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  1. 1 Thursday, 15th July, 1999

    2 (Open session)

    3 (The accused entered court)

    4 (The witness entered court)

    5 --- Upon commencing at 2.32 p.m.

    6 THE REGISTRAR: Good afternoon, Your

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

    8 versus Dario Kordic and Mario Cerkez.

    9 JUDGE MAY: Yes. Let the witness make the

    10 declaration.

    11 THE WITNESS: I solemnly declare that I will

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

    13 truth.

    14 JUDGE MAY: Yes, Mr. Nice.


    16 Examined by Mr. Nice:

    17 Q. Name, please?

    18 A. Ehsan Bajwa.

    19 Q. Nationality?

    20 A. From Pakistan.

    21 Q. Education?

    22 A. BA.

    23 Q. Whereabouts?

    24 A. I did my BA degree at the University of

    25 Punjab in Lahore.

  2. 1 Q. Did you join the police force?

    2 A. Yes, I did, in 1989.

    3 Q. When you were how old?

    4 A. At that time, I was 23.

    5 Q. You're now?

    6 A. Thirty-two.

    7 Q. Did you join as an officer?

    8 A. Yes, as a commissioned officer.

    9 Q. Were you promoted within five or six years to

    10 the rank of superintendent?

    11 A. Yes, I was, in 1995 to be exact.

    12 Q. Is that as young an age as an officer in

    13 Pakistan can reach the rank of superintendent?

    14 A. Yes, it is.

    15 Q. When did you join the Tribunal?

    16 A. In August 1995.

    17 Q. The same year you became a superintendent?

    18 A. That's true. Almost eight months after that.

    19 Q. Since then ...

    20 THE INTERPRETER: Could we ask the speakers

    21 to slow down, please.

    22 MR. NICE: ... renewals of your initial

    23 contract have you just had?

    24 A. I just received the fifth one.

    25 Q. In the course of working for the Tribunal,

  3. 1 have you collected or have you taken many witness

    2 statements?

    3 A. Yes, indeed I did.

    4 Q. My apologies to the interpreters. I failed

    5 to put my headphones on. I will do so.

    6 Was one of the statements you took the

    7 statement from Muhamed Mujezinovic, the statement being

    8 taken on the 3rd of February, 1997?

    9 A. Yes, indeed I did.

    10 Q. On that occasion were you working together

    11 with Gregory Kehoe, one of the lawyers of the

    12 institution, and were you assisted by Lejla Avdagic, an

    13 interpreter?

    14 A. Yes, I did. I did work with Greg Kehoe and

    15 was assisted by Lejla Avdagic.

    16 Q. Please tell us the process whereby the

    17 witness statement was taken.

    18 A. The way a witness statement is taken differs

    19 from situation to situation. It was a situation where

    20 the witness had already been interviewed on previous

    21 occasions, so it was a supplementary statement. The

    22 purpose of the interview, for one, was that Mr. Greg

    23 Kehoe would be able to gain some personal impression of

    24 the witness. Secondly, we wanted to clarify some of

    25 the points and issues that did arise from his previous

  4. 1 statements.

    2 So we introduced ourselves, because I

    3 personally, and I believe that's true for Mr. Greg

    4 Kehoe as well, we had not met him before, so we

    5 introduced ourselves as a lawyer and investigator from

    6 ICTY, and we explained what the purpose of this

    7 interview was, why were we meeting yet another time and

    8 talking about those things. Lejla Avdagic was, of

    9 course, interpreting for us, and the interview lasted

    10 for about six, seven hours.

    11 I had the statement that the witness had

    12 given previously in July 1995, I believe, taken by

    13 Simon Leach. I had that statement before me. I would

    14 raise a matter from that statement with the witness,

    15 and he would recount the story that he told to the

    16 previous investigator. I would see to what extent his

    17 renarration, his recounting, was in keeping with what

    18 he said before, and I would seek explanations if there

    19 was some minor differences. If there were matters that

    20 had not been addressed and in my view should have been

    21 addressed, I would ask him questions regarding that.

    22 I did indeed prepare a statement on the basis

    23 of that interview.

    24 Q. Was the statement prepared there and then,

    25 and if so, how, by hand, on a laptop or what?

  5. 1 A. Yes. Indeed the statement was prepared

    2 contemporaneously with the interview and it was on a

    3 laptop computer that the statement was prepared.

    4 Q. At the conclusion of the preparation of the

    5 statement, was Dr. Mujenznovic given an opportunity to

    6 consider the statement and, if so, how was he given

    7 that opportunity?

    8 A. Yes, he was given that opportunity. It was

    9 Lejla Avdajic, our interpreter, who read that statement

    10 back to the witness, and we asked him, is it in keeping

    11 with what he had said. Is it a true representation of

    12 what he had said, and he agreed that yes, it was. Then

    13 we asked him to sign it, and he did indeed sign the

    14 signature, as did I, and my interpreter Lejla Avdajic.

    15 Q. Do you remember anything being said on that

    16 occasion about translations, either the translation on

    17 that occasion or any other occasion?

    18 A. As I read this statement that I recorded,

    19 there was one point where the witness did say something

    20 about the translation on the previous occasion. I do

    21 not have an exact recollection of what exactly he did

    22 say, but he said something to the effect that the

    23 translation was not as good on the previous occasion.

    24 The point at which I can recall that while

    25 reading in the statement is where that witness mentions

  6. 1 the number of people being held in detention and as it

    2 was given to him during the meeting with Mario Cerkez.

