1 Friday, 19 May 2000

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.33 a.m.

5 JUDGE MAY: Mr. Nice, it may be convenient if

6 we refer to the Defence summary of affidavits.

7 MR. NICE: What I've done is prepared a

8 document. I'm afraid it's not formally served, but

9 it's a summary of our position. It follows the Defence

10 list in order, and it sets out all that I have to say

11 on the affidavits succinctly.

12 JUDGE MAY: Very well. We'll receive that.

13 MR. NICE: The first five paragraphs explain

14 our position, following on from the short discussion

15 yesterday about the position the Defence will take, and

16 I'll just read it out.

17 There is material in all affidavits contrary

18 to the Prosecution case. The Defence argument on the

19 construction of Rule 94, now being taken on

20 interlocutory appeal, is that objection to an affidavit

21 makes it impossible for that affidavit to become part

22 of the evidence in the trial.

23 The Trial Chamber takes a different view --

24 THE INTERPRETER: Would you mind slowing

25 down.

1 MR. NICE: [Inaudible] ... the Prosecution

2 agrees -- I'm so sorry -- pending resolution of the

3 interlocutory appeal, that it is the Chamber which

4 decides whether an affidavit should be read following

5 any objection.

6 Your Honour, I omitted to get copies of this

7 for the interpreters.

8 THE INTERPRETER: Yes, please. Yes, please.

9 MR. NICE: I'm trying to get them produced

10 now.

11 THE INTERPRETER: If you could then speak

12 slower.

13 MR. NICE: The Trial Chamber has the power to

14 order an affidavit witness to be called for

15 cross-examination of its own motion, i.e., even if

16 there is no objection. In these circumstances, the

17 Prosecution formally objects to all affidavits, simply

18 to ensure its position is preserved and overall

19 fairness obtained if -- in the event the Defence

20 interpretation of Rule 94 is found by the Appeals

21 Chamber to be correct. And the Chamber will recall

22 that the Defence has objected to the adduction of any

23 and every affidavit in the Prosecution's case.

24 To assist the Chamber, the Prosecution sets

25 out particular reasons, in relation to certain

1 witnesses, why the witness should be called for

2 cross-examination. And then dealing with them in

3 order, and I shan't read all matters out, for some of

4 them are matters better not read out but the Chamber

5 can read them, but so far as Tokic --

6 JUDGE BENNOUNA: Before going to the

7 examination of each affidavit, personally I cannot

8 agree with your interpretation of the position of the

9 Defence and what is going on now in the appeal, what is

10 at stake in the interlocutory appeal. [Interpretation]

11 I believe that we cannot move ahead in this way.

12 We all know, here in this Chamber, why there

13 has been an appeal and what the motivations for it

14 were. We all are aware of the circumstances in which

15 your affidavits came in and were accepted, with a

16 specific interpretation provided by the Chamber.

17 Therefore, starting from what you just said,

18 namely, that what is at stake at the appeals level is

19 that an objection to an affidavit is such that it is no

20 longer possible for the affidavit to become an exhibit

21 before the Chamber. Starting from that cannot be

22 done. The problem doesn't lie there.

23 The problem raised by the Defence is the

24 interpretation to be given to 94 ter as provided by the

25 Defence and also heard by the Chamber. It is not true

1 that any objection makes it impossible to maintain the

2 affidavit.

3 Can you start from such an interpretation

4 that you will systematically make an objection to

5 affidavits in order to reserve your position? I don't

6 think that is an acceptable point of view.

7 Now, as we said, and this was decided upon

8 yesterday, you have to provide your rationale and your

9 motivation affidavit by affidavit. There is no general

10 stance on absences as to affidavits. That has been

11 decided upon yesterday. We shall not come back on

12 this. We shall make a decision affidavit by affidavit,

13 either that, we retain your objection, or we turn it

14 down. So this is where we are at today.

15 MR. NICE: I've read the Defence motion in

16 the Appeal Chamber. They are seeking a ruling to the

17 effect that if there is an objection, an affidavit

18 cannot be allowed in evidence. It's not an

19 interpretation with which I agree, but inevitably in

20 this Tribunal, if that's what the Appeal Chamber

21 decides, that will be, for the time being, the law of

22 the Chamber.

