

18 the full parameters of the challenges brought by Mr. Kubura. There are a

19 number of documents which are dated before the 1st of April 1993, and also

20 after the last incident that he is charged with in Vares in November 1993.

21 In our submission, these documents are to be excluded as falling outside

22 of the time period of the indictment unless the Prosecution can show, and

23 the onus is on the Prosecution, to show a clear link between those

24 documents and the crime base within the period of the indictment when it

25 is alleged that Mr. Kubura had command of the perpetrators. The Appeals

Page 6232

1 Chamber decision on this point made it quite clear that a commander can

2 only be charged for crimes committed while he has command of the alleged

3 subordinates. It must be contemporaneous. And in our view, any documents

4 falling outside of the period of command should be excluded unless

5 relevancy can be shown, not at a general level, but it must be directly

6 linked to the particular crimes that occurred and the time period when it

7 is alleged the accused had command over subordinates for those crimes.

8 The Prosecution has not set out in its document what the relevancy

9 of any of these documents is, and we would, therefore, submit that they

10 should be excluded. Indeed, the Prosecution has on a number of occasions

11 itself submitted that documents that the Defence sought to introduce

12 should be excluded because they were outside of the period of the

13 indictment. I have one example here, Your Honours, which I can provide

14 for Your Honours. On page 2571 of the transcript of 10 February 2004

15 where my learned friend Mr. Withopf objected to a document being

16 introduced on the basis that because it was dated in October 1992, it is

17 clearly outside the time frame of the present indictment and should be

18 excluded. So the Prosecution has applied this standard to the Defence

19 exhibits as well.

20 Your Honours, this may be a question that has to be addressed

21 further when we look at relevancy, but I raise it now for completeness to

22 indicate all the objections that are made by Mr. Kubura.

23 Those are our submissions at this stage. Your Honours, we can

24 provide more details about specific documents if that is requested. I'm

25 grateful, Your Honours.

Page 6233

1 JUDGE ANTONETTI: [Interpretation] Thank you very much, Mr. Dixon.

2 The Prosecution will respond to what has been said, but it will do so

3 after the break, which we're going to have in a couple of minutes. In

4 order to be fully informed about what has been said by Defence counsel,

5 I'm going to summarise under their control what has been said.

6 First of all, the Defence for General Enver Hadzihasanovic has

7 quoted certain decisions that were rendered in the Tadic, Delalic,

8 Brdjanin cases in order to address the question of reliability. The

9 Prosecution will, of course, tell us their opinion in a moment. And in

10 connection with reliability, Mr. Bourgon referred to the contents of an

11 order that I have in front of me of the 15th of February 2002 in the

12 Brdjanin case. In the comments made by Mr. Bourgon, I am referring to

13 paragraph 18 of that decision which was not mentioned, and that paragraph

14 with respect to reliability says the following: "The implicit requirement

15 of reliability simply means that there must be sufficient indicia of

16 reliability to create a presumption." And this paragraph refers to the

17 Delalic ruling. The Defence did not quote from another decision dated the

18 16th of April 2002 in the Stakic case. That order entitled "order

19 relative to the standards for the admission of evidence," regarding the

20 question of reliability, paragraph 9, and I will simply quote from that

21 paragraph. It is very brief, as you will see. "Regarding documentary

22 evidence, the Chamber does not support the thesis according to which the

23 question of reliability when raised has to be considered as a first stage

24 in the presentation of evidence which is being tendered." There are

25 certainly other decisions that were rendered, but it was necessary for me

Page 6234

1 to add to the reference made to jurisprudence regarding reliability.

2 Regarding reliability, the Defence requests that we establish

3 fully the origin of the document, the chain of custody criteria, the date

4 when a document was drafted, the date when it was produced, how it was

5 kept, the criterion of authenticity, and also we have to see whether it

6 could be considered to be false or suspect or uncertain as a document.

7 Proceeding from all of these criteria, the Defence is requesting that

8 these criteria be applied to different orders. The Defence referred to

9 various sources. And in conclusion, virtually rejected all the sources.

10 I'm going to leaf through those very quickly. When there is no source, it

11 cannot be admitted. The documents from the Blaskic case should not be

12 admitted. Concerning documents produced by witnesses, they should have

13 been tendered when the witness was here. Therefore, they should be

14 rejected.

15 Regarding documents coming from a government, in that case, too,

16 the same criteria should be applied. Regarding private sources, we have

17 to know the source and the reason. As for documents coming from the 3rd

18 Corps, the standard defined regarding reliability should be applied. As

19 for documents external to the 3rd Corps or coming from outside the 3rd

20 Corps, in that case, too, it is necessary to establish that the accused

21 were aware of the existence of those documents. As for HVO documents, the

22 Defence asks that they be rejected. As for logbooks, again, those logs

23 should be viewed in totality, not excerpts from them. As for war diaries

24 written on a daily basis, again, we have to know who wrote them, and we

25 don't know them. If it's a corporal, of course it doesn't have the same

Page 6235












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 6236

1 value as if it were a general. As for telephone intercepts, the Defence

2 has referred to many points which I'm not going to repeat. When it comes

3 to videos, again, the Defence naturally asks that they be rejected because

4 they lack indicia of reliability. Rejected because they lack indicia of

5 reliability. As for photos, as they were taken years later, they, too,

6 should be rejected.