    3 In his interview with me, the witness said

    4 that the number of people who were being held in

    5 detention, as alleged by Mario Cerkez, was 2.223. I

    6 said, "But in your brief statement to Simon Leach

    7 during July 1995, you just said more than 2.000 and now

    8 you are saying 2.223. How would you account for this

    9 precision?" I believe that it was at that point that

    10 he said something -- he made some remark about the

    11 quality of translation on that previous occasion.

    12 Q. Thank you. As to the man Darko Kraljevic, do

    13 you have any present vivid recollection of his speaking

    14 of Darko Kraljevic at all?

    15 A. Yes. I do recall that one of the things that

    16 I had wanted to address during this meeting was Darko

    17 Kraljevic. He had indeed spoke about Darko Kraljevic,

    18 his activities, and Dr. Mujenznovic's rapport with Darko

    19 Kraljevic because of his having treated Darko

    20 Kraljevic. In his previous statement with Simon Leach

    21 he had spoken about that. There were sides and there

    22 were areas of that exchange that I wanted to clarify,

    23 so I did indeed speak with him about Darko Kraljevic.

    24 Q. It happens that you're also the investigator

    25 who took some of the statements that relate to the town

  7. 1 or village of Tulica.

    2 A. That's true.

    3 Q. As of today, have you reconsidered those

    4 statements in any detail or not?

    5 A. No. I haven't had a chance to review those

    6 statements.

    7 JUDGE MAY: Yes, Mr. Stein.

    8 MR. STEIN: Thank you, sir.

    9 Cross-examined by Mr. Stein:

    10 Q. Sir, if there is any question I ask you that

    11 you don't understand, would you please let me know; all

    12 right? We'll both have to slow down for the

    13 translators.

    14 A. I will try to.

    15 Q. So will I. Now, first, sir, your

    16 responsibility as a member of the OTP investigation

    17 unit is to conduct investigations and develop

    18 prosecution briefs; correct?

    19 A. Conduct investigations, yes; insofar as

    20 developing prosecution briefs is concerned, the members

    21 of the team from the prosecution section who are

    22 qualified lawyers, they have a greater role in that

    23 process than investigative members of that team do.

    24 Q. So you have no role in developing the

    25 prosecution brief?

  8. 1 A. Sometimes we are asked to summarise witness

    2 statements and things that are directly in relation to

    3 the work that we did, and we do, indeed, do that.

    4 Q. The investigative team assesses all the

    5 relevant material for those briefs, ensuring that all

    6 relevant evidence has been assembled and included in

    7 the brief in order to establish such element of each

    8 charge, as well as prepare the actual brief for the

    9 prosecution; correct?

    10 A. Yes, in constant consultation with the legal

    11 members of the team, yes.

    12 Q. Sure. Your focus is to aid and assist the

    13 prosecution?

    14 A. Yes.

    15 Q. You're aware, of course, that Dr. Mujezinovic

    16 had multiple statements taken?

    17 A. Yes, I was aware of the fact that he had been

    18 interviewed in July 1995.

    19 Q. All right. Just as with all the other

    20 persons you interview, the purpose of taking a

    21 statement is to get the facts?

    22 A. That's true.

    23 Q. You're not interested in rumours?

    24 A. Of course not, except that in one's

    25 evaluation of evidence, there is hearsay which might as

  9. 1 well be characterised as rumour, and there are some

    2 things that a witness has experienced directly. So

    3 hearsay has evidential importance, so, of course, we do

    4 not just discount material that might otherwise be

    5 characterised as rumour.

    6 Q. All right. The result is, when you're

    7 gathering facts, you let the person talk to you and

    8 tell you what he or she has to say?

    9 A. Of course.

    10 Q. That may include hearsay?

    11 A. Of course.

    12 Q. Double hearsay?

    13 A. Of course.

    14 Q. General rumour?

    15 A. Yes.

    16 Q. And at some point, you may ferret out that

    17 which is hearsay and rumour, if you have a chance?

    18 A. Yes. Not only is it a question of chance,

    19 but under the existing protocols and practice

    20 directions within the investigation section, we are

    21 required to make it very clear in the body of the

    22 statement what it is that the witness is saying on the

    23 basis of personal, direct knowledge and what is it

    24 that's based on his exchanges with somebody else, which

    25 is hearsay.

  10. 1 Q. Right. We can agree, however, as a practical

    2 matter in Bosnia, sometimes that becomes difficult?

    3 A. Well, it's a question of how scrupulously an

    4 investigator, whoever is interviewing, pursues that

    5 question, and the question of relative importance --

    6 JUDGE BENNOUNA: (Interpretation) Excuse me,

    7 Mr. Stein. I should like to hear from the witness.

    8 You asked him, when taking down the statement, does he

    9 take note whether it is hearsay, double hearsay, or

    10 rumour. When he records hearsay, double hearsay, and

    11 rumours, does he mention in the statement that he takes

    12 down that it is hearsay, double hearsay, or rumour in

    13 those cases, that the person heard something from

    14 another person or that a person said that it was on the

    15 basis of a rumour that he learnt it? So does he take

    16 down the source of the information obtained from his

    17 interlocutor?

    18 MR. STEIN:

    19 Q. Sir, I believe the Judge's question is

    20 clear.

    21 A. Yes, Your Honour.

    22 Q. Can you answer it?

    23 A. Of course, whenever there is hearsay, we are

    24 required to explicitly record in the body of the

    25 statement "I heard this being said." Sometimes it is

  11. 1 possible for the witness who is talking to us to

    2 identify the person concerned who said that.

