Tribunal Criminal Tribunal for the Former Yugoslavia

Page 14628

1 Monday, 21 February 2000

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.35 p.m.

5 THE REGISTRAR: Good afternoon, Your

6 Honours. Case number IT-95-14/2-T, the Prosecutor

7 versus Dario Kordic and Mario Cerkez.

8 JUDGE MAY: Yes, Mr. Nice.

9 MR. NICE: I don't know if Your Honours have

10 had a chance to look at the summary for the next

11 witness. If so, the Court will see on the last

12 paragraph, although there's no written application in,

13 there is an application for limited protection. I can

14 deal with it at the moment without even going into

15 private session, so that as much as possible of our

16 proceedings may be public.

17 This is a witness who gives, in a sense,

18 quite limited evidence. He's necessary because he's

19 the only witness of one particular village, and

20 therefore he has to be here, but his evidence is

21 otherwise non-specific in relation to either

22 defendant.

23 He's an intelligent, educated man, and he

24 recognizes those characteristics of his own evidence,

25 and he's not in any sense anxious to ask for

Page 14629

1 protection. But of course, once witnesses come here,

2 they have to be told of the potential for applications

3 for protection. It will come as no surprise to you to

4 know that, so far as I'm concerned, they then receive

5 the maximum encouragement possible to give evidence

6 fully publicly, for I would prefer it that those who

7 have the courage and confidence to do so can do so.

8 But for the reasons set out in the last two

9 lines, or two and a half lines, of paragraph 19, which

10 are made not on his own behalf but for someone else, he

11 expresses, I dare say, an understandable anxiety. And

12 it's all very easy for me to be bold and to press

13 people to take what they would believe to be risks. He

14 asks, respectfully, that he may have that protection,

15 and I happily, in the circumstances, make that

16 application on his behalf.

17 The person concerned is -- well, you see the

18 age set out there, and as you'll discover from the rest

19 of the narrative, was with him throughout the events

20 that he speaks of. This wasn't a case of separated

21 families; this was families kept together in the

22 comparatively unpleasant circumstances in which they

23 found themselves, and I think that the person

24 identified there was, as is so often the case,

25 concerned for the relation who comes here to The

Page 14630

1 Hague.

2 JUDGE MAY: We'll hear from the Defence.

3 MR. NAUMOVSKI: [Interpretation] Your Honours,

4 the Defence of Mr. Kordic does not object.

5 JUDGE MAY: Thank you.

6 MR. KOVACIC: Neither do we, Your Honour.

7 JUDGE MAY: We'll make the order as asked.

8 MR. NICE: Thank you very much. Well, then,

9 may the Chamber be prepared for his arrival. The

10 witness will become witness --


12 MR. NICE: Thank you very much. While these

13 administrative things are being done, and so as not to

14 waste time, can I bring you up to date with a couple

15 things. Negotiations have gone on this morning with

16 Mr. Lopez-Terres and counsel for both defendants in

17 relation to the map. Mr. Lopez-Terres will be able to

18 tell you later what progress, if any, has been made.

19 It sounds, from what I've heard, to be rather --

20 perhaps somewhat limited, but we're certainly hoping to

21 call the map-maker tomorrow, and matters not agreed can

22 be dealt with in the conventional way then.

23 Can I revert briefly to the tape. The

24 Chamber will remember that some uncertainties about

25 transcription led to the Chamber admitting the majority

Page 14631

1 of the tape but for the time being not admitting or not

2 attending to the balance.

3 The Chamber knows, and I think the Defence

4 knows, that we are, of course, obliged to use, and in a

5 sense to count as authoritative, the official

6 translation services of our institution which serves

7 all parts of the institution. Sometimes it's possible

8 to improve on what they can hear, perhaps by taking

9 more time than they have or using better equipment and

10 so on, and we've been able to provide a fuller

11 transcription of the tape, indeed in one or two

12 passages. One passage, I think, where the official

13 transcribers marked the tape as inaudible, it is

14 possible, by taking time, to make out, I think, some

15 20 lines -- I'm not sure -- of further conversation.

16 That's been done, and the additional transcriptions

17 have been distributed to the Defence some days ago, I

18 think, now.

19 It's also possible, so far as we are

20 concerned, to be quite satisfied that both tapes, the

21 one that the witness himself produced and the one that

22 had been produced by him earlier and brought here via

23 investigators and lawyers, are identical, save, I

24 think, for the bips or knocking sounds that are on

25 them. So I think it will be possible to agree the

Page 14632

1 revised transcript, subject the bipping noises, and I

2 have got those revised transcripts for production to

3 the Chamber at some stage today.

4 MR. SAYERS: Mr. President, with respect to

5 the tape, I would be more than happy to explain the

6 Defence's position once the witness has testified.

7 [The witness entered court]

8 JUDGE MAY: If the witness would take the

9 declaration.

10 THE WITNESS: I solemnly declare that I will

11 speak the truth, the whole truth, and nothing but the

12 truth.


14 [Witness answered through interpreter]

15 Examined by Mr. Nice:

16 Q. Witness, you've been granted protection by

17 the Judges, which means that your name will not be

18 given and your face will not be shown.

19 Can you, therefore, look at this piece of

20 paper, and without reading the name on it, simply say

21 yes if it is your name.

22 A. It is.

23 Q. You will be known in these proceedings as

24 Witness AJ.

25 Witness AJ, did you graduate as an economist,

Page 14633

1 living in Ilidza, which is close to Sarajevo, until

2 first compelled in April of 1992 to move to Hadzici,

3 which happened to be the place where the electricity

4 company you worked for was based?

5 A. Yes.

6 Q. Forced to move by, as you described them, I

7 think, the Chetniks, you moved with your wife and

8 child, and you moved to Mount Bjelasnica and, indeed,

9 specifically, to the village of Kramari.

10 A. Yes.

11 Q. That shortly after that, you moved to

12 Kiseljak, in May 1992, living first in the house of a

13 colleague of yours in Behrici. On the ELMO is a map,

14 the number of which is 1891.1, but I've turned down the

15 label so that we can fit as much of it as possible onto

16 the overheard projector.

17 If you could use the pointer that you'll find

18 there and just show us where the village of Behrici is,

19 and maybe the technical staff can focus in on it a

20 little bit for us, because it's -- you may want to find

21 Kiseljak first and then show us the village to which

22 you moved in May of 1992.

23 A. [Indicates]

24 Q. Thank you. At that stage, were you in a

25 position to judge the degree to which Croats and Serbs

Page 14634

1 were able to travel between Kiseljak and Ilidza, and I

2 suppose Sarajevo, but maybe not, but certainly between

3 Kiseljak and Ilidza?

4 A. Yes. There was regular city transport that

5 provided services daily, several times a day, in fact,

6 from Kiseljak to Ilidza, and vice versa.

7 Q. Was that transport only used by Croats and

8 Serbs, or was it available to and used by Muslims as

9 well?

10 A. No, Muslims could not use that transport. It

11 was only used by Croats and Serbs.

12 Q. Because you had by then been forced out of

13 the place where you originally had lived.

14 A. We moved to a village called Hercezi.

15 Q. Yes. I'll come to that in a second.

16 Before we do, in the middle of 1992, did the

17 HVO take over control of aspects of daily life in the

18 Kiseljak municipality?

19 A. Yes.

20 Q. In particular, just give us a list, if you

21 can, of the things they took over.

22 A. Well, in the Kiseljak command, before they

23 took over the power, that building was shared by the TO

24 and the HVO. However, subsequently, when they took

25 over the power, the BH Army had to move to a village

Page 14635

1 called Gomionica.

2 Q. Yes.

3 A. They also took over the control over the

4 power distribution system in so-called Herceg-Bosna,

5 that is, the sub-transformer station at Kiseljak.

6 Q. Do you know whether they took over other

7 aspects of political administration in the area?

8 A. Yes, they took over all political power.

9 Q. Now, you moved in the middle of, or slightly

10 after the middle of 1992 to which village?

11 A. The name of the village is Hercezi.

12 Q. Can we see that, please, on the map, just so

13 that we can have an idea of where that is. Again, if

14 the technical staff is able to get a closer focus on

15 this map, it would be possibly helpful; but it may not

16 be possible, and I understand that.

17 A. [Indicates]

18 Q. Just point out so that we can all see where

19 Kiseljak is. It's just visible.

20 A. [Indicates]

21 Q. So this is north-west of Kiseljak. Roughly

22 how many kilometres away?

23 A. The village is some five kilometres from

24 Kiseljak, in the direction of Fojnica.

25 Q. You were now in a house on your own, is this

Page 14636

1 right, with your family?

2 A. Yes.

3 Q. Were you still able to work for a time?

4 A. Yes, for a time I could work, but then

5 problems began to arise during that time, so that my

6 ability to work was limited.

7 Q. When you were working, where was that? Was

8 that in Kiseljak or was that in Behrici, or where? Not

9 Behrici. Hadzici.

10 A. No, not in Hadzici. The team employed in the

11 maintenance of the power lines was at Kiseljak, and we

12 would come to the subtransformer station at Kiseljak

13 every day and then establish connection with

14 Energoinvest in Sarajevo, who issued us work orders.

15 Q. You spoke of the HVO taking over the control

16 of power lines. Did that have an effect on your

17 employment?

18 A. Yes, indeed.

19 Q. Did they take over your business, and did

20 they ban you from going to work in due course?

21 A. Yes, that is correct.

22 Q. The banning of your going to work was built

23 on an accusation that you'd been taking diesel fuel; is

24 that right?

25 A. Yes.

Page 14637

1 Q. So from that moment were you without work?

2 A. I was largely prevented from the job I had

3 been assigned to do, but for a while I somehow managed

4 in another way, almost right up to the breaking of the

5 conflict between the HVO and the BH army.

6 Q. When was it that they took over the

7 electricity business, according to your recollection?

8 A. It was in 1992.

9 Q. Middle, beginning, end? What?

10 A. I'd say towards the end of 1992.

11 Q. On the 18th of April of 1993, where were

12 you?

13 A. My family and I were in the house that we had

14 been put up in in the village of Hercezi.

15 Q. What happened?

16 A. We heard detonations and gunfire. We woke up

17 and saw that there was very fierce gunfire and

18 detonations in the village of Gomionica.

19 Q. Gomionica is, as we can see on the map, but

20 it's not showing up terribly well, Gomionica is the

21 other side of the main road from Hercezi; is that

22 correct?

23 A. Yes.

24 Q. Beyond Gromiljak?

25 A. Yes, beyond Gromiljak.

Page 14638

1 Q. Did you leave your house and go to the lower

2 part of the village?