7 As for General Kubura's Defence, Mr. Dixon presented different

8 arguments, specifically the question of signature of General Kubura.

9 There are different signatures, we are told. So we have a problem there.

10 Then there are documents that are attributed to Mr. Kubura but were not

11 signed by him. Therefore, there, too, we have a problem. Regarding the

12 documents that could have been produced through witnesses and were not,

13 Mr. Dixon asked that those documents be rejected.

14 As for the possibility of calling evidence on the basis of 92 bis

15 rule, Mr. Dixon tells us that this cannot be used if they refer directly

16 to the acts and behaviour of the accused. And finally, the Defence

17 through Mr. Dixon spoke of the question of time; that is, that documents

18 should not be admitted that do not fit into the time period covered by the

19 indictment. And the Defence in this connection referred to page 2.571

20 when the Prosecution requested that a document produced by the Defence be

21 rejected on the ground that the document was drafted in 1992, which is

22 outside the scope of the indictment.

23 I have tried very quickly to summarise the submissions of the

24 Defence. And the Prosecution after the break will, of course, present

25 their arguments, and then we will go on to the second topic on our agenda.

Page 6237

1 Yes, Mr. Bourgon. Theoretically, it's time for the break.

2 MR. BOURGON: [Interpretation] Mr. President, a small observation,

3 with your permission: The Chamber -- the president says that the

4 reference to the jurisprudence was not complete that I made. With all due

5 respect, I referred to points that were contrary to the submissions of the

6 Prosecution. And I said that this -- that the arguments of the Defence

7 were focussing on the fact that there need to be sufficient indicia of

8 reliability. I wanted to properly inform the Chamber, providing both

9 sides of the argument, and not only one.

10 JUDGE ANTONETTI: [Interpretation] Thank you very much for that

11 clarification. We will resume at 1.00.

12 --- Recess taken at 12.35 p.m.

13 --- On resuming at 1.01 a.m.

14 JUDGE ANTONETTI: [Interpretation] Mr. Withopf, you may take the

15 floor.

16 MR. WITHOPF: Mr. President, Your Honours, I'm going to address a

17 number of the issues raised by my learned friends from the Defence teams,

18 and I'm going to address them to the extent possible, considering the time

19 that has been passed by today.

20 Allow me three introductory remarks. Although the Prosecution

21 certainly understands that the issues that relate to the documents are to

22 some extent intermingled, unfortunately my learned friends didn't follow

23 the order of the issues as they should have been addressed today and

24 tomorrow. The second introductory remark, Mr. President, authenticity,

25 reliability, probative value and admissibility of documents are distinct

Page 6238

1 issues, and they should be addressed distinctly. Sometimes,

2 unfortunately, they were again mixed up. And the third introductory

3 remark, Defence tendered on a number of occasions documents which by no

4 means would match the criteria Defence today is asking the Trial Chamber

5 to establish in respect to the proposed Prosecution exhibits.

6 After these introductory remarks, let me please address a number

7 of the issues, first of all, authenticity. We think it became reasonably

8 clear in the course of the Prosecution's presentation why the Prosecution

9 thinks their documents are authentic. They are authentic because the vast

10 majority or the vast majority of the documents are authentic because they

11 are official documents stemming from an official archive or from official

12 archives, and the vast majority of such documents have official stamps on

13 them. These are all features, Mr. President, Your Honours, the Trial

14 Chamber has repeatedly made reference to in reaching decisions or

15 providing guidance to the parties as to the issue of admissibility of

16 documents.

17 I understand there's an agreement between the parties that the

18 archivists may be in a position to shed some additional light on these

19 issues, and they may be in a position to provide a full picture, or at

20 least portions of a full picture as to how the documents came into the

21 archives, as to when, and maybe even to the extent what happened prior to

22 the time they came to the respective archives.

23 What the Prosecution, however, wishes the Trial Chamber draw

24 particular attention to is a matter which hasn't been addressed by our

25 learned friends from the Defence, and that's the issue of the totality of

Page 6239

1 documents. A decision can only be made after the totality of documents,

2 meaning all documents, have been looked at. And I'm in particular making

3 reference to documents stemming from the military. It's the sequence of

4 orders, reports back, following-up orders or not following-up orders which

5 will play, or in the view of the Prosecution, should play, a crucial role

6 in making a final determination about the admissibility of documents.

7 Defence approach is to have an isolated view on the documents; the

8 Prosecution's approach is, Mr. President, Your Honours, to have a look at

9 the documents in their totality.

10 In this context, we wish to raise an issue which has been

11 addressed a number of times, and that's the issue of signatures. The

12 Prosecution is very well aware that there are documents which contain

13 signatures, signatures in quite a number of instances of the one or the

14 other accused. Other documents, however, which have the name of the one

15 or the other accused on them don't have their signatures. There must be a

16 reason for it, and one of the reasons may be, and it has been addressed by

17 my learned colleague from the Hadzihasanovic Defence, the manner these

18 documents were produced and were sent. Once they were produced, they were

19 signed by the one who was the person in charge to order. The one who

20 received the order, the document, and in many instances, these orders were

21 transferred using electronic, sophisticated electronic means, the one who

22 received the document, this document doesn't have a signature on it. In

23 this context, Mr. President, Your Honours, it may be helpful, it may be

24 helpful, and the Prosecution will certainly put some effort on this issue,

25 it may be helpful to identify which document was found in which binder.