    3 For instance, in the statement under

    4 consideration here, Darko Kraljevic says something to

    5 Dr. Mujezinovic, and here we are in a position to

    6 identify the source of this hearsay, so we have

    7 identified that. Sometimes it is something just being

    8 said, and the witness has an impression that this was

    9 being bandied about, this was something that was being

    10 talked over, and that it was explicitly mentioned that

    11 way in the body of the statement, that I heard this

    12 being said, and then the witness expresses his or her

    13 inability to specifically point out the person who is

    14 the source of that rumour or that hearsay.

    15 THE INTERPRETER: Microphone, please, Your

    16 Honour.

    17 JUDGE BENNOUNA: (Interpretation) So if I have

    18 understood you correctly, you faithfully reproduce what

    19 the witness tells you, including the source of the

    20 information that he is conveying?

    21 A. That is correct, Your Honour.

    22 JUDGE BENNOUNA: Thank you.

    23 MR. STEIN:

    24 Q. Following up on that, that's the goal that

    25 you personally aspire to; correct?

  12. 1 A. Of course, and many times, we are, indeed,

    2 able to get very near to the achievement of that goal.

    3 Q. Sure. And many times not?

    4 A. There might be odd instances where some

    5 statement does leave a certain degree of ambiguity

    6 which one trusts can be sorted out in the course of

    7 direct testimony in the court.

    8 Q. And there are 150 or 200 persons just like

    9 you working for the OTP?

    10 A. I'm not certain as to the exact number of

    11 investigators, and I believe that's what you mean by

    12 "you persons."

    13 Q. Yes.

    14 A. I'm not sure what the total number of us

    15 are. I'm sorry.

    16 Q. It's certainly more than half a dozen?

    17 A. Of course, it is, yes, Your Honour.

    18 Q. I will never be "Your Honour," believe me.

    19 Are all the individuals who are doing investigative

    20 work similarly trained as to you, police officers who

    21 became investigators, or do they have a variety of

    22 different backgrounds?

    23 A. Of course they have a variety of different

    24 backgrounds and a variety of various police systems and

    25 variety of experiences, and that actually is very

  13. 1 helpful to the quality of product that this action

    2 finally comes up with, because a variety of different

    3 experiences are brought to bear on the quality of work

    4 that's done.

    5 Q. Okay. We can --

    6 JUDGE MAY: Mr. Stein, just one moment.

    7 MR. STEIN: Yes.

    8 JUDGE MAY: The first thing is you rebuked

    9 the witness. I think he was being polite towards the

    10 Court, not being polite to you, but that's as may be.

    11 Could you slow down a bit, Mr. Bajwa,

    12 please?

    13 THE WITNESS: I will try my best, sir.

    14 JUDGE MAY: It's difficult for the

    15 interpreters otherwise.

    16 Mr. Stein, where are we going on this? Let

    17 me just say this: You know what the rules are, and the

    18 witness came simply to talk about one statement. Now,

    19 obviously some leeway would be allowed. If you want to

    20 explore generally the taking of statements, we'll let

    21 you do that, provided it doesn't take up too much

    22 time.

    23 MR. STEIN: I thought it might be relevant

    24 given what's before us, and I don't want to take up a

    25 lot of time with it at all, maybe one or two more

  14. 1 questions I would like to get into.

    2 JUDGE MAY: Thank you.

    3 MR. STEIN:

    4 Q. Sir, let me ask you this: The conditions of

    5 taking the interviews that you and your colleagues

    6 take, I imagine, are somewhat difficult when you're in

    7 Central Bosnia?

    8 A. Difficult in the sense that at times one

    9 would like to explore matters at greater length, and

    10 then given the resource constraints and the time

    11 constraints, probably some of the statements do not

    12 explore matters to the same length that one would have

    13 wanted to do.

    14 Q. Are there instances in which individuals

    15 appear with their families or other people and want to

    16 interview in that process, with more than one person

    17 present?

    18 A. It's a requirement under the protocol in the

    19 practice direction within the investigation section

    20 that every effort will be made that other than a

    21 witness, there is nobody else present, of course, the

    22 investigator and the interpreter, unless it is

    23 absolutely necessary to furnish some kind of moral

    24 support to the witness and the witness insists on that,

    25 but it is an explicit direction that the investigator

  15. 1 will try to discourage that.

    2 Q. Do you find that despite your directions that

    3 that often happens?

    4 A. I have spent four years with the Tribunal,

    5 and there are scores and scores of statements that I

    6 have recorded, and not on one occasion have I had a

    7 problem of that kind.

    8 Q. All right. Fair enough. Do you find, and

    9 this is my last general question, that there is a

    10 difficulty among your interviewees separating their

    11 personal knowledge from the general knowledge or

    12 community belief?

    13 A. I think it will be very difficult to

    14 generalise in this area. There are witnesses who have

    15 a certain degree of difficulty, but there are other

    16 witnesses who do not have that, and I think that

    17 statements and the oral testimony in the court more or

    18 less does reflect that.

    19 Q. All right. With regard to the statement you

    20 made on this issue, do you have that in front of you?

    21 A. Yes, sir, I do.

    22 Q. That statement was made when, sir?

    23 A. If you're referring to my statement --

    24 Q. Yes.

    25 A. -- it was made about two weeks ago, and I

  16. 1 apologise, but probably the body of the statement does

    2 not mention the date on which it was made, but it was

    3 about two weeks ago.

    4 Q. That was made for the purpose of this

    5 particular hearing?

    6 A. That's correct.

    7 Q. All right. Now, you took Dr. Mujezinovic's

    8 statement and you took about six hours to take it?