3 A. Yes. All the Muslims who lived in that part

4 of the village left the houses and withdrew to the

5 lower part of the village.

6 Q. What did you see of soldiers and, if so, what

7 type of soldiers did you see?

8 A. When we withdrew to the lower part of the

9 village, I saw three or four soldiers wearing HVO or,

10 rather, with HVO insignia, and they were patrolling the

11 road that goes through the village, on one side. On

12 the other, I saw two soldiers in identical uniforms and

13 with identical patches, who were not patrolling, who

14 were merely standing by with weapons in their hands.

15 Q. The following day, did a large number of

16 people go pretty well due south to the village of

17 Doci?

18 A. Yes. I think there were more than

19 200 people.

20 Q. That other small village, Doci, had that, to

21 your knowledge, been disarmed to any extent?

22 A. Yes.

23 Q. To what degree, to your knowledge, had it

24 ever been armed in the first place?

25 A. One cannot speak about any major quantity of

Page 14639

1 weapons. All I saw were a couple of hunting rifles and

2 several pistols.

3 Q. Having got to the village, did you judge it

4 safer to spend the night in the woods to which you

5 fled?

6 A. Yes.

7 Q. And a day later, were you told by someone

8 that the HVO was looking for you?

9 A. Yes. I was told a man, Hikmet Turcinovic is

10 his name, came to look for us in the wood and to tell

11 me that they were looking for me and that I had to go

12 back to the village.

13 Q. Did you do as ordered and return to Hercezi,

14 to discover that the remaining villagers there had been

15 disarmed, although the residents had not been

16 mistreated?

17 A. Yes.

18 Q. Did you report to the man in charge, Pero

19 Vucic?

20 A. Yes, I reported, and my name was taken down

21 in a notebook of some sort.

22 Q. At about that time, possibly a little later,

23 did you get the impression that they'd sought you out

24 in particular, for a particular reason?

25 A. In my opinion, they were looking for me,

Page 14640

1 because the house I was staying in, I had a car there,

2 and I think they wanted to take that car.

3 Q. In fact, I think you'd already got rid of the

4 car to someone else for the time being, so they didn't

5 get it.

6 A. Yes. They came. There were two men in HVO

7 uniforms. One of them had a white soldier's belt, so I

8 assumed he belonged to the police. They said that they

9 had a report that there were weapons in that house, and

10 then they demanded that I open the garage for them.

11 Q. Passing from your own house and problems to

12 what you saw of others, did you see other houses

13 attacked at all by HVO soldiers?

14 A. Several days later, I saw a house set on fire

15 in that village.

16 Q. Whose house was that?

17 A. I was not born in those parts, so I don't

18 know the names, but I know the nickname of this person

19 who had this house, and the nickname was Kuja.

20 Q. Were you now staying at the house of Safet

21 Turcinovic?

22 A. Yes.

23 Q. What happened to that house and what happened

24 to you at the same time?

25 A. One night we heard a blow outside the house

Page 14641

1 where the electricity installations were. First the

2 electricity went off, and then they thumped on the

3 door. I opened the door and an automatic rifle was

4 pointed at me, and a lamp. I was just told to sit down

5 and there would be no problems, and then two men

6 entered the house and looted it.

7 Q. Those two men, did you know who they were?

8 Or the man who held you will at gunpoint, do you know

9 who he was?

10 A. They had woolen hoods over their faces with

11 openings for the eyes, so I didn't recognise them at

12 that time, but the next day my daughter recognised one

13 of them, who was carrying a stolen radio cassette

14 recorder to sell it. They were brothers.

15 Q. And their names?

16 A. Vinko Tuka is one of them. I don't remember

17 the others. Vinko Tuka and his brother, also Tuka, is

18 the surname.

19 Q. When you made your statement to the ICTY,

20 were you able to remember the name then?

21 A. Yes. Yes, I was.

22 Q. And was that name Branko?

23 A. Yes, that's right; it was Branko.

24 Q. Were you confined in Hercezi from the 20th of

25 April, for five or four and a half months, until the

Page 14642

1 6th of September?

2 A. We continued to stay in those houses, and I

3 consider that to have been a kind of house arrest.

4 Q. Were you required to report, I think

5 initially twice a day and then subsequently daily, to

6 the HVO headquarters in the village?

7 A. Yes.

8 Q. Were you and other men taken out by the HVO

9 to do various jobs? I think one may have been clearing

10 a road, cutting wood, and digging trenches?

11 A. Yes.

12 Q. Was there only one occasion that you can tell

13 us about when digging trenches was associated with

14 danger; namely, when you were digging trenches by some

15 BiH lines and there was some gunshots?

16 A. Yes. One morning an HVO soldier who lived in

17 that same village and whose name I don't know -- I just

18 know he used to be a taxi driver before the war -- he

19 took us at gunpoint to dig trenches and make a dugout

20 in the ground in a dangerous spot, where we could hear

21 gunfire. Gunshots were fired above our heads, because

22 opposite were the BiH front lines, and they fired above

23 our heads, probably to prevent us from continuing to

24 dig.

25 Q. But that apart, the treatment by the HVO in

Page 14643

1 Hercezi was not too bad physically, although

2 psychologically, obviously enough, life was difficult

3 for you and your family?

4 A. Yes. I had the good fortune not to have been

5 exposed to physical abuse, but psychologically it was

6 very hard. We didn't fear the locals who were members

7 of the HVO, but occasionally other units would come to

8 the village, wearing HVO uniforms, when we had to flee

9 and go into hiding so as not to be captured by them.

10 Q. On the 6th of September of 1993, were you,

11 with the other villagers, transferred to Rotilj, by now

12 a detention camp?

13 A. Yes.

14 Q. How did the treatment at Rotilj compare with

15 the treatment you'd had at Hercezi?

16 A. It was worse in Rotilj.

17 Q. Were people forced to go to front lines to

18 dig trenches, to cut and transport wood, clear out

19 garbage, and so on?

20 A. Yes.

21 Q. Did you yourself ever go for forced work or

22 were you able to in some way protect yourself from

23 these risks?

24 A. I did go several times, but sometimes I did

25 manage to avoid going, claiming sickness.

Page 14644

1 Q. Were there two men there from Visnjica, Sadik

2 Turko -- I beg your pardon. Was there one man from

3 Visnjica, Osman Sehic, and another man from Hercezi,

4 Sadik Turko?

5 A. Yes.

6 Q. How did they behave?

7 A. I can say with certainty regarding Sadik

8 Turko, because, personally, I didn't have much contact

9 with Osman. Sadik Turko behaved as if he was working

10 to get extra money the harder we worked, as if he was

11 going to get more money out of it, and he forced us to

12 work very hard.

13 Q. I think you heard of people being used as

14 human shields at Gomionica, and you heard of people

15 being beaten at the barracks; is that correct?

16 Gomionica, sorry.

17 A. What I heard was the following: From the

18 Rotilj camp, men and women were selected to be used as

19 human shields, if necessary, at HVO lines behind

20 Kresevo, in the direction of Tarcin, and from the camp

21 in Kresevo, allegedly -- this is something I did not

22 see -- people were to be used as human shields at

23 Gomionica.

24 Hikmet Turcinovic was taken to the barracks,

25 and he was returned several days later, after having

Page 14645

1 suffered many blows, and he was injured.

2 Q. How did your detention at Rotilj end, and

3 when?

4 A. We were exchanged through a so-called private

5 channel at the end of November 1993.

6 Q. Thank you. Will you wait there. You may be

7 asked some further questions.

8 MR. NAUMOVSKI: [Interpretation] Thank you,

9 Your Honours. I only have a few questions for this

10 witness.

11 Cross-examined by Mr. Naumovski:

12 Q. Witness AJ, let me introduce myself. We

13 can't see each other very well because of the ELMO, but

14 never mind. My name is Mitko Naumovski, I'm an

15 attorney from Zagreb, and together with Mr. Sayers, we

16 represent Mr. Dario Kordic.

17 I have several questions for you. Please

18 bear in mind that these proceedings are being

19 interpreted, so make a brief pause before answering my

20 questions. Actually, I have two groups of questions

21 for you, several linked to the village of Hercezi and

22 several others to the village of Rotilj.

23 If I understood you correctly, after the 18th

24 of April, 1993, when you returned to the village, you

25 heard that the village had been disarmed; isn't that

Page 14646

1 so?

2 A. No one had any weapons -- yes, you said I

3 should wait. No one had any weapons in the village at

4 the time.

5 Q. I read this from your statement which you

6 gave to the Centre of Security Services in Sarajevo in

7 November 1993. "They were disarmed, but there were

8 very few weapons." That's what you said. So I

9 inferred from that that you knew that there had been

10 some weapons.

11 A. Yes. As far as the weapons are concerned, I

12 have already said that I saw several hunting rifles and

13 several pistols. But on the 18th of -- this was on the

14 18th of April, 1992, when we retreated to the lower

15 part of the village. After that, I didn't see any

16 weapons.

17 Q. I think you were thinking of 1993, but you

18 said 1992.

19 A. Yes. Yes, of course. My mistake.

20 Q. I take it that you had no military duties, so

21 you don't know much about military matters. But still

22 let me ask you: You will agree that the local

23 commander was Pero Vucic, called Madzar, as you said a

24 moment ago.

25 A. Yes.

Page 14647

1 Q. In that local unit, there were only several

2 HVO soldiers, locals.

3 A. Yes. All the people living there put on

4 uniforms, but they were not many.

5 Q. A moment ago you said that the local Croats

6 who used to live in that village treated you relatively

7 well; there were no particular problems with them at

8 that time, were there?

9 A. Yes, there weren't.

10 Q. Problems were provoked by people from outside

11 the village who came to loot; they were the ones who

12 caused problems, weren't they?

13 A. I'm afraid you're not right. The people who

14 looted the house I was staying in at the time came from

15 that same village, whereas the people who came from

16 outside were HVO troops, and they would capture men in

17 the village and take them by truck to barracks. On one

18 occasion, they took an elderly man -- I think he was

19 among the oldest inhabitants of the village -- and they

20 took him off.

21 Q. Actually, my question was, would you agree

22 with me that the local people, Croats, assisted you

23 Muslims in your day-to-day life? For example, Ruza

24 Vucic, Vesna Pladic, and some other women of the

25 village.

Page 14648

1 A. Yes. Ruza and Vesna did help us, but the

2 others did not, and the local commander -- I don't know

3 what military role he had. I think he was the local

4 commander -- was quite correct in his treatment.