Page 6240

1 In using the materials the Prosecution was able to provide the Trial

2 Chamber with, it is possible to a certain extent to establish whether a

3 document was found in a binder that clearly shows that this was the

4 receiving end or in a binder that clearly shows that this was the sender

5 of the document.

6 Further on in respect to signatures, the Prosecution, as Defence

7 counsel are aware of, are in possession of original signatures of the

8 accused and, of course, would be able to produce such original signatures

9 if necessary; and if necessary, also to an expert.

10 Another main issue, and I'm moving on to a different topic

11 obviously, Mr. President, Your Honours, are the HVO documents. In our

12 view, the Defence discussed to some extent issues which are more related

13 to the evidentiary value, to the probative value of such documents, rather

14 than to any issues related to their admissibility. HVO documents, as it

15 is obvious, have been used in the so-called flipside cases before this

16 Tribunal against Bosnian Croat accused, and HVO documents in such cases

17 have been admitted into evidence. The admissibility of such documents,

18 Mr. President, Your Honours, cannot depend on who the accused is. A

19 document can either be reliable or it can't be reliable, but it is not an

20 issue as to in which case, before which Trial Chamber a document is used.

21 Defence has tendered quite a number of documents, and they were

22 allowed to do so, and in the view of the Prosecution, it was the right

23 decision to allow them to do so, has tendered documents which stem from

24 the HVO or the HDZ. Such documents would certainly not match the criteria

25 Defence tried to have the Trial Chamber establish for the Prosecution's

Page 6241

1 proposed exhibits.

2 If I may move on to particular issues, and I'm only addressing a

3 selection of such issues, it is correct that there are documents and/or

4 exhibits on the -- or videos on the Prosecution exhibit list which have

5 been handed over in a few circumstances and a few instances by a witness

6 who has already testified or by a few witnesses who have already testified

7 before this Tribunal in the present case. The Prosecution, for a number

8 of reasons, in such instances hasn't used the document and/or the

9 videotape in examining the witness. Such instances include situations in

10 which the witness was the person who was not able to comment on the

11 document or the video for the reason that he got the video from somebody

12 else. RFAs that have been addressed -- that the Prosecution should in

13 respect to such documents it got from governments or other official

14 authorities, that such documents which were the result of such requests

15 for assistance, that the RFAs should be attached. Although the

16 Prosecution is obviously in a position to do so, it would be a bit

17 reluctant because such RFAs quite often also address issues which are or

18 do fall under the umbrella of still-ongoing investigations. If the Trial

19 Chamber wishes, however, the Prosecution to do so, such RFAs can be

20 produced either on an ex parte basis or in a redacted version.

21 Another issue that be addressed by my learned friends from the

22 Defence, and this is the issue in respect to documents which do not stem

23 from either the 7th Muslim Mountain Brigade or directly from the 3rd Corps

24 headquarters in Zenica. It's the Prosecution's view that all documents

25 which either stem from any unit falling within the ABiH 3rd Corps area,

Page 6242

1 area of responsibility, or any reports from such units are relevant, are

2 potentially relevant to the indictment and to the charges in the

3 indictment because they may reveal, and in the view of the Prosecution,

4 they do reveal, issues related to command and control; and again, such

5 orders quite often are part of a series of orders and reports, and that

6 touches again on the issue of totality. And they may or they should only

7 be seen together with any other orders touching on the very same issues.

8 The war diaries have been addressed. It is correct, the war

9 diaries have only been translated in portions, in portions into English.

10 They are obviously in B/C/S. However, Defence is in possession of the

11 full war diary. Therefore, Defence is obviously also in a position to

12 address any issues that relate to times, time periods, either prior or

13 after the day or the days the Prosecution is making reference to or wishes

14 to go into further detail.

15 I'm not sure on what basis my learned colleagues from the Defence

16 try to discredit the Prosecution videos as propaganda videos.

17 Unfortunately, we haven't been told the reasons why.

18 The photographs, very briefly, they quite often have been used.

19 They are mainly showing crime scenes. To date, this hasn't been issue at

20 all. It's the first time that it has been addressed, today.

21 One important issue has been discussed by my learned friend from

22 the Kubura Defence. That's the issue of the time period of the

23 indictment. And the Defence tries to limit the Prosecution to the

24 crime-based incidents of the indictment, meaning from 28 -- 26 of January

25 1993 up until 3rd or 4th of November 1993. It is obvious from the

Page 6243

1 indictment that the accused Kubura prior to becoming the acting commander

2 was the chief of staff of the 7th Muslim Mountain Brigade. Documents

3 which show that the accused Kubura got to know about certain orders of his

4 predecessor, Mr. Asim Koricic, of course are relevant because they touch

5 upon the issue of knowledge, notice and knowledge. And this issue should

6 not be intermingled with the Appeals Chamber decision. The Appeals

7 Chamber decision touches on potential charges, but any issues related to

8 notice and knowledge or other issues related to Article 7(3) of the

9 Tribunal's Statute can still be covered, and such documents in the view of

10 the Prosecution can be tendered.