    9 A. Yes.

    10 Q. All right. He had previously to that given a

    11 statement on March 1, 1995 to Mr. Leach and Mr. Gerns.

    12 You were aware of that, were you not?

    13 A. I was aware of the statement, and I had that

    14 statement in front of me during this interview that

    15 took place in February, and I understand that that

    16 statement was taken in July, not March. Actually, I do

    17 have a copy of that statement here, and it says "13

    18 July" and "16 July, 1995." So this is the statement

    19 that I had before me when I recorded this supplementary

    20 statement myself.

    21 Q. Let's be clear. The Office of the Prosecutor

    22 has furnished us with two statements. One is an

    23 information provided on 1 March, 1995, unsigned, looks

    24 like a rough draft. Have you ever seen that?

    25 A. May I know who that statement is recorded by,

  17. 1 sir?

    2 Q. Simon Leach and John Gerns?

    3 A. That's not the one. I was aware of the

    4 existence of that statement, but I knew that after the

    5 taking of that statement, another more complete and

    6 more comprehensive statement had been taken, so I based

    7 my interview on the statement that was taken subsequent

    8 to that one, and that was in July 1995.

    9 Q. Fair enough. We'll go there in a second.

    10 But as of the March 1, 1995 interview with Leach and

    11 Gerns, I've been saying "Kearns,"

    12 it's "Gerns," "G-E-R-N-S," you are not aware as to

    13 whether or not, when this statement was transcribed to

    14 English, Dr. Mujezinovic complained about the

    15 translation?

    16 A. No, I have no knowledge of that.

    17 Q. All right. Similarly, as to when the July

    18 13/16 statement was taken, and that is a statement

    19 taken again by Simon Leach and an interpreter named

    20 Mubina van Veen-Isovic?

    21 A. That's correct, yes.

    22 Q. When that statement was finished, you're not

    23 aware whether Dr. Mujezinovic said, "I'm unhappy with

    24 the translations" or not?

    25 A. Except for the fact that when I spoke with

  18. 1 Dr. Mujezinovic and when he mentioned the number of

    2 detainees and when I put my question to him, he did say

    3 something to the effect that on the previous occasion,

    4 the translation was not probably as fluent as on this

    5 occasion.

    6 Q. Fine. Did you also hear from Dr. Mujezinovic

    7 on that occasion that the translators had promised to

    8 change his statement?

    9 A. No, not at all.

    10 Q. Okay. He has said to the Court that he had

    11 told the translators all along of complications with

    12 these translations, and they said they would change the

    13 statements.

    14 A. It's not that I don't recall that. It is

    15 that he did not say that to me.

    16 Q. To you. As to whether or not he said it in

    17 July to Mr. Leach and the interpreter you're unaware?

    18 A. I'm absolutely unaware of that.

    19 Q. This addendum for you and Mr. Kehoe was for

    20 his testimony in Blaskic; is that correct?

    21 A. Yes. That was one of the purposes in view,

    22 but of course, he being a witness who spoke of matters

    23 that were of common relevance to many cases, so it did

    24 have greater relevance than that but yes.

    25 Q. Okay. This statement consists of four

  19. 1 pages? That's the statement dated 3 February, '97.

    2 A. That's correct.

    3 Q. So after a six-hour interview we end up with

    4 four pages.

    5 A. That's correct.

    6 Q. There certainly isn't a verbatim transcript

    7 of everything that was said in that six hours?

    8 A. Of course not.

    9 Q. It is your selective interpretation of that

    10 which was important to your second interview; correct?

    11 A. I wouldn't say "selective interpretation."

    12 What happened is that he had given a statement before,

    13 and we wanted to see him saying the same things, going

    14 over the same things without this statement being read

    15 over to him again. So we would prompt him on an issue,

    16 and then he would recount the story as he had done to

    17 Mr. Simon Leach. Then we would hear to what extent

    18 what he is saying is faithfully recorded in his

    19 previous statement. Only where some issue remained

    20 unaddressed would it eventually be incorporated into

    21 the statement that I took, four-page statement.

    22 So a substantial portion that have time of

    23 six hours was spent just making sure the previous

    24 statement is sufficiently confirmed by him, and so that

    25 we can see what are the points that we need to thrash

  20. 1 further with him.

    2 Q. In other words, you were making him a better

    3 witness in preparation for trial.

    4 A. We were --

    5 JUDGE MAY: I don't know that's a fair

    6 comment at all.

    7 MR. STEIN: All right. Withdrawn.

    8 Q. Sir, let me ask you this: Did you carry with

    9 you a tape recorder?

    10 A. No, I didn't.

    11 Q. Does anybody from the OTP tape record the

    12 statements as they're given?

    13 A. Except when the person being interviewed is a

    14 suspect, no.

    15 Q. All right. When Dr. Mujenznovic came to

    16 testify in this case, did you have occasion to see him

    17 at that point in time?

    18 A. No.

    19 Q. Did you have occasion to participate in his

    20 proofing at all?

    21 A. No, not at all.

    22 Q. If Dr. Mujenznovic has testified in front of

    23 this Tribunal that he consistently complained about the

    24 translations, I gather it's your view that those

    25 complaints weren't aired to you?

  21. 1 A. Of course not. Not at all. It was just a

    2 cursory reference that he made and nothing more than

    3 that.

    4 Q. And if he says that relative to Mr. Kraljevic

    5 and other issues he made substantial substantive

    6 complaints, you disagree with that?

