1 Friday, 1 April 2005
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.00 a.m.
5 JUDGE LIU: Call the case, please, Mr. Court deputy.
6 THE REGISTRAR: Good morning, Your Honours. This is case number
7 IT-01-48-T, the Prosecutor versus Sefer Halilovic.
8 JUDGE LIU: Thank you. Good morning, ladies and gentlemen. Today
9 we'll spend some time continuing our discussions on the statements of
10 Mr. Halilovic.
11 On the 24th March 2005, the Defence filed its written submissions
12 indicating that it would object to the use and admission of the exhibit
13 the Prosecution will seek to introduce through the witness Mr. Okic. This
14 document is a statement of Mr. Halilovic dated 8th November 1993, and it
15 was given in the course of the Trebevic operation.
16 On the 30th of March, 2005, we had some discussions on that issue,
17 and the Prosecution stated that Defence has merely made allegations, most
18 of which, according to the Prosecutor, are hearsay. So we decided to hear
19 the parties on this issue, and the Bench has some questions to the
21 I believe that the first question is addressed to the Defence.
22 Why has the Defence not filed this motion any sooner considering that the
23 statement has been part of the Prosecution's exhibit list since 7th June
25 MR. MORRISSEY: Your Honours, it wasn't appropriate to canvas the
1 matter before the matter was assigned to the Trial Chamber so we had to
2 wait until that time. Frankly, I can indicate that it was simply a timing
3 question for us and a matter of preparation. We came to this witness in
4 the form that we did. Obviously we'd prepared to some degree to
5 cross-examine in the future, but the reason for the lateness of it is
6 simply that that's -- that's when we arrived at it and that's when we had
7 time to consider the matter. It was simply a time pressure issue in
8 respect of that.
9 Your Honours, if I could indicate -- I'm not sure to what extent
10 it helps but I came into this case -- I first came here in September of
11 last year, and look, there's a history to it. I'll explain it if it helps
12 the Court, but in broad brush that's why, because having weighed up all
13 the matters, I as lead counsel took a decision to challenge it reasonably
15 I don't deny and in fact I make it quite clear that at all times I
16 had in mind that it was likely that there'd be a challenge to it, but I
17 just wasn't able to turn my mind to it in the relevant way. I had to rely
18 very heavily on -- I would make that very clear too, Mr. Mettraux, in
19 drafting that document and dealing with it. So that's the answer as to
20 why it was done at the time that it was.
21 The other reason I'd advance about it is, perhaps mistakenly, I
22 hope not mistakenly, I understood that normally speaking that the
23 objections were taken at the time when these documents are to be
24 introduced into evidence, and really it was as out of an abundance of ever
25 caution to do it before Easter because we realised that it contained some
1 substantive law, and my learned friend Mr. Mettraux obviously put a
2 considerable amount of work into it. We thought that -- that's why we
3 delivered it before Easter rather than on the day, simply objecting when
4 the witness stood up to give that evidence. But yes, that's the reason
5 why it was done at the time it was, Your Honour.
6 JUDGE LIU: In your submissions, you made several allegations, if
7 I could use this term, that interview used the techniques which were forms
8 of coercion and psychological pressure. The interview lasted up to 17
9 hours a day. Mr. Halilovic was not given access to lawyers at any time
10 during his interview. Mr. Halilovic was not cautioned of his right to
11 remain silent. Mr. Halilovic was not informed of his right to have
12 counsel present during the interview. Mr. Halilovic was not warned that
13 the statement he made may be used in evidence. And there are implicit
14 threat of violence during the interview.
15 Can you be more specific on that issue?
16 MR. MORRISSEY: Well, yes, I can be. It depends how Your Honour
17 wants me to proceed in respect of that. Obviously we have instructions
18 from Mr. Halilovic that he's told us what happened, but I'm not a witness
19 in the case, and I'm not sure whether it's appropriate for me to say what
20 I'm told about that beyond what -- beyond what's in the motion there. And
21 that's I think one of the questions that's going to arise here, do you
22 need to hear evidence about these limited questions, and quite frankly in
23 the common law system, you would need to hear evidence about it. It's not
24 good enough for the barrister simply to make the allegation. If the
25 Prosecution takes issue with the facts that are alleged, then the question
1 arises how are they proved and they have to be proved in a normal way.
2 That's the fact.
3 But I can certainly way what the basis of the implicit threat is.
4 The implicit threat is that Mr. Ugljen came along and said to
5 Mr. Halilovic, "we can deal with this whole question another way," meaning
6 that you can answer the -- which was taken to mean, well, you can answer
7 these questions as they're asked or we can think of some other way of
8 dealing with the matter.
9 The context of that other way and that was specifically
10 articulated to -- to Mr. Halilovic, is that he'd been arrested or been --
11 been taken into custody and asked to be questioned concerning Ramiz
12 Delalic, Celo, and Musan Topalovic, Caco, and it was made quite clear to
13 Mr. Halilovic that Caco had by some unfortunate means been killed despite
14 surrendering himself into custody. So that was the context in which that
15 comment was made, and that comment about Caco meeting an untimely death
16 was made to Mr. Halilovic on a number of occasions, and we say that's the
17 basis upon which Mr. Halilovic had a well-founded idea that it was a
18 better idea to answer questions than to keep silent. So that's what that
19 is based upon, and, yes, so that's the answer to that part of
20 Your Honour's question.
21 JUDGE LIU: Thank you. And there are some questions that I would
22 like to address to the Prosecution. Before that, would I like to remind
23 the Prosecution of the Celebici case, that is, the Prosecution has to show
24 that the statement of Mr. Halilovic was given voluntarily, there is no
25 oppressive conduct in obtaining the statement. If the statement was given
1 without the presence of counsel, whether the accused has voluntarily and
2 expressly agreed to proceed without counsel present.
3 So, Mr. Re, I believe that you have made your submission last
4 time, but we would like to know some more details on this aspect. I
5 wonder whether you would tell us if Mr. Halilovic was given access to the
6 counsel or was informed of his right of remaining silent before taking the
8 MR. RE: I thank Your Honour for the opportunity to address you,
9 to address the Trial Chamber on this aspect. We are, of course, aware of
10 the Celebici case, that the Prosecution must prove that the statement was
11 voluntarily made. There are, of course, as the Trial Chamber appreciates,
12 two people present in the building at the moment who would be able to shed
13 light on the question the Trial Chamber has asked, that is the accused
14 himself, Mr. Halilovic, and Mr. -- Mr. Okic. As Mr. Morrissey rightly
15 points out, he isn't a witness. He wasn't there. He doesn't know what
16 happened. The Defence submissions are full in the Prosecution's
17 submission of assertions which are not supported by any evidence and my
18 learned friend's submission as few moments ago in relation to
19 Mr. Halilovic's treatment, or alleged treatment, at the time of the
20 interview is, again, an assertion which is not supported by any evidence
21 before this Court or even at the very least an affidavit from his client
22 or anything from his client pointing to the circumstances of the
23 detention. The Prosecution can rely only upon what Mr. Okic himself has
24 told us in the statement and in the proofing notes which we have provided.
25 Now, the Prosecution, we say, if we did not have Mr. Okic to give
1 that evidence, we would not be relying -- we would not be relying upon
2 this document. We would not be trying to put it into evidence. And it is
3 only because we have the person here, one of the only two people in the
4 building who can tell us exactly what happened, here to give that evidence
5 that we are prepared to submit that we say after hearing the evidence of
6 the witness as to the entirety of the circumstances surrounding the taking
7 of the statement. At that point we would submit that it should be
8 tendered into -- into evidence.
9 The difficulty we have at the moment is that we have something on
10 paper. I have conferred with the witness. The witness has confirmed his
11 statement to the Prosecution. But in relation to this witness, we make a
12 further submission, and that is that the witness himself, Mr. Okic, as I
13 informed the Trial Chamber the other day, wanted to speak to the Defence.
14 Now, the reason for that was he thought he was a Defence witness when he
15 came here, and he thought that he'd actually made an agreement with the
16 Defence to be their witness and to come and give evidence for them and he
17 said he signed an agreement with the Defence to be a Defence witness, and
18 we're in this very strange situation on Monday and I was saying, well,
19 this is the first I've heard of it. We haven't heard anything of it, but
20 we'll speak to the Defence and you can speak to him -- speak to the
21 Defence and see what the situation is.
22 Now, that of itself does suggest something in terms of whether the
23 Defence were going to use him as a witness or not, and their view Mr. Okic
24 as a witness of truth. We're only referring to one witness, one statement
25 at the moment. The Prosecution accepts that Mr. Halilovic was interviewed
1 over a number of days. Now, we don't have -- we don't have evidence on
2 that. We don't have evidence as to the circumstances of his arrest, if in
3 fact he was arrested, whether he was detained, whether he was at home, how
4 he was treated on the other occasions. We don't know anything about that.
5 There's only one person here who does. That's Mr. Halilovic. The
6 evidence we intend to call relates to the interview on the 8th of
7 November, and the witness will say that on that occasion, there are a
8 number of interviews and on that particular occasion Mr. Halilovic did not
9 request a lawyer and a lawyer wasn't present, but this particular
10 interview continued in the same way as all the other ones did, and it's a
11 continuum, but we're concerned with only one of those interviews.
12 So in relation if Your Honour's specific question as to this
13 particular interview, that's something we would have to ask of the
14 witness. The witness will say, I anticipate, he didn't ask for a lawyer
15 and we didn't talk to him about a lawyer on that occasion because he'd
16 been in there. We'd interviewed him on a number of -- I had interviewed
17 him before. I think the first date was on the 31st of August. That was
18 Mr. Okic. I think this was the -- it should say it in the proofing notes,
19 the first -- the first paragraph. Yes. This was actually the second
20 interview. It's in the third paragraph. The 31st of October and the --
21 the 8th of November. So Mr. Okic will say on that occasion, I anticipate,
22 Mr. Halilovic didn't -- didn't request a lawyer.
23 Now, there is no law. Mr. Mettraux of course in his submissions,
24 detailed submission, has quoted from the International Convention on Civil
25 and Political Rights, the American Convention on Human Rights, and the
1 European Convention, and quoted from the I think it was Article 14(3)(G)
2 of the ICCPR, which is of course the right against self-incrimination.
3 There's nothing in the ICCPR guaranteeing someone the right to a
4 lawyer while being questioned by authorities. There is a right, an
5 absolute privilege against self-incrimination, which of course is -- which
6 of course is enshrined in the statute here. But waiver of the right to a
7 lawyer or having a lawyer there is a different concept altogether.
8 Now, Mr. Okic is the person who can tell us whether or not
9 Mr. Halilovic waived his right to a lawyer in that particular interview,
10 which is where it comes down to the question of whether you decide the
11 interview was voluntarily or whether there was an element of coercion.
12 The Trial Chamber -- in our submission, you can't decide this upon
13 the Defence hearsay assertions, or assertions from the bar table as to how
14 long he was interviewed for and the circumstances. In the Prosecution's
15 submission, some of the -- some of the submissions the Defence has made,
16 and Your Honour read out some of them along the lines of Mr. Halilovic was
17 not given access to a lawyer at any stage during the interview, well,
18 there's no evidence of that. That is -- this is an assertion. It's not
19 footnote -- it's not footnoted because there's no -- there's nothing they
20 can footnote it to. They could footnote it to Mr. Halilovic, and
21 Mr. Halilovic could of course give evidence on this point only for the
22 purposes of determining the admissibility of the record of interview and
23 nothing further.
24 The Defence alleged psychological pressure. They said, paragraph
25 26, "one form of Prosecution witness has indicated that coercive methods
1 were used during Halilovic's interview," and they're referring to -- and I
2 don't know how you'd properly describe it, but the addendum, if you could
3 describe it that way, to Mr. Popovic's statement which apparently is
4 something Mr. Popovic added later when speaking to Defence investigators
5 in a very -- in a most ambiguous manner it appears to the Prosecution
6 where he refers to "Psychological pressure."
7 Now, I took the liberty of course as I had to in speaking to
8 Mr. Okic who was there with Mr. Popovic if that were correct. It's in the
9 proofing notes. He says -- and he's here to give the evidence that no
10 psychological pressure was applied. But again that's hearsay in the sense
11 that it's not a signed statement. It's a -- it's an assertion contained
12 in a document. It's not a signed edition. It's not an affidavit from
13 Mr. Popovic. It's basically a letter from the lawyer saying he said that
14 to us. It's in a very different category to sworn evidence or a signed
15 statement if Your Honours were considering, considering that, using that
16 as part of your determination.
17 In my respectful submission, the Defence should have brought a
18 signed statement or an affidavit from Mr. Popovic outlining exactly what
19 they mean by psychological pressure. Mr. Okic will of course say that of
20 course everyone was tired at the end of -- at the end of an interview, as
21 everyone is tired at the end of a day in court, and of course everyone is
22 stressed, and of course someone who is being questioned would be -- would
23 be stressed. But the Prosecution takes great issue with the assertions
24 made in the submissions by the Defence in which they say that they --
25 it's basically one step of saying what Mr. Halilovic signed was beaten
1 out of him. It almost -- it almost goes so far as to that. They refer
2 to coercive methods not quite amounting to torture but pretty much
3 getting there.
4 Now, they're pretty serious allegations to make, and if you're
5 going to make allegations like that you have to bring some proper evidence
6 of it even if it were in the form of an affidavit from their client as to
7 the circumstances of his arrest. We just don't know.
8 So the Prosecution says -- our submission is that the only way
9 that this can be properly determined is from hearing on this very point
10 from the witness who was actually there, Mr. Okic, who in his dealings
11 with the Prosecution hasn't wavered from his view or his professional view
12 and at the time he'd been in the service since 1979. So he was no novice.
13 He was no rookie. He had been there 14 years by the time he took this
14 particular statement, and he's well qualified to talk about the normal
15 methods that were used in interrogating people, the laws under which
16 Mr. Halilovic was interviewed, Mr. Halilovic's demeanour during the
17 interview, whether he was in military uniform, whether he was armed.
18 Mr. Okic will say that he did have his weapon with him. How he came
19 there. He was brought in every day by a military police officer,
20 escorted from, Mr. Okic thinks, Supreme Command Headquarters and an
21 interview conducted, according to Mr. Okic, in a civilised correct, polite
23 The only person we understand who can tell us that is Mr. Okic,
24 and the Prosecution urges upon the Trial Chamber to hear from Mr. Okic
25 about the circumstances of the taking of the statement and then make the
1 determination as to the admissibility.
2 And that's what I said the other day about the evidentiary onus
3 shifting, because then it becomes a matter of admissibility. If the Trial
4 Chamber determines that it was voluntarily made, it makes it prima facie
5 admissible, the Defence then would have to persuade the Trial Chamber that
6 it should not be admitted, if the Trial Chamber doesn't decide to exclude
7 it under Rule 95 where is where the challenge is being made, but decides
8 it would then turn to the exclusion under 89(D) if you reach the test of
9 89(C). Does that assist?
10 JUDGE LIU: Thank you very much. Let me give you some very
11 initial response from the bench. I believe that this Trial Chamber is
12 governed by the Statute of the Tribunal and the international standards of
13 human rights. It is not bound by any national rules of evidence. As a
14 rule, any evidence obtained by means contrary to international protected
15 human rights is to be excluded according to our Rules, the Rule 95 of the
16 Rules of Procedure.
17 The second issue is that it is not the question whether the
18 accused waived his right to have a counsel. It is a question whether the
19 authority offered him or informed him about his right to have a counsel
20 present at any interviews. That's two different matters.
21 Thirdly, we noticed that the statement of the accused is called
22 additional or supplementary statements, so I believe that is the part of
23 the statement. Maybe often the first page of the statement on the first
24 day of the interview the authority of Mr. Okic says something about the
25 accused's rights. So I wonder whether there's any transcript, tape
1 record, videotapes available so that to have us to understand that matter.
3 MR. MORRISSEY: Yes, Your Honour. Well, I fully agree with what
4 Your Honour says there. The Prosecutor gave you a 20-minute answer but
5 the answer to your original question was no, they don't have any evidence
6 that Mr. Halilovic was offered a lawyer, and that seems to be the end of
7 the case. If the Prosecution has got such a transcript or such evidence
8 that he was offered a lawyer, then of course they should be entitled to
9 put that evidence before you. We'd like to see it. So if the Prosecutor
10 says that that's the case, let them say so now and then they may proceed.
11 At the moment, they're calling Mr. Okic, who wasn't there at the
12 first interview.
13 And Your Honours will be aware he -- when my learned friend says
14 there are two people in the building, there is another one they should
15 have called and that was Himzo Popovic. Now, Mr. Popovic was an officer
16 who is the witness they should be calling and they're too scared to in my
17 submission. He was there in the first interview and he was there with an
18 officer named Borisa Delic, and he could say presumably if they call him
19 what happened in the first -- remember that they've got the onus here, of
20 course. So if they wanted to prove what happened at the start and that
21 everything was done properly and Mr. Halilovic wasn't threatened and
22 nobody came and mentioned Caco and Caco's demise and all that sort of
23 thing, then of course they could call one of the officers who was present
24 at that.
25 Actually, they've taken that witness off their list. So,
1 Your Honour, the current situation is this, that the Prosecutor concedes
2 that they've got no evidence of offering a lawyer to Mr. Halilovic. And
3 when Your Honour asked that question, that was one of the questions I was
4 going to ask in cross-examination if we ever got to that point. It's
5 clear one. But the Prosecutor may have an answer we may not know about so
6 perhaps I better stop and let him answer that question.
7 JUDGE LIU: Mr. Morrissey, before you sit down there's a question
8 to you from the Bench.
9 MR. MORRISSEY: Yes.
10 JUDGE LIU: We allowed Mr. Okic to meet the Defence because the
11 parties agreed on that particular matter, which to me it would be very
13 MR. MORRISSEY: Yes.
14 JUDGE LIU: Would you please give us some explanations on that.
15 MR. MORRISSEY: I will, Your Honour. I'm very happy to.
16 Obviously I found it strange as well, and I mentioned it to the Court
17 because of that.
18 I met with him -- Mr. Re of the Prosecutor sent us an email
19 indicating this desire of Mr. Okic to speak to the Defence, so I then --
20 we then sought to make contact during the day. We couldn't do that. I
21 think from recollection we mentioned it to the Tribunal before we actually
22 spoke to him. I just can't recall now, but I think we did. And then in
23 one of the breaks we spoke to him in a room just there.