5 Q. Can we agree, Witness AJ, that the pressure

6 on you, the inhabitants of that village, was

7 particularly intensified when exiled Croats from

8 Fojnica, Travnik, and other places began to arrive

9 there in large numbers?

10 A. Yes, one could say that.

11 Q. Would you agree with me that precisely due to

12 that heightened pressure by people who were coming from

13 places where they had been evicted and were moving into

14 houses in your village, that that was the reason why

15 you yourself had to move in 1993?

16 A. I do not agree with that statement. My

17 opinion is that all of this was planned to happen in

18 this way.

19 Q. But we did agree that thousands of refugees

20 came to the area, especially from Fojnica, at the

21 beginning of July 1993, and then from Travnik again in

22 June 1993, and so on. We agree in that regard, don't

23 we?

24 A. I saw two or three families that fit the

25 description you have given. I assume they came from

Page 14649

1 Fojnica.

2 Q. A couple of questions about the village of

3 Rotilj itself.

4 People were living in houses, as is customary

5 in villages, were they not?

6 A. Yes. But the house I was staying in, which

7 is a very, very small house, I think this was

8 somebody's weekend home, and there were five families

9 being accommodated there.

10 Q. Would you agree with me, Witness AJ, that in

11 the village of Rotilj, there was a kind of barrier at

12 the entrance to the village, and there were several

13 soldiers standing there? A sort of entrance barrier.

14 A. Yes, there was.

15 Q. Would you agree with me that the village of

16 Rotilj had no other fence around it, except for this

17 obstacle at the entrance to the village?

18 A. There was no need for any fences, as it is in

19 a valley surrounded by hills -- I don't know their

20 names -- and all these hills were under HVO control.

21 So there was no where where we could go, nor where we

22 would dare to go.

23 Q. Witness AJ, would you agree that, except for

24 the guards at the entrance to the village, there were

25 no HVO soldiers deployed in the village itself, inside

Page 14650

1 the village?

2 A. Inside the village, not on a permanent

3 basis. But as in the case of Hercezi, they would come

4 occasionally and collect the men. In the village

5 itself, it is true that there were no soldiers.

6 Q. Would you agree with me that regular medical

7 aid was provided in the village, because every Tuesday,

8 at 10 in the morning, there was a kind of surgery

9 where a doctor called Lovric and a nurse called Iva

10 Topic would come to treat patients?

11 A. I didn't see that, but I did hear that they

12 came, but only once. Hikmet Turcinovic, whom I have

13 already mentioned, when he was beaten up, was taken to

14 the hospital in Kiseljak, as there was no medical

15 treatment available in the village.

16 Q. Yes. But this was not a permanent clinic;

17 this was just occasional visits by the doctor.

18 A. I have already answered your question. I

19 said that I hadn't seen it, but I had heard that they

20 had come once.

21 Q. Very well. Thank you.

22 There was also a labour squad in Rotilj, as

23 you told us a moment ago, a labour unit.

24 A. Yes.

25 Q. You mentioned today Sadik Turko and Osman

Page 14651

1 Sehic, who behaved like brigade leaders towards you.

2 A. I am quite sure that there were two of them.

3 Sadik Turko is one of them. I had little contact with

4 the other one. I assumed that it was Osman Sehic.

5 Q. But will you agree with me that those two

6 persons are Muslim by ethnicity and religion?

7 A. Yes.

8 Q. Would you agree with me that humanitarian aid

9 was distributed by Caritas in the village, flour and

10 other foods?

11 A. Yes. Two or three times, I saw them from a

12 distance when they were distributing aid.

13 MR. NAUMOVSKI: [Interpretation] I have no

14 further questions, Your Honour.

15 Thank you, Witness AJ.

16 Cross-examined by Mr. Mikulicic:

17 Q. Good afternoon, Witness AJ. I am attorney

18 Mikulicic, and together with my colleague, Kovacic, we

19 represent the second accused, Mario Cerkez.

20 Witness AJ, at the time that we have been

21 discussing, you were working in the power distribution

22 company, were you not?

23 A. I was employed in Energoinvest. That is

24 another company. It is not the electricity

25 distribution office.

Page 14652

1 Q. You told us that you worked for a time in

2 Kiseljak, where the main transformer station was,

3 didn't you?

4 A. Yes. But I didn't work in the transformer

5 station itself. I had permission to establish contact

6 with my firm in Sarajevo through that transformer

7 station, to discuss work with them.

8 Q. Could you tell us, where did the electricity

9 go to from that transformer station? To which parts of

10 Bosnia did it supply power?

11 A. I have already told you that I am not, nor

12 did I work in the transformer station. But as far as

13 I'm familiar with the power system, it was all

14 interconnected, and it could have gone in various

15 directions, including Sarajevo.

16 Q. But you cannot tell us anything more about

17 that.

18 A. No. Our team was working on the repair of

19 power pillars and high-voltage installations. I'm an

20 economist by profession, and I was not directly

21 involved in those activities.

22 Q. In that case, I have no further questions for

23 you. Thank you very much.

24 MR. NICE: I have just three more questions,

25 please.

Page 14653

1 Re-examined by Mr. Nice:

2 Q. When, in Hercezi, outside HVO came to take

3 men, what was the attitude of the local HVO? Did they

4 try to protect you, did they let them in, or was it

5 done without their knowledge?

6 A. No one protected us. I don't know whether

7 they wanted to, but they did not protect us. We had to

8 flee and to hide.

9 Q. Can you give an estimate of the number of men

10 taken off in these circumstances during your detention

11 in Hercezi?

12 A. I cannot give you a precise number because I

13 fled too. But I do know that an old man was taken

14 away, whose surname is Turcinovic. I don't know his

15 first name, but they called him Hadzija. That I know

16 for a fact.

17 Q. Do you have any more details of any other men

18 taken, if there were more than one?

19 A. They took Hikmet Turcinovic from Hercezi as

20 well.

21 Q. Finally, there seems to be a suggestion that

22 there was a mass movement of people to Hercezi by

23 plan. Had you gone there according to some larger

24 plan? If not, how did you come to live there?

25 A. I'm afraid I didn't quite understand your

Page 14654

1 question. Could you repeat it, please.

2 Q. Yes. First of all, how did you come to live

3 in Hercezi? Was this according to some large plan that

4 people should move to this village, or was it by some

5 other means?

6 A. I was living in Ilidza, near Sarajevo, from

7 which we were chased out by the Chetniks. And by

8 chance I went first to Hadzici, then from Hadzici to

9 Bjelasnica, from Mount Bjelasnica to Kiseljak, to the

10 village of Behrici, and I stayed with a colleague of

11 mine from work; and then two or three months later to

12 Hercezi, where they found an old, small house for us

13 where we could stay alone as a family. So there was no

14 plan on our part; we were simply chased out, and we had

15 to move out and look for lodgings elsewhere.

16 Q. Thank you.

17 MR. NICE: Nothing else of this witness.

18 JUDGE MAY: Witness AJ, thank you for coming

19 to the International Tribunal to give your evidence.

20 Your evidence is concluded and you are released.

21 [The witness withdrew]

22 MR. NICE: While we're waiting for the Court

23 to be reconstituted into full open session and while

24 we're waiting for Mr. Lopez-Terres to join us for the

25 next topic, it might be convenient to remember to hear

Page 14655

1 from Mr. Sayers on the tapes so we know what the

2 position is.

3 JUDGE MAY: Yes, Mr. Sayers.

4 MR. SAYERS: Mr. President, reporting in for

5 Mr. Stein, who's handled the audio tape issues,

6 Mr. Kordic's position is as follows, four real points,

7 I gather: First, we don't have the original tape, as

8 the Court knows. All we have is a copy, and the copy

9 was apparently made from the copy. The second copy

10 appears to be better than the first copy. There are

11 bleeps on it which are completely unexplained, and we

12 are uninformed -- we have no information as to why the

13 tape quality on the OTP's second copy that we've been

14 provided is better than the tape quality of the tape

15 that the witness actually brought to the court. We

16 don't know if sound filters were used. We're looking

17 into that.

18 With respect to conversations 10 and 11 on

19 the first side of the original tape and conversations

20 1, 2, and 3 on the reverse side of that tape,

21 apparently conversations 1 and 2 on side 2 are

22 indistinguishable, and we just have no idea how the

23 translators were able to distinguish them.

24 With respect to conversation 11 on the first

25 side of the tape, apparently it goes over to

Page 14656

1 conversation number 1 on side 2 of the tape, and

2 there's -- we've listened to the tape, we've listened

3 diligently, and there are about 19, 20 lines of the

4 conversation that are completely indistinguishable. So

5 once again, we don't know how the translators were able

6 to translate something that you can't even hear. We

7 have no idea why there are differences in tape

8 quality.

9 Suffice it to say, we're still looking into

10 that. We'll try to work with the Prosecution in

11 reaching a definitive position with respect to the tape

12 as soon as we can, and I'll report further in due

13 course.

14 JUDGE MAY: Very well. Yes.

15 MR. NICE: I don't know whether the Court is

16 intending to take a break at some stage in this longer

17 afternoon or not, but the next item on the agenda, I

18 think, is dead and unwilling witnesses, and I'm quite

19 happy to get started on that.

20 JUDGE MAY: Well, it's early for a break.

21 MR. NICE: Certainly. Can I, while we're

22 waiting for Mr. Lopez-Terres, who's going to deal with

23 one particular aspect of this, can I distribute a

24 document that lists witnesses for the Chamber and my

25 friends.

Page 14657

1 JUDGE MAY: Is this the Prosecutor's

2 argument?

3 MR. NICE: No, it's not an argument; it's

4 just a list of witnesses.

5 JUDGE MAY: Well, we've got a list. It's

6 headed "Prosecutor's Argument."

7 MR. NICE: You've got that already. The

8 Defence hasn't got it. I'm sorry, the Defence hasn't

9 got it yet. Can I distribute that now. I didn't

10 realise that hadn't gone over to the other side.

11 While waiting, it might help if I just review

12 the position right from the beginning of the trial.

13 The position, as the Court will remember, is that we,

14 of course, expected to have to call nearly all

15 witnesses live. We were being, I think, invited by the

16 Chamber, from an early stage, to consider affidavits.

17 The inability of the Defence to agree on any matters in

18 relation to villages led to the Tulica application and

19 its decision, which was reflected in the decisions

20 further made last week.