    7 A. As an interview that I conducted with him is

    8 concerned, I did not feel that there was any necessity

    9 for me to go over everything again in my statement, so

    10 no, of course not.

    11 Q. And as to the others, you're unaware?

    12 A. Yes, I'm unaware of that.

    13 Q. As soon as I find something, I have one other

    14 question. I'd like to turn to the statement that you

    15 have in front of you, which is the statement of two

    16 weeks ago.

    17 A. Yes, sir.

    18 Q. You were asked to prepare this statement for

    19 this proceeding?

    20 A. What I was exactly told was that there was a

    21 certain issue arising from Mujezinovic's testimony and

    22 nothing more than that. I asked, "May I refer to the

    23 transcript of what happened in the court?" I was

    24 explicitly told not to do that. So I was absolutely in

    25 the dark what the whole issue was about. I was just

  22. 1 told, "You should prepare a statement concerning the

    2 circumstances in which you took this statement." So it

    3 was some kind of a -- sort of a groping statement that

    4 I made. I was not very sure. "What am I supposed to

    5 write about?"

    6 Q. Fair enough. And yet the statement contains

    7 six paragraphs?

    8 A. Yes, it does.

    9 Q. There's nothing in the six paragraphs

    10 indicating that Dr. Mujenznovic complained about the

    11 statement with respect to Mr. Kraljevic or anything

    12 else?

    13 A. I think that I would have created an

    14 impression that that was not really something that was

    15 discussed between us and Mujezinovic as something of an

    16 issue. So it didn't really strike me that there is

    17 something that would have become an issue here. So

    18 that's why the statement does not address that point.

    19 Q. So the answer to my question is I'm correct,

    20 there's nothing in your statement addressing

    21 Dr. Mujenznovic complaining about the translations?

    22 A. Yes, you're right.

    23 Q. Further, in the interview you conducted,

    24 there's no recordation anywhere that Mujenznovic

    25 complained about the translation at any time?

  23. 1 A. The exact point he spoke to us about

    2 translation was not more than 2.000 people but 2.223

    3 people, and I faithfully recorded that number in my

    4 statement, but not his observation that this

    5 translation on the previous occasion was not as fluent

    6 and as effortless as it was on this occasion.

    7 Q. That latter part was left out?

    8 A. Yes.

    9 Q. Thank you very much.

    10 JUDGE MAY: Mr. Bajwa, would you tell us

    11 again when it was that you interviewed Dr. Mujenznovic,

    12 please?

    13 A. It was on the 3rd of February, 1997, Your

    14 Honour.

    15 JUDGE MAY: Thank you. Any re-examination?

    16 I'm sorry. Mr. Kovacic.

    17 Cross-examined by Mr. Kovacic:

    18 Q. Sir, I represent Mario Cerkez. My name is

    19 Bozidar Kovacic and I am an attorney from Rijeka. On

    20 the occasion that we have just discussed and what you

    21 mention in your statement, when you met

    22 Dr. Mujenznovic, during that interview which lasted

    23 about six hours, as you have told us, did you ever

    24 indicate that the interview was for a particular case

    25 or, rather, which case the interview was for?

  24. 1 A. I cannot recall that I referred to particular

    2 cases on that occasion. No, I have no recollection of

    3 that.

    4 Q. Thank you. You have explained to us, a

    5 moment ago, but let me asking, as a rule, does the

    6 witness that you're interviewing know for what case he

    7 is testifying or, rather, in which case you intend to

    8 use his testimony for?

    9 A. Under the standing procedures within the

    10 investigation section, whenever we see a witness for

    11 the first time we are supposed to explain the mandate

    12 of the Tribunal to that witness and then explain that

    13 we are representing the Tribunal and we would be

    14 interested in some of the experiences that witness has

    15 been through or witness has observed, but we are not

    16 required to specify the case. That's number one.

    17 Number two, it's difficult to specify cases

    18 because it depends on at what point in time you are

    19 meeting that witness. At times you are meeting that

    20 witness and you yourself do not know that there's a

    21 case or you are going to have a case at all. So before

    22 the indictment -- and then indictment takes place. So

    23 subsequently you may have an idea of what your

    24 conversation is going to be about. So it depends.

    25 As answer, under existing standing procedures, it

  25. 1 is not requisite that we explain what the case is.

    2 Q. So if I understand you well, as a result, the

    3 witness does not know against which accused he is

    4 testifying?

    5 A. What we are required to explain and what one

    6 can --

    7 Q. I would kindly ask you --

    8 A. Would you please repeat your question?

    9 Q. If I understand you well from your

    10 explanation, the witness, as a rule, does not know

    11 against which of the accused he will be called to

    12 testify.

    13 A. He would know that he would be called to

    14 testify but not necessarily which accused.

    15 Q. Thank you. When you spoke to Dr. Mujenznovic

    16 on the 3rd of February, 1997, the indictment against

    17 Blaskic and others was already issued.

    18 A. That's correct.

    19 Q. Did you, on that occasion, tell the witness

    20 that an indictment exists? You said that together with

    21 Mr. Kehoe you had come for him to get an impression

    22 about that witness. Did you tell him then which case

    23 he was going to be called for?

    24 A. Just as I said before, I have no recollection

    25 of raising that matter with him, but there's just one

  26. 1 more qualification I'd like to add to that, which is

    2 this witness had been spoken to before that occasion on

    3 a couple of times, so it was -- I think it could have

    4 been that it was a tacit understanding that we are

    5 talking about in the context of the Lasva Valley

    6 indictments, but I do not have a clear recollection of

    7 that, my apologies.