24 Now, Mr. Okic apparently was an English speaker. I went there
25 with legal assistant Mr. Cengic and also an intern, both of them who were
1 Bosnian speakers, but as it happened Mr. Okic was able to communicate with
2 us in English and we spoke to him. We asked him what it was he had to say
3 to us. We asked also for the Victim and Witnesses Unit person to remain
4 in the room with us, but she said that her procedures were against that.
5 So in terms of what happened in there, we didn't have a tape recorder with
6 us at the time, of course, but so far as the discussion there, I would not
7 have seen any witness alone myself, so that Mr. Cengic and our other legal
8 assistant were present at that time or an intern, actually, were present
9 at that time.
10 Now, the discussion took place. He indicated to us that he had in
11 the past spoken to two Defence investigators a long time ago. Those two
12 are still both Defence investigators. Ms. Delalic is present in court
13 now; she was one of them, and Mr. Dzambasovic, who Your Honours have seen
14 on many occasions here, is the other one to whom he spoke.
15 Because I had the possibility of cross-examining him, I didn't
16 want to ask him any questions because -- depending on whether it was going
17 to be a hostile cross-examination or not we don't know. So I really
18 wasn't concerned to press him greatly. I asked him for some details of
19 what he did and for some details of his impressions. He indicated that he
20 had in the past spoken to those people, that he had expected to hear from
21 them again and that he hadn't heard from them again since that time.
22 Now, I can go into the details of what I asked him if that would
23 help the Court. I'm -- we're not concerned by it, but they were
24 essentially questions about what -- what was his recollection about
25 particular aspects of the interview. One was whether it was a military
1 security interview or whether it was being conducted by the state security
2 officers. He gave us an answer. I don't know whether Your Honour wants
3 me to tell you what he told us at that time. I'm happy to if it would
4 help. I must say I -- the whole procedure's highly irregular, and I --
5 you know, as counsel I -- I make it clear to the Court, frankly, that I
6 don't like this proofing that goes on. I'm not comfortable with it. In
7 my system you don't do that. But it may be other systems allow it. The
8 Prosecutors here do it. It leaves counsel open to allegations if a
9 witness says later on look I never did say that to Ms. Chana, you know,
10 this is all being made up. I only said I saw six bodies and Ms. Chana
11 told the Court he saw ten bodies in proofing; that creates a problem.
12 Almost I don't like those things very much and that's -- I must say it was
13 a short conversation. Now I ask the Court, do you want me to tell you
14 what -- what was the questions and answers I had with that witness because
15 I'm very happy to say if that assists. So it's a matter for you,
16 Your Honour. I'm very happy to say it as far as I remember it.
17 I'm sorry, my learned friend Mr. Mettraux also indicates to us
18 that -- that he provided to us at some stage a signed statement concerning
19 his involvement as he remembers it in these matters. So -- and I -- and
20 as is apparent from other witness, there is number of witnesses spoken to
21 by the Defence counsel, most of whom who say they weren't offered 50.000
22 Deutschmarks or had their family threatened. Your Honours, many witnesses
23 were spoken to by Defence investigators over time, many of them, and in
24 many -- in respect of many of them we have statements, Your Honours, and
25 this witness Okic was one such witness who was spoken to.
1 Mr. Popovic is another such witness who we spoke to and in fact
2 we've annexed, I believe, a signed copy of Mr. Popovic's statement
3 provided to the Defence to the motion. Your Honours can only guess at the
4 moment, but I suppose it's probable that's why they're not prepared to
5 call Mr. Popovic because they know what's going to say and that's
6 psychological pressure was brought to bear on Sefer Halilovic and Popovic
7 was the senior person, was the person who was conducting the interviews
8 and was there at the start, and was there throughout this month when he
9 was interviewed.
10 Now, Your Honours, that's -- those are specific matters to raise.
11 I've got a few responses to make to my learned friend's lengthy answer but
12 really that wasn't what Your Honours were asking him. You weren't -- as I
13 took it, you were asking him a specific question about the lawyer in that
14 situation, and his answer after all was said and done is they've got no
15 evidence. They can't discharge their onus. The case is finished.
16 If the matter is to go further, well, it can go further but
17 Your Honours have posed the question whether there is something more.
18 Your Honours will bear in mind, of course, that in our materials we've
19 annexed -- we've annexed to that material some further material. The
20 letter from the lawyer is one that's annexed to our motion. The statement
21 of Mr. Popovic is also annexed. It should be pointed out, when my learned
22 friend says that there's an ambiguous answer in there, there's nothing
23 ambiguous about it. Popovic says that psychological pressure was brought
24 to bear and that Mr. Mikhailov was not prepared to put that in the
25 statement. But it should also be pointed out that in a subsequent
1 statement taken by the OTP and in particular the investigator named
2 Mr. Ken Corlett who came along after Mr. Mikhailov, presumably to clean up
3 the mess, Your Honours, that statement makes it quite clear that to the
4 OTP he also said that Sefer Halilovic was under "quite strong
5 psychological pressure." And if the Prosecutor wants to draw your
6 attention to that they can. But if they don't, I will.
7 So, Your Honours, rather than respond substantively now, I just
8 perhaps will stop for a moment because I've got some responses but at the
9 moment they're not necessary because at the moment the Prosecutor's
10 telling you that Halilovic wasn't offered a lawyer.
11 JUDGE LIU: Well, Mr. Re, you want to take the floor?
12 MR. RE: Yes, please. Prosecution takes issue with my learned
13 friend's repeated attacks on Mr. Mikhailov. There's no open season on
14 Mr. Mikhailov in this Trial Chamber. He's not entitled to take a shot
15 every -- every day or so and talk about someone else coming in to take --
16 to clean up the mess.
17 My learned friend just made some veiled allegations about the
18 conduct of the Prosecutors here, the lawyers, in relation to not calling
19 Mr. Popovic. My response to that is simply this: Your Honours will be
20 appreciative there have been some changes in the Prosecution lawyers over
21 time, and there were basically a new team came in at the end of last year,
22 and two days ago I moved to put another interview on the list that I only
23 found myself on Tuesday or Monday, I can't remember which one now, when I
24 was preparing for this witness. Now, that says something about the state
25 of preparation in relation to calling witnesses in relation to this
1 particular interview, and yes, it did fall short, which explains why we
2 didn't call Mr. Popovic when we were reviewing the witnesses we were to
3 call in this case at the end of last year, at the time when the trial date
4 was set, and we were reducing the number of witnesses from -- I think it
5 was 107 down to 38 live witnesses. We looked at it and saw that there
6 were two witness who is gave evidence of the same record of interview, and
7 we chose one of them. We were not as cognisant as the Defence was of the
8 significance of Mr. Popovic having been at the first interview.
9 There is absolutely nothing sinister about our choosing Mr. Okic
10 over Mr. Popovic, and had we known that there was going to be a challenge
11 to the record of interview, the statement, which arrived, as Your Honour
12 said, last Thursday afternoon, on Easter Thursday late in the afternoon,
13 we would have called Mr. Popovic. We just didn't know. It is rightly a
14 matter that should have been determined in limine before the trial began
15 which would not have allowed us not even to open on these matters, the
16 Trial Chamber having determined that matter.
17 So that's our response as to why we have taken Mr. Popovic off the
18 list. If it assisted the Trial Chamber, we could of course ask to put him
19 back on the list. We have no fear of calling Mr. Popovic to get him to
20 explain what he means by psychological pressure because we are only
21 dealing with one interview and if at the end of the day there is a
22 conflict between two witnesses as to what actually happened in an
23 interview, well, then the Trial Chamber has to make a determination as to
24 who to -- who to -- whose version to prefer.
25 Of course there's always the option of the Court itself -- the
1 Trial Chamber itself calling Mr. Popovic if you wish to hear from
2 Mr. Popovic. That option is always open.
3 MR. MORRISSEY: Your Honours, I'm very loath to interrupt and I
4 apologise for doing so but I have to do it on this occasion. The Defence
5 objected to Mr. Popovic being withdrawn from the witness list. Your
6 Honours will recall at one time you were presented with a Prosecution
7 application to withdraw witnesses, and you might remember that -- that
8 application before you were very familiar with the case. But the Defence
9 at that time objected to him, Popovic, being withdrawn. So in light of
10 that I'm astounded by the submissions being made and perhaps my friend may
11 better clarify it because we asked for him to be kept on. Anyway, I'm
12 interrupting but that is an important matter. If my friend wants to raise
13 that now, that better be clarified. That was done in January.
14 MR. RE: Well, had the Defence made it clear they were challenging
15 the statement as they have as of last Thursday, we would have examined
16 Mr. Popovic in another light. I've made that clear.
17 Firstly, we accept that we weren't as prepared as we should have
18 been in relation to this statement; and secondly, we weren't warned that
19 there was a challenge to it. So that's as far as I can take it.
20 The other -- the other thing is, Your Honours, in relation to the
21 right to -- or in relation to whether Mr. Halilovic was advised of his
22 right to counsel, the only evidence if you can call it that which is
23 before the Trial Chamber at the moment is the letter in French and in
24 Bosnian from Mr. Halilovic's family's lawyer, family lawyer, which
25 suggests that he had a -- access to a lawyer. The Defence asserts that he
1 was under house arrest and a lawyer made representations to higher
2 authorities, the Presidency. Now, that certainly suggests that he had
3 access to a lawyer at some point.
4 As to transcripts of the -- of any of these interviews, the
5 Prosecution doesn't have audios, transcripts or videos of the interviews.
6 Mr. Okic will say, if he testifies, that he himself was unaware if that
7 particular I view on the 8th of November was being taped or transcribed or
8 videoed. If it was, he wasn't doing it. Although he said because of
9 where they were it could easily have been taped and he wouldn't
10 necessarily have known about it.
11 The Defence in their own motion have said that they have tapes and
12 transcripts. I don't know whether it's transcripts that they have. They
13 have the tapes and some things are different to the statement. Well, one
14 would expect that. A statement is always different to a taped transcript
15 of a -- an interview is always different to a signed statement because
16 statement is a summary. It's a composition as opposed to a narrative or a
17 conversation between two people. They are -- they are of necessity
18 different. The statement is always much, much shorter than a transcript
19 of a conversation.
20 If the Defence have it, I invite the Defence to produce to the
21 Trial Chamber the tape where it says that Mr. Halilovic was in some way
22 coerced or prevented from having access to a lawyer or didn't waive his
23 right to a lawyer, because the Prosecution's submission in relation to
24 this particular one, the 8th of November, is that at that point, he did
25 not ask for a lawyer, and at least in that interview he waived his right
1 to a lawyer. Although Mr. Halilovic, of course his family had a lawyer.
2 Mr. Halilovic as an educated general in the army would, of course, have
3 been completely aware of his right or of the fact that he could ask for a
4 lawyer if he wanted to. But he hasn't asked for a lawyer -- we're talking
5 about Bosnian law in 1993.
6 JUDGE LIU: We have spent more than 40 minutes on this issue. We
7 believe that in this situation the rule of the best evidence should
8 prevail. Since we have a witness here outside, maybe the Bench could
9 propose that we'll hear this witness only on the ways and the means to
10 obtain those statement without going to the substance and the contents of
11 that statement. And the Defence will have the full right to cross-examine
12 that witness on any issues they made, so-called allegations.
13 MR. MORRISSEY: Yes. Your Honour, could I just raise a couple of
14 procedural matters about how that should -- how that should happen.
15 JUDGE LIU: Yes.
16 MR. MORRISSEY: Your Honours, frankly, it's entirely proper for
17 that to occur. The Prosecution are entitled to attempt to establish
18 through this witness the relevant facts in a non-leading and proper way
19 and I don't object to that being done.
20 The only issue that I have is -- is to clarify the status of this
21 evidence. The question is, is it admissible in the trial generally or is
22 it just to be limited to this issue. And the reason I raise that is
23 because my learned friend mentioned in an early stage of these discussions
24 the possibility of conducting what he referred to as a voir dire.
25 Now, Your Honours, a voir dire is a device that's used in common
1 law situations. It's referred to in the Celebici case. In short terms, a
2 voir dire in the common law system is a device that's used to shield from
3 the jury certain controversial evidence that might be relevant to a
4 particular point of admissibility. In the common law system, the jury is
5 seen as somehow fragile and unable to sort out irrelevant prejudicial
6 material, whereas Your Honours as professional judges can do that and can
7 set aside such material. If you decide to exclude it, you can do so. But
8 nevertheless the device could be useful here and I could understand my
9 learned friend raising it as it did. It pay be it's an appropriate thing
10 to do. But the question is, are we going to use that device with this
11 witness and if the Prosecution chance to satisfy the onus, although at the
12 moment it sounds as if they're not going to, but if they let us assume
13 that something changes and that they do, then the question then arises as
14 to whether other evidence ought to be called for and admitted on that
15 point. It seems to me that it would have to be at least for Mr. Popovic
16 in the current circumstances. Then the Tribunal will have to rule and
17 perhaps create some brief rules about what is the status of this evidence.
18 In the common law system, on a voir dire, the evidence admitted on
19 a voir dire is not evidence on a trial itself. It's just evidence called
20 to assist the court, the trial judge to determine whether or not to admit
21 the evidence. Then once that decision is made that evidence is then set
22 aside entirely. The exhibit or the evidence that's being challenged is
23 admitted into evidence and then Defence must decide whether they want to
24 cross-examine and if they do how to deal with it.
25 THE INTERPRETER: Could counsel please slow down for the benefit
1 of the transcript.
2 MR. MORRISSEY: I'm being asked to slow down a little bit there.
3 So that's the way that such evidence is dealt with in the common law
5 Now, in this case, it may or may not be useful to do that with Mr.
6 Okic but it probably is necessary to do it with the other evidence in the
7 case. It is also possible in the common law system to admit the evidence
8 from the voir dire later if the parties agree. In other words, if Your
9 Honours make a ruling on material and you exclude the evidence or admit
10 the evidence or say it can be used or can't be used, at a later time the
11 parties might think, we don't need to go over all that again and we could
12 agree to admit that evidence into the evidence as part of the trial. But
13 it is a live issue; it always has to be dealt with in the common system,
14 and it always has to be determined in advance.
15 So I would invite the Court to make to -- to make a ruling about
16 that before we start. My submission is that -- is that we should conduct
17 this as a voir dire in the common law system, whereby the evidence is not
18 admissible on the trial generally but it's relevant solely to the
19 questions that are before the Court and that way it's completely confined.
20 The only cross-examination that's allowed is directly relevant to the
21 question of admissibility and there could be no cross-examination, for
22 example, on the credibility of this witness and that sort of thing. But
23 it's all focused directly upon what he did and what he saw and what --
24 what rights he offered and so on. And it would be a pretty short
25 cross-examination, because I can indicate now that it's not going to be
1 said that this particular witness behaved in -- in an -- in an aggressive
2 or threatening way at all. In fact it's the Defence submission that he's
3 being called precisely because he doesn't know much about it. It's
4 precisely for that reason he's being called and not Mr. Popovic. But
5 Your Honours we agree to him being called, and I invite Your Honour to
6 make a rule about the use to be made of that evidence and whether it's
7 solely related to the question before the Court.
8 JUDGE LIU: Any response in.
9 MR. RE: Yes. Firstly Prosecution puts on the record its
10 objection to Mr. Morrissey's repeated allegation that we are behaving
11 improperly by -- it's precisely for that reason he's being called and not
12 Mr. Popovic. I've said this two or three times and I don't want to sound
13 like a broken record.
14 In our respectful submission, this -- having reached this stage is
15 not one which should be treated as a voir dire for this reason. A voir
16 dire, as Mr. -- my learned friend has rightly pointed out in the common
17 law system operates quite normally in -- when determining the
18 admissibility of things such as a record of interview or a statement. But
19 it also has the added advantage if it allows the accused himself to take
20 the stand and give evidence on a very limited basis as to the
21 circumstances of the record of interview. And that is not uncommon at all
22 and I know that's not going to happen here.
23 This witness's evidence is very limited. It's limited to the
24 record of interview and the only other point was as to the reputation of
25 the 9th and 10th Brigade in Sarajevo. That's the only thing.
1 Now, I anticipate that the -- that the Defence may well wish to
2 use parts of his evidence at the end of the trial if it goes as to
3 Mr. Halilovic's treatment during Trebevic. So in my submission, in our
4 submission, the evidence should be evidence in the trial and unless the
5 accused himself is going to give evidence as to the nature of the
6 statement, that it's not necessary to treat it as a voir dire.
7 MR. MORRISSEY: I'd have to respond.
8 JUDGE LIU: You have to be very concise.
9 MR. MORRISSEY: I will Your Honour. But the Defence might --
10 depending on what this witness says the Defence might wish to call
11 evidence, for example from the lawyer. For example, if the Prosecution
12 remain in the their position of declining to call Mr. Popovic but
13 continuing to complain about us pointing that out, if they don't call
14 Mr. Popovic we might want to call him. And we'd be entitled to call him
15 because he's a Prosecution witness who is being hidden from the Court by
16 the Prosecutors.
17 MR. RE: I do object. I object to this. I object to this. He
18 keeps saying this.
19 JUDGE LIU: Let's not engage in this kind of argument. There's no
20 use at all.
21 MR. MORRISSEY: Your Honours, the Prosecution, we submit, ought to
22 call Popovic if they refuse to do so the Defence would want to call him.
23 JUDGE LIU: I believe that you are going to have your
24 case-in-chief. You could call whatever witness you like.
25 MR. MORRISSEY: But, Your Honour, in terms of whether you admit
1 this document or not, the moment is here, and we can't be denied the
2 opportunity to call evidence that's directly relevant to admitting the
3 document if the Prosecutor says they're not prepared to do it. In any
4 event, I took my learned friend to say earlier on that he wasn't concerned
5 and that the Prosecution was prepared to call him. So if that's the true,
6 then they ought to make arrangements to do that, because it's evident that
7 he might be a relevant witness here. And in any event we should hear this
8 witness now. I understand why Your Honour wants me to be brief because we
9 don't want to keep the witness sitting there, but we need to know where
10 we're headed. Your Honour can't be asked to decide this on a narrow basis
11 that the Prosecutor wants and seeks to advance, namely that he'll call the
12 witness who knows nothing about it and not call the witness who knows more
13 about it and then ask Your Honour to decide. So for that reason you've
14 got to consider whether you should do it on a voir dire or not, and I'd
15 submit that you do have to do it on a voir dire because he's one witness
16 who, if the Prosecution won't call him, we might. We might need to call
17 the lawyer. It's also possible that we would want to call Mr. Halilovic
18 on the application. So in those circumstances, depending on what Mr. Okic
19 says, we might have to choose a number of options and therefore it should
20 be dealt with on the voir dire.