23 What I have done is, I hope respectful of the

24 potential for precedent authority to be effective in

25 this Tribunal but nevertheless entirely constructive

1 and helpful to the Chamber, I stand by my position and

2 dealing, as the Chamber wanted, witness by witness,

3 with whether there are particular reasons, in addition

4 to the general objection which I state for the purposes

5 set out in this short document.

6 For Tokic, there are no particular reasons.

7 However, we observe that the man is a commander who

8 might be expected to have direct knowledge of matters

9 in issue, and there may be a pattern emerging of the

10 Defence seeking to rely by affidavit on such senior

11 members of the HVO, witnesses who would find it less

12 easy to assert ignorance of events, as have many of the

13 witnesses so far called have.

14 I turn then to Ivica Drmic.

15 JUDGE BENNOUNA: [Interpretation] Can you wait

16 a little, because we want to make a decision on each

17 case.

18 [Trial Chamber deliberates].

19 JUDGE MAY: There being no particular ground

20 of objection beyond what is set out in the paper, this

21 affidavit is admitted.

22 MR. NICE: It may be that the next three

23 should be considered together for they all cover the

24 Donja Veceriska bar.

25 JUDGE MAY: Two.

1 MR. NICE: Cover the bar.

2 JUDGE MAY: Just remind us, this is the

3 Midhat Haskic incident.

4 MR. NICE: Correct.

5 JUDGE MAY: The admissibility of his

6 statement being subject to another appeal.

7 MR. NICE: Yes, indeed.

8 JUDGE MAY: As far as that is concerned,

9 there was the evidence of Mr. -- I mean the statement

10 of Mr. Haskic on the point for the Prosecution, and the

11 Defence have called -- I will be reminded of the --

12 MR. NICE: They have called Branko Drmic and

13 Mile Vinac.

14 JUDGE MAY: So they have called two witnesses

15 and these are two other witnesses on the point.

16 MR. NICE: Correct.

17 JUDGE MAY: We ought to take the -- consider

18 these two together.

19 MR. NICE: Ivica Drmic claims to have been in

20 a bar but that was not supported by Branko who did not

21 recall his presence and that's a particular feature in

22 respect of both of them, the incident generally the

23 Chamber might think which warrants all eyewitnesses

24 being called because of its potential significance.

25 JUDGE MAY: Thank you. Yes, Mr. Sayers.

1 MR. SAYERS: I hope it's apparent to the

2 Trial Chamber that we've employed a method in our

3 approach to the presentation of evidence, it's topic by

4 topic, and we see no reason to bring four witnesses to

5 testify about a topic when one or two are sufficient.

6 We believe that the one or two that we have

7 produced are sufficient. Producing two more would

8 simply lengthen proceedings.

9 JUDGE BENNOUNA: Did you present one or two?

10 MR. SAYERS: Two, Branko Drmic and Mile

11 Vinac, but the reason we did so, Your Honour, was

12 because they actually testified to two different kinds

13 of points. Their testimony did not overlap

14 completely. If it had, we would only have produced one

15 witness.

16 As we understand it, the whole purpose of

17 Rule 94 ter is to expedite proceedings by producing

18 purely corroborative affidavits, and that's exactly

19 what we did. These affidavits corroborate the

20 testimony of the live witnesses. They don't adduce any

21 additional evidence beyond what has already been

22 testified about and our position is calling either or

23 both of these gentlemen would merely be duplicative of

24 the evidence that's already been adduced.

25 [Trial Chamber deliberates]

1 JUDGE MAY: We've considered the submissions

2 in relation to this incident in the bar and we think

3 the matter is sufficiently covered by the evidence

4 we've heard. Of course by doing so, we make no

5 indication at all as to any ruling, any finding,

6 rather, of fact, which we may make but as far as the

7 evidence is concerned, we don't think it's a matter

8 which the objection or the requirement for

9 cross-examination can be sustained having regard to the

10 totality of the evidence and its importance.