11 On the other end of the time frame, Mr. Kubura was far longer than

12 until the 4th of November 1993 the commander of the 7th Muslim Mountain

13 Brigade. And the responsibility and the duty to punish, Mr. President,

14 Your Honours, doesn't end at the point in time the last crime was

15 committed; the duty and the responsibility to punish continues at the very

16 least until the point in time or until the point in time the accused,

17 based on his command position, had the opportunity, and not only the

18 opportunity but the duty and the responsibility, to do so. These very

19 same issues obviously apply also to the accused Hadzihasanovic. There are

20 a number of documents which are outside the indictment period. Quite

21 often, they have to do with the establishment of the 3rd Corps. Quite

22 often, they have to do with the establishment of other military units

23 which at a later point in time, as it is shown in the indictment, were

24 involved in crimes which do form part of the indictment.

25 Thank you very much, Mr. President, Your Honours. For the time

Page 6244

1 being, these are the comments the Prosecution wishes to make to the

2 observations of our learned friends from the Defence.

3 JUDGE ANTONETTI: [Interpretation] Thank you. It's not necessary

4 to engage in additional discussions at this point in time. Perhaps

5 certain issues will be addressed on the basis of the themes that are yet

6 to come.

7 The second subject concerns the technical problems that relate to

8 the documents. Mr. Withopf, you may now address this second theme.

9 MR. WITHOPF: Mr. President, Your Honours, the technical problems

10 are mainly related to two main issues addressed by the Defence. Number

11 one are any issues related to translations; and number two are issues

12 related to disclosure of proposed exhibits. And there's a third issue

13 which has been addressed by the Trial Chamber on Friday last week. That's

14 the poor quality of the photocopies.

15 If I may start to address the very last issue first, there are a

16 number of reasons why the photocopies appear to be of a poor quality. And

17 the main reason, Mr. President, Your Honours, is the fact that the

18 originals, that the originals which were photocopied were of poor quality.

19 Unfortunately, the photocopy can't make the original any better. This

20 particular issue is to some extent also addressed in the declaration of

21 Mr. Robert Reid which was handed over earlier today. I may please refer

22 to the respective portion in his declaration.

23 Issues of disclosure, the Prosecution has, always has made, and

24 continues to make, and on a regular basis is successful in doing so, to

25 fulfil its disclosure obligations, and we will continue to do so.

Page 6245

1 Whatever document or other proposed exhibit may not have been disclosed,

2 and if one considers the amount of the materials, only very few materials

3 are obviously missing, we will take care of it and will make them

4 available at the very earliest opportunity.

5 The third issue, this appears to be the most important issue, and

6 I think that's probably the view of both the Defence and the Prosecution.

7 This is the issue of translations. Prior to going into any further

8 details, I think I should provide the Trial Chamber some sort of overview

9 what sort of translations do exist and do form part of the materials that

10 have been provided as proposed exhibits. There are four different types

11 of translations. Number one are the fully CLSS-certified translations.

12 Number two are draft translations which are usually indicated as such.

13 They were done by CLSS; however, are not yet certified. And then we have

14 translation and again are indicated as such, which are called REV

15 translations. REV stands for "rough English version." It's actually not

16 what it says since the REV translations are full, full translations of a

17 document. The difference to the CLSS-certified translations is the

18 following: REV translations were done by the investigations team language

19 assistants which are qualified for such translations, who are, however,

20 not working within CLSS. Therefore, such translations don't have the, if

21 I may call it, official certification of CLSS. I wish, however, to

22 emphasise that such translations are full translations of the full

23 respective document.

24 And finally, Mr. President, Your Honours, we have what's called

25 summary translations. These are what it actually says. Such translations

Page 6246

1 are summarising the document, some to a limited extent, others to an

2 extent which is close to a full translation. There are, obviously, REV

3 translations and summary translations, and the latter ones appear to be

4 the most problematic ones. The Prosecution will make efforts to replace

5 the summary translations, and there are not many of them to, replace such

6 summary translations by full either REV or, if possible, by CLSS certified

7 translations.

8 These are the three issues, Mr. President, Your Honours, I wish to

9 address at this point in time. There may be other issues I may address

10 after Defence has been given the opportunity to raise their or to make

11 their observations. Thank you very much.

12 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Withopf.

13 Regarding the technical problems linked to the documents, you have

14 addressed three points, the poor quality of the photocopies, the

15 obligation of disclosing to the Defence the documents that you have, and

16 questions linked to translation.

17 Regarding the technical problems of the documents, I will give the

18 floor to the Defence.

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

20 Before starting to address the submissions of the Defence linked

21 to technical problems, I should simply like to make a clarification

22 regarding the position of the Defence with respect to all the documents

23 that the Prosecution wishes to tender into evidence. The position of the

24 Defence is not that all the documents proposed and contested should not be

25 admitted and that they can never be admitted into evidence. The position

Page 6247

1 of the Defence, Mr. President, is that these documents could perhaps be

2 admitted into evidence, but not at this stage. That is the position of

3 the Defence.

4 The constant element emanating from the jurisdiction --

5 jurisprudence which is rather surprising to me and it is only quite

6 recently that I fully understood the mechanism emanating from several

7 decisions. There's a Rule 89(C) which requires also an indicia of

8 reliability inherent to the probative value and to relevance. And we're

9 also told that these indicia of reliability is not the first test and not

10 the first stage. According to certain decisions, this is prima facie

11 proof of reliability. And that depends on the four criteria that I

12 mentioned earlier on.

13 Therefore, when a document meets the indicia of reliability, the

14 Defence is not opposed to their admission. And many documents proposed by

15 the Prosecution could meet the indicia of reliability, but not at present.