21 Along the way, other problems have been

22 identified and to a limited extent argued, and I've

23 always proposed, and I think with justification, that

24 it would be helpful to put off resolution of all

25 outstanding matters until a near final or final

Page 14658

1 position could be seen, and this little chart, I think,

2 pretty well sets out the final position.

3 There are two witnesses who would have given

4 evidence had they not died. We're in open session, so

5 I won't use any names for the time being, for obvious

6 reasons.

7 The first, witness number 1, is a witness who

8 deals with events in Donja Veceriska generally and

9 fully, and in particular with a sighting there of the

10 defendant Kordic. He has made a statement. His

11 statement was admitted in Blaskic at the request of the

12 Defence, but we argue that he should be admitted in

13 this case.

14 Number 2 made a statement fuller, from the

15 Kordic point of view, than his prior testimony. The

16 Court has already ruled at a much earlier stage that

17 the prior testimony could go in but that it would

18 reserve its position in relation to the statement at

19 the same time as it reserved its decision to the

20 statement of number 1.

21 I'll return to Category B at the end of

22 things, because that's a slightly different category in

23 various ways.

24 Category 3 is those witnesses who, despite

25 all endeavours by us and all proper coercive measures

Page 14659

1 of the Chamber, remain unwilling to respond to

2 subpoenas, or possibly, in the case of number 8,

3 incapable, through ill-health, from attending before

4 the projected conclusion of the Prosecution case.

5 Those witnesses are names with which the Chamber and my

6 friends -- at least, 5, 6, and 7 -- will be familiar.

7 Number 8 may, I think, be comparatively new, it only

8 recently coming to our attention that he was

9 unavailable.

10 Category D is new subpoenas required in

11 respect of people whose need for a subpoena has only

12 recently become apparent. The Chamber will recognise

13 numbers 11 and 12 as names arising from last week's

14 discussion about transcripts. Numbers 9 and 10 are

15 both village witnesses, if I can so describe them,

16 whose disinclination to attend has only recently come

17 to our attention.

18 Number E is a category of those who are

19 simply unwell and, again, not expected to be fit enough

20 necessarily by the end of our case.

21 "F," there are two witnesses. I had them

22 described as "justified unwilling." In each case, a

23 judgement has been made that they should not be subject

24 to further coercive measures. In relation to

25 number 16, the judgement was made by the Tribunal. In

Page 14660

1 relation to number 15, the judgement was made by us;

2 namely, in light of what we were told, it didn't seem

3 appropriate to attempt compulsion. The risks spoken of

4 seemed sufficiently real.

5 Now, number 15 may require further

6 information coming to the Chamber, and it may be that

7 it, in the first instance, in any event, that

8 information should come to the Chamber ex parte,

9 although I wouldn't rule out, as a possibility, the

10 Chamber, having heard what I would have to say about

11 that, would consider the desirability of letting the

12 Defence know. But it's a sensitive matter. What

13 happened, as the Chamber will remember, in relation to

14 number 16, was that the information came ex parte but

15 not from us; it came from another organ of the

16 institution.

17 "G", affidavits, that which we were

18 encouraged from the beginning to use. We've had, of

19 course, huge difficulties with the institutions in

20 Bosnia, getting -- perhaps "cooperation" is the wrong

21 word -- understanding and, to some degree,

22 cooperation. They seemed perhaps reluctant to

23 accommodate us with a procedure that matched what

24 either the letter or the spirit of 94 ter plainly

25 demands.

Page 14661

1 We have, I'm happy to say, we think, been

2 able to achieve what will meet the spirit and, we hope,

3 the letter of 94 ter this week, and so those witnesses,

4 at least numbers 17, 18, 19, 20, 21, 22, and I think

5 23, probably being seen this week. Number 24, the

6 Chamber will remember, is a witness in respect of whom

7 one piece of evidence was omitted when he was here, and

8 the Chamber took the view that it was inappropriate to

9 require his attendance here simply to produce another

10 exhibit.

11 So that's the menu of -- it looks a bit like

12 a menu too -- the menu of items for the Court to deal

13 with. The matter was argued first by Mr. Lopez-Terres

14 in relation to categories -- well, Category A

15 effectively. There was a skeleton argument submitted

16 by us on the 5th of August of last year, associated

17 with a summary of recent developments on the law of

18 hearsay in Canada, to be of some assistance, if it was,

19 and there was a Defence skeleton argument dated the --

20 or filed on the 13th of September of 1999, and in

21 truth, I think, those arguments probably set things out

22 fully pretty well on both sides. Obviously we'd like,

23 I'm sure both of us, to have a top-up, as it were, but

24 without exhausting the Chamber.

25 That leaves Category B, which was not

Page 14662

1 forecast in the course of our various references to

2 this general topic in the course of the trial, and it

3 wasn't forecast because it was never known what was

4 going to happen in relation to witness 3. I explained

5 the position in outline last week in order that my

6 friends could not be taken by surprise today, and I was

7 only able to outline the position last week, because it

8 was only then known for the first time that witness 3

9 was not going to respond to the subpoena that had been

10 issued and that the Chamber took the view that there

11 was no purpose in taking coercive measures further in

12 relation to him.

13 It may be that the best thing to do at the

14 moment would be to ask Mr. Lopez-Terres to deal at some

15 length with Category B, and I ask him to deal with

16 it not only because he's had --

17 JUDGE MAY: The convenient thing, I think, is

18 to deal with these matters one after the other. There

19 is an issue, clearly, on the dead witnesses.

20 MR. NICE: Yes.

21 JUDGE MAY: That involves one witness whose

22 transcript we have admitted. It may be sensible if we

23 do take the adjournment now and we look at the

24 submissions that have been made in writing about these

25 matters, and then we'll be in a position to deal with

Page 14663

1 at least those two. Different principles may apply in

2 relation to the other matters. Category C -- or "C" we

3 have dealt with. "D," do I take it there are

4 applications for subpoenas?

5 MR. NICE: There are applications in the

6 pipeline, I think, for all of those.

7 JUDGE MAY: Clearly that had better be

8 expedited if they are to give evidence, if there's to

9 be any chance of their giving evidence by the 10th of

10 March.

11 MR. NICE: Can I respectfully suggest, if the

12 Chamber does take an adjournment, that the statements

13 it may want to look at in order to understand the

14 significance, one way or the other, of the potential

15 witnesses, are number 1, 2, and 15.

16 JUDGE MAY: What are you referring to?

17 MR. NICE: Sorry. The written statements

18 themselves that we are seeking to put in, as the

19 Chamber will appreciate. I wouldn't ask you to look at

20 or cast your eyes over all of them, because they can

21 mostly be dealt with by way of summary, but at some

22 stage the Chamber will need to consider in detail, I

23 suspect, for the purposes of deciding admissibility,

24 the statements concerned, and the ones that I think are

25 most likely to be helpful to read at this stage are the

Page 14664

1 statements of numbers 1, 2, and 15, but I'm told you

2 may not yet have number 15.

3 JUDGE MAY: You're referring to the numbers

4 of the witnesses.

5 MR. NICE: That's right, yes.

6 JUDGE MAY: Well, I have here the statement

7 of number 2 and the statement of number 1, but not, of

8 course, the statement of number 15. But, as you say,

9 he's in a separate category. But in due course, we

10 should have that. You'll have available the other

11 statements if we need them.

12 MR. NICE: Yes.

13 JUDGE MAY: Very well. We'll adjourn now for

14 20 minutes.

15 --- Recess taken at 3.45 p.m.

16 --- On resuming at 4.13 p.m.

17 JUDGE MAY: Yes, Mr. Nice.

18 MR. NICE: I'll ask Mr. Lopez-Terres, in

19 fact, to deal with both Categories A and B because he

20 started the ball rolling with Category A, and it's only

21 perhaps fair that he should conclude it.

22 We'll hear, of course, any further

23 objections, but my general observations, as we start

24 this topic, are contained in our skeleton argument. I

25 have had prepared, and it may be, if it would help, I

Page 14665

1 can have distributed a short paper dealing with

2 provisions in Germany, Austria, America, Australia, and

3 Japan on these and similar topics, and I think one can

4 perhaps fairly summarise the law from other

5 jurisdictions, in so far as it guides us, by saying

6 that there are generally exceptions in respect of the

7 reading of statements of witnesses who are dead or, for

8 other reasons, unavailable, even where that reading of

9 a statement would either offend a common law rule on

10 hearsay or a civil system principle of morality. They

11 generally are exceptions.

12 The exceptions are variously restricted,

13 sometimes to judicial officers or judges taking the

14 statements -- well, that can't apply here -- sometimes

15 not, and they are frequently, of course, controlled by

16 limitations, whether case law limitations or

17 statutory. But, of course, they are always trying to

18 achieve the balance spoken of between the propriety of

19 the Court having the best possible evidence and the

20 risks associated with the defendant not having the

21 witness there to cross-examine.

22 So the guidance of other jurisdictions may be

23 of interest, and I can certainly make that available

24 this afternoon, but we know that critical features of

25 this Tribunal are that it is professional Judges, that

Page 14666

1 hearsay is, in principle, admissible -- what would

2 otherwise be called hearsay is, in principle,

3 admissible, and that only by having the material

4 available, rather than excluding it altogether, is the

5 Chamber able to put it together with all other

6 evidence, including evidence that may come from the

7 Defence, in due course, to assess its value.

8 For that reason, we would press the Court to

9 say that once every other step has properly been taken

10 to bring the witnesses we wanted to attend here, and we

11 have taken every possible step, why, then, it is

12 appropriate for the Chamber to read the available

13 material coming from that potential witness, in due

14 course, to decide what, if any, weight to attach to

15 it?

16 Finally, before I sit down, I understand that

17 there has been a measure of success in relation to

18 witnesses 6 and 7 -- I'll have to explore that a little

19 more fully after the court rises -- but the Court's

20 coercive powers, which I'm not sure have been used to

21 this extent, or at all, in any other case are seen to

22 be effective. We may have some success with 6 and 7,

23 but I should make the point that in relation to

24 Categories C and D -- or C, D, and E, and F, come to

25 that, I suppose, wherever possible, in the time

Page 14667

1 available, if the affidavit system of "G" does work,

2 then we will also attempt, wherever possible, to obtain

3 affidavits from any of the other witnesses who don't

4 turn up but who have made statements.

5 We would, of course, would argue, and do

6 argue, that their statements should be admissible

7 without the formalities of the affidavit, for the

8 reasons we've already advanced. But just because we

9 must do everything we can to ensure the material in the

10 best condition before the Chamber, we will attempt

11 affidavits for those witnesses as well.