    8 Q. Thank you. From what you have told us so

    9 far, I take it that you consider yourself to be a

    10 conscientious investigator.

    11 A. That's an ideal that I would like to strive

    12 after.

    13 Q. Do you believe that the place and date a

    14 statement is given on are important or not?

    15 A. They are important. Things have to be

    16 defined in terms of time and space.

    17 Q. A moment ago, it was noted that you didn't

    18 put the date or the place even on your own statement.

    19 A. Yes. That's a lapse on my part.

    20 Q. Lapses are understandable. Perhaps you were

    21 unexpectedly called by my learned friend, the

    22 Prosecutor, and you did it in great haste, and that is

    23 the explanation why you forgot to note the date and the

    24 place?

    25 A. No. I think it was more out of a feeling of

  27. 1 complete ignorance that what is it about than anything

    2 else, any impression of haste about it, that this lapse

    3 might have resulted from.

    4 Q. Thank you. In the course of the examination

    5 by Mr. Stein and from your statement, we have been able

    6 to understand the actual technology of taking

    7 interviews, but there is one point that is not clear to

    8 me. So may I summarise and then you confirm for me?

    9 Using a specific example, the witness speaks

    10 Croatian, or Bosnian, or Serbian. It doesn't matter.

    11 Then the interpreter interprets orally what he says and

    12 then you take that down on your laptop; is that

    13 correct?

    14 A. There's just one minor factor here, that is

    15 while the witness is speaking, the interpreter takes

    16 down certain notes. And an effort is made that the

    17 witness is not permitted to speak for very long, and he

    18 is interrupted so it could be of a manageable size, the

    19 interpretation.

    20 Q. But in any event, the witness speaks in

    21 Bosnian, Croatian, or Serbian, then in summary form the

    22 interpreter interprets it into English, and you take

    23 that down on your laptop.

    24 A. It is one point. In the existing practice

    25 direction in the investigation section, the

  28. 1 investigator is required to tell the interpreter that

    2 he is to interpret verbatim, not paraphrasing. There

    3 is no element of paraphrasing. That's number one.

    4 Number two, the witness is not permitted to

    5 speak too long, so it's a manageable size. With those

    6 qualifications, yes.

    7 Q. Then the other way round. You said that the

    8 witness was informed of what has been taken down. So

    9 now you will be speaking English, the interpreter will

    10 be interpreting into Croatian for the benefit of the

    11 witness; is that correct?

    12 A. That's correct.

    13 Q. So the witness has the ability to check the

    14 accuracy of his statement, accuracy of the way it was

    15 noted down only on the basis of the oral interpretation

    16 given.

    17 A. I apologise. The point escapes me. Could

    18 you please repeat the question?

    19 Q. Let me rephrase. The witness, at the end,

    20 signs his statement. It is written in English. It is

    21 written in the English language because you wrote it

    22 down on your laptop. The interpreter reads it out to

    23 the witness in Croatian, and then after that the

    24 witness agrees that that is his statement; is that

    25 correct?

  29. 1 A. That's correct.

    2 Q. To make quite sure, does the witness ever see

    3 his statement in Croatian in writing as a document?

    4 A. I believe that at some point before

    5 testifying, the translation section probably translates

    6 the statements back into Serbo-Croatian. I'm not

    7 certain about that, but this is my impression. Apart

    8 from that, immediately after the conclusion of the

    9 interview and the recording of the statement, no.

    10 Q. Thank you. Tell me, please, sir, in

    11 organisational terms, who is your superior? You do not

    12 have to give me the name, of course, but the title.

    13 Who has the superior position above yours in this

    14 Tribunal?

    15 A. It would be a team leader, by designation.

    16 Q. And his superior?

    17 A. It would be an investigations commander.

    18 Q. And his superior? And his superior?

    19 A. Chief of investigations would be in charge of

    20 the investigations section which is a component within

    21 the Office of the Prosecutor, at the apex of that

    22 office is the Prosecutor.

    23 Q. I understand. So in hierarchical terms, the

    24 investigators are a section within the Office of the

    25 Prosecutor?

  30. 1 A. That's correct.

    2 Q. You are not an independent institution?

    3 A. Depends on how do we look at the word

    4 "Independence".

    5 JUDGE MAY: Just a moment. Mr. Kovacic,

    6 where are we going? What is the point of these

    7 questions?

    8 MR. KOVACIC: (Interpretation) I should like

    9 to see whether we can consider the investigator being a

    10 completely independent body over which the Prosecutor

    11 and no one else has any influence, that is, independent

    12 in collecting information and providing it to the

    13 Prosecution.

    14 JUDGE MAY: Mr. Bajwa, did anyone influence

    15 you -- if this seems to be the point -- did anybody

    16 influence you in taking this statement?

    17 A. Absolutely not.

    18 JUDGE MAY: That's the answer.

    19 MR. KOVACIC: (Interpretation) Thank you.

    20 Q. You have described in some detail the

    21 procedure, and I understand it and I have been able to

    22 see it from your statements, but tell us, please, in

    23 addition to the statement of the witness that has been

    24 noted down, or the substance of that statement, do you

    25 hand over for further processing any personal notes or

  31. 1 comments like the witness appears to be convincing,

    2 he's not convincing, he's eloquent in speech, he's sure

    3 of himself, he's unsure of himself, things that cannot

    4 be seen just by merely reading through the statement?

    5 A. As a question of personal custom, no.

    6 Q. So that means my learned friends, the

    7 Prosecutors, who continue working on the basis of this

    8 paper that you gave them, they don't know whether he is

    9 convincing, eloquent, an educated man, or a man who is

    10 unsure of himself, who stammers, et cetera, they have

    11 no information of that kind?