16 Having said that, the Defence has very little to add. The principal

17 question is to see whether we can read the documents in their entirety for

18 them to be reliable at first glance. If the photocopy is such that we

19 can't even see the contents of a document, then that is not so. If half

20 of a document is blackened out and only half is legible, then this cannot

21 be a reliable document, as it is incomplete.

22 Also, the same applies when it comes to the question of

23 signatures. As I have already said, for us a signature is a test of

24 reliability. But if the signature is illegible, that's a technical

25 problem. Can the signature be recognised? If yes, then there's no

Page 6248

1 technical problem there.

2 The problem of translation, Mr. President, is linked to the fact

3 that the translation of documents has to be a faithful translation of the

4 whole document. Therefore, documents accompanied with a translated

5 summary in the opinion of the Defence cannot be admitted as such. I think

6 that my learned friend is -- appreciates this. And he realises that these

7 documents need to be fully translated for them to be able to be admitted

8 without any technical problem.

9 Regarding the use of translations which may be certified

10 translations by the CLSS or those marked with REV, we feel that the

11 standard that should be used should be that for the admission of evidence.

12 Therefore, if we admit a document without going through a witness or

13 through some other means, the standard that that document needs to meet in

14 terms of translation has to be almost perfect so that to make sure that a

15 document that is admitted must be exact and reliable. Whereas if a

16 document is produced through a witness, even if the translation is not

17 perfect, but we have to use nonverified or noncertified translation, we

18 regret to have to do that. I think that applies to all parties. But due

19 to financial constraints and other reasons, we have to do so sometimes.

20 However, if we have a witness who can assist us with a document, then such

21 a translation is perhaps acceptable. However, if a document is being

22 produced without a witness for the value of the document itself, then for

23 it to be admissible we need to have a complete translation and a certified

24 translation of that document.

25 And a final element concerning technical problems is the problem

Page 6249












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13 English transcripts.













Page 6250

1 of markings that appear on documents and -- of which we don't know the

2 origin. In the document that we filed with the Chamber, we identified

3 three types of markings on documents. Sometimes there may be handwritten

4 notes on the document. Or parts of the document which were underlined, or

5 there are parts of the document which were highlighted. And we don't

6 know, Mr. President, who added those notes and those markings on the

7 document. And these markings are very important for the evaluation that

8 the Chamber will make of those documents. So we need to know who modified

9 those documents because if a note is added at the bottom of a document,

10 one could go as far as to say that this was a different document.

11 By way of example, there's a document sent by the 3rd Corps

12 commander to the headquarters of the army in Sarajevo. The army commander

13 receives that document. He adds a note on it and distributes the document

14 for action within his headquarters. We no longer have one document, but

15 we have two documents. We have an initial communication from the corps

16 commander to the army command followed by a second communication between

17 the army commander and somebody else within his headquarters or his staff.

18 Such notes need to be explained. Otherwise, the Chamber may have a

19 document which it is unable to understand without additional evidence. So

20 this is a technical problem which in our view merits further clarification

21 through additional evidence so that the document in its present condition

22 can be reliable. If a document receives -- if a commander receives a

23 document and then underlines certain parts of it, this could lead the

24 Chamber to believe that this part of the document was considered to be

25 more important than the rest of the document by the person who received

Page 6251

1 it.

2 So if we don't know who underlined the document, the Chamber

3 cannot know who it is that thought that this part of the document was more

4 important. Therefore, we need additional information so that the Chamber

5 may use those documents. Without such information, the indicia of

6 reliability are insufficient for admitting a document.

7 I will stop there regarding technical problems. But I would

8 simply like to add a final remark concerning the signature procedure. My

9 learned friend addressed this topic at the beginning of his submissions by

10 saying that the Defence of General Hadzihasanovic indicated that maybe it

11 could be an electronic document or a document maybe signed by someone who

12 authorises the order. The problem, Mr. President, is that we don't have

13 that information, and that information can only be provided by the

14 Prosecution through evidence to show what the procedure was within the

15 headquarters. Who was authorised to sign? Who was authorised to draft?

16 And who was authorised to press the button to distribute this document

17 bearing the signature of a particular commander?

18 For this reason, Mr. President, we feel such documents need

19 additional proof to meet the requirement for indicia of reliability. And

20 my final remark refers to HVO documents. HVO documents could become

21 admissible, Mr. President. What we are saying, our argument is that the

22 more removed a document is from the accused, the higher the standard needs

23 to be regarding reliability. If it's a document that has nothing to do

24 with the accused, and we wish to use it against him, then it is even more

25 important that it be reliable and that we have proof of the signature, the

Page 6252

1 sender, and the receiver. And when talking about the two other topics, I

2 will be able to give you two very precise and concrete examples from which

3 we see that without additional proof, those documents do not meet the

4 indicia of reliability sufficient for admission. Thank you,

5 Mr. President.

6 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Bourgon. I turn

7 now to Mr. Dixon.