12 So I'll ask Mr. Lopez-Terres to conclude what

13 he has to say about numbers 1 and 2. If the Chamber is

14 happy that we continue by just using numbers for

15 witnesses, then we don't need to go into private

16 session.

17 JUDGE MAY: Well, 2 is already on the

18 record.

19 MR. NICE: As to the prior testimony, yes.

20 Oh, the name is, certainly. Yes. Yes. I was only

21 going to propose using numbers because it's so easy to

22 slip up otherwise. But yes, indeed, 2 is on the

23 record.

24 JUDGE MAY: As far as 2 is concerned,

25 Mr. Friis-Pedersen, there's no difficulty about that.

Page 14668

1 But certainly number 1, if that's thought appropriate,

2 would --

3 MR. NICE: Again, as a dead witness, I quite

4 see the point. It hardly even arises, save and so far

5 as he may be linked to a witness who gave evidence

6 under protection. Yes, I'm being artificially and

7 unnecessarily cautious. I'd better sit down before I

8 do something seriously wrong.

9 I'll turn it over to Mr. Lopez-Terres.

10 JUDGE MAY: Yes, Mr. Lopez-Terres.

11 MR. LOPEZ-TERRES: [Interpretation] Simply to

12 remind you, to show the framework within which this

13 debate could take place, it goes back to the 15th of

14 June, 1999. For the first time, I asked to admit the

15 testimonies of two witnesses who I'm referring to. On

16 the 16th of June, the Chamber decided that it would

17 admit the statement or the transcript of the evidence

18 of Mr. Friis-Pedersen, that transcript which was made

19 as a deposition in the case of Blaskic, and it was on

20 the 16th of December, 1997, and which reflected one of

21 the counts in the indictment. So that Exhibit 2706, it

22 was already admitted in that case.

23 As for the deposition of Mr. Friis-Pedersen,

24 one of our investigators, on the 24th and 25th of

25 August, 1996, which concerned the testimony of

Page 14669

1 Mr. Haskic on the 13th of September, 1995, and last

2 year, you decided that for the time being, this

3 document was not admissible and that we would have to

4 proffer some other argument, because the initial

5 argument was initially rejected. It was always said in

6 the decision of the 16th of June, 1999 that if the

7 Prosecutor's office still is requesting the admission

8 of this evidence, then we shall hear it, if necessary.

9 So, generally speaking, with regard to the

10 unavailable witnesses and the two dead witnesses that

11 are in this group, they were taken up once again,

12 before the recess in August last year, and today in an

13 agreement which was said or, rather, suggested by your

14 Chamber, on the 16th of June, we once again submitted a

15 motion for the admission of the reports of these two

16 witnesses.

17 The Prosecutor's Office also believes, as

18 regards the first of those witnesses, Mr. Haskic, that

19 his testimony is very -- that his deposition is very

20 important. As for the second statement, the fact that

21 it had already been admitted as evidence in Blaskic's

22 trial does not seem -- it seems sufficient for us to

23 cover all the points that were envisaged by our

24 investigator while he was still alive.

25 So under Rule 90, we wish to tender once

Page 14670

1 again these two testimonies into evidence.

2 If your Chamber does not admit these two

3 statements, still, nevertheless, there is certain

4 information in there which is of interest for us, and

5 we believe that it could be admitted without prejudice,

6 because admission of the truthfulness, after all, and

7 Article -- under Rule 90 of the Rules.

8 We believe that, for evidence of truth, to

9 not to admit the testimony of these two persons would

10 not be fair, because people who died before being able

11 to serve justice should not mean that they should be

12 deprived of the right to be heard or that their

13 testimony be heard by the Chamber, and thus they could

14 also make their contribution to the service of justice,

15 which they were willing to do while they were still

16 alive. These witnesses never indicated that they were

17 not willing to appear before this Chamber. Quite the

18 contrary. According to the transcripts, to the

19 documents that we have, they were both quite willing

20 and available to make their contribution to justice.

21 We do not think that these statements would

22 be -- that this system would be dangerous if this

23 happened in a systematic manner, or that it could be an

24 encouragement for the suppression of some witnesses who

25 could be embarrassing witnesses.

Page 14671

1 Mr. Nice just told you, a couple of moments

2 ago, that in national systems there are rules which

3 envision the admission of testimonies of dead

4 witnesses, and this kind of -- you were informed again

5 of this. In our Rules of Procedure, there are no

6 specific provisions which would take into account that

7 the testimony of witnesses -- of deceased witnesses,

8 but 89(C), on the other hand, does envisage the

9 possibility of admitting that kind of evidence.

10 In your decision on the 29th of July, 1999,

11 that is, the Tulica decision, it was said that the

12 statement or, rather, the record of testimony of

13 witnesses could be admitted, owing to the discretionary

14 powers of the Chamber, and on the basis of all this, we

15 should like to seek the admission of the transcripts of

16 these two statements, of these two transcripts.

17 They're also compatible with the jurisdiction

18 of the European court in Strasbourg, which said that

19 if -- which has refused the declarations coming from

20 deceased persons only if they were the only documents

21 testifying to, but we are not -- in this case, we are

22 not -- this is not the case we have before us here.

23 Mr. Haskic and Mr. Friis-Pedersen were not the only

24 witnesses who would be revealing to this Chamber some

25 information which seems of importance and which I

Page 14672

1 believe should be taken into consideration by the

2 Chamber.

3 As for their demise at the beginning of this

4 argument, there was -- we had some discussions with the

5 Defence. However, their deaths are not in question,

6 because we produce here the death certificates of --

7 JUDGE MAY: Just a moment. I have the

8 evidence in relation to Mr. Friis-Pedersen before me

9 and the certificate which was introduced from Denmark.

10 I don't have the certificate in relation to the other

11 gentleman. Have you got a copy of it, please?

12 MR. LOPEZ-TERRES: [Interpretation] This

13 document is at your disposal. The second witness died

14 on the 4th of July, 1997.

15 JUDGE ROBINSON: Mr. Lopez-Terres, can I ask

16 you; you referred to the jurisprudence in the European

17 court. Does that jurisprudence, as to the admission of

18 the statements of dead witnesses, make a distinction

19 between statements which are sworn or in relation to

20 which there is a declaration, or does the jurisprudence

21 simply sanction the submission of any statement from a

22 dead witness, leaving it to the Tribunal to determine

23 the weight, or is there any significance attached to --

24 any requirement that the statement be sworn or that

25 there be some statement as to its truthfulness?

Page 14673

1 MR. LOPEZ-TERRES: [Interpretation] As far as

2 I know, these are statements which could have been

3 taken either by the judicial or by the police

4 authorities. May I add that in some countries, police

5 authorities also can take statements under oath; it is

6 not only the judicial authorities which can do so.

7 As regards the European court, their position

8 is very clear. It says that the admission of such

9 statements as evidence is not incompatible in itself

10 with fairness and under Article 6 of the European

11 Convention.

12 The only limit to this kind of jurisprudence

13 concerns in reminding that in no case may the

14 jurisdiction of the judgement, when it decides to

15 pronounce the guilt of one or another of the accused

16 may be based -- I mean, their conviction may not be

17 based only on such statements, that is, if the

18 accused -- because the accused must be able to

19 provide -- to counterbalance this. So this is the only

20 limit which is imposed. It said that admission of such

21 statements is not, as such, contrary to Article 6 of

22 the convention.

23 I should like to add -- and this is one of

24 the particularities of one of these two statements,

25 that is, one of the Bosniak witness -- that this

Page 14674

1 transcript was already admitted in the Blaskic case on

2 the 29th of April, 1998. And when the Chamber trying

3 this case admitted this transcript as one of the

4 exhibits, it said that this was a transcript which was

5 taken under oath by the investigator from the

6 Prosecutor's Office, and it considered that this

7 also -- I mean, we have the formula on the transcripts

8 which the investigators say -- that is, it is said in

9 the beginning the report and at the end of the

10 statement that such-and-such -- that the declaration of

11 such-and-such a witness is equivalent by the sworn

12 statement, that is, a statement made under oath before

13 the investigator.

14 In the Blaskic case, it was said that this

15 transcript was admitted as an exhibit but that it did

16 not prejudice in any way the weight which this Chamber

17 might put to the information found in those particular

18 transcripts. One thing is to admit it, and another one

19 is, of course, to determine its probative value.

20 It seems all the more important to us,

21 because the information that can be found in these

22 witness statements can naturally be contested as to

23 their credibility by the Defence or by other means,

24 such as the cross-examination. We have already had

25 some experience last week with regard to the discussion

Page 14675

1 about the admission or non-admission of some of the

2 transcripts, and the Defence was able to voice its view

3 regarding the reliability of such evidence, including

4 evidence made under oath before this Tribunal, for

5 instance, a document which was written. So there is no

6 reason why we could not do the same thing with regard

7 to the witness concerned.

8 I'm simply saying that the cross-examination,

9 naturally, is not the only way in which one can test

10 the reliability or the sincerity of certain evidence.

11 For instance, two transcripts of these witnesses are

12 there, and we see no reason to admit one and not to

13 admit the other one. The transcript -- we are seeking

14 again the admission of the Bosnian witness because the

15 Blaskic Chamber admitted it, and this situation is

16 different in this case. But the Chamber in the Blaskic

17 case, therefore, believed that such a transcript was

18 the result of a statement given under oath before an

19 investigator.

20 I hope that I have answered your question.

21 Still discussing this same question of the

22 jurisprudence of the European court, I have indicated

23 that we are not in that situation, because it is quite

24 clear that it is not the intention of the Office of the

25 Prosecutor to require that either of the accused be

Page 14676

1 declared guilty on the basis of these statements.

2 Fortunately, we are not in that situation.

3 That being so, I wish also to say that as

4 regards the statements made by these two witnesses,

5 they have been corroborated and partially completed by

6 other witnesses that have been heard in this Chamber.

7 Therefore, a comparison of these statements which we

8 are asking the acceptance of, and the testimony which

9 your Chamber has already heard, can also be a test and

10 justify the admission of these statements.

11 As regards the substance of these two

12 transcripts and statements, it seems to us quite

13 relevant, as regards the first witness, the Bosniak

14 witness, we know, because the Defence has told us so,

15 that it is contesting the presence of the accused Dario

16 Kordic throughout in the area of Donja Veceriska. This

17 debate was initiated during the testimony of a witness,

18 that is, I think he was Witness V, when he testified

19 about the attack on Veceriska. He was the only witness

20 testifying to those facts.