11 MR. NICE: The next three Arapovic, Kristo

12 and Santic all deal with the checkpoint incident. And

13 again, the proposition is advanced that this is an

14 incident sufficiently important for all eyewitnesses to

15 be called.

16 I don't read out publicly what's item two

17 against Milenko Arapovic, nor item two in relation to

18 Kristo, nor item two in relation to Santic. They are

19 matters that the Chamber may want to have in mind when

20 it considers whether these are witnesses who can

21 properly be taken by way of affidavit in this important

22 piece of the case, or important piece of evidence which

23 is a discreet incident within the case and which, of

24 course, is the only part of the case, I suppose, which

25 is close in general feel and substance to an ordinary

1 straightforward criminal allegation and trial.

2 So those are the points we make about those

3 three witnesses.

4 MR. SAYERS: Thank you, Mr. President.

5 Just a couple of points I'd like to make on

6 that. First of all, it can't have escaped the Trial

7 Chamber's attention that this particular incident is

8 not charged anywhere in the indictment. It certainly

9 hasn't escaped our attention.

10 A point has been made that some sort of an

11 alibi defence should have been asserted by the -- by

12 the Defence, but as I've informed the Prosecution, it's

13 not our policy to assert alibi defences to charges

14 which are not specifically made in the amended

15 indictment. That's the first point that I wanted to

16 make.

17 The second point that I wanted to make is the

18 two witnesses that we have produced on this incident as

19 the Trial Chamber will remember were Josip Grubicic and

20 Ivo Arar. We produced them for different reasons.

21 Ivo Arar was the actual escort in the car

22 containing Mr. Kostroman that was actually stopped at

23 the checkpoint. Mr. Grubicic was one of a group of

24 people that travelled down to the checkpoint to assist

25 Mr. Kostroman having -- Mr. Bogdan Santic having

1 received a call from Mr. Kostroman's car over a

2 walkie-talkie.

3 These three witnesses corroborate the

4 testimony of both of the live witnesses that we have

5 testified. For the reasons that I have previously

6 articulated, we do not think that it's necessary to

7 bring five witnesses when two cover the point

8 sufficiently, although they don't cover the same

9 factual points in precise detail, they did overlap on

10 one significant point and that is the fact that

11 Mr. Kordic was not there, and these affidavits all

12 corroborate that.

13 We see no reason why these people should be

14 brought before the Court to give evidence which is

15 essentially completely duplicative of that that has

16 been given by two witnesses.

17 And actually, as my colleague points out,

18 some of the Busovaca witnesses that we will be

19 producing next week and the week after that are going

20 to give evidence broadly consistent with the

21 information contained in these affidavits as well as

22 the testimony in court of Mr. Grubicic and Mr. Arar.

23 Thank you.

24 JUDGE BENNOUNA: Excuse me, Mr. Sayers, is it

25 about the -- this incident.

1 MR. SAYERS: Yes.

2 JUDGE BENNOUNA: The witnesses who are to

3 come?

4 MR. SAYERS: Yes.

5 JUDGE BENNOUNA: About the Kacuni checkpoint

6 incident?

7 MR. SAYERS: Their testimony is going to

8 cover a lot more territory than this. I mean we have

9 produced the Kacuni witnesses that we had intended to

10 call and had planned to call in our presentation of our

11 case. But other witnesses in our case covering many

12 other topics will also give what knowledge they have of

13 who was involved in the Kacuni checkpoint incident. Of

14 course the only issue, I think, that is relevant to

15 this entire incident is the single question of was

16 Mr. Kordic there, and we think the evidence is pretty

17 clear that he was not.

18 JUDGE MAY: Even if we decide, and we

19 haven't, we've got to consider it, but I want to make

20 it plain at the outset of this discussion about

21 affidavits.

22 You assert that you think you've brought

23 sufficient evidence. Well that's a matter for you, of

24 course, and your submission on the topic. The fact

25 that if we do rule that cross-examination is not

1 necessary does not mean that we accept that point of

2 view.