8 MR. DIXON: Thank you, Your Honours. When Your Honours outlined

9 the areas that were to be addressed under this topic, the one that Your

10 Honours indicated was the question of unsigned documents. In that regard,

11 the Prosecution was requested to clarify how it was that certain documents

12 were unsigned, and we have been given one explanation today, that it could

13 be because of the manner in which the document was sent. However, as

14 Your Honours noted in the transcript when this issue was identified, it

15 could also be because they were duplicate copies and duplicate copies

16 might have been kept on file or they might have been sent to other

17 persons. There might be other reasons why a document was unsigned. Most

18 importantly, from the Defence's point of view, the document might not in

19 fact have been sent, and Your Honours might in that situation give limited

20 probative value to a document which might have been prepared by one of the

21 accused, signed but never sent anywhere.

22 It's not in our submission evidence that the Prosecution can give

23 from the bar table as to what happened to various documents. It is a

24 matter which has to be addressed by evidence directly from the witness.

25 It might be that somebody from the Office of the Prosecutor can answer

Page 6253

1 this question, but then a statement has to be prepared and that person

2 made available for cross-examination.

3 The second area Your Honours identified was illegible signatures.

4 Your Honours might think that this is the most important part of a

5 document, whether or not it has been signed and whether or not it's clear

6 who signed the document. Your Honours indicated that that would have to

7 be clarified, and with the greatest of respect to my learned friends from

8 the Prosecution that is another matter which hasn't been specifically made

9 any clearer today through their submissions. Where signatures are

10 illegible, it might be because of photocopying; it might be for other

11 reasons. But an explanation must be given in our view. Otherwise, the

12 documents should not be admitted.

13 And the final area Your Honours identified was that of handwritten

14 documents. There are a number of handwritten documents which have no

15 stamps on them. They are not official documents, as my learned friend has

16 attempted to put emphasis on the official status of stamps and government

17 documents. But there are many which have no record from an official body

18 on the document. And here, Your Honours indicated that you wish to know

19 to what extent these documents were in the official archives, which

20 archive. And as Your Honours say, once again, who wrote them. That

21 information in our submission has not been provided today by the

22 Prosecution.

23 So Your Honours, on the topic of technical matters, these are

24 three areas which we wish to highlight which have not been addressed, and

25 the documents that fall into those categories as identified in our list,

Page 6254

1 we submit, should not be admitted.

2 As a final point, Your Honours, of course it is always open to

3 Your Honours to admit these documents on the basis that they are documents

4 which were obtained from archives or they are documents which are part of

5 the Prosecution case, and yet attach very little weight to them because of

6 the problems that have been identified. But in our view, it would be a

7 better course to look at what probative value could be attached to these

8 documents when considering whether they should be admitted or not. And

9 the test that we have outlined is that they should be of some assistance

10 to Your Honours before they are admitted into the body of evidence of this

11 case. If they are of limited assistance on their own or standing together

12 with other documents, in our view, they should be excluded at this stage.

13 Or they could be given numbers for identification, as has happened, and

14 they could be admitted at a later stage if through other evidence being

15 laid in the Prosecution case they assume a greater reliability and a value

16 which could assist Your Honours in deciding the ultimate issue of guilt or

17 innocence in the case.

18 But in our view, it is of limited purpose for the documents to be

19 admitted when, in fact, they have little probative value and little weight

20 in the end that could be attached to them in any event. I'm grateful,

21 Your Honours.

22 THE INTERPRETER: Microphone, please. Microphone, Mr. President.

23 Microphone.

24 JUDGE ANTONETTI: [Interpretation] Before adjourning for the day, I

25 shall give the floor again to the Prosecution so that they might respond

Page 6255

1 to the problems raised, especially the last one which may be a bit

2 surprising, and that is that the probative value should be assessed before

3 a document is admitted.

4 Mr. Withopf, you have the floor.

5 MR. WITHOPF: Mr. President, Your Honours, if I may please very

6 briefly address a number of issues which have been raised by my learned

7 friends from the Defence. Again, I wish to really emphasise that this is

8 a circumstantial case. At the end of the day, there will be many, many,

9 many bits and pieces of evidence which put together will provide the Trial

10 Chamber with the full picture, the full picture of the truth. What's on

11 the face of the documents or of a document being looked at in isolation

12 may appear to -- not to be relevant or not to be related to the present

13 case. Once having considered the totality of the documents, this may look

14 very different and such document or documents may become of certain, if

15 not a high probative value. This is really a point we wish to again make

16 at this junction.

17 Markings of documents were addressed. It is correct, on a number

18 of occasions there are such markings on documents. These markings I can

19 sure were on the originals. They were obviously not made, and I

20 understand the Defence is not suggesting that, they were not made by

21 anybody from the Prosecution. We're obviously not in a position to -- at

22 this point in time to explain who made the markings. I wish, however, to

23 draw the attention of the Trial Chamber that the very same issue has been

24 discussed only recently when Defence tendered into evidence a document

25 which had significant portions of markings or highlighted portions, and if

Page 6256

1 my recollection isn't wrong, I think to recall that this document was

2 actually tendered into evidence. Again, the very same threshold should

3 apply to both parties of these proceedings.

4 Illegible signatures, it's certainly true that there are a number

5 of documents which appear to have illegible signatures. At this point in

6 time, there's not much to do about. We will, however, try to find any

7 avenue which may lead to a resolution of this issue.