21 JUDGE LIU: Well, I believe we have to make a ruling on this
22 matter. As I said before to the Prosecution, this Bench is governed by
23 the Rules of this Tribunal, and it is not bound by any national rules of
24 evidence, including the common law legal system. So we deliberately not
25 use the special word voir dire, which is for the special purpose of
1 admission of the evidence and directed to the juries in some legal
3 As the Defence said that the Judges here in this court, this case,
4 are professional Judges, so we'll hear the evidence of this witness and
5 they are in the transcript rightly recorded, which forms part of the
6 evidence the Court admitted.
7 It is so decided.
8 Could we have the witness at this stage. Yes, Mr. Morrissey.
9 MR. MORRISSEY: Your Honours, we haven't had transcript for the
10 entirety of this discussion, I'm sorry to say. Because it's legal
11 discussion we haven't felt the need for it but I've got a blank screen and
12 I have had that all morning. I just wonder if there could be a brief
13 break before the witness while that's fixed.
14 JUDGE LIU: I see. Let us see how soon that we could fix that
16 MR. MORRISSEY: Yes, thanks.
17 JUDGE LIU: Well, we don't want to put you in a disadvantaged
18 position since we are going to hear the witness, so we'll take a break for
19 about ten minutes, and we'll resume at five minutes past ten.
20 MR. MORRISSEY: Thank you, Your Honour.
21 --- Break taken at 9.54 a.m.
22 --- On resuming at 10.08 a.m.
23 MR. MORRISSEY: Your Honour, the technical problems are fixed.
24 JUDGE LIU: Very good. So could we have the witness, please.
25 MR. RE: Your Honour, could I ask the procedure here.
1 Your Honour's ruling -- the Trial Chamber has just ruled as to the use
2 that could be made of this evidence. Yesterday, you mentioned you'd deal
3 with the evidence in two parts. There's only two parts to this witness's
4 evidence. Do you want to -- do you want me to deal with the 9th and the
5 10th at the same time or -- while the witness is here rather than break
6 for more argument as to the admissibility which will come at a later
8 JUDGE LIU: Mr. Morrissey, what's your response on that.
9 MR. MORRISSEY: Well, I don't mind --
10 JUDGE LIU: Your microphone, please.
11 MR. MORRISSEY: I'm sorry. I don't mind the witness being add any
12 9th or 10th questions if that needs to be done. Bear in mind, Your
13 Honour, the restrictions Your Honour placed questions concerning the
14 admissibility of the interview. I take it the Prosecutor will continue to
15 respect those and, yes, I think it's -- it would be acceptable for the 9th
16 and the 10th issues to be dealt with at this stage if that's what the
17 Prosecutor wants to do.
18 JUDGE LIU: Yes. Thank you very much for your cooperation.
19 [The witness entered court]
20 JUDGE LIU: So we'll do those two things all together. So there
21 is no strict distinguishing between so-called voir dire and the
22 substantive measures.
23 Well, Witness, I'm sorry for having kept you waiting for so long.
24 Can you hear me?
25 THE WITNESS: [Interpretation] Yes, I can hear you.
1 JUDGE LIU: Would you please make the solemn declaration.
2 THE WITNESS: [Interpretation] I solemnly declare that I will speak
3 the truth, the whole truth, and nothing but the truth.
4 JUDGE LIU: Thank you very much. You may sit down, please.
5 WITNESS: ZLATAN OKIC
6 [Witness answered through interpreter]
7 JUDGE LIU: Yes, Mr. Re.
8 MR. RE: Thank you.
9 Examined by Mr. Re:
10 Q. Good morning, Mr. Okic. Some preliminary questions. First, your
11 name is Zlatan Okic, your date of birth is the 19th of October, 1955, you
12 live in Sarajevo, and your occupation is -- you're retired, you're a
13 pensioner, you were a former official of Bosnian State Security. Are all
14 those details correct?
15 A. Just one correction. I'm not retired by profession. My
16 profession is a lawyer who is retired. And everything else is correct.
17 Q. And you worked in Bosnian State Security, is it correct, from 1979
18 until your retirement from that position in March 1997?
19 A. That's correct.
20 Q. Were you living in Sarajevo in 1993?
21 A. Yes.
22 Q. Were you then working for Bosnian State Security?
23 A. Yes.
24 Q. Were you aware of two particular army units called the 9th and the
25 10th Brigades in Sarajevo?
1 A. Yes, I did.
2 Q. What was their reputation?
3 A. Not great.
4 MR. MORRISSEY: Could I just intervene for a moment.
5 Your Honours, once again this question can't be asked as a double. The
6 reputation of the 9th Brigade is one thing; the reputation of the 10th
7 Brigade is another thing. And the witness has to be asked about those.
8 He can give whatever answers he wants to give but --
9 JUDGE LIU: Yes, Mr. Re. Maybe you could split your question.
10 MR. RE: Not a problem.
11 Q. I'm going to split the question into, firstly, the 9th, and
12 secondly the 10th. What did you know about the 9th Brigade from living in
13 Sarajevo in 1993?
14 A. Is that the brigade whose commander was Musan Topalovic, Caco? Is
15 that correct? Well, they had the reputation for snatching Serbs in an
16 illegal way, without any legal basis. And also, they used to grab people
17 and take them to dig trenches.
18 Q. Where were they grabbing people from?
19 A. Mostly in the streets.
20 Q. Which streets?
21 A. The part of Sarajevo that we tend to call the old town, because
22 that's where the brigade was stationed.
23 Q. Were the people they were taking civilians or military?
24 A. Civilians.
25 Q. Do you know how often this was happening?
1 A. I don't know. I haven't counted. But I did hear about such
2 cases. I can't tell you how many exactly.
3 Q. What about a fellow called Ramiz Delalic, called Celo? Do you
4 know --
5 A. Well, both in the 9th and the 10th Brigades there were 95 per cent
6 of patriots and perhaps only 5 per cent of people who were high-ranking
7 people, but they had a pretty bad reputation. Those commanders surrounded
8 themselves by groups of -- well, I don't know whether I should call them
9 common criminals or semi-criminals, but they were there. So they
10 perpetrated certain crimes such as kidnapping of people or looting flats
11 of Serb citizens who had left Sarajevo and so on. That's what I'd heard
12 at the time.
13 Q. What's your view of how widely known these activities were at the
14 time based of course on everything you've heard, seen, that's been
15 communicated to you, and your experiences of having lived in Sarajevo
16 through 1993?
17 JUDGE LIU: Yes, Mr. More so.
18 MR. MORRISSEY: Based on all of those matters, it's just asking
19 the witness to guess and speculate and I object to the question.
20 JUDGE LIU: Perhaps you could pursue your question another way,
21 Mr. Re.
22 MR. RE:
23 Q. I just ask you to clarify the last answer. You said the
24 commanders in the 9th and the 10th surrounded themselves with common
25 criminals, and then you said so they perpetrated certain crimes such as
1 kidnapping of people or looting of flats. Who is the "they" you're
2 referring to? Are you talking about commanders or the people they
3 surrounded themselves with?
4 A. Ramiz Delalic, well I'm not sure about Musan Topalovic, but Ramiz
5 Delalic, as far as I know, had problems with police, and they were the top
6 people within the brigade, and they also selected other people of the same
7 ilk and put them within the staff of the brigade to keep themselves in
9 Q. You referred to crimes such as kidnapping and looting flats of
10 Serb civilians and so on. What's the so on? What other crimes did you
11 hear of committed by members of the 9th and 10th Brigades?
12 MR. MORRISSEY: Your Honours once again I would ask that the
13 witness be specified when he's talking about member of the 9th Brigade or
14 the 10th Brigade.
15 MR. RE: I'm referring to -- his last answer was the 9th and the
17 JUDGE LIU: Yes, I believe so, that the witness himself answered
18 the 9th and 10th Brigade altogether.
19 MR. MORRISSEY: Yes. Well if that's the way the question's put, I
20 don't object to it.
21 MR. RE:
22 Q. What's the so on you're referring to, apart from kidnapping and
23 looting of flats of Serb people?
24 A. Mostly that. Perhaps -- yeah, basically those were the two main
25 types of criminal activity that they engaged in. Perhaps there were a
1 couple of other things such as smuggling or things along those lines. But
2 the 9th Brigade was much more involved on the basis of what I'd heard,
3 much more involved in those dealings than the 10th Brigade.
4 MR. MORRISSEY: Your Honours, could I just intervene there. I
5 just think it ought to be clarified. The witness give an answer early on
6 when he was asked about the 9th -- the 9th Brigade and the 10th Brigade,
7 and he asked whether the 9th Brigade was Caco's brigade. Now it has to be
8 clarified which one he's talking about here. When he says the 9th Brigade
9 does he mean Caco's brigade or Celo's brigade because that is a matter of
10 importance in the case Your Honours will recall that answer earlier on. I
11 didn't object at the time. The witness is entitled to answer of course
12 but I think that should be clarified.
13 JUDGE LIU: Yes. Yes, of course.
14 MR. RE: There's no problem at all with that, no.
15 Q. When you're referring to the 9th and the 10th, you've mentioned
16 Caco and Celo, which one --
17 A. As far as I can remember, Caco was the commander of the 9th
18 Brigade and Ramiz Delalic, Celo, was the commander of the 10th Brigade.
19 Afterwards, Celo had been made deputy commander. He was not the commander
20 any longer. But as far as I know, he was still in charge. But I really
21 can't remember when exactly it was that he was demoted.
22 Q. The kidnapping you referred to a few moments ago, was that the
23 taking of people, civilians, to the trenches or was it another form of
24 kidnapping you're referring to?
25 A. At that time, I only heard of civilians being taken to dig the
1 trenches. But after the war, I heard and I actually read about people
2 having been killed and having been thrown into a ravine called Kazani, in
3 the vicinity of Sarajevo, but I only read it in the papers afterwards,
4 after there were first accounts published about the war and war crimes.
5 But during the war I only heard about civilians being taken to dig
7 Q. Just confining it for the moment to what you heard or told during
8 the war itself, were the things you've just described, the kidnapping,
9 looting, trench digging, things you heard about in the course of your
10 duties or heard about outside of work or a combination?
11 A. Both. And I felt it firsthand. I mean, in my own case I've
12 experienced it.
13 Q. What was your own firsthand experience, Mr. Okic?
14 A. I myself had been kidnapped, and I spent 24 hours digging
16 Q. Could you tell the Trial Chamber about that? When was that?
17 A. That was before that so-called -- well, rather, I don't remember
18 the date. It was before that brigade was disarmed and the leadership
20 Q. Was it in 1993?
21 A. Yes.
22 Q. And whose brigade -- who was the commander of the brigade that
23 kidnapped you?
24 A. Caco.
25 Q. Where were you kidnapped from?
1 A. From the street.
2 Q. What were you doing?
3 A. I was going to visit a colleague at his flat. He had invited me
4 to lunch, and -- well. Nothing. I was just surrounded, and there were
5 other civilians there, and I was taken to do the digging.
6 Q. Whereabouts? In the streets? In where? Was it central Sarajevo
7 or somewhere else?
8 A. Almost the very centre of town. It is a place where we have a
9 monument to the people who liberated Sarajevo after World War II, and it's
10 called the eternal fire, vjecna vatra, and that's where I was taken.
11 Q. How many -- how many people surrounded you?
12 A. Five or six.
13 Q. Were they in uniform?
14 A. Yes. Well, what I mean was if you were wearing just a
15 military-looking jacket or fatigue trousers or something, that was
16 considered to be a uniform, because our armed forces were not particularly
17 well-equipped at the time.
18 Q. How did you know they were from Caco's brigade?
19 A. Where I was taken to that part of town, there was the commander of
20 the 9th Brigade there.
21 Q. I'm sorry, you were taken where?
22 A. Close to their command and their headquarters. And then we were
23 taken to dig trenches.
24 Q. Were you taken to see Caco himself?
25 A. No. No, no, no.
1 Q. Were you asked for identification when these people stopped you?
2 A. Yes. And I showed them my official ID but without any success.
3 Q. Your official ID, was that Ministry of the Interior ID?
4 A. Yes.
5 Q. Was that the ID that all officials of the Ministry of the Interior
6 carried with them?
7 A. Yes.
8 Q. What about the other people? How many other people were taken,
9 were kidnapped with you?
10 A. Perhaps a dozen. Ten to 15 thereabouts.
11 Q. Were you all captured at the same time in the same spot?
12 A. In the same area, perhaps within a hundred or 200-metre range.
13 Q. How were you transported to the headquarters and -- or the area
14 near the headquarters and then to the trenches?
15 A. A van came along, and then we were taken by van, and behind us
16 there was a car with the armed members of the 9th Brigade.
17 Q. And with the five or six who surrounded you that were uniformed,
18 were they armed?
19 A. Yes.
20 Q. Did you have any choice as to whether or not you went with them?
21 A. [No interpretation]
22 Q. You said you were taken to -- I don't think we got an answer on
23 the transcript to the last question. Just to repeat it, I asked you, did
24 you have any choice as to whether or not you went with them, and I think
25 you said no.
1 A. No, I had no choice.
2 Q. Did any of the people with you, the dozen or so who were also --
3 or sorry, the 10 to 15 you referred to, did they -- they likewise have no
4 choice as to whether they went?
5 A. I don't believe so. Had they had any choice, they would have
7 Q. What about the car with the armed members of the 9th Brigade
8 behind you? How many people were in that and what was the function of
9 that car full of armed members of the 9th Brigade?
10 A. There were about three or four of them in the car, and they were
11 there in order to prevent us from fleeing from the van.
12 Q. Where were you taken to?
13 A. First of all into a courtyard of a house which was close to the
14 headquarters of the brigade and then to dig trenches.
15 Q. Why did you go to the courtyard of the house close to the
17 A. A member of the brigade, I don't know his name now, he explained
18 to us that fighters could not do the digging and we as civilians had to
19 make our contribution to the defence of Sarajevo, and so that was it.
20 Q. And then?
21 A. Well, and then I was taken to the front line, and together with
22 the other two people I was given the task to start digging.
23 Q. Where were the Serb positions relative to where you were?
24 A. I didn't see them myself, but I heard that they were a couple of
25 hundred metres above us.
1 Q. Was there any firing?
2 A. No. No one fired at us, not as long as I was there.
3 Q. You said there were three of you given the task to start digging.
4 What happened to the -- the other 12 or so people who were also taken from
5 the streets that day?
6 A. The other people left to -- for different places to dig trenches
8 Q. Were you guarded when you were digging trenches?
9 A. No.
10 Q. Were there members of the 9th Brigade there with you when you were
11 digging the trenches?
12 A. Not where we were, further down. We could only run up towards the
13 Serb-held positions or -- or run down the hill to where they were.
14 Q. I assume -- I take it that they were armed.
15 A. You mean members of the 9th Brigade.
16 Q. Yes.
17 A. Of course.
18 Q. How long were you there for?
19 A. Twenty-four hours. The next day at noon I was set free.
20 Q. Where did you stay that night?
21 A. Near the positions held by the 9th Brigade. There was an
22 abandoned house and that's where we spent the night. We were given
23 dinner, something to eat, and we spent the night there.
24 Q. You said the next day at noon you were set free. How were you set
1 A. A member of the 9th Brigade came along, called my name and
2 said, "You're free to go. Go home now."
3 Q. And how did you go home?
4 A. I didn't go home. I went straight to the ministry. I walked.
5 Q. And how far was that?
6 A. Maybe about a kilometre, kilometre and a half, maybe two,
8 Q. Were you wearing civilian clothes while you were at the front line
9 digging trenches?
10 A. Yes.
11 Q. And the other people --
12 A. Yes.
13 Q. -- Who had been taken with you were they likewise wearing clothes?
14 A. My own clothes, yes.
15 Q. What did you do when you went back to the ministry?
16 A. I told my bosses and my colleagues what had happened to me. That
17 was the only thing could you do at the time, the only choice you had.
18 Q. What was their response?
19 A. They said, "Tough luck." What else could they have told me? They
20 said, "You should watch yourself next time round."
21 Q. What were your feelings or what were you experiencing when you
22 were at the front line digging trenches?
23 MR. MORRISSEY: Excuse me. Your Honours, I haven't interrupted up
24 to now because this trench digging that's been featured and the Court's
25 entitled to have some view of what happened there but I -- this really
1 goes to the question of what Mr. Halilovic knew about the reputation of
2 these brigades, and therefore the questions -- while the witness can
3 answer in good faith as to them, the fact is it's now getting to a point
4 of remoteness from relevance to Mr. Halilovic at all. What this
5 particular witness felt about what happened to him or felt when he was at
6 the front line. So I object to it as not being relevant to the
7 proceedings against Halilovic now.
8 JUDGE LIU: Well, now it's very difficult for us to say that it's
9 relevant or irrelevant and at later stage we have to piece all the
10 evidence together one by one together. So somehow like the crime base
11 evidence in such circumstances and the -- and the -- I believe somebody
12 else will testify about linkage at a later stage. But at this stage, we
13 will allow this evidence to come in.
14 MR. MORRISSEY: As the Court pleases.
15 JUDGE LIU: You may proceed, Mr. Re.
16 MR. RE: May it please the Court.
17 Q. Mr. Okic, I was just asking you about your feelings, what you were
18 experiencing when you were at the front line. How did you feel?
19 A. Yes. Well, while I was digging, I was feeling bad about it,
20 bitter about the whole thing. However, later on when I sat down to do
21 some thinking, I was no longer as bitter. At least I'd been given a
22 chance to see what the front line was like. I had a chance to see how
23 soldiers lived at the front line. I realised what a tough time they were
24 having. How difficult it was to dig trenches, to hold on the Defence
25 lines, how difficult the whole thing was. So I stopped feeling bitter and
1 furious with those people. I kept telling myself, well, never mind. At
2 least now you had a chance to see for yourself what it's like.
3 Q. Apart from the -- the philosophical hindsight on this, when you
4 were actually there you said you were feeling bitter. Did you experience
5 any fear or danger?
6 MR. MORRISSEY: That's now leading and, frankly, Mr. Re, not
7 having got the answer he wanted is now trying again. I object to it.