3 MR. SAYERS: I fully understand that, Your

4 Honour.

5 JUDGE MAY: And we shall have to make our

6 judgement at the end, and our findings on the evidence

7 which is laid before us.

8 MR. SAYERS: Of course.

9 JUDGE MAY: I don't want you to be under any

10 misunderstanding, thank you.

11 [Trial Chamber confers]

12 JUDGE MAY: Mr. Nice, would you help us to

13 this extent: Of these three, I seem to remember that

14 Arapovic's name was mentioned. Can you help us with

15 the evidence on that?

16 MR. NICE: I can't help you immediately, but

17 I can swiftly find it.

18 Yes. Witness T said that when they were

19 stopped by the soldiers at the lower point, that the --

20 this is in relation to other matters. Arapovic was

21 mentioned as a person who detained Witness T at the

22 fish ponds. That may be one of the reasons you're

23 remembering that unusual name. And he gave a graphic

24 account of how they were then detained and dealt with.

25 That's one of his appearances in the evidence. I'll

1 see where the next ones are. I think that's

2 probably -- that's the reference outside this area that

3 he's been referred to, so he features -- I perhaps

4 should have dealt with that there -- he features

5 independently in the evidence, it would appear, as

6 somebody showing partiality and doing bad things.

7 JUDGE MAY: Can you assist us as to this:

8 Were either of the other two, Kristo or Bogdan Santic,

9 mentioned in relation to the Kacuni incident?

10 MR. NICE: Other than by Defence witnesses?

11 JUDGE MAY: Other than by Defence witnesses.

12 By the Prosecution witness.

13 MR. NICE: I'll just check on that. I think

14 "probably not" is the way it's looking at the moment.

15 [Trial Chamber deliberates]

16 JUDGE MAY: Well, having regard to the issues

17 raised -- this is an important incident -- we have to

18 balance the need for cross-examination of witnesses

19 with the need for expedition, and we have come to the

20 conclusion that Milenko Arapovic should be called for

21 cross-examination.

22 In relation to the other two, their

23 affidavits will be admitted on the basis which I've

24 already explained, that it doesn't mean that there is

25 any finding in relation to this incident, as that's

1 what we'll have to do. But we're prepared to admit

2 those affidavits.

3 But in the case of Mr. Arapovic, because he

4 has been mentioned in the Prosecution evidence, we

5 think it right that the Prosecution should be able to

6 cross-examine him.

7 Yes. Now, going on, Mr. --

8 MR. NICE: Len Santic. No particular reason,

9 but he's -- I set out what's known about his background

10 and about one or two of the contacts which I think will

11 be familiar names in light of the Ahmici incident.

12 JUDGE MAY: We'll admit that affidavit.

13 MR. NICE: Mario Santic, he touches the

14 Breljas evidence, which is obviously of potential

15 importance. He's former Vitezovi and HOS, and you can

16 see what's said in number 3. The Chamber may think

17 that it may be inappropriate to allow reliance without

18 seeing this witness on what he would be saying about

19 that critical incident at a critical point of time.

20 JUDGE MAY: Yes. To remind ourselves, this

21 is Mr. Breljas' evidence that Mr. Kordic was at the

22 Dubravica barracks at a meeting on the 15th of April?

23 MR. NICE: 15th, but it's fair to say --

24 JUDGE MAY: Query --

25 MR. NICE: Query 15th or 16th.

1 JUDGE MAY: 15th or 16th, and therefore no

2 doubt the Prosecution would rely on that evidence as

3 showing a connection between the accused and the

4 military.

5 MR. NICE: Of course.

6 JUDGE MAY: And this witness contradicts that

7 evidence.

8 MR. NICE: Absolutely.

9 JUDGE MAY: Mr. Sayers, anything you want to

10 say about this?

11 MR. SAYERS: Not really, Your Honour. As you

12 can see in the summary of Mr. Santic's evidence that

13 we've filed, he was actually wounded in Mlakici on

14 April the 17th, 1993. The testimony that he provides

15 is almost completely duplicative of what Mr. Buha

16 testified about. But if the Trial Chamber wants him

17 here, obviously he'll come.