    12 A. I mention in my statement --

    13 JUDGE BENNOUNA: (Interpretation) Mr. Kovacic,

    14 I think we are going astray in this cross-examination,

    15 because we have started from the problem of a witness,

    16 because it was raised in the filings, that witness

    17 being Mr. Mujezinovic, and now we're covering the whole

    18 issue of investigations, the Prosecution, and how these

    19 things function, but that is not the place to do so.

    20 If we're talking about the functioning of the

    21 Prosecutor or the investigator, it needs to be said in

    22 advance.

    23 So I'm asking you, as I have already done

    24 before, to limit yourself to this statement.

    25 Otherwise, we're going to go beyond the scope of the

  32. 1 subject we're dealing with today, and you know we have

    2 many other things to address later on.

    3 MR. KOVACIC: (Interpretation) Of course, Your

    4 Honour. I will abide by that, but I see no reason why

    5 this witness was brought here. But as he has been

    6 brought here, I'm interested in learning how these

    7 things are done, but I will leave out a number of

    8 questions that I had planned to ask.

    9 Q. In view of the discrepancies that arose here

    10 and prompted all this, would you please tell us, you

    11 speak to the witness in the way we have described, you

    12 take down what he has said. If the witness says

    13 something that is completely unexpected, that is

    14 completely contradictory to what you have already heard

    15 on the same subject from other witnesses, do you then

    16 take any steps, on your own initiative, to tell that

    17 witness that the fact that he has given simply doesn't

    18 seem to stand, or do you take steps to verify the

    19 veracity of that statement? What are your competencies

    20 in that regard?

    21 A. There will be two ways to deal with that

    22 situation. One way would be to see the internal

    23 consistency of what the witness is saying. To what

    24 extent there is a coherence, internal coherence, in

    25 what he's saying, and that would be talking about what

  33. 1 he has said. Then if there are other sources of

    2 information and it's quite clear to the investigator

    3 that on the basis of other information that the

    4 investigator has there might be an element of ignorance

    5 in what the witness is saying, at times you confront

    6 the witness with that but, "On the basis of this, this,

    7 this, I know this. How do you deal with that?" Then

    8 you see how a witness responds to that. On certain

    9 other occasions you just faithfully record what the

    10 witness has said and then see how can that be

    11 afterwards developed.

    12 Q. From witness Mujezinovic, in February '97,

    13 you heard a figure, when quoting Cerkez, 2.223 people

    14 detained in the cinema hall. At that time, the Blaskic

    15 indictment had already been issued and you had already

    16 spoken to other witnesses, and not one of them

    17 mentioned a figure anywhere near that one. Did you

    18 confront Dr. Mujenznovic with this fact?

    19 A. Well, I was not aware at that time that

    20 anybody else had given a specific figure on this. So

    21 people had generally said many people. Some people

    22 have said hundreds of people. So I was not quite

    23 astonished about the figure that Mujezinovic was

    24 given. Given the population figures of Vitez, it was

    25 not a sort of inconceivable figure.

  34. 1 Q. You said that the purpose of the interview,

    2 the basic purpose, was to clarify, and explain, and

    3 broaden the earlier statement given by Mujezinovic

    4 earlier on, and it is on the basis of that statement

    5 that you posed your questions.

    6 A. That's correct, sir.

    7 Q. If you looked at his 1995 statement and asked

    8 questions on that basis, then you must have noticed

    9 another discrepancy. Do you recollect that you may

    10 have asked him for an explanation regarding who, among

    11 those three present of the first talk mentioned when he

    12 said Pero Skopljak, Ivo Santic, and Mario Cerkez were

    13 present, who exactly had mentioned the number of 2.300,

    14 roughly, because this cannot be seen from the 1995

    15 statement.

    16 A. Well, in the statement that I recorded, it's

    17 clearly said that Mario Cerkez said that, so I did not

    18 pursue that point beyond that.

    19 Q. But you compared it with the statement of

    20 1995. You said that, in fact, you interviewed him on

    21 the basis of that statement, asking him questions about

    22 things that were not clear or logical, so that the 1997

    23 statement is a complement to the 1995 statement, if I

    24 understood you correctly?

    25 A. Would you please direct me, sir, to the

  35. 1 concerned portion of the 1995 statement?

    2 Q. 1995, it would be the part of the

    3 statement --

    4 A. In 1995, page number 6, the statement

    5 recorded in July 1995, page number 6, the 22nd line

    6 from the top, and it says: "Cerkez told me that they

    7 had more than 2.200 arrested persons." So since I did

    8 not see any discrepancy here, he was pretty specific on

    9 the identity of the person who was mentioning the

    10 numbers to him, so I didn't see any discrepancy for me

    11 to ask him about, presumably because I do not exactly

    12 recall all the details of that interview.

    13 Q. Yes, I suppose you're right. It was another

    14 statement from 1995 and not this one. I do apologise.

    15 To go back very briefly to another matter

    16 that we've already touched upon, in this particular

    17 case, regarding the witness Dr. Mujezinovic, was there

    18 anywhere a comment on your part as a recommendation to

    19 the Prosecution regarding the quality of that witness?

    20 A. No.

    21 MR. KOVACIC: (Interpretation) Thank you. I

    22 have no further questions. Thank you.

    23 MR. NICE: A few matters arising.

    24 Re-examined by Mr. Nice:

    25 Q. So far as the reading back of statements of

  36. 1 witnesses is concerned, how seriously or otherwise is

    2 that exercise undertaken?