8 JUDGE LIU: Yes. Yes.
9 MR. RE: The witness answered about his feelings afterwards. I'm
10 just taking him to his feelings about what he was experiencing on the day.
11 JUDGE LIU: Well, you may directly ask this question. What was
12 his feeling on that day.
13 MR. RE: Thank you.
14 Q. What were you feeling on the day when you were at the front line
15 digging trenches, the Serb positions up the hill and the 9th Brigade down
16 the hill? You're in the middle.
17 MR. MORRISSEY: I object to this. It's like somebody performing a
18 card trick here, frankly. The witness has given a direct answer. He said
19 he was feeling bitter. Now, he can be asked why he was feeling bitter or
20 how he was feeling bitter, but that's the answer. It was a direct
21 relevant and responsive answer to the question, and my friend can't
22 really, skilful though it is, is not entitled to do it. So I object.
23 JUDGE LIU: Mr. Re, ask a simple question.
24 MR. RE: I'll rephrase it.
25 Q. Mr. Okic, you said you were feeling bad and bitter. What was
1 bad -- what was the badness and the bitterness of your experience on the
2 day of your trench digging?
3 A. Well, it was on account of the way the whole thing happened. It
4 happened in a very bad way, ugly. However, when I thought it over later
5 on, I was resigned to look at it philosophically, and I tried to look on
6 the brighter side of what happened.
7 Q. Were you given a weapon or any means of defending yourself when
8 you were between the two front-line positions?
9 MR. MORRISSEY: Just a moment, just a moment, just a moment. He
10 didn't say he was between the two front line positions. This is now
11 beginning to sound like the Battle of the Somme. Your Honour, he didn't
12 say that at all and I object to this form of cross-examination frankly
13 where assumptions are built into questions that are not agreed to in
14 previous evidence, and as a particular example I object to this question.
15 MR. RE: The evidence is the Serbs are up the hill and the 9th
16 Brigade was behind him. If that's not between the two positions I don't
17 know what it is, where it is.
18 JUDGE LIU: I think the main progress is to know whether the
19 witness has any means to defend himself. Just stick to that point. I
20 think that's good enough.
21 MR. RE:
22 Q. Did you have any reasons to defend yourself?
23 A. No. No. We only had our spades and picks.
24 Q. What did you consider the state of your personal safety to be when
25 you were digging trenches on that day?
1 A. At the outset, there was a bit of fear perhaps that we might get
2 hit by sniper. Two or three hours later, however, we concluded there
3 wouldn't be any fighting on the day, and we managed to even relax a
4 little. We weren't that worried about ourselves.
5 Q. You mentioned sniping. Was there any shelling on at that day?
6 A. No. No. Not where I was. Not on that day. No firing, no
7 shelling, no nothing. It is entirely peaceful. The next day, until the
8 moment I was released, it had been very peaceful also.
9 Q. Was anyone else that you knew in Sarajevo kidnapped like you were
10 and taken to the front line to dig trenches?
11 A. None of the people I knew, but there were quite many people who
12 were taken away like that whom I know of personally.
13 Q. Can you -- can you give us a rough figure?
14 A. No. I have no idea.
15 Q. Well, I mean is it in single -- two hands, dozens, hundreds, one
16 to five?
17 A. I don't know. I don't know. I don't know. You know, people said
18 all sorts of things. Sometimes people tend to exaggerate. I'm not sure
19 if we're talking about dozens of people or hundreds. I really have no
20 clue. It was a matter much common knowledge that people were being taken
21 to dig trenches, but I don't know how many. I never tried to learn the
22 exact figure.
23 Q. Moving to the Ministry of the Interior and the work you were doing
24 during the war, I just want you to generally tell the Trial Chamber the
25 structure of the Ministry of the Interior and where you fitted into it.
1 Bosnian state security, I think we've heard evidence of, was part of the
2 Ministry of the Interior. How many departments or sub-departments were in
3 the MUP in 1993?
4 A. I can't say. When I retired, I signed a statement to the effect
5 that I would not be giving away any state secrets. Therefore, I'm more
6 than slightly reluctant to discuss this.
7 Q. I'm not actually asking you at this point or at any other point to
8 give away any state secrets. I'm just asking you about the general
9 structure in the most general terms of the Ministry of the Interior. Like
10 there's civilian police within it. There's security officials. That's
11 all I'm asking you at the moment.
12 A. Yes, civilian police, state security, crime squad. Those were all
13 part of the Ministry of the Interior, but I'm not sure how exactly they
14 were structured. I'm not familiar with all these details.
15 Q. But in any event, the three you've just mentioned, civilian
16 police, state security, and the crime squad, did they all report to the
17 Ministry of the Interior?
18 A. Yes.
19 Q. And the section you worked in, the state security, was a separate,
20 discrete part of the ministry reporting to the minister, separately to the
21 civilian police; is that correct?
22 A. Not really a discrete part. All of us who worked with the State
23 Security department were only discrete about our jobs. Everyone at the
24 ministry knew who was with the state security, who was with the crime
25 squad or who was with the police, but we all knew only about our own jobs.
1 Q. I think there's no dispute here that -- about the powers of
2 civilian police in terms of investigating crimes committed and taken
3 into -- and bringing them -- and -- the investigation of crimes. I want
4 to ask you about state security officials within the Ministry of the
5 Interior. Was there any difference between the powers you as a state
6 security official had and those that the civilian police had in terms
7 of -- I will get to it, Mr. Morrissey, I can see you're about to object.
8 MR. MORRISSEY: Hang on a minute. Your Honour, I do object
9 because the Prosecutor here has raised this issue. It's not the witness's
10 fault. He said there's no dispute here about the powers of the civilian
11 police in terms of investigating crimes committed and taken into and
12 bringing the -- them and the investigation of crimes.
13 Now, I don't know whether there's any dispute because I don't know
14 what evidence the Prosecutor's proposing to lead about that at the moment,
15 so when the Prosecutor says there is no dispute, the Defence wants to be
16 clear that we don't know if there's a dispute or not. But in any event,
17 to put that to the witness has no function at all, and my friend should
18 just ask the witness the question he wants to ask him without any preamble
19 about the Defence which we haven't agreed to.
20 JUDGE LIU: Yes. Yes. Just ask the simple question.
21 MR. RE: I will. I know there was a very long objection. I was
22 just trying to speed the proceedings up a little bit. I thought there
23 would be no dispute that the police have the powers to arrest and
24 investigate offences. That's all I'm getting at.
25 Q. Now, Mr. Okic, it's true that the police had the powers to arrest
1 and investigate people in 1993, investigate crimes?
2 A. The same as always.
3 Q. Did you have -- were your powers as a Bosnian state security
4 official different to those of the police in terms of arresting and
5 investigating crimes?
6 A. The powers were the same for someone on the beat and the minister
7 of the interior himself. They both had the same powers. They both had
8 the same kind of ID. The difference was that the state security
9 department dealt with political crime, and the crime squad dealt with
10 non-political crime in a manner of speaking.
11 It's only about the type of business they dealt with, but the
12 authority and the powers were shared equally.
13 Q. And in 1993, what were those powers of arrest and investigation?
14 What could police and security officials do?
15 A. Yes. If there was a crime with a political background, in
16 principle we could arrest the perpetrator. We could initiate an
17 investigation. We could do what police usually do. We could search their
18 flat. We could interview witnesses. We could gather evidence. All the
19 usual steps that are taken by all secret services throughout the world.
20 Q. Did you require a judicial warrant to do any of the things you've
21 just mentioned?
22 A. No. These steps and measures were approved by our own bosses, the
23 minister and the chief of the state security department.
24 Q. What were your powers of arrest? When could you exercise them, in
25 what circumstances?
1 A. Only if there was sufficient proof that a person had committed a
2 political crime.
3 Q. What -- what constituted sufficient proof for the purposes of
5 A. A report, for example, that a crime was committed, something
6 reliable, trustworthy, a credible source. Material evidence, of course,
7 anything that was gathered, witness statements, information obtained by
8 taking secret measures, that sort of thing.
9 Q. When you say "secret measures," are you talking about things like
10 telephone tapping or surveillance or other forms of covert interception?
11 A. Naturally. All secret services engage in that type of action. So
12 did we.
13 Q. What powers, if any, did you have to detain people following
14 arrest after you had gathered this information, all the information
15 sufficient to ground an arrest?
16 A. Our powers were enshrined in certain criminal provisions of the
17 Criminal Code and the Law on Criminal Procedure as well as a number of
18 internal rules that we had that had been adopted from the previous system,
19 the old system. The new government probably hadn't had sufficient time to
20 change those.
21 Q. Was there a length -- a length prescribed in which a person could
22 be detained for questioning or for any other reason?
23 A. As far as I remember, from the pre-war period, up to three months.
24 Under exceptional circumstances, but only under exceptional circumstances,
25 up to six months.
1 Q. Who -- who was empowered to authorise the detention for that
3 A. There was a distinction between nationals and foreigners. For
4 nationals, chief of the state security. In sensitive cases, the minister
5 of the interior. And in case of foreigners, it could only have been
6 authorised by the minister of foreign affairs himself.
7 Q. Could a person -- did a person in detention have any right to
8 judicial review of the detention of up to three months?
9 A. Of course. Everyone was entitled to file a complaint, and the
10 prison administration would forward this complaint -- this complaint, as a
11 rule, to the public prosecutor, to the relevant court, or to us.
12 Q. What constituted exceptional circumstances?
13 MR. MORRISSEY: Will you just permit me -- Excuse me for just a
14 moment, Mr. Okic.
15 Your Honours, frankly this evidence may be capable of assisting
16 the Tribunal and I don't object to it being given, but it has to be made
17 clear whether this evidence is being led as expert evidence, in which
18 case -- and explaining the Rules, generally speaking, in which case the
19 rules ought to be put before the Court at the same time, or if it's just a
20 basis for this witness's actions, in which case they don't need to be put
21 before the Court by the Prosecutor. But if it's a general analysis which
22 it is at the moment, abstract analysis of the law, then this witness may
23 or may not be in a position to give that evidence generally. He is in a
24 position to give, of course, evidence relevant to what he did and I don't
25 object to it. Frankly I can see why this evidence might be helpful but it
1 has to be clarified on what basis it's being led, because in my submission
2 if these provisions to which Mr. Okic is now speaking arise from
3 particular sections of the Criminal Code or indeed from the -- from the
4 procedures to which he's referred, then we ought to have those in front of
5 us in court.
6 JUDGE LIU: I don't think we'll go into the specific rules of the
7 Criminal Code at this stage. I believe this witness is entitled and is
8 capable to answer some questions in this aspect. We'll see how far the
9 questions will go.
10 MR. MORRISSEY: Yes. As the Court pleases.
11 JUDGE LIU: You may proceed, Mr. Re.
12 THE WITNESS: [Interpretation] I have an observation to make. It
13 says that in relation to foreigners only the Minister of Foreign Affairs
14 had the power to order their detention, and I corrected myself to say that
15 it was in fact the minister of the interior.
16 MR. RE:
17 Q. You're reading that from the transcript in English?
18 A. Yes.
19 Q. I see. The correction has been made. I was just asking you about
20 exceptional circumstances. You said someone could be detained, I think,
21 up to three months in exceptional circumstances. Can you just tell the
22 Trial Chamber what constituted exceptional circumstances?
23 A. For example, if we were dealing with a particularly grave crime or
24 a group of people where the investigation entailed a lot more than was
25 usual, if I not mistaken, this was the case with the arrest of
1 Mr. Alija Izetbegovic and the 12 people who were with him.
2 Q. The transcript says Mr. Alija Izetbegovic. Can you just have a
3 look at that. Are you referring to Mr. Izetbegovic's arrest in the 1980s
4 or something else?
5 A. 1983, yes, 1983.
6 Q. Was that system still in place in 1993, as of October, November
8 A. I don't know if it was still in place, but that was the system we
10 Q. Were there rules governing the arrest, interrogation, and
11 detention of suspects in October and November 1993?
12 A. As I have said before, those were rules enshrined in the Criminal
13 Code, the Law on Criminal Procedure, and our internal book of rules.
14 Q. In 1993 at the relevant period, who was the chief of state
16 A. Mr. Nedzad Ugljen.
17 Q. He was your ultimate superior. Were there any levels between you
18 and him or did you report directly to him, without giving away any state
19 secrets, did you report directly to him or to someone else and then to
21 A. At the time I had my immediate superior who answered to
22 Mr. Ugljen.
23 Q. Did Mr. Ugljen give you a specific task towards the end of 1993
24 relevant to these proceedings?
25 A. He appointed me as member of the team that was to interview
1 Mr. Halilovic, who was under investigation by the military security
2 service and state security service at the time.
3 Q. Was it a joint investigation?
4 A. Yes. Yes, roughly speaking.
5 Q. Why were you selected?
6 A. I have no idea. Someone had to be selected.
7 Q. What were you were told -- what were you told that he was under
8 investigation for?
9 A. Supposed armed uprisings within the 9th and the 10th brigades, and
10 in a way Mr. Halilovic had links to that.
11 Q. What were you told these were [microphone not activated]?
12 A. I was told by Mr. -- no. I was told that he had a good
13 relationship with the commanders of the 9th and the 10th Brigade, and when
14 he was replaced that he had asked them to bring pressure to bear upon the
15 then political leadership of the country and asked them to reappoint --
16 reappoint him as the commander of the BH army.
17 Q. When was this supposed armed uprising said to have occurred?
18 A. I can't remember the exact date, but it was of course prior to
19 Mr. Halilovic's arrest. I don't know. I really can't remember exactly.
20 Q. What were you told or what did you know about this supposed armed
22 A. I didn't know much about that armed uprising because it was not
23 linked to my usual work at the time, so I only knew from hearsay that
24 apparently the 9th and the 10th Brigade rose up against the military and
25 civilian authorities, but I wasn't paying much attention to that. I was
1 not really interested up until the point when Mr. Ugljen appointed me as a
2 member of the team to talk to Mr. Halilovic.
3 Q. Before you were asked -- before Mr. Ugljen asked you to --
4 reported you to speak Mr. Halilovic, were you involved in an incident in
5 July of 1993 involving the 9th and 10th Brigades?
6 A. I had heard of it.
7 Q. Was that the armed uprising that you were asked to speak to
8 Mr. Halilovic about or was it something else?
9 A. I suppose that's what it's about. I suppose that's the event
10 you're referring to.
11 Q. What were you told about the pressure that Mr. Halilovic had
12 allegedly tried to get the 9th and the 10th Brigade to bring to bear on
13 the political leadership of the country? What was that about?
14 A. I was told that I should clarify that and clarify his role with
15 regard to his links to Caco and to Celo and would -- he had asked them
16 to -- to do it, to bring pressure to bear upon the then top political and
17 military people and ask for him to be reappointed at the time. And I mean
18 only when I was asked to participate in those talks. I hadn't been
19 briefed a great deal except for what I just said, and afterwards I found
20 out more from Mr. Halilovic himself and Mr. Ugljen told me a few things.
21 But it wasn't much more than what I was told at the very start of the
23 Q. And you just said asked for him to be reappointed at the time.
24 Two supplementary questions. Reappointed to what and at what time?
25 A. To be reappointed as commander of the Chief of Staff of the armed
1 forces of Bosnia and Herzegovina.
2 Q. And the time frame?
3 A. I don't quite understand.
4 Q. You said he asked -- he -- he was allegedly bringing pressure or
5 getting Caco and Celo to bring pressure upon the top military people and
6 ask for -- asking for him to be reappointed as the commander of the chief
7 of the armed force answer you said at that time. I just want you to
8 clarify which -- at that time. It's at line 52, page 52, line 3 -- line 4
9 of the transcript.
10 A. It was before the uprising at any rate. The supposed uprising.
11 Q. The information you've just given us now, was that what Mr. Ugljen
12 told you?
13 A. Yes. That was the essence of it. I don't remember everything,
14 but apparently through contracts with Caco and Celo he had asked him to
15 exert some pressure more on the political authorities not so much military
16 for him to be reappointed. And that was supposed to be the main subject
17 to be investigated.
18 Q. When did Mr. Ugljen give you these instructions and appoint you to
19 interview Mr. Halilovic?
20 A. If I remember correctly, by the beginning of October.
21 Q. When you say --
22 A. The first part of October, thereabouts.
23 Q. Were you provided with any information apart from Mr. Ugljen
24 telling you these things? Did you get any documents or dossier or a brief
25 or access to intelligence or surveillance information?
1 A. No. I received no papers. I didn't get a dossier or any report
2 or anything. Mr. Ugljen was telling me things and I was taking them down.
3 Q. At what time do you wish to take the break? I'm --
4 JUDGE LIU: Well, if you believe that is the right time, we could
5 take the break right now.
6 MR. RE: I'm entirely in your hands.
7 JUDGE LIU: Maybe we'll take a break and we'll resume at twenty
8 minutes to twelve.
9 --- Recess taken at 11.09 a.m.
10 --- On resuming at 11.41 a.m.
11 JUDGE LIU: Well, as for the time arrangement, we'll sit for about
12 an hour, then we'll have a short break, 15 or 20 minutes, and then we'll
13 continue until 1.45 in the afternoon. We hope we can send this witness
14 back home to spend the weekend. So if necessary, there might be a
15 possibility that we have to sit in the afternoon.
16 Yes, Mr. Re.
17 MR. RE:
18 Q. Before the break, Mr. Okic, you told the Trial Chamber that you
19 didn't receive any papers from Mr. Ugljen, a report or a dossier. He was
20 telling you things and you wrote down notes. Apart from Mr. Ugljen, did
21 anyone else in the process of your interviewing Mr. Halilovic give you any
22 documents or access to any material relevant to your inquiries?
23 A. There is a possibility that I might have heard something in
24 relation to Mr. Halilovic from a colleague or something, but as to the
25 most essential, the most fundamental things and the instructions, not just
1 the information but instructions as well, it was only Mr. Ugljen who
2 issued those.
3 Q. Before you commenced your interviews with Mr. Halilovic, were you
4 aware or made aware of whether or not his -- he had been under
5 surveillance, such as having his telephone tapped or being followed or any
6 other means of surveillance were employed against him?
7 A. I had not been told, but I assumed that it would have been the
9 Q. Were you ever given access to anything that suggest -- anything
10 relating to surveillance such as tapes or transcripts or photographs or
11 information relating to covert surveillance?