18 JUDGE MAY: Well, yes, we do. We think he

19 should be called.

20 MR. NICE: The next witness, Ljuba Vidovic,

21 as you can see from the summary provided in the Defence

22 document, deals with what she saw on television on

23 particular occasions in considerable detail. Such a

24 witness would probably not, in the overall setting of

25 this case, require or justify any particular reason to

1 be called, but we can't help but note that the degree

2 of recollection that she claims is maybe itself

3 improbable and is in contrast to the evidence she gave

4 in Kupreskic to the effect that she had no interest in

5 politics and had a poor memory.

6 I observe that it might be sufficient for

7 this particular problem to be resolved, if her

8 affidavit is to be read, by the relevant transcript in

9 Kupreskic also being taken into account as being

10 another account of her interest in politics and the

11 state of her memory.

12 MR. SAYERS: I'm not in a position to comment

13 on that, Your Honour, because we've just received the

14 document that has been distributed today, and I do not

15 have in mind the Kupreskic testimony that Ms. Vidovic

16 gave.

17 Her testimony seems to be fairly basic, and

18 that is, that she has no recollection whatsoever of any

19 of the kinds of comments attributed to Mr. Kordic on

20 two separate occasions ever having been made, and there

21 is plenty of other evidence to the same effect.

22 [Trial Chamber deliberates]

23 JUDGE MAY: We will admit the affidavit. If

24 there is a submission in relation to the transcript,

25 we'll consider that at the appropriate time.

1 MR. NICE: Mario Mlakic, who worked at TV

2 Vitez, no particular reason.

3 JUDGE MAY: Admit.

4 MR. NICE: Nevin Maric, there is one

5 additional fact that I ought to have drawn to your

6 attention beyond what's on the little schedule, and

7 that is that his name is not on the Defence witness

8 list. So far as he is concerned, he is a former

9 commander of the brigade in Kakanj, and he sets out

10 quite detailed evidence.

11 I note that he sets out, somewhat

12 elliptically, his contacts with and the visits by the

13 defendant Dario Kordic. He says he met him during the

14 war, that Mr. Kordic did not visit Kakanj after

15 September of 1992 and was never in Vares at any time in

16 1993. So the picture of contacts is far from clear.

17 And this is a commander, a person in a senior position,

18 but it's Kakanj.

19 So there are reasons why the Chamber might

20 prefer to see this person to have these matters

21 clarified. And in any event, he was not a listed

22 witness.

23 JUDGE MAY: We will admit this.

24 MR. NICE: Pavo Barac, no particular

25 reasons.

1 JUDGE MAY: Admit.

2 MR. NICE: The last witness, one for whom

3 there are several reason why he should be called, Novi

4 Travnik is his area. And Novi Travnik, of course,

5 unlike some of the other locations, features in several

6 of the accounts in the indictment.

7 As president of the HDZ, he's an important

8 political figure who should be able to give first-hand

9 evidence of political influence in Novi Travnik in the

10 war. His denial of contact with Kordic should be

11 explored in cross-examination, and he should know more,

12 it may be, than the witness recently called yesterday.

13 The circumstances of his appointment to his

14 position would need to be explored.

15 He was thought to be with Kordic in Novi

16 Travnik in February, discussing the Bratstvo factory

17 matter. To be explored.

18 In March, he appeared with Kordic on the

19 television, discussing military and arms issues, and of

20 course he should be the person or a person able to deal

21 with and confirm or, alternatively, not able to confirm

22 the 21st of January, 1993 meeting which relates on to

23 the checkpoint incident and, indeed, on which some of

24 the checkpoint defence is built.

25 So in our respectful submission, this would

1 be a witness of potential value, and it would not be

2 appropriate, in our submission, for his evidence to

3 come in by affidavit.

4 MR. SAYERS: Once again, Your Honour, when we

5 decide which witnesses to bring before the Court, we

6 have to make informed decisions relating to the issues

7 that are specifically raised by the Prosecution's

8 evidence.