21 The dead witness tells us several things. He

22 tells us, first, what happened during the evening that

23 preceded the offensive of the 16th of April, 1993, and

24 what he was able to see himself in that village.

25 This village of Veceriska is hardly three

Page 14677

1 kilometres away from Vitez, and during the evening, he

2 noted the presence of the accused Dario Kordic, in

3 uniform, surrounded by bodyguards and participating in

4 festivities, together with other local representatives

5 of the HVO. According to this witness, there were

6 members of the Vitez Brigade there, among whom the

7 local commander of the battalion, named Ivica Drmic,

8 and also there were individuals whose significant signs

9 he recognised -- the Jokers, the Vitezovi -- and he

10 also indicated the presence of a person carrying a

11 badge as member of the Ludvig Pavlovic Brigade, which

12 comes from Herzegovina and which was stationed in the

13 Vitez area in the period we are talking about.

14 The presence of the accused Dario Kordic was

15 testified to. It was also testified that the accused

16 Dario Kordic was in direct contact with the local

17 commander, Ivica Drmic, commander of a battalion of the

18 Vitez Brigade, of which Mario Cerkez was the commander;

19 the witness saying that on several occasions, this

20 battalion commander gave written documents to the

21 accused Dario Kordic.

22 Also, during the evening, he heard these

23 threatening songs about the Muslims disappearing from

24 Veceriska, and then he saw, as indicated by Witness V,

25 who I have already referred to, Croats from the village

Page 14678

1 -- women, children, and elderly people -- who left

2 before the attack was launched. He said that his

3 telephone lines were cut, and later the witness

4 explains, describes in detail the actual attack on his

5 village.

6 For all these reasons, it seemed to us that

7 the information reported by this witness is extremely

8 relevant, extremely useful for an understanding of the

9 facts that occurred in the area of Donja Veceriska in

10 the evening of the 15th of April, and especially the

11 next day, on the 16th, and the following days, because

12 we know the attack continued over several days. This

13 testimony appears to establish a direct link between

14 the accused Dario Kordic and the village in question,

15 the presence of the accused in an area in which the

16 fighting was to occur as of the next day, and by

17 soldiers who we believe, on the basis of evidence,

18 participated in that attack.

19 For all these reasons, it seems to us

20 necessary to admit this report as a relevant piece of

21 evidence, in line with your authority under Rule 89.

22 As regards the second witness, Major

23 Friis-Pedersen, it is true that this witness, as

24 opposed to the first one, had already the opportunity

25 to testify here in the Blaskic case, but during that

Page 14679

1 testimony, this person was examined very succinctly,

2 taking into account the Blaskic case, rather than

3 points that referred to the accused Kordic or Cerkez.

4 Upon reading the transcript and the report --

5 the statement, rather, given to the investigator in

6 1996, we see that the witness gave far more information

7 that was not even referred to during his testimony in

8 December 1997, in the course of the Blaskic trial.

9 We wish to recall that Major Friis-Pedersen

10 was a monitor of the European Commission Monitoring

11 Mission, and in that capacity, he went to the area of

12 Central Bosnia from the 26th of January, 1993 until the

13 end of May 1993. Therefore, he had an opportunity to

14 fully inform himself about the environment before the

15 conflict, during the conflict, and on the basis of

16 those elements of information that he gathered as a

17 monitor, in his statement, he was able to refer to

18 events of which he was a witness, or to refer to the

19 conclusions that he himself made.

20 Such information includes, for instance, the

21 fact that when he was in the area, he met Mr. Kordic,

22 in February or March 1993, who was introduced to him as

23 the leading political figure in the region; that he had

24 occasion, on the 16th of April, when the fighting had

25 already broken out, to go to the area of Vitez, to pass

Page 14680

1 close to Ahmici and to see for himself the presence of

2 corpses. He took several photographs, which are

3 attached to his statement.

4 He indicated in his statement that he

5 personally saw HVO soldiers carrying out ethnic

6 cleansing of Muslims -- those are the words he used --

7 in the village of Bila. He said that he did not have

8 the opportunity, like other ECMM officers, to fully

9 accomplish his tasks that day because HVO snipers were

10 positioned at Gornja Rovna, in the area of Busovaca.

11 He reported visits he made to Vitez with

12 Mario Cerkez, on the 18th and 19th of April, and

13 especially his visit to the Cerkez headquarters, where

14 he saw detainees, Muslims of all ages who were being

15 held there in the basement of the headquarters. He

16 noted, and he stated quite honestly that those

17 prisoners appeared to be well-treated, but in a very

18 limited amount of space, and, as a result, that there

19 were violations of the Geneva Conventions.

20 He participated in a meeting on the 4th of

21 May, 1993 with the British Battalion on the Ahmici

22 massacre, and it was concluded that the attack on that

23 village was part of a coordinated operation for the

24 area around Vitez.

25 He accompanied the witnesses that you also

Page 14681

1 heard here, Mr. McLeod, and in the course of this

2 latest mission, he was comforted by the idea -- he saw

3 that there was a determination by the HVO to prepare an

4 ethnically clear Croat area.

5 All these things were not referred to during

6 his testimony in the Blaskic case in December 1996, and

7 we feel that his statements contain far more detailed

8 information than he was able to provide during the

9 Blaskic trial, and that is why they deserve to be

10 considered by your Chamber.

11 Bearing in mind the explanation I have given,

12 and I apologise for taking a lot of your time, but I

13 wish, on behalf of the Office of the Prosecutor, once

14 again, to suggest that the statements of Mr. Haskic, on

15 the 13th of September, 1995, and the statements and

16 reports by Mr. Eric Friis-Pedersen, on the 23rd and

17 24th of August, 1996, be admitted, together with the

18 photographs attached to those statements, be admitted

19 into evidence.

20 MR. SAYERS: Mr. President, if I might start

21 out with our view of what the applicable law is. I

22 think there's no dispute, obviously, that the Court is

23 governed by its own Statute and by its Rules in the

24 decision that it makes.

25 With respect to the bench's question about

Page 14682

1 the importance or absence of an oath in the

2 jurisprudence of the European Court of Human Rights,

3 there are a few cases that we would urge the Court to

4 consult.

5 The first would be the Unterpertinger case,

6 decided in 1986, under Austrian law. In this case, a

7 husband beat family members, who then refused to

8 testify, invoking the family privilege. In the trial

9 against the husband, written police statements taken

10 from the family members were permitted to be used. The

11 European Court of Human Rights reversed the ensuing

12 conviction on appeal, under Articles 6(1) and 6(3)(d)

13 of the European Convention on Human Rights, emphasizing

14 the importance of confrontation rights and the absence

15 of any confrontation rights in this case.

16 THE INTERPRETER: Could Mr. Sayers slow down,

17 please.

18 MR. SAYERS: Corroboration existed from the

19 police reports, the medical reports, the file on the

20 divorce proceedings, and also the testimony of a

21 sister-in-law.

22 JUDGE MAY: Let's just pause there. This is

23 a wholly different sort of case. That was a case with

24 a husband and wife, and it was the wife's statement

25 which was admitted. Clearly, a completely crucial

Page 14683

1 witness.

2 In this case, we have had nearly a hundred

3 witnesses, of which, of course, one of these would have

4 been important as a witness; I accept that. But the

5 reason that the European Court took the view that they

6 did was to say, "Well, you cannot found a conviction on

7 such evidence."

8 I mean, that's the ratio, isn't it?

9 MR. SAYERS: I think that that's accurate,

10 Mr. President. That was the principal evidence against

11 the accused in that case.

12 But I think that the Court needs to take into

13 consideration the legal context in which the decision

14 was made, and I would just recommend, for the Court's

15 consideration as well, a few other cases.

16 The Barbera case from 1988 may be more akin

17 to our case in some ways, in terms of the prominence of

18 the charges made. This was a terrorism case, as I'm

19 sure the Court remembers, and it was a case in which

20 the written statement, unsworn, of an absent witness

21 was introduced into evidence, under Spanish law. The

22 defendants never had an opportunity, in the view of the

23 European Court of Human Rights, to confront or to

24 examine a person whose evidence, which was vital in

25 that case, and had been taken in their absence, and was

Page 14684

1 deemed to be read out at trial. The absence of

2 confrontation led the court, once again, to reverse.

3 Similarly, there are other analogies under

4 the jurisprudence of the European Court of Human

5 Rights. The Bricmont case, the Kostovski case, which

6 was an organised crime case.

7 But one case where a statement was read out,

8 and the court found that this did not violate the

9 rights of the accused, was the Isgrow case, which is

10 representative of that line of cases, I think. But

11 confrontation existed at an early stage of the trial,

12 according to the European Court on Human Rights,

13 because the investigating judge asked questions of the

14 witness, and that constituted the confrontation that

15 Article 6(3)(d) required. Furthermore, corroborative

16 evidence existed in that case, and one other issue was

17 that the defendant actually didn't object

18 contemporaneously to the reading out of that statement,

19 and the waiver issue was discussed too.

20 But that's simply representative, although

21 not determinative, and I would certainly concede that,

22 of the issues before the Court. I think that these two

23 applications have to be treated very differently. They

24 are completely separate.

25 Let me turn to witness 1 first. This issue

Page 14685

1 is significant because this witness has never given any

2 testimony in any of the prior Lasva Valley cases, not

3 in Kupreskic, Aleksovski, Blaskic, or Furundzija, yet

4 the testimony of this witness, according to the

5 Prosecution, is, to use their words, "very important."

6 We would submit to the Court that the testimony that

7 this witness -- or the reason that this witness

8 statement is being offered is on points which are

9 contested as to which there is no other evidence.

10 There is no other witness that puts

11 Mr. Kordic in Donja Veceriska on the night before the

12 attacks in the Lasva Valley, or the fighting in the

13 Lasva Valley. There is no other witness who puts

14 Mr. Kordic in the company of all of the significant

15 military players, if you like, in this story: the

16 Viteska Brigade, the Vitezovi, the Jokers, and the

17 Ludvig Pavlovic Brigade. A very convenient witness to

18 put our client in close proximity to all four units, or

19 members of those units, albeit in a social setting, at

20 a very crucial point in this case, April the 15th,

21 1993. There is no other evidence to support that

22 contention, and I don't think that the Prosecution

23 tries to contend that there is.

24 In fact, when we heard argument on this issue

25 at an earlier stage, the Prosecutor stood up and

Page 14686

1 represented to the Court that they were going to have

2 corroborative evidence, that there was going to be some

3 sort of evidence of a habit or a pattern on

4 Mr. Kordic's behalf that would be put before the Court,

5 and I'll address that contention in just a minute.