12 A. No. No. But on the basis of the instructions I received from
13 Mr. Ugljen, I assumed that such covert operations were aimed at
14 Mr. Halilovic.
15 Q. What -- what preparations did you undertake before you interviewed
16 Mr. Halilovic? I mean, what did you do to prepare yourself for the task
17 of interviewing him?
18 A. Well, I talked to my colleague from the military security,
19 Mr. Popovic. He was with me up until the end of those talks. First of
20 all, I talked to him to try and find out what they knew, because I was not
21 a part of that investigation from the start.
22 Q. How times did you meet Mr. Popovic and where did you meet him
23 before you commenced your interviews with Mr. Halilovic?
24 A. We met at the offices of the state security, and before we started
25 talking, I mean before we started those talks together, there was a
1 meeting at which he briefed me about what they had managed to find out in
2 the course of previous conversations, and then we planned what we would do
3 on that day, what we were supposed to talk about in line with instructions
4 I got from Mr. Ugljen, and he got the instructions from his bosses.
5 Q. What were your plans as to how you and Mr. Popovic -- firstly,
6 I'll just go back for a moment. Was the plan for you and Mr. Popovic to
7 interview him together?
8 A. By all means.
9 Q. Mr. Popovic, was he coming from military security?
10 A. Yes. At the time, he was a major.
11 Q. His expertise was military security. What was your -- what was
12 the expertise you were bringing to the interviews?
13 A. I was an expert for state security, if I can say that, the
14 civilian side of it.
15 Q. Did you and Mr. Popovic devise a plan as to how you were to
16 interview Mr. Halilovic and, if so, what was it?
17 A. Before every interview, we would have prepared a list of topics,
18 one or more topics that we were supposed to be talking about on that day,
19 and we -- we would agree on that before the start of the interview. And
20 if it was one topic only and -- well, sometimes we had more than one, and
21 then we thought, okay, we'll do as much as we can.
22 Q. What these topics in general terms?
23 A. We started out by discussing his career within the armed forces of
24 Yugoslavia and the cooperation with the former military security service
25 of the former Yugoslav People's Army, and then we moved on to other topics
1 such as the armed uprising, the war crime at Grabovica, the fall of Cerska
2 and Konjevic Polje. And -- I can't remember. There was a whole lot we
3 talked about it, many topics.
4 Q. How did you decide on these topics?
5 A. For the most part on the basis of the instructions I got from
6 Mr. Ugljen, and Mr. Popovic was getting the instructions from his own
8 Q. How many times did you and Mr. Popovic actually interview
9 Mr. Halilovic?
10 A. As far as I can remember, the investigation lasted about a month.
11 Q. And how many times -- how many statements did you take from him?
12 A. On a daily basis.
13 Q. Well, how many completed takes did you take from him?
14 A. Perhaps five or six, I think.
15 Q. At a moment ago you said on a daily basis, and I think I may have
16 interrupted you. What did you mean by "on a daily basis"? Were you
17 interviewing him on a daily basis?
18 A. Yes, we did interview him on a daily basis, if I remember
19 correctly. Perhaps there was one or two days that we had a break or
20 something, but I really can't remember. Certainly no more than two days,
21 but I think basically we interviewed him every day.
22 Q. What was your own personal experience in conducting interviews
23 with suspects as of 1993?
24 MR. MORRISSEY: I would object to that. It's irrelevant that the
25 witness be asked what he did with Mr. Halilovic, in my submission.
1 JUDGE LIU: I believe that the Prosecution is laying the
2 foundation for that. We have to know that, whether this person has some
3 previous experience in interviewing people.
4 MR. MORRISSEY: Yes, Your Honour, I agree. That's true. I
5 withdraw that objection on that basis.
6 JUDGE LIU: Thank you. You may proceed.
7 MR. RE: Thank you.
8 Q. My question is directed to exactly what His Honour the
9 Presiding Trial Judge just said. What was your experience, if any, in
10 interviewing suspects?
11 A. Between 1979 and 1993, in the course of that 14-year period I
12 participated in quite a few investigations. Some were cases that I myself
13 led, and in other cases I was just a member of the team, as was the case
14 with Mr. Halilovic.
15 Q. What was the longest interview that you can remember that you
16 conducted before Mr. Halilovic?
17 A. It was when Mr. Alija Izetbegovic was arrested. And one of the
18 people from the group around Mr. Izetbegovic, I was appointed to interview
19 him, and I think the investigation lasted also about -- perhaps not quite
20 a month, but thereabouts.
21 Q. What were the standard techniques or procedures which you had used
22 in your interviews up until you interviewed Mr. Halilovic? How did you
23 conduct your interviews?
24 MR. MORRISSEY: Well, Your Honours, that should be clarified
25 between the two situations the witness has described, when he was the
1 leader of the interview and when he was the -- only just a team member.
2 JUDGE LIU: Yes. I believe in this aspect we could be more
4 MR. RE: Both.
5 Q. When you were a member of the team and when you were leading the
6 team. When I said "you" I meant you plural, not singular. I meant the
7 team of which you were a part?
8 A. When I was on my own, when I was the leader or if it was my case,
9 as it were, I was the chief investigator there, and all the information
10 came to me, and I was the one who determined what needed to be done. But
11 if I was just a member of the team, I had my task which had been assigned
12 to me and I only carried out that particular task.
13 Q. I'm interested at the moment in the techniques or the procedures,
14 what you actually did in the interviews, how you conducted them.
15 A. Well, when I first started working for the state security, one of
16 the first things that I was told was that a nice-mannered approach was the
17 best approach, and that's what I tried to do throughout my career, to
18 approach people in this way no matter whether they were suspects or simply
19 citizens who were likely to provide us with some useful information. And
20 on the basis of my experience, I realised that that was indeed true,
21 because if you start banging the desk and shouting at someone, that's the
22 best way of ruining everything.
23 Q. Did you employ this same nice-mannered approach when you
24 interviewed Mr. Halilovic?
25 MR. MORRISSEY: Your Honours, I'm not going to object to that
1 particular question because it comes to the crunch, but my friend has to
2 stop leading. That's a leading question. Because the Defence is not
3 suggesting anything of that sort with this witness I don't object here,
4 but I don't want any more leading questions to be asked like that,
5 Your Honour. That was --
6 JUDGE LIU: Yes. But on this particular question, I think Mr. Re
7 could continue.
8 MR. RE:
9 Q. Mr. Okic.
10 A. That's the method I used in all cases. That's what I've already
11 said. Never, ever in my entire career have I shouted at anyone or banged
12 the desk or threatened or anything like that, because I did really realise
13 that it was much better to be nice to the person you were interviewing
14 rather than play a tough guy.
15 Q. I'm just asking you about the techniques or methods you employed
16 with Mr. Halilovic. When you say "in all cases," are you including him or
17 were you excluding him from that?
18 A. I think that I was very decent in interviewing Mr. Halilovic, and
19 he can perhaps confirm it.
20 Q. When you were interviewing him, were you interviewing him as a
21 suspect, or person suspected of committing breaches of civilian or
22 military laws or a combination?
23 A. He was under suspicion with regard to this supposed armed or
24 military uprising. So probably it was about infringing military laws and
25 regulations. But from where I stood, it played no part in it at all. I
1 was facing a man with whom I had to clarify certain issues or, rather,
2 details, and I had been asked to do that. And so it didn't matter to me
3 what sort of law he was supposed to have infringed. I had my task, and I
4 had to carry it out.
5 Q. To clarify your earlier evidence, your initial instructions were
6 in relation to a supposed armed uprising. Was it your understanding that
7 that was a breach of civilian or constitutional or military law?
8 A. I don't know. I had not been assigned with the task of looking
9 into the legal, fine points of this but simply to establish the facts and
10 on the basis of what Mr. Halilovic to say. Mr. Popovic and I were not
11 really interested in the legal ins and outs of that. We were only
12 interested in plain facts the way Mr. Halilovic saw them.
13 Q. Let's go to the interviews now. Where did you interview
14 Mr. Halilovic?
15 A. At the state security offices.
16 Q. Where are they?
17 A. At the Ministry of the Interior in Sarajevo, in that building.
18 And that was where those offices were at the time as well.
19 Q. And how far is that building from the Supreme Command Headquarters
20 in 1993?
21 A. If you mean where Mr. Halilovic was held?
22 Q. Where he was working.
23 MR. MORRISSEY: No. Don't correct the witness, please.
24 Your Honour, the witness has just made it quite plain what the position
25 is, and my learned friend can't now try to put the Dragon back into the
1 box. He can ask another question, but he can't correct the witness when
2 he gives an unsuitable answer, in my submission.
3 JUDGE LIU: Yes, put that question to the witness, please.
4 MR. RE:
5 Q. You said where Mr. Halilovic was held. What do you mean by that
7 A. I don't understand, I'm afraid. Could you please clarify in terms
8 of what I meant?
9 Q. The question I asked you was: How --
10 A. Where Mr. Halilovic was being held. In detention, you mean?
11 Q. No, no, no. I wasn't asking you about detention. I will come to
12 that in a moment. What I'm asking you -- I will come to that issue at
13 some point definitely. I'm asking you at the moment about where his
14 offices were, where his -- where he was based.
15 A. I have no idea where his office was. I know that at the beginning
16 of the war, maybe in 1993, most of the General Staff had moved out of
17 Sarajevo. They only used some premises in Sarajevo. So I have no idea
18 where his office was, where he was based physically. I assume that it was
19 in a building that was perhaps 200 metres from our own offices as the crow
20 flies near the central prison in Sarajevo. The General Staff used the
21 building for their own needs, and my assumption is that Mr. Halilovic
22 worked there, but I can't say with certainty.
23 I think that's where he used to work before the whole thing
24 happened, and he was also being held in detention in that building.
25 Q. Just to clarify your last answer, are you -- are you saying in
1 that last answer that you think he was being held in detention or you know
2 that he was being held in detention in that building?
3 A. It's just an assumption. I they the General Staff had offices
4 there. I'm not sure which ones exactly. And I know that whenever we
5 called for him to be brought over, it would only take very little time.
6 So my assumption was that he would be brought from that building. It only
7 took a couple of minutes. I think he was there near the central prison in
9 Q. I'm sorry, I'm slightly confused. What I'm trying to clarify is
10 whether you thought he was in detention or you thought he was being
11 brought from detention or you thought he was being brought from the
12 supreme -- or the General Staff offices.
13 MR. RE: I'm completely confused. I don't understand it and I'm
14 entitled to clarify that.
15 MR. MORRISSEY: Your Honours, it doesn't matter whether Mr. Re's
16 confused. The evidence is absolutely crystal clear. He is he not
17 entitled to clarify things for his own benefit. It's -- the questions are
18 for your benefit, the Tribunal. In my submission there is nothing to
19 clarify and the witness has been clear two or three times now. So --
20 JUDGE LIU: Well, we believe it's also important for the
21 Prosecution to be crystal clear.
22 Yes, Mr. Re.
23 MR. RE:
24 Q. You understand, I'm trying to work out for the purposes of the
25 evidence for the Trial Chamber whether you thought that he was being held
1 in detention or you thought that he was coming from the General Staff
3 A. I thought he was under some sort of house arrest. He was always
4 escorted by a military police officer. Truth to tell, Major Popovic
5 accompanied him sometimes, the person who worked with me. So I was
6 convinced that he was being held under some sort of house arrest inside
7 that building used by the General Staff. I don't know whether he actually
8 worked there before the whole thing began, but that was where he was being
10 Q. What do you mean by "house arrest"? What meaning does that have
11 to you?
12 A. It means that someone is not free to move about as they please,
13 that they can only move about inside a certain building, that he was not
14 allowed to leave that building un-escorted. He was not free to move about
15 like everyone else, in one word. That was the impression that I had, that
16 Mr. Halilovic was under house arrest, if we can call it that.
17 Q. All right. Did you have any information as to where he was
18 spending his nights, where he was sleeping?
19 A. My assumption was in that building. That was my assumption.
20 Q. Let's just go back to where you held the interviews. You said it
21 was in the state security building. Whereabouts in the building?
22 A. No. It was in the Ministry of the Interior part of the building.
23 Q. I apologise. Yes. Whereabouts -- where did you interview him?
24 Was it in a room, in a cell, what?
25 A. One of the offices. One of the offices.
1 Q. What sort of office? Just describe its -- general terms, its
3 A. Oh, roughly speaking 4 X 3 or 4 X 4 metres. Maybe 4 X 4, in my
5 Q. What furniture was in the room?
6 A. Two tables this size approximately. Mr. Popovic and I sat at that
7 table. There was another lower table with two armchairs, and that was
8 where Mr. Halilovic was seated. There were two filing cabinets for files
9 and documents. There was a low table on which the telephones were kept.
10 There was a carpet. Nothing special.
11 Q. Was it someone's office?
12 A. I think there was a colleague there who had to move out.
13 Q. How far was Mr. Halilovic seated from you and Mr. Popovic? In
14 metres, if you could be approximate.
15 A. Like the distance between me and your colleague there.
16 Q. Two, two and a half metres.
17 A. Thereabouts.
18 Q. Was anyone else present in the room when you were interviewing
19 Mr. Halilovic?
20 A. No, not during the interview. When we took the statement.
21 Q. Did people ever come into the room?
22 A. Once or twice perhaps. As soon as they realised their mistake,
23 they would leave the room immediately.
24 Q. How did Mr. Halilovic get to your office? I'm sorry, get to the
25 room where the interviews were conducted.
1 A. First of all, Himzo and I would have a meeting at which we agreed
2 the agenda for that day. Then we would call this other building that was
3 used by the General Staff, and then Mr. Halilovic would come along
4 normally escorted by one military police officer. And then the soldier on
5 duty at reception would inform us that -- that they were on their way, and
6 that Mr. Popovic or myself would bring them up to the room where we
7 interviewed him and then the military police would leave.
8 Q. What was Mr. Halilovic wearing?
9 A. Uniform. Uniform.
10 Q. Was he carrying anything?
11 A. A bag.
12 Q. What sort of bag?
13 A. An officer's bag for documents, for the sort of thing that every
14 officer needs.
15 Q. Did Mr. Halilovic have a weapon with him?
16 A. Yes. He had a gun. Himzo or I would always remove the gun, place
17 it on top of the filing cabinet behind us, and return it back to him once
18 the interview was over. When it was over, we would return the gun to him.
19 Q. What sort of gun was it?
20 A. If I remember correctly, it was a Crvena Zastava Red Flag, 99
21 millimetres [as interpreted].
22 Q. 99 millimetres. Was that nine or 99?
23 A. Red Flag.
24 Q. Nine or 99?
25 A. [In English] Nine millimetres. Model 99. Red Flag, model 99.
1 Q. Do you remember whether it was loaded?
2 A. [Interpretation] It felt quite heavy. I didn't look myself, but
3 since it felt that heavy ...
4 Q. But since it felt that heavy what?
5 A. I assumed it was loaded.
6 Q. Was this one of these clip-loading pistols, where the clip goes
7 into the --
8 A. Yes. Yes, precisely. Yes. I can tell the different kinds of
9 pistols and revolvers.
10 Q. Have you ever in your 14 previous years of experience interviewed
11 a suspect who had a loaded weapon with him?
12 MR. MORRISSEY: He didn't say, with respect, that it was a loaded
14 MR. RE: I didn't say that he did.
15 MR. MORRISSEY: Well, all right. If we want to play games about
16 it. Your Honour, look, the witness did not state that he looked to see if
17 it was loaded, and to put that question, therefore, in that form is, in my
18 submission, misleading.
19 MR. RE: All right. I'll withdraw the word loaded.
20 JUDGE LIU: Yes. To me there is no difference whether the weapon
21 is loaded or not because this witness is not sure whether it's loaded or
23 MR. RE:
24 Q. Mr. Okic, had you ever in your 14 years leading up to then, state
25 security, interviewed a suspect who had a weapon on them, who was in
2 A. No.
3 Q. When Mr. Halilovic came for the interviews, did he appear to be --
4 in what physical state did he appear to be to you?
5 A. Well, in view of the fact that there was a war on, we were all in
6 more or less the same kind of physical state. He looked all right to me,
8 Q. What can you say about whether he was sick or well by his
9 appearance or anything he said to you?
10 A. Had he said that he was ill, we probably would have put a stop to
11 the interview. It is definitely not the established practice for us to
12 interview people who are ill. That would be pointless exercise. Whenever
13 he said he was tired, we would have a break.
14 Q. Did he appear to you at any stage to be under the influence of
15 drugs or alcohol in any of the interviews?
16 A. I wouldn't say that, no.
17 Q. Did he appear to you at any stage to be suffering from any form of
18 mental or physical illness?
19 A. That certainly wasn't my impression.
20 Q. What time did you start the interviews?
21 A. Depends. Sometimes at 10.00, sometimes at 11.00, sometimes at
22 12.00, that sort of thing.
23 Q. What time would you finish?
24 A. We didn't have a fixed time. Whenever we decided that that was it
25 for the day, we would stop. Sometimes it was at 6.00 or 7.00 in the
1 evenings, sometimes at 11.00, 12.00. We didn't really keep track of the
2 time. We wanted to finish our job for the day, if possible.
3 Q. You said a moment ago, "Whenever he said he was tired we would
4 have a break." What sort of breaks did you have?
5 A. Short ones.
6 Q. How short?
7 A. Ten, 15 minutes, that sort of thing.
8 Q. What about meals?
9 A. Right at the outset, we agreed that we would have a break is
10 whenever we all decided that we should have lunch. We had an agreement
11 with Mr. Halilovic to do this on a regular basis.
12 Q. Was Mr. Halilovic given lunch?
13 A. Yes. We took lunch together.
14 Q. Who is "we"?
15 A. Mr. Popovic, myself, Mr. Halilovic.
16 Q. Where did you have lunch?
17 A. The Ministry of the Interior has a canteen, and that's where the
18 food came from.
19 Q. Are you saying you took him to the canteen or the food was brought
20 to you?
21 A. No. We would make a call and someone would then bring the food.
22 Q. What sort of food was it?
23 A. I maybe went myself to fetch it once or twice, but usually it
24 would be brought up to us.
25 Q. What sort of food was it?
1 A. For those occasions, given the general circumstances, it was
2 nothing much really, but we all shared the same food, potatoes, pasta.