9 In Novi Travnik, we think we've produced two

10 witnesses who address the general allegations about

11 Novi Travnik in a fairly specific way.

12 Mr. Sekic's affidavit confirms Mr. Civcija's

13 testimony again in a general way. His affidavit

14 doesn't cover any specific factual issues. It just

15 generally corroborates the picture of events over a

16 one-and-a-half-year period that Mr. Civcija gave to the

17 Court yesterday and the day before. There's no mention

18 of the checkpoint incident in this affidavit, and that

19 would be beyond the scope of direct examination

20 anyway.

21 Once again, I guess if the Court thinks that

22 it's necessary to bring yet another Novi Travnik

23 witness to testify, we can do that. But the only

24 concern that I have is this: We've given a good-faith

25 estimate to be finished our case by the August break,

1 and I'm happy to inform the Court that we are on

2 schedule to do that and we're going to make our

3 committed efforts to continue to do that. Obviously,

4 we have some significant witnesses coming up and we'll

5 have to re-evaluate the position. But I have plotted

6 out our case for the 12-week period, and we're at the

7 end of week 4, one third of the way through our case,

8 and we're exactly where we thought we would be.

9 If witnesses are called and subjected to

10 extensive cross-examination of the type that we've seen

11 so far, that may jeopardise the schedule and require us

12 to compress other evidence. If it does, we'll

13 obviously try to continue to adhere to our deadline,

14 but we don't think that it's necessary to bring a

15 person like this to the court to give more general

16 testimony of the kind that drew comment from the Court

17 when it was being gone over by my colleague

18 Mr. Naumovski.

19 [Trial Chamber deliberates]

20 JUDGE MAY: Well, we've considered this with

21 care. The affidavit is in very general terms following

22 and corroborating evidence which has already been

23 given. The grounds for wanting to cross-examine a

24 witness in this case or really, that more information

25 could be obtained from him, the Prosecution hoped, and

1 given the various factors that we have to take into

2 account, we don't think that's sufficient to order his

3 presence here for cross-examination.

4 MR. NICE: Items six and seven, can I just

5 turn to the third page. At the moment, the Defence

6 witness list being served covers two weeks at most and,

7 typically, we try to give six weeks or the whole run of

8 our witnesses projected to the Defence when we could.

9 We've just seen one affidavit which comes from somebody

10 not on the list at all, which the Chamber has allowed

11 in but in any event, the Defence witness list, that is

12 the list of witnesses forthcoming does not include

13 affidavit witnesses who are to be served and so far,

14 they've all or nearly all been served immediately

15 before the witness being corroborated is called.

16 The seven days allowed in the rules, as a

17 matter of fact, is not sufficient for us. It's

18 insufficient for us to conduct the sort of inquiries

19 into affidavit witnesses and their backgrounds to give

20 you the best assistance we can -- we should be able to

21 give you. There's no complaint in that. I'm just

22 saying that that's simply the difficulty we face.

23 JUDGE MAY: Well, Mr. Nice, if, in a

24 particular case, it's a difficulty, if it's a general

25 witness, I don't anticipate that there would be much

1 difficulty in a week. But if there is, say in the case

2 of the last witness, that there is a broad area which

3 you wish to look at, then it's open to you to make an

4 application for an extension of time.

5 MR. NICE: Yes, the other area is the sort of

6 matter that you've seen referred to in, for example,

7 Mr. Arapovic and item two on us that might be available

8 to us in seven days or that might be information of

9 background that only comes outside that period of

10 time. So I draw it to your attention.

11 What we would be assisted by, and it would

12 seem to us that this should really be the position, is

13 being notified in advance of what affidavit witnesses

14 are going to be tendered so that we can start the

15 process of making our inquiries as the same time that

16 we are in a position to making our inquiries in respect

17 of the witnesses they support.

18 It would seem to us that is consistent with

19 the general policy of being given an advanced list or a

20 list of witnesses advance of them coming to give

21 evidence one way or the other.