8 Authorisation to sign documents or the internal procedures applied

9 by the ABiH and, in particular, applied by the ABiH 3rd Corps, the

10 internal ABiH regulations which contain to some extent information on how

11 such documents were produced and/or transmitted will be of some assistance

12 to determine this issue. Again, the probative value, as has been

13 repeatedly mentioned by the Trial Chamber, has nothing to do with the

14 issue of the admissibility of documents, and what we are discussing in the

15 course of the today's and the tomorrow's proceeding is the issue of the

16 admissibility and nothing else. Thank you very much, Mr. President,

17 Your Honours.

18 JUDGE ANTONETTI: [Interpretation] Very well. We need to adjourn.

19 The Chamber notes that on the three topics on the agenda, one hasn't been

20 addressed; that is relevance. Then there's the two other, 89(D) and the

21 documents which necessarily need to be admitted through a witness. We

22 said that we would see today whether on Thursday the witness planned could

23 be heard. Everything will depend now on the time that will be needed by

24 Mr. Withopf tomorrow to address the three other points and the time that

25 the Defence counsel plans to take.

Page 6257

1 So Mr. Withopf, can you give us some indication regarding tomorrow

2 and do you think that tomorrow we will have finished the debate which

3 would allow you to call your witness for Thursday, or do you feel already

4 now that this witness should be postponed to another date?

5 MR. WITHOPF: Mr. President, Your Honours, I think that it's still

6 possible to hear the witness on the Thursday. Since the three issues to

7 be discussed tomorrow are to some extent limited in their scope, and the

8 Prosecution's submissions will certainly not take as much time as they

9 have taken today, so in the view of the Prosecution it's still likely that

10 we can finish the discussion on the documents tomorrow. And the

11 Prosecution will continue to work on the basis that the witness can be

12 called on Thursday. Thank you very much.

13 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Withopf.

14 Mr. Bourgon, do you think that we will cover everything tomorrow?

15 MR. BOURGON: [Interpretation] Mr. President, tomorrow my colleague

16 is right in saying that the submissions will be shorter. Nonetheless, the

17 Defence intends to present documents and to discuss the documents

18 themselves to apply what we pleaded today. So I think that it would be

19 difficult to cover all our documents in a single day, though we will do

20 our best to reduce the number. But I think it will be very difficult to

21 complete this work in one day.

22 Having said that, Witness Morsink - I mention name though we're

23 not in a private session, but that witness has not asked for any

24 protective measures, he's an international witness. This witness will

25 certainly require a whole day of hearing for his testimony. So if we pass

Page 6258

1 our -- if we do not complete everything tomorrow and have to continue on

2 Thursday, then it's a risk of not completing the witness on Thursday. So

3 we would prefer to have a decision today to the effect that we call off

4 the testimony of Mr. Morsink. Because if we have the witness on Thursday,

5 we have to prepare today already, and this is rather complicated. Thank

6 you, Mr. President.

7 JUDGE ANTONETTI: [Interpretation] So you're of the opinion that it

8 would be better to postpone Mr. Morsink's testimony to a later date. This

9 view of the fact that you wish to produce documents tomorrow and

10 discussing them today on the basis of the submissions you made today, how

11 many documents do you intend to produce as an indication, please?

12 MR. BOURGON: [Interpretation] Mr. President, 40 documents. But we

13 can try and reduce that number. There are 40 documents that illustrate

14 all the situations that we referred to today.

15 JUDGE ANTONETTI: [Interpretation] So with respect to the criteria

16 and the observations made, you have 40 documents that will illustrate

17 your -- the points you made. I will give the floor to Mr. Withopf. But

18 first, Mr. Dixon, we would also like to hear your opinion.

19 MR. DIXON: Thank you, Your Honours. We also wish to introduce

20 some documents by way of example. Because in our view, it's very

21 difficult to look at these documents in pure categories. There are

22 certain documents which we wish to identify to show why the document

23 should be excluded, which might apply to other documents as well. And we

24 would need to show about 15 to 20 of those as examples. And we think that

25 is the only way we can move the process forward. Thank you, Your Honours.

Page 6259

1 JUDGE ANTONETTI: [Interpretation] Which means that we will be

2 having a debate on at least 60 documents. And if we have a debate on 60

3 documents, and if one documents takes five minutes, 5 times 60, that's 300

4 minutes, which means five hours. I think that we can hardly expect to

5 hear the witness on Thursday.

6 Mr. Withopf.

7 MR. WITHOPF: Mr. President, Your Honours, may we please make a

8 few suggestions. It would be very helpful and it would certainly

9 accelerate the tomorrow's proceedings if the Defence today could indicate

10 which documents they wish to address specifically tomorrow. If Defence

11 counsel tell us now, we would obviously be in a far better position to

12 prepare and to address any of the issues on short notice in comparison to

13 a situation that a document out of the several hundreds of documents will

14 be shown tomorrow, and it may require the Prosecution doing some

15 additional inquiries. So I would suggest that the Defence in order to

16 accommodate the wish of the Trial Chamber to not waste court time today,

17 immediately after the court session, provides the Prosecution with the

18 numbers of the documents they wish to use tomorrow.

19 A second suggestion.

20 [Trial Chamber confers]

21 MR. WITHOPF: If I may make a second suggestion, we would suggest

22 that the witness, and the witness is already here in Holland, that the

23 witness can be called as -- on Thursday, and we may continue during the

24 afternoon on Thursday in order to complete the testimony of this witness.