3 THE INTERPRETER: Correction, not pasta, beans. Interpreter's
5 THE WITNESS: [Interpretation] I can't say it was the same level as
6 the sort of food you're given in a hotel, but we were happy with what we
8 MR. RE:
9 Q. How long were your lunch breaks generally?
10 A. Depends. About half an hour, 45 minutes, thereabouts.
11 Q. What about dinner? Did you give him dinner as well?
12 A. We usually had a late lunch, so normally there was no dinner.
13 Whenever we started at 10.00, 11.00, 12.00, we would normally have lunch
14 at 3.00, 4.00, or 5.00. So Mr. Halilovic never asked for anything extra,
15 and we didn't see it fit to have two meals. Had he so requested, we would
16 have seen to it.
17 Q. Was Mr. Halilovic permitted to go to the toilet when he needed to?
18 A. Yes, of course. It goes without saying.
19 Q. How did he go to the toilet?
20 A. It was right there near the office. We would open the door and I
21 would stand at the door or Mr. Popovic would stand at the door. As soon
22 as he was done, we would all return to the room.
23 Q. What about a telephone? Was he able to use a telephone?
24 A. I think once or twice he actually asked to use the phone. I can't
25 remember specifically. He placed a call to someone, whether it was his
1 son or someone else, but I think he made one or two calls from our office.
2 He may have called the General Staff, too.
3 Q. How do you know who he called?
4 A. He would usually just say, "I need to make a phone call," and then
5 we would just let him use the phone. But it happened once or twice
7 Q. Did he use the phone in the office in which you were conducting
8 the interviews?
9 A. Yes.
10 Q. Were you listening to the phone -- the phone conversation when he
11 made the telephone calls?
12 A. Yes.
13 Q. How did you and Mr. Popovic ask your questions?
14 A. First we would announce our subject for the day, and then we would
15 try to ask specific questions based on the instructions we'd received from
16 our bosses.
17 Q. When -- you say "we." How did you go about your questioning?
18 A. As a matter of principle, Mr. Popovic and I agreed that he would
19 ask questions of a more military nature since I was no expert in the field
20 and he knew more about it than I did. We also agreed that I would ask
21 civilian questions. But there was no strict division, really, and with
22 him the distinction was lost and we would just take turns asking questions
23 trying to get to what was most essential to us.
24 Q. How did you record what he said to you?
25 A. We wrote to down. I had a huge notepad. We took notes. We made
1 notes of what he told us.
2 Q. How did those notes -- what did you do with the notes?
3 A. These notes were destroyed long ago.
4 Q. The notes, what did you use the notes for?
5 A. There were two purposes. The first was to inform myself,
6 Mr. Ugljen. Secondly, when we drew up statements, the statements were
7 drawn up precisely based on the notes that we had taken.
8 Q. What did you write on the notes? Was it the questions and the
9 answers, or the answers, or the questions, or what?
10 A. No, not like this. Not like our transcript here. It was just the
11 gist of what Mr. Halilovic was telling us. We only wanted to know about
12 the crux of the matter. We weren't so much into formal aspects of our
14 Q. And how did those notes get into statement form?
15 A. Once we rounded off a particular topic, we called the typist in.
16 The typist would come in. We would start dictating the statement. First
17 one sentence, then we asked Mr. Halilovic whether he agrees for this
18 sentence to be included, and he would say yes or no, then perhaps make
19 corrections, and then we included whatever he said. And the next
20 sentence, and the next sentence, and so on and so forth.
21 The taking of these statements actually took much longer than the
22 interviews themselves.
23 If I remember correctly, it was precisely in those days that we
24 those days that we spent a lot of time in the offices that we actually
25 wrote the statements down.
1 Q. Was Mr. Halilovic with you for that entire time that you were
2 composing the statements? I'm sorry, what I'm asking you is, did you
3 compose the statements entirely in his presence?
4 A. Of course.
5 Q. How often did you make corrections as you were reading the typed
6 line to him?
7 A. I can't say it happened very often, but he would make corrections
8 every now and then. Sometimes he wouldn't like the wording that we used
9 and he would say, "That's not how I said it. I said it like this." Then
10 we would fix it and go on.
11 Q. I think you said the -- you said, "Once we rounded off a
12 particular topic, we called the typist in." Did the statements have more
13 than one topic in them?
14 A. Some statements were only about one topic, and some statements
15 actually comprised more different topics.
16 Q. And at the completion of that topic, what did you do? That is, at
17 the completion of typing up that particular topic, what did you do in the
18 interview process?
19 A. Once the statement was taken and typed up, Mr. Halilovic would go
20 through it. If he was happy, he would initial each of the pages and sign
21 the last page.
22 Q. What I'm trying to get at at the moment is, did you ever stop the
23 statement before the thing was finished because a topic was finished and
24 then move on to questions and --
25 A. Yes, of course. Yes. Yes, of course. Well, we tried to round
1 things off nicely and include all the essential issues. It was only then
2 that we would move on to a different topic.
3 Q. What -- what was the process at the conclusion of a statement?
4 What happened?
5 A. Mr. Sefer would initial each page and sign the last page, and
6 would I sign, and Mr. Popovic, too, as well as our typist. We made five
7 copies of each statement, so he had to initial and sign every single page
8 for all the five copies, and then Mr. Popovic and I would sign the
9 statements, the typist would also initial the statements, and that was it.
10 Q. Did Mr. Halilovic ever make any corrections to the statements
11 before -- that is, at the end of the process before he signed?
12 A. Yes. Yes. Sometimes there were typos. Sometimes there was no
13 electricity. I think once or twice we had to do it by candlelight. Not
14 typing, just talking. But there were typing errors that were made. Maybe
15 the typist misheard something.
16 Mr. Halilovic, at any rate, did make a number of corrections,
17 whatever he believed was mistyped.
18 Q. Did you or Mr. Popovic or anyone else threaten Mr. Halilovic?
19 A. No. No. I had been given very specific instructions by
20 Mr. Ugljen to be as polite as possible, as fair as possible, to
21 Mr. Halilovic.
22 Q. Did you or Mr. Popovic or anyone else offer him any inducements?
23 MR. MORRISSEY: Just a moment. The witness can -- sorry, just
24 excuse me. Pardon me, Mr. Okic, I'm sorry to interrupt.
25 It has to be made clear whether the witness is being asked
1 whether he offered any inducements, which he can answer, or whether
2 Mr. Popovic did so in his presence, which he can answer, or whether
3 anybody else did so in the presence of Mr. Okic. He can't answer the
4 question that's currently being phrased about anybody else, frankly,
5 unless he can prove he was there and observed that to happen.
6 JUDGE LIU: Well, he may be -- he may be told. He may have heard.
7 MR. MORRISSEY: Your Honour could be right about that, but that's
8 got to be clarified.
9 JUDGE LIU: Yes. Yes, of course. Yes. If Mr. Re would be very
10 glad to do that.
11 MR. RE: Of course.
12 Q. Any inducements, first in your presence; and secondly, did you
13 hear about him being offered any inducements?
14 A. In my presence, nobody offered any inducements. I didn't, and
15 Mr. Popovic didn't, and I had not heard of anyone else doing so. Apart
16 from anything else, either Mr. Popovic or myself, well, we didn't have any
17 powers to do so. We could not offer him any inducement to make a
18 statement we would have liked or something. My task was simply to write
19 down and clarify what Mr. Halilovic had to say and that was the end of it.
20 Q. What about promises? Did anyone offer him any promises in your
21 presence or did you hear about him being offered any promises?
22 A. Not in my presence. Nobody did that in my presence, and I had not
23 heard of anyone making any promises to him.
24 Q. Was any psychological pressure brought to bear on him in your --
25 in the interview?
1 A. Well, you know, had I been under this kind of investigation for a
2 month, the way Mr. Halilovic was, I would have probably taken it as a
3 psychological pressure. And I can relate to him possibly feeling that he
4 was being put under pressure. But I can also say that I did all I could,
5 everything within my mind to be fair and kind in the course of that
6 investigation. So obviously I don't think we were putting him under
7 pressure, not intentionally. But if you spend 12 hours or ten hours being
8 interviewed, it may well appear as if you're being put under psychological
9 pressure. I can agree to that.
10 Q. Do you know whether your interviews, the interviews you conducted
11 with Mr. Halilovic, were video or audiotaped?
12 A. I don't know, but I suppose. I mean, I can only suppose they
13 might have been, but I can't give you any guarantees there because I've
14 never actually seen any transcripts of any sort, anything that would have
15 been proof of such taping.
16 Q. Was there a means where taping audio or videoing could have
17 occurred in that room without you having been aware of it?
18 A. Of course, yes.
19 Q. Did Mr. Halilovic ever ask for a lawyer to be present?
20 A. As far as I can remember, no.
21 Q. Was he entitled under Bosnian law at the time to have the presence
22 of a lawyer if he requested one?
23 A. Of course. Of course he could have asked for a lawyer. And had
24 he asked, I would have gone to see my boss, and I would have said, "Okay,
25 this is the way things are. Mr. Halilovic does not want to talk to us
1 without a lawyer." But as far as I can remember, he never asked. And
2 also, we tried to be as fair as possible, and he tried to be nice as well.
3 And if I may say so, all those interviews, notwithstanding the fact that
4 they were rather exhausting, were characterised by decent behaviour on
5 both sides.
6 Q. Who were they exhausting to?
7 A. For all of us.
8 Q. What can you say in general terms about Mr. Halilovic's conduct
9 and demeanour during the interviews you conducted with him?
10 A. He was very fair and he cooperated fully, so I have no
11 observations to make in that sense.
12 Q. Did he ever make any complaints to you about his treatment by you
13 and your colleagues in the interviews?
14 A. What colleagues?
15 Q. Those -- those taking parts in the -- perhaps I imprecisely used
16 the word "colleagues." You and Mr. Popovic and anyone else who came into
17 the room and assisted in the tying of the statements. Did he complain
18 about Mr. Popovic to you?
19 A. Well, the typists were in no position to insult him in any way.
20 They just did their job. And he did not complain of the way we treated
21 him. I got the impression that he was embittered because of the general
22 way in which he was treated, the position he was in and not our particular
23 attitude, our personal attitude towards him.
24 Q. You said you got the impression. Did he actually say anything to
25 you or make any complaints to you about -- if I could just finish the
1 question -- did he actually make any complaints to you about his
3 A. Perhaps --
4 MR. MORRISSEY: I'm sorry. If we could stop for a moment, please.
5 As I understood what Your Honour said earlier on we're not going to go at
6 this stage into the substance of the interviews. Now, this is asking what
7 Mr. Halilovic said at that time, and in my submission it's traversing into
8 what was said in the interviews.
9 MR. RE: Well, it's not. It's not.
10 JUDGE LIU: No. No. Well, I think on this situation we're still
11 on the procedural matters. That is, did he actually make any complaint to
12 you about his treatment, means the whole process of the interview rather
13 than the contents of that statement.
14 MR. MORRISSEY: Yes, I'm sorry. If it's -- if it concerns the
15 process of the interview, I've got no objection.
16 JUDGE LIU: Yes. You may proceed, Mr. Re.
17 MR. RE:
18 Q. To be quite clear I'm only talking about the process of the
19 interview and his treatment at that time.
20 A. Well, he didn't complain of us, of the way we treated him, but he
21 might have dropped a phrase or two on the basis of which I gathered that
22 he was upset about the position he found himself in and not because of our
23 lack of fairness or anything like that, because - let me just reiterate
24 this once again - I think we were totally fair.
25 Q. Did you ever caution him about a right to silence, he didn't have
1 to answer any questions, and anything that he said could be used against
2 him in court proceedings?
3 A. No.
4 Q. Was a caution a standard part of Bosnian investigatory procedure
5 at the time? I mean the issuing of a caution.
6 A. As far as I can remember, it was not current practice in the
7 previous system.
8 Q. I just want you to look at a document. It's dated the 8th of
9 November, 1993. It's Prosecution 65 ter Exhibit number 134, ERN 00997363.
10 Could that please be shown to the witness?
11 MR. MORRISSEY: Your Honours, I have to inquire what the basis for
12 doing this is at this stage.
13 MR. RE: Identification of the document, that's all.
14 JUDGE LIU: If so, I think there is no problem.
15 MR. RE: I'm not attempting to tender it.
16 MR. MORRISSEY: I know. I think there will be a problem but, Your
17 Honour, I'll wait and see what's said.
18 THE PROSECUTOR: I'm just asking the witness to identify whether
19 this is an interview that he took, the statement that he took from
20 Mr. Halilovic. It's the basis of why we're here and it doesn't have his
21 signature on it. That's all.
22 JUDGE LIU: Yes. On this limited area you could do that.
23 THE REGISTRAR: That will be MFI 297.
24 THE WITNESS: [Interpretation] On the last page there is a
1 MR. RE:
2 Q. Just to be clear, we're looking at a statement dated the 8th of
3 November, 1993, which is headed "Record. Additional statement, official
4 secret, strictly confidential," in Bosnian, of some 12 pages.
5 A. Could I just see the last page? I mean, I did not do this on my
6 own. We took several statements from Mr. Halilovic, and some of the
7 statements were taken before my time. So I want to see the signature. If
8 it's my signature, obviously I must have taken it.
9 Q. Yes. Just look at the first page and identify whether that's the
10 document we're talking about and then if the registrar could please turn
11 it to the last page, which is the 12th page.
12 A. Yes.
13 Q. Whose -- there's a signature offer the left over the name Sefer
14 Halilovic. Whose signature is that?
15 A. I suppose Mr. Halilovic's.
16 Q. There is one in the middle over the name -- over --
17 A. It's just initialed by that person. It's not a signature as such.
18 It's our secretary, the typist.
19 Q. And to the right it says "additional statement taken by," and
20 there are two signatures. Is one of those yours?
21 A. Yes. The first is mine, and the second, I believe, is the
22 signature of Mr. Popovic.
23 MR. RE: Now, it would be quicker if I could show him the paper
24 copy and ask him whether Mr. Halilovic's signature is on the bottom of
25 each page otherwise we will have to go through each page and there would
1 probably take a minute for each one.
2 JUDGE LIU: Any objections.
3 MR. MORRISSEY: No. I note that what the witness says, he said he
4 supposes it was Mr. Halilovic's signature. So I don't know what he's
5 going to be asked as to what he sees at the bottom of each page, but I
6 don't mind him being shown the signatures, shown the document in any form
7 the Prosecutor wants to show it to him for the purposes of this process.
8 JUDGE LIU: Yes. Yes, of course.
9 MR. RE: Thank you.
10 Q. I'm just going to show you a hard copy of this document.
11 A. That's a photocopy of one of the statements that I took together
12 with Mr. Popovic. In the course of the investigation.
13 Q. The statement from Mr. Halilovic?
14 A. Yes.
15 Q. [Previous translation continues] ... signed?
16 MR. MORRISSEY: Just a minute. No, I don't object to him
17 answering the question.
18 A. Yes. It's signed, yes.
19 Q. Is that Mr. Halilovic's signature on each page?
20 A. Yes.
21 Q. You've given some evidence about how you took all the statements.
22 Was this particular statement taken in any different manner to the
23 evidence you've given as to the taking of statements from Mr. Halilovic?
24 A. I don't think so.
25 Q. Okay. That has been marked for identification. There's only one
1 other matter, and that is the --
2 MR. MORRISSEY: Sorry, Your Honours. I'm not agreeing to it being
3 marked for identification even at this stage. It's at issue whether it's
4 going to be admitted for use or to be admitted into the evidence at this
5 point. It's a matter for the Court how you proceed with that matter now
6 and its current status.
7 JUDGE LIU: Well, marking for identification means nothing. It's
8 just for the benefit of the court deputy and for the Court to find this
9 document in the future.
10 MR. MORRISSEY: Yes.
11 JUDGE LIU: It does not have any legal meaning to have a number on
13 MR. MORRISSEY: On that basis I have no objection, Your Honour.
14 JUDGE LIU: You may proceed.
15 MR. RE: Thank you. There's just one final matter. Two days ago,
16 Your Honour, the Trial Chamber ruled against the Prosecution on the issue
17 of the second statement on the 12th of November. The Prosecution is
18 considering asking for version of appeal for that particular ruling and we
19 may well appeal if the two -- if the other one is excluded as well. For
20 the purposes of identifying and pre-severing the record, I merely want to
21 show this statement, the second one, and have the witness identify this as
22 the document we referred to the other day and take it no further. If I
23 could do that for the purposes of the record to preserve it for appeal and
24 make no use of it in the proceedings at all. Just so that, if we appeal
25 it at any point, it is clear on the record that the document -- the
1 witness has identified this particular document. That's all.
2 JUDGE LIU: Mr. Morrissey.
3 MR. MORRISSEY: We object to that being done. Your Honour,
4 there's no basis for it being done. It's been excluded from the record,
5 from the trial here. It's got nothing to do with this case. It's not
6 proper to put in for some other collateral proceedings. If -- so long
7 as -- so long as that document's capable of being proved properly for any
8 appeal or any further proceedings there's no need to engage in the current
9 device that's being proposed and I just submit it would be completely
10 irregular for it to be done here. It's got nothing to do with this case
11 in the circumstances. So the Prosecutor's at liberty to pursue whatever
12 remedies they want in terms of certification and ... So there's no basis
13 for it getting a number here in this trial. Your Honours have ruled on it
14 before. It's -- it's over with.
15 MR. MORRISSEY: We're not trying to go behind Your Honour's
16 ruling. It's just for the purpose of the record so that the document is
17 actually identified. I mean we could have tendered it two days ago for
18 the purposes of the hearing or the inquiry into the admissibility. It's
19 just it's not identified on the record at the moment and things get lost.
20 If it ever comes to an appeal in the years to come, things get lost very
21 easily. We only want to mark it for identification. It has no -- no role
22 in the proceedings. The Trial Chamber isn't entitled to use it; it's just
23 that it's there. And we preserve for the purposes of the appeal we
24 preserve the Trial Record as this is the document we asked the Trial
25 Chamber to admit but you ruled against us. That's as far as we take it.
1 JUDGE LIU: From the point of view of this Bench, we believe that
2 the two documents have different status. The first one we barred from
3 using and, at a meeting, that document at all. It was not used during the
4 whole proceedings. For this document we call the witness, and this may
5 be, there may be a possibility for the admission. I'm not sure at this
6 stage. I couldn't -- I have to make the ruling yet. So that's two
7 different, you know, status of those two documents.
8 We believe that without a number that document does not prevent
9 the Prosecution to ask for certification. As we did in our rulings, we
10 just refer the two documents as November 8th document and November 12th
11 document, which means the statement. So at this stage, this Bench is very
12 reluctant to give a number to that document.