22 JUDGE MAY: Mr. Sayers, can you assist as to

23 that? We note that you are on target and commend the

24 way in which you have been conducting the matter. But

25 there is a problem about the future which is this:

1 That at the moment, a large number of names have been

2 given and it's impossible for the Court or anybody else

3 to know which of those, in fact, are coming or likely

4 to give affidavits. And that may, in turn, cause

5 delays by the other side having to ask for time to make

6 inquiries.

7 Now, can we at some stage have a list, a firm

8 list, or as firm as possible list of those who you hope

9 to call, those whom you hope to call by way of

10 affidavit.

11 MR. SAYERS: Aspirationally, I would be

12 delighted to do that, Your Honour, and I think that we

13 can, if it would be helpful to the Prosecution, we can

14 give a list of the affidavits witnesses that we intend

15 -- or the affidavits that we intend to try to acquire

16 each two week period. In other words, when we give a

17 two week batting order, as we've been asked to do by

18 the Trial Court, and which we've done, we could also

19 alert the Prosecution as to the affidavits that we are

20 going to try to collect, if we can, and indicate which

21 particular witnesses those affidavits are going to

22 corroborate. If that would be helpful.

23 But I can say right now, we -- it's always

24 difficult to come up with a precise number of the total

25 number of witnesses that we intend to call, but I think

1 it's about 60, and I would note that we have called 20

2 to date, and we're one-third of the way through so that

3 sounds right.

4 And I also would like to alert the court, if

5 I may, we may as well do it right now --

6 JUDGE MAY: Just one thing. For the next two

7 weeks, are you in a position to give the names of the

8 affidavit witnesses? You needn't give them now, but

9 can you pass them to the Prosecution today?

10 MR. SAYERS: We can pass to the Prosecution

11 today the ones that we are reasonably sure that we can

12 get, and maybe indicate the ones that we would hope to

13 get if we could. I'd prefer not to do the latter,

14 because that might expose the affiant to unnecessary

15 attention, but we can certainly alert the Prosecution

16 that we are fairly certain of the ones we can get and I

17 can do that today. Yes, Your Honour.

18 And with respect to Mr. Arapovic and

19 Mr. Santic, we would propose if we can persuade these

20 gentlemen to come in to testify the week after next, so

21 we can stay on our projected schedule. Their testimony

22 should be relatively short, I trust.

23 JUDGE MAY: Yes.

24 MR. SAYERS: There's one other matter that I

25 would like to raise, Your Honour, and it may sound

1 trivial, it probably is trivial, but it's a matter of

2 judicial notice the about the death of Dr. Ante

3 Starcevic. We've previously provided the Prosecution

4 with an extract from a book which states that Dr. Ante

5 Starcevic died in 1895. It seems to be an

6 incontrovertable and simple, historical fact that would

7 be appropriate for the Court -- of which the Court

8 should take judicial notice and I can distribute to the

9 Court, if it's necessary, the extract of the book upon

10 which contains this historical fact.

11 JUDGE MAY: Have you it in translation?

12 MR. SAYERS: Yes.

13 JUDGE MAY: So why don't you hand it in? Who

14 was he, at a matter of interest?

15 MR. SAYERS: He was a prominent Croatian or a

16 prominent Croatian politician who died in 1895 had no

17 relationship whatsoever to do with the Ustasa, as

18 indicated. And I've highlighted the passage upon which

19 we rely.

20 MR. NICE: Two other matters; one very

21 short. We've been provided with the names of two

22 witnesses, confidential witnesses, but no summaries yet

23 and, no doubt, that's oversight. But the summaries

24 should presumably be served in accordance with the

25 Court's general order about summaries.

1 JUDGE MAY: What's the position?

2 MR. SAYERS: I do not recall any order

3 requiring summaries, but if the Prosecution wants a

4 summary of the expected testimony of those witnesses,

5 we will provide it to them this weekend.

6 JUDGE MAY: Yes.

7 MR. NICE: The second point, can I revert to

8 the tape, to make things one step apparently more

9 complicated, but in the second step rather more --

10 rather more encouraging, rather better.

11 The end position may be when we look at

12 things, and I'm not sure about this, but the end

13 position may be that in fact the Registry has had the

14 original tape all along. Now I must explain why that's

15 a possibility and what has to be done. The -- it's

16 something that's only come to light this morning.