25 And the last issue or the last suggestion, we could again do the

Page 6260

1 examination-in-chief, at least the examination-in-chief. Mr. President,

2 Your Honours, for your information, the witness is a Dutch witness.

3 That's the reason why he is already in Holland. He is with NATO usually

4 in Germany, quite often requested to travel in Italy. However, he is

5 basically at home in Holland. And for that reason, completely unrelated

6 to his testimony, which is scheduled for Thursday, he is in Holland. If

7 the Trial Chamber may please consider the suggestions made by the

8 Prosecution, in particular suggestion one, that the Defence informs the

9 Prosecution which documents they wish to have specifically discussed in

10 the course of the tomorrow's proceedings.

11 JUDGE ANTONETTI: [Interpretation] There are several problems.

12 First of all, there are some 60 documents. And if the Defence tells the

13 Prosecution the numbers of those 60 documents, it would allow the

14 Prosecution to prepare. And also if the Prosecution gives the list of 60

15 documents to the legal officer of the Chamber, that would also be useful

16 for the Chamber because, as you fully understand, when you produce a

17 document tomorrow, we also have to see the document, which means pick up

18 the binder, look through them. We only have one set of binders. We have

19 to pass the document from one judge to another. This would take time.

20 Therefore, regarding the idea of the Prosecution that they be told

21 which documents will be used, this appears to be a good solution.

22 A second point is that the Prosecution would like to at least

23 begin the examination-in-chief on Thursday, which would mean that the

24 cross-examination would be delayed. This is not so inconvenient as the

25 witness being a Dutchman hasn't crossed the Atlantic to come here and

Page 6261

1 testify for the cross-examination. So this is a possible solution.

2 A third solution would be extra time, like in football, and I

3 think this is linked to private obligations of each one of us. I have

4 none. But it may be difficult for us to prolong the hearing to Thursday

5 afternoon. We will make extensions, but we'll do that on another day.

6 So the Defence should provide the Prosecution with a list of

7 documents they intend to use tomorrow so that the Prosecution can prepare.

8 Mr. Bourgon.

9 MR. BOURGON: [Interpretation] Thank you, Mr. President. The idea

10 of the Prosecution is certainly a good one. The only difficulty is that I

11 mentioned 40. I was a bit optimistic because if I was to give a list to

12 the Prosecution straight away, maybe there would be twice as many. To

13 reduce them to 40 --

14 JUDGE ANTONETTI: [Interpretation] The Chamber was sure of that.

15 MR. BOURGON: [Interpretation] -- but to reduce the list, I have to

16 discuss the matter with my colleagues. So it is possible to give a list,

17 but perhaps later, about 7.00 p.m. when we will be able to give the

18 Prosecution this list. And to the Chamber as well.

19 JUDGE ANTONETTI: [Interpretation] But unfortunately, the

20 Prosecution doesn't intend to be kept awake all night examining the

21 documents, so we do have a problem.

22 Mr. Dixon.

23 MR. DIXON: Your Honour, we can provide the short list to the

24 Prosecution later on this afternoon, and also to your learned legal

25 officer as well.

Page 6262

1 JUDGE ANTONETTI: [Interpretation] Very well, sir. In such

2 conditions, the witness scheduled for Thursday should be on standby. And

3 depending on the problems that arise, we will either be in a position to

4 commence with the examination-in-chief, and we will then not have any

5 significant problems. Or if we're not in a position to examine the

6 witness, we will postpone the witness's hearing. It would be more

7 complicated if the witness lived elsewhere. But since the witness is

8 Dutch and is in this country, the risk of the witness spending the weekend

9 here is not that important given that we'll have an international witness

10 who will be here on Friday. So the risk is quite slight.

11 Mr. Bourgon, is there anything you wanted to add?

12 MR. BOURGON: [Interpretation] Thank you, Mr. President. The other

13 thing I wanted to add concerns extra time on Thursday afternoon. This

14 would be difficult for the Defence because we already have other

15 engagements that concern the expert witness who will be here on Monday.

16 To the extent that it is possible, we would like to avoid splitting up the

17 examination-in-chief from the cross-examination because the

18 cross-examination can't -- will not be able to take place before two

19 weeks. And he is an ECMM witness who is quite important. And we want to

20 avoid having the cross-examination at a later time. If we split the

21 procedure into two parts, this has certain advantages, but there are

22 certain disadvantages for the presentation of evidence, both for the Trial

23 Chamber and for the Defence when preparing its case. Thank you,

24 Mr. President.

25 [Trial Chamber deliberates]

Page 6263

1 JUDGE ANTONETTI: [Interpretation] Very well. We have just

2 deliberated, as you see. Given what you have said, we believe that it

3 would be best to cancel the witness scheduled for Thursday. The witness

4 will appear on some other date. And as I said, in June we could have an

5 extension of time because there might be witnesses who will be appearing

6 in June because some witnesses haven't been in a position to be heard.

7 According to the schedule that we have, we have a schedule for May. But

8 there are days that we have in June for witnesses. So this witness can

9 either appear in May or in June. That's quite possible.

10 We have to deal with -- we have to conclude the discussion of

11 these documents. And in the Trial Chamber's opinion, continuing on

12 Thursday should allow us to save time.

13 We will now adjourn. I will see you all tomorrow at 9.00 to

14 continue with the debate.

15 --- Whereupon the hearing adjourned at 2.05 p.m.,

16 to be reconvened on Wednesday, the 28th day of

17 April, 2004, at 9.00 a.m.