13 MR. RE: May it please Your Honours. I'll finish on this note:
14 There -- I don't want to make use of the other documents, the other
15 interviews, but the witness has said that he participated in a number of
16 signed interviews. I just want him -- I just want the dates of those I
17 views from the witness. The -- it would take a long time if I show each
18 of them to the witness just to say were -- did you take signed statements
19 on these particular days. That's all. I just want the dates on the
20 record, that is all. I'm not attempting to use those, but a lot of
21 evidence has been given as to the ongoing process of taking statements and
22 when they were taken. So I just want the dates from the witness, and if I
23 could just put the dates to him it would be much quicker.
24 JUDGE LIU: I think that is quite leading.
25 MR. RE: It would be.
1 JUDGE LIU: First of all, you may ask this witness to tell you
2 whether he -- on which date he take a statement or not.
3 MR. RE:
4 Q. Do you remember the dates on which you took statements from
5 Mr. Halilovic or which they were signed?
6 A. I can't remember. This was 12 years ago. I can't remember. I
7 could perhaps take a look at the statements themselves.
8 MR. RE: If I could be permitted to show the witness. They're not
9 loaded into the system, the actual statements, and say, "Is this the
10 statement which you took," that's all.
11 JUDGE LIU: Well, what's the purpose for that?
12 MR. RE: Well, it goes to the admissibility of this particular
13 interview, because the challenge is being made on the basis that it was a
14 long, interrogatory process in which there were -- he was subjected,
15 according to the Defence, to come coercion and there were a number of --
16 the witness has given evidence of having taken a number of statements.
17 In our submission it is relevant to the Trial Chamber's inquiry to know
18 how many signed statements there actually were. The witness clearly can't
19 tell us without going back and looking at the -- the document. That goes
20 right back to Mr. Halilovic's state of mind, the voluntariness, whether he
21 signed the statements, how many statements there were. All I want to do
22 is to -- to say, well are these the -- how many statements did you take?
23 How many were signed?
24 JUDGE LIU: Mr. Morrissey.
25 MR. MORRISSEY: Well, I object to it. Your Honours, there is a 65
1 ter list that none of these are on it. Frankly I'm not prepared to
2 cross-examining about them. They've got nothing to do with the case.
3 It's a last -- in my submission if the Prosecutor sought to use this in
4 some probative way, as he now claims he is, as evidence Mr. Halilovic was
5 behaving in a voluntary way, then he should have put them on the list and
6 given someone some notice before this last five minutes. In my submission
7 it's -- the witness has given answers about how many days there were of
8 interviews and -- well, I won't make a speech I oppose that line of
9 questioning and I oppose those things being put to the witness.
10 JUDGE LIU: I'm afraid Mr. Re you cannot do that kind of practice
11 at this stage.
12 MR. RE:
13 Q. Could I just summarise -- if I could just summarise. Yourself
14 that you took a number of signed statements but it's been 12 years and you
15 can't remember the dates on which those statements were taken. Over what
16 period were the statements taken and signed? Days, weeks, months?
17 A. The entire investigation, the part that I was involved in lasted
18 roughly a month, so within that period of time I participated in the
19 taking of statements.
20 MR. RE: That's the evidence in chief.
21 JUDGE LIU: Thank you. My suggestion is that we have a short
23 MR. MORRISSEY: Your Honours, that's correct. There's certainly a
24 matter of law I want to raise before I commence to ask questions of the
25 witness and one of the issues is, do I need to ask any questions. So I'd
1 like to raise that matter with the Chamber before cross-examination
2 commences. I can do that at the end of the break and before that period
3 starts however, Your Honour.
4 JUDGE LIU: And without the presence of the witness.
5 MR. MORRISSEY: Yes, I think so, Your Honour.
6 JUDGE LIU: Yes. I think we will take a 15-minute break, and we
7 will resume at ten minutes past one, I believe.
8 --- Recess taken at 12.53 p.m.
9 --- On resuming at 1.11 p.m.
10 JUDGE LIU: Yes, Mr. Morrissey, please address the Bench.
11 MR. MORRISSEY: Yes, Your Honours, I will. Your Honours, I submit
12 that it's appropriate at this stage to decline to admit that -- that
13 document. It's fair to say the learned Prosecutor did a noble job and
14 went in detail through what the witness could say about the taking of that
15 statement. I objected on a number of occasions, but frankly the
16 Prosecutor was really doing his job and trying to be detailed about what
17 the witness had to say. But what you now know is the Prosecution are
18 finished with this witness and they haven't sought to prove that he was
19 offered a lawyer. It's obvious that he wasn't. He wasn't given the
20 warning that the -- that the evidence might be used against him. There's
21 no suggestion he was told what charges, if any, or that even that the
22 charges were discussed with him by this particular witness. The evidence
23 led at the moment is that there were lengthy, exhausting days where not
24 just the -- not just Mr. Halilovic but the witnesses themselves were
1 I think it's fair to say this, Your Honour, I don't want to
2 cross-examine -- I don't want to go into fields that aren't needed and I
3 would submit that, quite frankly, the Prosecutor did all that he could and
4 asked what he could, but the onus is on the Prosecutor here in relation to
5 this document, and I can indicate that if Your Honours were minded to
6 accede to my submission now and rule this document out, I think I've got
7 ten minutes of questions for the witness relating to residual matters, the
8 9th Brigade. In fact, I think it will be more likely to be five minutes
9 of questions. But otherwise I have to go into the full matter frankly.
10 If Your Honours -- if Your Honour doesn't rule it out at this stage.
11 Now, of course it's -- it's -- it's up to Your Honours whether
12 you -- whether you believe the Prosecutors have reached -- have led
13 evidence that's capable of getting across that threshold, but I think it's
14 fair to say now that despite my objections, I'm full of admiration for the
15 way of the Prosecutor proceeded there and did his best. But really, they
16 haven't sought -- they haven't really tried to jump over the hurdle in the
17 proper way because they have to leave evidence that he was given his
18 rights and that everything was done that should have been done. The onus
19 is upon him. As Your Honours have pointed out, the Celebici judgement
20 makes it clear that whether or not section 42 or Article 42 applied in
21 Bosnian law - that's the standard - it's very hard to admit --
22 THE INTERPRETER: Can counsel please slow down for the benefit of
23 the interpreters.
24 MR. MORRISSEY: I've received the usual warning, Your Honours.
25 Now, I can address you further upon it with you I think
1 Your Honour is aware of what -- effectively, what I'm asking at this
2 stage. I would ask Your Honour now to indicate if you were to prepared to
3 do so, that the document should not be admitted into evidence, to spare a
4 lengthy cross-examination. A cross-examination which, quite frankly,
5 would raise issues the Prosecution haven't actually themselves tried to
6 prove. No doubt sensibly, because they know what the witness is going to
7 say. So that's what I raise at this stage.
8 JUDGE LIU: Yes. Any response, Mr. Re.
9 MR. RE: Well, it's entirely a matter for the Trial Chamber
10 whether you wish to hear Mr. Morrissey cross-examine the witness. I can't
11 say anything about his application. If the Trial Chamber wishes me to
12 address, I can certainly address based upon the Prosecution evidence as to
13 why we would submit that the statement is capable of admission into
14 evidence, but as to whether or not Mr. Morrissey cross-examines or not is
15 a matter between Mr. Morrissey and the Trial Chamber.
16 JUDGE LIU: You may address us on the second issue.
17 MR. RE: May it please Your Honours. The relevant rule in our
18 submission has to be Rule 95. This, the statement, which is -- I'm sorry.
19 THE REGISTRAR: MFI 297.
20 MR. RE: The statement MFI 297 must fall within of itself of its
21 nature of what is in it must fall within the basic primary rule of
22 admission which is 89(C). The Chamber may admit relevant evidence which
23 it deems to have probative value. The subject matter of the relevant
24 statement must be signed by the accused, must be relevant and is probative
25 to these proceedings.
1 Now, I doubt whether the Defence would dispute the relevance and
2 probative value of the statements if accepted into evidence, and to save
3 time I won't go -- unless Your Honours require me to I won't address you
4 as to why we say it's relevant or probative.
5 JUDGE LIU: Well, you may continue.
6 MR. RE: I can go into detail as to why we say it's relative and
7 probative, but if Your Honours are satisfied it would get to that, test
8 I'll just get to that exclusion, or else I can --
9 JUDGE LIU: Well, I believe you should not address the issue of
10 the probative value and the relevance of the document. We quite
11 understand this document is relevant, and it also has some probative
12 value, but here we haven't come to that stage yet. So let's limit our
13 scope to the first matter.
14 MR. RE: I will. So the two -- the two rules of exclusion are of
15 course 89(D) which empowers the Trial Chamber to exclude relevant
16 evidence, that's assuming it's within 89(C), but only if it's probative
17 value is substantially - that's the word - substantially outweighed by the
18 need to ensure a fair trial. In the Prosecution's submission, this --
19 this -- that isn't the appropriate section under which it would be
20 excluded, if it were. It's a relevant and probative document, and it is
21 highly relevant and highly probative in the Prosecution's submission, but
22 its admission is not -- would not be substantially outweighed by the --
23 sorry, I put it the other way around. It's in the negative.
24 The words are substantially outweighed by the need to ensure a
25 fair trial. The Prosecution's submission is the accused is of course
1 getting a fair trial and the admission of this document into evidence
2 would not affect his right to a fair trial either by the means of the
3 taking of the statement or the fact that it would be admitted into
4 evidence or the use the Trial Chamber could make of it. The accused has
5 all options available to him. He can call evidence to rebut it, to attack
6 the document. He can -- he has legal advisors. He has the means at his
7 disposal in the Trial Chamber to ensure that there is a fair trial if this
8 document is admitted into evidence, and in our respectful submission, that
9 would not be the correct section to look at.
10 The correct section and it's the primary basis of the application
11 for exclusion is Rule 95, which of course says that no evidence shall
12 be -- it's headed exclusion of certain evidence. "No evidence" --
13 withdraw that. It's in two parts. There are two parts to the test. "No
14 evidence shall be admissible if obtained by methods which cast
15 substantial" - I underline substantial - "doubt on its reliability" -
16 underline reliability - "or if its admission is antithetical to and" -
17 it's subjunctive - "would seriously damage the integrity of the
18 proceedings." So there's a two-part test that has to be satisfied before
19 it's excluded.
20 The first one is doubt -- substantial doubt on its reliability.
21 In the Prosecution's submission, substantial doubt has not been cast on
22 the reliability of the contents of the statement. If Your Honours look at
23 the statement, it corroborates evidence which other witnesses have given
24 and documents which are in the case as to what happened at Grabovica.
25 There is nothing on the face of the document itself which the -- or the
1 things that the accused has said in this signed statement which casts
2 doubt on the reliability, or substantial doubt on the reliability of what
3 is contained therein. Now, that's the hub of the matter. Is it a
4 reliable document? Is what the accused said in 1993 reliable? Is what is
5 there reliable? Is it something which the Trial Chamber could rely upon
6 in convicting or acquitting the accused?
7 If you look at the document, on its face what is there is in the
8 Prosecution's submission reliable and accurate. You've heard from
9 Mr. Okic as to the circumstances of the taking of the statement. Now, no
10 challenge has been made that the accused did not assignment statement. No
11 challenge has been made that what is there is not what the accused said,
12 nor what the accused said in that statement is not reliable. No challenge
13 has been made here through evidence or questions of the witness to suggest
14 that what is in there is not reliable. There is nothing, in my respectful
15 submission, upon which the Trial Chamber could make an assessment that it
16 is not reliable, the contents of the document were not reliable, no matter
17 how long, how many sessions there were, or whether he was in detention or
18 not. It's the accuracy and reliability of the document which must concern
19 the Trial Chamber. And there must be a substantial doubt as to its
20 reliability. The word is substantial. There must and real -- a
21 substantial doubt as to whether what is in it is reliable.
22 And you go back to the methods by which it was obtained. Now,
23 whether or not Mr. Halilovic had a lawyer present or waived his right to
24 have a lawyer present or was cautioned, what you're looking at is, is what
25 he said accurate and reliable?
1 Moving to the second part of the test, which is if it's -- or "if
2 its admission is antithetical to and would seriously damage the integrity
3 of the proceedings." So it has to be both. There has to be substantial
4 doubt on the reliability based on the way it was obtained and, having
5 found that, it would seriously damage the integrity of the proceedings.
6 Now, in my respect full submission, admission into evidence and
7 the use it have by the Trial Chamber cannot seriously damage the integrity
8 of the proceedings. Mr. Halilovic is entitled to all the safeguards in
9 Article 21 of his right to a fair trial and to all the procedural
10 safeguards in the Rules, and the Trial Chamber, we have no doubt, would be
11 extremely careful in assessing the document and the weight that you can
12 give it. The Prosecution submits that it's -- it's a reliable document.
13 It's a contemporaneous document, and it certainly fits within the best
14 evidence rule. It is a statement Mr. Halilovic made within weeks, six
15 weeks or so or - sorry, two months, I'm sorry - of the events which are
16 the subject of the indictment. It's a much better record than you're
17 going to get from his interview with the Prosecution in 2001 or from his
18 book which was published some years later. This is going to be the best
19 record of what the accused himself said about the events in Grabovica, the
20 best contemporaneous record. It would be better in my submission than the
21 accused giving evidence himself because the accused giving evidence
22 himself now will be doing so 13 years later. This is a contemporaneous
23 account which would have to be more reliable because of its
25 There are several features I point the Trial Chamber to in
1 weighing up whether or not to admit it into evidence in relation to the
2 circumstances of the taking of the interview. The first is the prevailing
3 circumstances. In determining the methods and whether they cast
4 substantial doubt on the reliability of a document, you have to look at
5 the surrounding circumstances, that it was a war, that Sarajevo was under
6 siege at the time, and that Mr. Halilovic was suspected of involvement in
7 an armed mutiny. There was -- Mr. Okic said there were times when there
8 was no electricity. Mr. Okic himself has given evidence of the behaviour
9 of the brigades who were suspected of -- who Mr. Halilovic was suspected
10 of being involved with according to his -- the chief of security. In
11 fact, kidnapping him and taking him to the -- to the -- to the front
13 So you've got to look at the entirety of the circumstances. And
14 of course they're not perfect and we don't pretend for one moment that
15 they were perfect, and we don't -- the Prosecution doesn't submit that
16 these -- that if that interview was taken by the Prosecutor it would be
17 admissible. It wouldn't be, because that would be under Rule 42, which
18 sets out specific safeguards in relation to charges before this particular
20 Now, what he was interviewed about had nothing to do with what
21 was -- nothing to do with this Tribunal, which -- at that time. It
22 started off with a -- as Mr. Okic said, a general history of Mr. Halilovic
23 in the army and various specific topics, one of which just happens to be,
24 in the Prosecution's submission, Grabovica. The primary purpose was
25 investigating Mr. Halilovic for his supposed participation, I think the
1 word was "in a supposed armed uprising." So he's being investigated for a
2 coup d'etat or a mutiny, not -- not -- not war crimes. So the
3 investigation was for a different purpose all -- altogether.
4 If you look at -- in those circumstances, it is not surprising
5 that Mr. Halilovic was brought in every day and interviewed at some length
6 about a number of different topics, because he was under suspicion of
7 committing serious offences against the state at the time. But the
8 evidence of the way he was treated in relation to the interviews, in
9 particular the one in which we -- which we rely, 297, is that he was
10 brought in by one military police officer, left at reception, brought up
11 to a room and interviewed but given -- but afforded the normal rights - he
12 didn't ask for a lawyer - the normal rights that you would -- one would
13 imagine a person in those circumstances would have. He was given the
14 opportunity to use a telephone and did do so. He was in his uniform. He
15 was allowed the dignity of keeping his rank. He was given lunch, given
16 breaks, and no suggestion or -- or no suggestion has been made that
17 Mr. Okic or Mr. Popovic did anything to coerce him. The highest it gets
18 is there may have been some psychological pressure because the interviews
19 went for a long time, but Mr. Okic explains that, that anyone in those
20 circumstances would be stressed and, of course, that's -- that's quite
21 sure. We don't resile from -- we don't -- not resile. We can't quarrel
22 with that.
23 But one very significant matter, of course, is the weapon. Now,
24 why is Mr. Halilovic carrying a weapon on every occasion? Why has he got
25 a weapon with him which, based on the weight of it, it have may have been
1 loaded. Mr. Okic would be in a position to know because he described the
2 weapon in some detail. That's a very significant feature as to, in our
3 submission, as to the way the Trial Chamber should treat the matter. What
4 is a man, a general, someone with the rank of a general doing coming to an
5 interview carrying a gun with him every day when he's being escorted.
6 He's got the gun with him. When he's brought to the room he's got the gun
7 with him. It's only when he's in the room the gun is put on the top of
8 the cabinet.
9 So in our submission Mr. Halilovic was treated with respect. He
10 answered the questions voluntarily, and importantly you heard from
11 Mr. Okic that not a line was typed up without Mr. Halilovic approving it.
12 Corrections were made, and at the end he signed the document. And at the
13 end of the document it even says as Your Honours -- as you can see, that
14 he had no complaint. It's the last paragraph of the -- "I dictated this
15 statement. It contains everything I said and I accept everything by
16 signing t I have also want to say that the authorised officials during the
17 interview treated me correctly." No complaint has been made that these
18 particular officials in this particular interview, which is what the Trial
19 Chamber is concerned with, did not treat him correctly.
20 Now, if he was treated correctly, the -- notwithstanding that he
21 didn't ask for a lawyer and a lawyer wasn't there, it has the indicia of
22 voluntariness. In the Prosecution's submission, it is prima facie
23 admissible as a probe difficult and relevant document voluntarily made
24 contemporaneously by the accused at the time, and is admissible because it
25 was not obtained by methods which cast substantial doubts upon its
1 reliability noting again that he corrected and went through it line by
2 line before signing it. And its admission into evidence in our submission
3 would seriously damage the integrity of the proceedings.
4 There's one matter my learned colleague reminded me off and that's
5 in relation to the psychological pressure. I was referring earlier to the
6 circumstances of the taking and the times in Sarajevo. The Trial Chamber
7 is also entitled to view the psychological pressures as those pertaining
8 to everyone in the process in Sarajevo at the time. Mr. Halilovic was
9 certainly under some pressure being interviewed, but there was a lot
10 pressure on the inhabitants of Sarajevo at the time during the shelling
11 and the siege, and that's something you should also -- you should also --
12 you can also consider as not casting doubt on the reliability of the
14 [Trial Chamber confers]
15 MR. RE: There's just one time matter and that is I just draw the
16 Trial Chamber's attention to Mr. Okic's evidence that although the
17 interviews some of them did last a long time, over 12 hours, his evidence
18 was that a lot of time was spent in Mr. Halilovic actually going back
19 through the statement line by line. He said most of the time was spent in
20 the dictating and the correction of the statement, which is another thing
21 which points to its ultimate reliability. Those are my submissions.