17 First of all, it is necessary to go back and

18 remember the detail about what happened. I'm sorry

19 about this, but it's an unusual event and it's got to

20 be recalled from memory.

21 What happened was, as the Chamber will

22 recall, that the witness produced it in the witness

23 box, although it wasn't this courtroom. It went

24 straight from the witness to what would be the

25 equivalent of the room behind me now for playing, and

1 while it was in that room, it was copied.

2 The session ended, the witness left, and the

3 Audio-Visual Department distributed the tape provided

4 and the copies.

5 The invariable practice in the institution in

6 respect of tapes has been that the original is retained

7 in the evidence unit and copies are provided for

8 playing and so on. That practice was undoubtedly

9 reflected in the understanding of the Registrar that

10 what they had was a copy because that's what they

11 always get, and it was reflected in the understanding

12 of the OTP that the document thereafter logged and

13 dealt with in the evidence unit was the original

14 produced by the witness. And it may still be the case

15 that that's exactly what happened. But remember, it

16 all happened so quickly. The witness produced it, and

17 it went straight in to be played, I think, that it

18 never really touched our hands.

19 Yesterday afternoon, pursuant to the order,

20 the tape, whatever it was, was taken by Ms. Greenwood

21 and Ms. Verhaag to the Registry for handing over and

22 for signing off on the chain of custody record. Ms.

23 Verhaag noticed that the retained version in the

24 Registry, that is, what was thought to be the Registry

25 copy, which she also saw last week, looked older than

1 the version we had and that was taken down there. Also

2 it's a different make of tape. That's not surprising.

3 Inquiries have been made in a neutral way of

4 the witness as to what make of tape he believes he had,

5 the copy. And his account matches the make of tape

6 held in the Registry, the one he handed over.

7 It will be helpful to know from the Defence,

8 when they have had had a chance to look at their

9 document, what the make of tape is they have. Because

10 although it may be that the Audio-Visual Unit uses

11 different tapes and different makes of tapes from time

12 to time, it may be that if their make of tape is the

13 same as the one that we have and thought to be the

14 original, that, in fact, the original has always been

15 in the Registry, and that what we all have were

16 copies. And that the understanding or misunderstanding

17 derived from what's the normal practice in this court.

18 So I would be grateful if, at some stage, the

19 Defence could let us know what make of -- I don't

20 imagine they know now, what make of tape theirs is and

21 for the time being, both the document, the tape that

22 the Registry originally had on the day and the version

23 that was provided yesterday will, of course, stay with

24 the Registry.

25 [Trial Chamber confers]

1 JUDGE MAY: Mr. Nice, we will order a written

2 report on all this for both tapes, covering both

3 tapes.

4 MR. NICE: Yes, of course.

5 JUDGE MAY: And we'll get to the bottom of

6 it. Perhaps the Defence would help with the make of

7 their tape.

8 MR. SAYERS: We would. We've got a digital

9 audiotape that's been given to us by the Prosecution --

10 by the Registry. I can't remember what the make of

11 that is, and the other tape, if we have one, I've never

12 even seen it so I don't know what the make is, but

13 we'll certainly make inquiries and report to the

14 Court.

15 It might help if the Prosecution could

16 provide the Court as an attachment to its report the

17 chain of custody records for this -- for these tapes

18 because I can say for myself, the position is

19 completely confused. I can't follow which -- what

20 what's the original, what's the copy, whose had them

21 and where they've been or anything like that.

22 MR. NICE: The report is being prepared now,

23 and all that can be dealt with and will be dealt with

24 swiftly, but if the Defence, who were provided the same

25 day by the Audio-Visual Department the tape, the make

1 of the tape, that would be very helpful.

2 JUDGE MAY: Unless there are any other

3 matters, we will adjourn until Monday morning at half

4 past nine.

5 --- Whereupon the hearing adjourned

6 at 10.30 a.m., to be reconvened on

7 Monday, the 22^nd day of May, 2000, at

8 9.30 a.m.

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