6 But the fundamental point is, without

7 confrontation rights, the only evidence put forward by

8 the Prosecution to establish these contested facts, as

9 far as we are aware, is an unsworn statement -- and it

10 is unsworn -- it hasn't been subjected to

11 cross-examination, in this case, and the witness has

12 never been subjected to cross-examination in any of

13 these cases. It was not contemporaneous, and we would

14 submit it's not reliable.

15 Let me just address a few other issues in

16 connection with this statement, if it please the

17 Court.

18 The first is the death certificate issue. We

19 have finally been provided with a copy of this death

20 certificate, and the cause of the death, I believe, is

21 illegible. The duration of the death is illegible.

22 The doctor's report on the cause of death isn't even

23 filled out, and as far as we can see, it isn't even

24 signed, except with a rubber stamp.

25 The duration of the last illness is

Page 14687

1 absolutely unknown. Whether there were any indications

2 noticed by the family during the course of the illness,

3 which is one of the blanks to be filled out, is left

4 completely blank, not filled out at all.

5 So we do not know how this witness died, the

6 cause of his death, the duration of his illness or,

7 equally important, the state of mind that he was in for

8 the years immediately preceding his illness.

9 We don't know how long he'd been sick. We

10 don't know how long he'd been on medication or if he

11 was on medication. And there are a couple of questions

12 which are left unanswered.

13 If the evidence is so crucial, so important,

14 why was no videotape taken of this gentleman's

15 testimony? Why was no deposition sought or obtained

16 under Rule 71? And why was no affidavit submitted

17 under Rule 94 ter in any of the earlier cases?

18 Let me turn to the subject of the admission

19 of this statement in Blaskic case. It was the Defence

20 that made the motion for the admission of this

21 statement, but, as we've pointed out in our papers, the

22 Defence expressly waived the right to cross-examination

23 of this witness. On page 2 of its submission to the

24 Court, the Blaskic Defence made this contention: "It

25 is only the Defence that can properly object to its

Page 14688

1 admission, on the ground that the Defence was not given

2 an opportunity to cross-examine the declarant. The

3 Defence will waive this objection."

4 Mr. Kordic will not waive the objection.

5 Furthermore, there was no opposition to the admission

6 of this statement from the witness in the Blaskic case

7 by the Prosecutor, and there is ardent opposition to

8 this statement in this case.

9 In Blaskic, I might point out that both sides

10 wanted the statement into evidence for their own

11 reasons. Furthermore, in the decision that was reached

12 by the Blaskic Court, the limited purpose for the

13 admission of the statement was actually underscored by

14 the very Trial Chamber itself. It made this point in

15 its April the 29th, 1998 order, which we've attached as

16 Exhibit B to our papers. The evidence was admitted to

17 establish that Donja Veceriska was a legitimate

18 military target "because it was defended."

19 And as I point out, there is no waiver of the

20 right to cross-examination here. Mr. Kordic contests

21 the factual accuracy of the statements made by this

22 clearly hostile witness, who was on the opposing side

23 of a bitter conflict and in a circumstance where

24 there's no corroboration, no corroborative evidence.

25 Furthermore, we would point out that the

Page 14689

1 statement was made two and a half years after the

2 events in issue. It's not nearly contemporaneous.

3 There's no reference, notes that were made

4 contemporaneously --

5 THE INTERPRETER: Could you slow down,

6 Mr. Sayers, please.

7 MR. SAYERS: -- or any diary that was

8 prepared contemporaneously by the declarant which might

9 otherwise supply some measure of contemporaneous

10 corroboration.

11 Turning to some general principles. Very

12 briefly let me touch upon them. The Prosecutor in this

13 case has used unsworn statements in lieu of live

14 testimony, and we would submit that this deprives the

15 accused of one of the minimum guarantees that he is

16 entitled to, minimum guarantee to a fair trial. One of

17 the components of that is to confront and cross-examine

18 under Article 21(4)(e). So this is a potentially

19 significantly issue, Your Honour. It's not

20 peripheral. And even though this is, as you correctly

21 point out, one of a hundred witnesses, I would

22 respectfully submit that there are no witnesses in this

23 case who have offered such direct, harmful potential

24 testimony about Mr. Kordic's whereabouts on that

25 night. There is no corroboration.

Page 14690

1 Now, on November the 4th, 1999, the

2 Prosecutor said, on page 9541 of the transcript, that:

3 "There is evidence of another witness dealing, in some

4 detail, with sightings of Mr. Kordic at the same place,

5 not on that particular night, but showing a pattern of

6 visits." That's one of the foundations that have been

7 offered up to the Trial Chamber as a justification for

8 admitting this testimony.

9 Witness V testified on November the 25th,

10 1999, and was asked specifically about the reputation

11 of the declarant, and I think asked by counsel for our

12 co-defendant.

13 This witness, who was related, we believe, to

14 the declarant, said, "I don't know whether he was

15 respected all that much." Page 10403, lines 22 to 23.

16 Furthermore -- and this, I would submit to

17 the Court, is extremely significant -- there was no

18 mention made during the testimony of Witness V in this

19 case, that Witness V, as I've said, we believe to be a

20 relative of the declarant, that Witness V ever had a

21 conversation with the declarant during which the

22 declarant related precisely the same material that's

23 now in his statement to his own relation.

24 Both of these people lived in Donja Veceriska

25 for four years after the fighting was ended. It's a

Page 14691

1 tiny village, to use the words of Witness V. People

2 knew each other. They talked. But there's no mention

3 in Witness V's testimony of any kind of corroboration

4 whatsoever of the specific sightings to which

5 Mr. Kordic objects, as a matter of principle and as a

6 matter of fact.

7 In fact, Witness V said he saw Mr. Kordic

8 once at the cafe owned by Franjo Drmic. That's at

9 page 10396 of the transcript. And one visit does not a

10 habit make, as the Court well knows.

11 So for all of those reasons, we object

12 vigorously to the introduction of the witness statement

13 of this witness, which is not sworn, which was not

14 given under oath, which is contested, and which is the

15 own evidence on that particular point.

16 Now, turning to the second witness, my

17 argument is going to be extremely short with respect to

18 that.

19 His testimony from the Blaskic case is

20 already in evidence. It was given on December the

21 16th, 1997, and it's been introduced as Exhibit Z2706.

22 It was introduced under the rationale of Aleksovski.

23 And why? We stood up before the Court and represented

24 to the Court that we could not in good conscience say

25 that we could have expected to have elicited from this

Page 14692

1 witness anything more by way of cross-examination than

2 was elicited by Defence counsel in that case.

3 Now, not content with that, apparently, the

4 Prosecution also wants his unsworn witness statement of

5 August the 23rd and 24th, 1996 introduced. Well,

6 that's a different category altogether. The Blaskic

7 Prosecutor had every incentive and every reason to ask

8 all relevant questions of this witness. The Court's

9 already stated that, with respect to the matters at

10 issue, the core set of events, there's something of an

11 identity of interest between the defendant in the

12 Blaskic case and the defendants in this case, and

13 that's probably right with respect to the historical

14 facts.

15 But the witness statement here is

16 cumulative. It's unnecessary. The reason that it's

17 cumulative and unnecessary is just consider the ECMM

18 witnesses who have already covered this area:

19 Mr. McLeod, Major Baggesen, Mr. Lawson, Colonel

20 Morsink, Colonel Weckesser, Major Jennings, Major Bower

21 -- well, these are BritBat witnesses -- Major

22 Jennings, Major Bower, and Major Buffini, and then

23 there's another witness, Colonel Landry, who's going to

24 cover this same territory. So there's no necessity for

25 this witness statement at all.

Page 14693

1 But the narrowest and easiest point upon

2 which the Court's decision could and should be made, we

3 would suspect, is merely an application of the Tulica

4 decision, page 10, paragraph 26, where the Court

5 considered the admission of a transcript of a witness

6 testimony of someone who's already given evidence, and

7 the Court said: "The inclusion of this material is

8 unnecessary, repetitious, as it already forms part of

9 the record in this trial, and the transcript of

10 Witness N, as part of the dossier, is, accordingly, not

11 admitted."

12 Same here. You already have the gentleman's

13 testimony, the Major's testimony, and --

14 THE INTERPRETER: Mr. Sayers, could you slow

15 down, please. Could counsel slow down.

16 MR. SAYERS: -- should not be admitted. It's

17 cumulative.

18 Now, with respect to the other witnesses, I

19 only have just a few observations to --

20 JUDGE MAY: We're going to deal with these

21 witnesses first.

22 MR. KOVACIC: Thank you, Your Honour.

23 [Interpretation] To begin with, I fully agree with the

24 argument proffered by my learned friend, Mr. Sayers.

25 In order to avoid repetition, I should like to say only

Page 14694

1 two or three things more to round off the picture.

2 There is evidently a major difference between

3 the use of the record of the statement -- of the

4 transcript of the evidence of a witness given in a

5 different case, not only because it was done under oath

6 but because it was not made before the Court,

7 especially this Court.

8 The situation is completely different when

9 this comes to statements made to investigators, whether

10 investigators of this Tribunal or investigators of

11 domestic or international authorities of another

12 nature.

13 When we speak about witnesses 1 and 2, I

14 think this whole matter has, rather deliberately or

15 not, but been obfuscated to a point. The only way is

16 to admit the statement given to investigators. That is

17 case one. And as was done in the Blaskic case, the

18 only ground for that can be an understanding between

19 the two parties. That is, if the Defence waives the

20 right which is otherwise not under question, if the

21 Defence waives his right to cross-examine the witness,

22 and here we are not ready to waive that right, and as

23 the witness, unfortunately, is dead, the witness will

24 not be able to appear before this Court.

25 Another thing I wanted to say, and my

Page 14695

1 colleague has just reminded us of the standard laid

2 down by this Chamber in the Tulica decision, something

3 else I wanted to say, and that has to do with the

4 European Court in Strasbourg. I do not think that that

5 particular standard -- I think that that particular

6 standard needs to be considered with a grain of salt,

7 because the court in Strasbourg and its rules address

8 human rights, whereas this Tribunal addresses mostly

9 individual criminal responsibility. And we all know

10 that this is not one and the same thing, and we,

11 therefore, can conclude that the standard of proving

12 need not be the same, because in all legal systems, it

13 is the criminal proceedings which require the highest

14 possible standards.

15 I presume you do not expect me to address the

16 matter of other witnesses, because we are now

17 addressing only witnesses 1 and 2, and this, perhaps,

18 would be all that I have to say at this point, except

19 perhaps another suggestion, which at first glance may

20 seem strange, but I will say it nevertheless.