22 JUDGE LIU: Thank you.
23 [Trial Chamber confers]
24 JUDGE LIU: Well, after consultation with my colleagues, this
25 Bench would like to reiterate what we have already said, that is, this
1 Trial Chamber is governed by the Rules of Procedure and Evidence of this
2 Tribunal and is not bound by any national rules of evidence. Any evidence
3 obtained by means contrary to internationally protected human rights is to
4 be excluded in accordance with Rule 95 of the Rules.
5 Where the probative value is outweighed by the means to ensure a
6 fair trial, the evidence is to be excluded pursuant to Rule 89(D) of the
8 We agree with the Defence. It is for the Prosecutor to prove
9 convincingly and beyond a reasonable doubt that statement was given
10 voluntarily and was not obtained by means of any illegal conduct.
11 We also believe that any accused should have the right to a fair
12 trial. This is an absolute right before any International Criminal
13 Tribunals. The reliability of a piece of evidence is not only on the
14 contents of that document but is also related to the means and the
15 procedures to obtain those documents. Since the right to the fair trial
16 of the accused is an absolute right, so under any circumstances, even in
17 the conflicts of war, those rights should not be derogated at all.
18 We hear the testimony of this witness concerning of the procedure
19 and the ways of conducting the interview and taking the statement, and we
20 hear that the accused was not offered to be assisted by a counsel. No
21 matter whether the accused is well-educated, a lawyer, a judge, or a
22 peasant, this is his inalienable right unless he voluntarily waives this
23 right. We hear the evidence that interview conducted for a month and for
24 every day there was ten to 12 hours for a session. We believe that is too
1 The Trial Chamber finds that the statement of the accused was not
2 given in accordance with the Statute and the Rules of Procedure of this
3 Tribunal. Therefore, the statement is excluded from the evidence pursuant
4 to Rule 95 of the Rules. It is so decided.
5 MR. MORRISSEY: As the Court pleases. Your Honours, could I just
6 ask for two minutes to consider whether I have any questions for this
7 witness? I was thinking about that as Your Honour ruled.
8 JUDGE LIU: Yes.
9 MR. MORRISSEY: And it's desirable that the witness be given a
10 chance to go. If I could just take 60 seconds of the Court's time to
12 JUDGE LIU: Yes, please.
13 MR. MORRISSEY: I think I probably won't ask him questions.
14 [Defence counsel confer]
15 MR. MORRISSEY: Very well, Your Honour. I have one discrete topic
16 that I will ask about and it will be finished by --
17 JUDGE LIU: Yes. Could we have the witness, please. So we might
18 sit a little bit longer without the afternoon sitting.
19 MR. MORRISSEY: Yes. Thank you, Your Honour.
20 JUDGE LIU: I think it's very encouraging news considering the
21 good weather outside.
22 [The witness takes the stand]
23 JUDGE LIU: Yes, Mr. Morrissey, your cross-examination, please.
24 Cross-examined by Mr. Morrissey:
25 Q. Thank you, Mr. Okic I only have five minutes and possibly a little
1 more of questioning, and it relates to the question of your knowledge of
2 covert surveillance matters. I understand that there are some areas that
3 you don't want to talk about concerning state secrets and so on. I just
4 want to ask you about some -- the procedures that relate to the putting in
5 place of covert measures.
6 First of all, what procedures needed to be undertaken when a -- a
7 telephone intercept was placed on a particular telephone? In other words,
8 what procedures did an operative who wanted that to be done have to go
10 A. Basically to get substantial information which would point out to
11 possible criminal activity against the political background, that is to
12 say indicating that somebody might be engaged or preparing for some sort
13 of activity which would undermine the constitutional system, and that
14 information must be reliable. And then you can start proceedings and, of
15 course, you ask for approval in order to be able to use those measures
16 with regard to a person or a group of people or the entire institution
18 Q. Okay. Now, it's those procedures I'm asking you about. For a
19 person at Mr. Halilovic's level of seniority as chief of staff of the
20 armed forces of -- well, perhaps even at an earlier stage, when
21 Mr. Halilovic was the commander of the armed forces in Bosnia, he had the
22 title of Chief of Staff of the Main Staff of that army. But at the time
23 he was the commander, who within the Ministry of the Interior would be the
24 person with the ultimate ability to approve the operative measure of
25 putting a telephone interception device on a telephone associated with
1 Mr. Halilovic?
2 A. First of all, a request had to come from the directorate of the
3 military security and we never used those measures in relation to members
4 of the armed forces without an explicit request, formal request from the
5 military security department. And it was only upon receiving such an
6 official request from them that we would impose those measures on military
7 staff. That's -- that was the practice before the war, and I suppose
8 during the war as well.
9 Q. Okay. And apart from getting approval from the -- from somebody
10 in the military security organisation, who within the Ministry of the
11 Interior would have the responsibility under your rules and procedures of
12 approving telephone intercepts on Mr. Halilovic's phone? And I mean
13 within the MUP, within the Ministry of the Interior? Would it have to be
14 the minister or could it be somebody below him?
15 A. I think -- I think formally speaking, it was the chief of state
16 security because he was our national. But I'm convinced that the minister
17 of the interior was informed and, I mean, it was a high-ranking person we
18 are talking about, and I really don't believe that the minister could have
19 been unaware of that.
20 Q. Yes. And would it be -- in June of -- well, perhaps I should ask
21 you this. In October, November of 1992, who was the chief of state
23 A. You mean 1992 or 1993?
24 Q. 1992 I mean at this stage, the first year of the war.
25 A. I think -- I think Mr. Ugljen, the late Mr. Ugljen had already
1 been appointed at that stage.
2 Q. Yes. And at that particular time, who was the minister of the
4 A. If I remember correctly, Bakir Alispahic.
5 Q. Yes. Now, moving to June 1993, who at that time was head of state
7 A. The same man.
8 Q. And who was the minister of the interior at that time?
9 A. I suppose Bakir Alispahic but I'm not sure. I think 1992 and
10 1993, those two men were the leaders in that sector.
11 Q. Yes. I understand. I just have to ask you a question. Was it
12 within your knowledge whether either or both of those men were members of
13 the political party, the SDA?
14 A. I have no knowledge of them being members of the SDA, yet I
15 believe they were appointed by the SDA. There was no way to bypass them.
16 They were SDA appointees. But I can't really claim that either of them
17 was a member of the party in a formal sense.
18 Q. Very well. Now, I want to turn to questions about the records, if
19 you like, the fruits of telephone tapping when that occurred. When a
20 telephone was tapped was it the practice that an employee of the state
21 security service would handwrite out the transcript of that telephone
23 A. Yes. Yes. They would first listen to the tape and then write
24 down the entire conversation or maybe just the gist of it, depending on
25 what had been agreed with the operative officer or whatever his bosses had
1 told him to do.
2 Q. Very well. And did they -- did the typist then submit that report
3 to a member of the state security service for the purpose of review and
5 A. In principle, the report would be submitted to whoever was in
6 charge of that particular case.
7 Q. Yes. Was it then the practice of that person who received the --
8 the -- the handwritten document to put the relevant parts of that document
9 into a report?
10 A. Yes, by all means.
11 Q. I understand. And was it -- was it required of that SDB operative
12 to put everything that had been contained in the telephone call into their
13 report or just put into their report the parts that seemed to be of
14 significance and importance to them?
15 A. For the most part, I only put what was relevant. People talked
16 about all kinds of thing over the phone. We did not have the resources or
17 the time, for that matter, to monitor everything, especially private
18 conversations of no consequence to us.
19 Q. Whereabouts were the records of these telephone calls preserved in
20 the SDB, and I mean both the handwritten documents and also the reports
21 based on those handwritten documents?
22 A. This very much depended on the case.
23 Q. Yes. Was there an archive section to which those reports -- to
24 which those transcripts and reports were supposed to be sent?
25 A. There was the archive with the so-called inactive files, files
1 that were closed. But all the copies, all the transcripts were left in
2 the archive. Whenever a file was no longer required by someone, it would
3 be sent to the archive. But there was no separate archive for
4 transcripts, if that's what you mean.
5 Q. No, no. But -- I understand. There was a general archives, but
6 all transcripts and reports based on those transcripts should have been
7 sent to the archives once that file became inactive; is that correct?
8 A. Yes. Within the framework of each specific file obviously.
9 Q. Yes. And who is it -- and this archive is under the jurisdiction
10 of the Ministry of the Interior; is that correct?
11 A. It was at the time. Now that the secret service has been severed
12 from the ministry, I believe it is now on under the purview of the
13 intelligence service or whatever its name happens to be.
14 Q. I understand. Can you tell us briefly when that severance took
15 place approximately?
16 A. I think in 1996. The -- the agency for investigations and
17 documentation was established.
18 Q. Thank you. What were the procedures by which a member of the
19 security -- sorry, by which a member of state security could access
20 documents that had been placed in the archives?
21 MR. RE: Could I -- at this point could I make an inquiry as to
22 whether this has relevance to the proceedings per se or whether the
23 Defence is asking the witness these questions so they could perhaps -- to
24 assist their own lines of inquiry in their preparation?
25 JUDGE LIU: Yes. Well, Mr. Morrissey, I believe that in the
1 cross-examination you could ask any questions so long as they are relevant
2 to this case.
3 MR. MORRISSEY: Yes, Your Honour.
4 JUDGE LIU: So maybe you could be more specific in your questions.
5 MR. MORRISSEY: I can, Your Honour, but the -- the specifics
6 relate to -- the Prosecutor has intended in the past to -- or indicated
7 that they wanted to tender a number of telephone transcripts arising from
8 the MUP, and we want to find out exactly how it is that these transcripts
9 are stored and how it is that these transcripts can be accessed. It's --
10 they're not this witness's transcripts and I made it quite clear we're not
11 suggested he's connected with them in any way. But that's a great
12 advantage, in a sense, because he can tell us what the procedures are and
13 when other witnesses come along then the Court will have an idea and so,
14 frankly, will the Defence exactly how it is that one gets access to these
15 documents and where they're to be stored and found. So it is directly
16 relevant. We -- we -- we may find ourselves having an admissibility
17 argument on the question -- I'm trying to restrain myself here from making
18 a criticism of him, but we're going to have an admissibility argument, I
19 would think, on some of these transcripts, if I were to put that
20 neutrally. So that's why I'm asking these questions.
21 JUDGE LIU: Well, you may proceed, but do not expand it to some
22 other areas.
23 MR. MORRISSEY: No, Your Honour. There won't be any collateral
24 attack. I'll just -- I'll stick to this -- to this -- I've got a list of
25 questions which I think is exhausted in five, perhaps less than five
1 minutes now.
2 Q. Okay. So that the question I think originally was -- I've now
3 forgotten the exact, so -- I'm sorry Mr. Okic, but that's okay. The
4 question is what were the procedures by which a person within the security
5 administration could get access to materials once they'd been archived?
6 A. There's a special form. There was a special form at the time that
7 you had to fill in. You send it up the chain of command and the bosses
8 would have to approve it. First he would be asked what he needed the file
9 for. If it was no direct relation to what he was doing, he would need to
10 prove that it was relevant for something that he was doing at the time.
11 It was only upon that that he would be granted approval.
12 Q. Okay. I think I've got five questions left now, perhaps six.
13 Very well. Thank you. Now, the question is when a document is
14 proposed to be destroyed, what is the procedure for getting permission to
15 destroy a document, and in particular a telephone transcript?
16 A. Those transcripts were not destroyed. They were archived. There
17 was a special procedure to have a file destroyed. If at some point in a
18 case or in an investigation one concluded that there was no proof of
19 subversive activity, there could be a request to close the case, and it
20 was in such cases that the entire file would be destroyed.
21 Q. In the case of a file being destroyed, there should be a record of
22 that request to destroy the file being made; is that correct?
23 A. Needless to say, there's a request by whichever operative is in
24 charge of the case, the request to have the file destroyed with a
25 statement of reasons; why this request was made, to begin with.
1 Q. Okay. I just have a question about -- about labelling. Where
2 operative measures were placed against a person, whether it be telephone
3 intercepts or something else, what did the code numbers 02 mean when
4 placed next to that person's name or their code name? In other words,
5 what did it mean that the numbers 02 were placed next to that person's
6 identifying tag?
7 A. I can't say. I'm not sure what you have in mind, 02. We used
8 numbers to mark certain lines of inquiry. Perhaps that's what you have in
10 Q. Yes, that is what I have in mind. If a person was marked as 02,
11 did that mean that they were designated as an enemy of the state?
12 A. Internal enemy of the state. That was only for a while, because
13 these numbers changed over time. I can't specifically remember whether
14 that was what it meant in 1993, your code, I mean 02.
15 Q. Yes. Well, where do we turn to find out what 02 means in the
16 year -- in the years 1992 and 1993? There must have been a -- if you like
17 a book with the codes explained somewhere or some document with the codes
18 explained. Could you -- or could you enlighten us as to that situation?
19 A. It was an internal matter. The relevant people were informed. As
20 of such-and-such a day, 02 ceases to mean internal enemy and takes on a
21 whole new meaning, and then all the branches, units, state security units
22 on the ground would receive appropriate information and the code would
23 then change and be used differently from then on.
24 Q. Yes. If -- it may not be within your knowledge but I'll ask you
25 to comment on this. If a document contained a reference to Sefer
1 Halilovic's code name and it had 02 next to it, at sometime after he was
2 dismissed as commander of the army and made chief of staff, to you looking
3 at that document you would say that the 02 would mean he was classed as an
4 interim enemy and surveilled accordingly; correct?
5 A. No. This number, 02, that's what it said in the heading. It
6 wasn't next to the person's name, the person that these measures were
7 imposed against.
8 Q. Okay.
9 A. Maybe those in charge of his case decided to refer to him as 02 as
10 a reference number, but I would need to go back to the original document
11 for that. However, this code, 02, only ever marked a line of inquiry on
12 the face of any of the documents.
13 Q. But the line of inquiry -- yes. Sorry.
14 MR. MORRISSEY: Well, perhaps if the witness could be then MFI 256,
15 please, the Bosnian version in all cases, please, Your Honour.
16 We're going to show you a particular document here, Mr. Okic. You
17 comment on it if you're able to do so. 256. Sorry.
18 Your Honours, the English version has come up, but might I ask,
19 please, that the B/C/S version be --
20 THE WITNESS: [Interpretation] What I can see here is the letters
21 UB, which means security administration. I suppose it's their reference.
22 And you can see 322 in the upper right corner, and just below that the
23 letters UB. I suppose it's their reference.
24 MR. MORRISSEY:
25 Q. Do you see the 0 -- some of that writing is -- I have to tell you
1 is Defence -- is written on by Mr. Dzambasovic, possibly, or other Defence
2 investigators and the -- the words "doc brief 322" would be Defence
3 notations. But it's the 02 below that that I'm interested by. What does
4 that 02 indicate to you?
5 A. 03 on the right-hand side means that the document was produced by
6 department 03.
7 Q. Okay.
8 A. But as to 02, I really have not a clue what it means.
9 Q. But you can see what I'm talking about? It's in the top
10 right-hand corner there.
11 A. Yes. Yes, I see the number, but I really have no idea what it's
12 about. I see that the document was produced from department 03.
13 Q. And what is department 03? I'm sorry, I'll stop you there for a
14 moment. For reasons of confidentiality, could we just move briefly to the
15 private session here?
16 JUDGE LIU: Yes. We'll go to the private session, please.
17 [Private session]
1 [Open session]
2 MR. MORRISSEY:
3 Q. Finally can I ask you the following questions: When a person was
4 placed under -- under surveillance, did there have to be a formal decision
5 taken to terminate that surveillance or did that surveillance naturally
6 lapse after a period of time?
7 A. These measures could not just lapse. Whoever is in charge of the
8 case must request for measures to be taken or for measures to stop being
10 Q. Was it necessary for your organisation to keep records of those
11 involved in surveillance of a particular individual?
12 A. I think in Mr. Halilovic's case all the information we obtained,
13 virtually all the information we obtained, including in document, were
14 submitted or forwarded to the military security administration.
15 Q. Very well. But copies would have been reserved at the MUP, at the
16 state security service of that material; is that correct?
17 A. Only if ordered by the chief of service.
18 Q. All right. Do you happen to know whether he issued such an order
19 or whether he handed over everything that he had?
20 A. This is the first time I have set eyes on a document like this,
21 any covert measures being imposed on Mr. Halilovic. But during the
22 investigation itself, I never laid eyes on a document like this. I have
23 no idea whether such documents in fact exist in the security
24 administration or whether all of them were eventually submitted to the
25 military security administration.
1 Q. Yes. Well, those are the questions. Thank you very much.
2 JUDGE LIU: Thank you. Any redirect?
3 MR. RE: No, Your Honour.
4 JUDGE LIU: Thank you. At this stage are there any other
5 documents to tender? It seems to me -- yes?
6 MR. RE: Has that also one been marked for identification?
7 JUDGE LIU: Yes. It's already admitted, I believe. No? That
8 is --
9 THE REGISTRAR: Your Honour, that is MFI 256.
10 MR. MORRISSEY: You were, I don't believe it's been admitted into
11 the evidence as yet, but I think this witness has not agreed that he's
12 seen it before. I think in the future the Prosecutors are going to lead
13 some evidence from someone who they -- they say will be able to be an
14 appropriate person for telephone transcripts and at that time we may
15 decide to deal with it in that way.
16 JUDGE LIU: Yes. Yes, please.
17 Well, Witness, thank you very much for coming to The Hague to give
18 your evidence. After we are adjourned, Madam Usher will show you out of
19 the room. We all wish you a pleasant journey back home.
20 So the hearing for --
21 THE WITNESS: [Interpretation] Thank you, too, Your Honours.
22 [The witness withdrew]
23 JUDGE LIU: So the hearing for today is adjourned.
24 --- Whereupon the hearing adjourned at 2.08 p.m.,
25 to be reconvened on Monday, the 4th day of
1 April, 2005, at 9.00 a.m.