21 The Prosecutor, in case he does not manage to

22 persuade the Chamber to admit the first witness's

23 testimony, the Prosecutor, just in case, recounted the

24 statement of that witness as he sees it. I think this

25 is contamination of this transcript. When one goes

Page 14696

1 back to that transcript in nine or ten years' time, I

2 think it would be best to exclude that part of the

3 statement, because the recounting of the statement of

4 this witness means, in a way, producing the testimony

5 on behalf of that witness, and I am again referring to

6 witnesses 1 and 2. So I think it should be excluded.

7 JUDGE MAY: Mr. Kovacic, you need not trouble

8 about that. What counsel says from his place is not

9 evidence. It's merely recounting what's in a witness

10 statement. Therefore, as far as we're concerned, it's

11 no more than what we've read in the witness statement.

12 As far as anybody who comes to read the transcript is

13 concerned, they must understand that too. It's merely

14 a submission by counsel, and nothing more.

15 MR. KOVACIC: Thank you, sir.

16 MR. LOPEZ-TERRES: [Interpretation] If I may,

17 Mr. President, only a few comments after what has been

18 said.

19 I remind that in the decision of the Blaskic

20 Chamber, on the 29th of April, 1998, it was clearly

21 said in the decision that the statement of the Bosnian

22 witness, who is dead, who died of natural causes, that

23 his statement was made under oath to the investigators

24 of the Prosecution. Considering that this admission

25 does not prejudice the opinion of the Chamber regarding

Page 14697

1 the admission of the Defence, according to which this

2 statement might establish that the place of Veceriska,

3 Donja Veceriska, was a legitimate military target and

4 that that was why it was defended. The Chamber

5 reserves the right to determine the probative value of

6 that particular piece of evidence.

7 The Blaskic Chamber, naturally, admitted it,

8 made the reservation, and they said that, aside from

9 admitting a document, it would then assess the

10 probative value of that document. The Chamber also

11 considered that that statement taken in 1995 was made

12 under oath.

13 I'm quite sure, at this point, that at this

14 Tribunal we do not have an investigating Judge who

15 could take such statements under oath, as is the case

16 in some European legal systems. However, Article 18 of

17 the Statute of this Tribunal indicates that the

18 Prosecutor's Office, at least in the French version of

19 the document, is responsible for the investigation and

20 for interviews.

21 The investigators are not Investigating

22 Magistrates. They do not form the Investigating Judges

23 who will be taking statements under oath. In European

24 systems, it is mentioned, however, but nevertheless,

25 when a witness makes a statement to us, he takes it

Page 14698

1 upon himself to tell the truth and what they have lived

2 or seen or heard. And it is indicated that they heard

3 something from third parties, but nevertheless, when

4 they make a statement, then they take it upon

5 themselves to tell the truth.

6 We do not have here a system of Investigating

7 Judges, and therefore our investigators take these

8 statements in the manner in which it is done here, and

9 I've already described that. The investigator who took

10 a statement, of course, the investigator who took the

11 statement of this witness could also be called if this

12 becomes -- if this is necessary.

13 Mr. Sayers said that it was not the practice

14 of the Prosecutor's Office to make video-conferences,

15 but in 1995 there was no reason -- Mr. Sayers speaks

16 about the videotape, but in 1995, simply nobody thought

17 that it would be necessary to video Mr. Haskic's

18 interview. Unfortunately, he died on the 4th of June,

19 1997, at the moment when the Blaskic -- and there was

20 no reason at that particular time to think that that

21 particular statement should be videoed or recorded in

22 any way. There was no reason in 1995 why this witness,

23 at the time when this witness was giving his statement,

24 whether his health was precarious or whether something

25 would happen, and that is simply why I did not get

Page 14699

1 anyone to request from this witness a health

2 certificate or anything like that during the

3 procedure.

4 Finally, I should like to say, with regard to

5 this testimony or, rather, the record of this

6 testimony, that the testimony of Midhat Haskic's must

7 have been considered sufficiently reliable by the

8 Defence there, because they requested that it be

9 admitted into evidence. When one reads that statement,

10 one sees that Mr. Haskic indeed reveals what happened

11 in his village, what happened during the attack, and

12 clearly explains that the villagers were defending

13 themselves fiercely when they were attacked, and this

14 evidence, it seems to us, is quite straightforward.

15 Unfortunately, the witness died, but, as I

16 have said a few moments ago, we nevertheless believe

17 that it should be another contribution to justice, as

18 he would have done had he lived.

19 JUDGE MAY: Thank you.

20 [Trial Chamber deliberates]

21 JUDGE MAY: This is an application by the

22 Prosecution to admit the witness statements of two

23 witnesses who, since they've made their statements,

24 have died. Mr. Haskic made a statement in September of

25 1995, and died in June 1997.

Page 14700

1 The Prosecutor applies to admit the statement

2 under Rule 89(C), which permits the Chamber to admit

3 any relevant evidence which it deems to have probative

4 value, but, of course, Rule 90 says that witnesses

5 shall, in principle, be heard directly by the

6 Chambers.

7 The Prosecution say that this is an

8 exception, of course, the witness being dead and,

9 therefore, his direct evidence not being available.

10 They rely upon the jurisprudence of the European Court

11 of Human Rights, which has held that such evidence does

12 not necessarily contravene Article 6, and they refer to

13 the Isgrow case, amongst others. But, of course, in

14 Unterpringer, the court said that there may be such a

15 violation, and a conviction quashed, if it is the sole

16 basis for conviction.

17 It is accepted that Mr. Haskic dealt, in his

18 statement, with an important issue relating to the

19 accused Dario Kordic, his presence in Donja Veceriska

20 on the evening of the 15th of April, 1993, when he was

21 in company with members of the military.

22 The Defence object partly on that ground.

23 They say that it means that important evidence is not

24 cross-examined, and there is, therefore, an absence of

25 confrontation of such evidence. They also say that the

Page 14701

1 death certificate contains blanks. Well, that by

2 itself would not be sufficient not to include the

3 evidence, unless we were satisfied that it was, in some

4 way, not authentic, which we are not.

5 The Prosecution rely on the fact that this

6 evidence was admitted in the Blaskic trial, but the

7 Defence, with some justification, point out that in

8 that case, it was at the application of the Defence

9 that the statement was admitted and there was no

10 objection, and therefore circumstances here are

11 different. And the Defence are right about that.

12 The real issue is this: Should this

13 statement be admitted un-cross-examined, so that the

14 Defence have had no chance to test it, we have come to

15 the conclusion that it would be wrong to deny the

16 Chamber this statement simply on that technical

17 ground. That goes very much to the matter of weight.

18 There is a discretion to admit the evidence

19 under 89(C), and we do so, it being of course

20 understood that this is evidence, when we come to

21 consider it, first of all, which, we will have to bear

22 in mind, was not subject to cross-examination and,

23 therefore, lacks that important support. It was not

24 given under oath, although there was an acknowledgement

25 made, which is attached to the statement, which says

Page 14702

1 quite plainly that the maker made the statement

2 voluntarily, being aware that it may be used in legal

3 proceedings. Nonetheless, it was not given under

4 oath. Those are matters which we bear in mind.

5 We shall also, of course, have in mind this,

6 as the European Court has pointed out: that it would

7 not be possible to convict the accused on the basis of

8 this statement alone if that evidence was

9 uncorroborated, and that is a matter which we shall

10 also have in mind.

11 Turning to the evidence of the second

12 statement, different considerations apply. The

13 transcript of his evidence has already been admitted.

14 As we said in Tulica, we did not there admit witness

15 statements where transcripts had been admitted, and we

16 think it right to be consistent in this case. There is

17 not sufficient additional evidence given in this

18 statement to make it right to admit it when the

19 transcript has already been given. What there is is

20 cumulative; it's already been dealt with by a number of

21 other witnesses.

22 For those reasons, we shall not admit the

23 statement of Mr. Friis-Pedersen, but we shall admit

24 that of Mr. Haskic.

25 That leaves other matters which it may be

Page 14703

1 convenient to deal with tomorrow.

2 MR. NICE: Your Honour, yes. Obviously,

3 Category B may take a little time to deal with, but I

4 think the others are pretty well generic, with the

5 possible exception of, I don't know, 15 and 16.

6 As to 15, as I've said earlier, there is

7 information available to me at the moment, in a form

8 that I would rather deal with ex parte, about his

9 unwillingness. I know on a previous occasion the

10 Chamber was very concerned about how that information

11 should be communicated to the Court. It's not easy, or

12 really possible, I think, for the Victims and Witnesses

13 Unit themselves to obtain an account from the person,

14 certainly not at short notice, possibly at all. It

15 could be dealt with in writing by our side, in the

16 first instance, if that would be acceptable, and we

17 could launch something along with the statement before

18 tomorrow morning.

19 JUDGE MAY: Very well. If it's put in that

20 form, we will consider it.

21 MR. NICE: Yes.

22 JUDGE MAY: Now, what is the programme for

23 tomorrow morning?

24 MR. NICE: It seems to me it would be prudent

25 to press on with these as quickly as we can, and then

Page 14704

1 to deal with the map.

2 JUDGE MAY: Very well.

3 MR. NICE: Mr. Lopez-Terres confirms that the

4 agreement between the parties has been only limited,

5 and then I think enough has been spent on that exercise

6 and we must simply get on and produce the map to Your

7 Honours.

8 JUDGE MAY: Yes. Well, we'll deal with the

9 other matters of admission of evidence, and then we'll

10 deal with the map.

11 JUDGE BENNOUNA: And the tapes.

12 JUDGE MAY: Yes, and the tapes too.

13 MR. NICE: Yes.

14 MR. SAYERS: If I may, Your Honour. There is

15 also an application that we would make relating to the

16 maps. I know that the Court has asked for the

17 presentation of maps containing depictions of the front

18 lines, and that would be helpful. But we would submit

19 that the report that was prepared by Mr. Elford goes

20 beyond merely that exercise, and there's an issue

21 relating to that which we would like to bring to the

22 Court's preliminary attention.

23 JUDGE MAY: Yes. Before the map-giver gives

24 evidence, we will decide what he can give evidence

25 about and what he can't.

Page 14705

1 Half past nine, then, tomorrow morning,

2 please.

3 --- Whereupon the hearing adjourned at

4 5.30 p.m., to be reconvened on

5 Tuesday, the 22nd day of February,

6 2000, at 9.30 a.m.