    3 A. It's serious enough for a specific

    4 interpreter's certificate being incorporated in the

    5 standard format of a statement, and the fact that

    6 reading back is specifically mentioned in the witness's

    7 acknowledgement at the end of each standard format of a

    8 statement, to have been incorporated, so it's taken

    9 very seriously.

    10 Q. You were asked about your instructions when

    11 you prepared the statement that's been served in

    12 respect of today's hearings. You've told us how you

    13 weren't to consult the transcript and so on. Have you

    14 since then, before coming to give evidence, been asked

    15 whether you had any recollection of any issue of

    16 translation?

    17 A. Yes, I have --

    18 Q. And you then gave evidence today about what

    19 you recalled about translation?

    20 A. Absolutely.

    21 Q. Were you also asked whether you had any

    22 recollection of Kraljevic?

    23 A. Yes.

    24 Q. You've been asked one rather oblique question

    25 about Kraljevic; nevertheless, can you just tell,

  37. 1 please, the Chamber what your recollection of

    2 references to Kraljevic in this statement were?

    3 A. The previous statement recorded by Mr. Leach

    4 had incorporated a story about Kraljevic mentioning

    5 people insisting on him putting Muslim houses on fire

    6 and creating anarchy in Vitez, something to that

    7 effect, and one of the things that I wanted to do

    8 during this interview was to put that event in some

    9 context. So I asked Mujezinovic, "How do you know

    10 Kraljevic," and the statement that I recorded does

    11 represent that and the content of the exchange that we

    12 had on this issue.

    13 Q. Do you have any present and vivid

    14 recollection of any parts of the Kraljevic references?

    15 A. Yes. While I was reading this statement that

    16 I took in February 1997, I recalled that at some point,

    17 he certainly said that Darko was not psychologically

    18 stable, and even the words that he used in

    19 Serbo-Croatian had some kind of a phonetic similarity

    20 with the words in the English language, and whatever he

    21 said was faithfully recorded in the statement.

    22 Q. You've been asked various questions about

    23 practice, and you referred to protocols that require

    24 the identification of what, in some jurisdictions, is

    25 called hearsay. Just this: When were those protocols

  38. 1 introduced formally?

    2 A. I cannot recall that. I'm not aware of

    3 that.

    4 Q. Very well. You've been asked by a question

    5 that used the word "selective" about what you put into

    6 these statements. If, in the course of answers given

    7 by the witness, material that is or might be

    8 exculpatory is mentioned, what's the practice in

    9 relation to such material?

    10 A. After a thorough discussion of the matter,

    11 it's absolutely going to be recorded as it is, without

    12 any addition or subtraction.

    13 Q. Is there any question of being selective in

    14 the material that you put in these statements?

    15 A. Apart from one's basic sense of what's

    16 relevant and what's not, no.

    17 Q. Mujezinovic, in this statement, had it been

    18 read back to him?

    19 A. It was, indeed.

    20 Q. Did he then sign it?

    21 A. He did sign it.

    22 Q. Thank you.

    23 MR. NICE: That's all I ask at the moment and

    24 probably all I'm going to ask. On the basis that the

    25 witness, subject to any questions of the Chamber, will

  39. 1 be released, would the Chamber give him the warning

    2 about any other witnesses who may come here after? The

    3 witness Kehoe, if he's now required, is presently

    4 engaged in the last stages of another case, but he is,

    5 of course, in the same building.

    6 JUDGE MAY: Mr. Bajwa, thank you for coming

    7 to give evidence. You are released. The point that

    8 counsel was making was to tell you not to talk to any

    9 other prospective witnesses about your evidence, of

    10 course.

    11 THE WITNESS: I will bear that in mind, sir.

    12 Thank you very much.

    13 MR. NICE: May he remain outside just for a

    14 minute to be technically released by one of my staff

    15 when I've raised one matter with the Chamber?

    16 JUDGE MAY: Yes. Thank you.

    17 (The witness withdrew)

    18 MR. NICE: Your Honour, I'm concerned to note

    19 that Mr. Sayers, who was here yesterday and who

    20 conducted the cross-examination of Mr. Mujezinovic but

    21 who isn't here today, has, in correspondence which is

    22 then reflected in argument to you, characterised

    23 witness statements built on Mujezinovic's evidence

    24 as "ad hoc compilations of what witnesses supposedly

    25 discussed with investigators, slanted in a manner to

  40. 1 effect the accused's interests adversely." He went on

    2 to say: "They are the investigator's statements,

    3 rather than those of the witness, strictly speaking."

    4 Mr. Stein, in a letter of the 21st of May,

    5 again built on the Mujezinovic experience, categorised

    6 these statements as "unreliable and artificially

    7 engineered documents, for all the reasons highlighted

    8 in Dr. Mujezinovic's testimony."

    9 I have taken the view throughout that the

    10 absurd hyperbole by the Defence is unhelpful to this

    11 litigation, but I certainly take the view that if they

    12 wish to advance that sort of proposition, they should

    13 put it to this witness. I note they have got no where

    14 near that, and I will proceed from now on on the basis

    15 that those allegations are withdrawn unconditionally,

    16 and if they are not to be withdrawn, I would

    17 respectfully invite the Chamber to decide whether these

    18 are matters that ought to be put, for we really cannot

    19 proceed on matters of this importance with this sort of

    20 language when it's not backed up.

    21 JUDGE MAY: I, myself, regarded those sort of

    22 comments as forensic hyperbole, and unless I had seen

    23 something to demonstrate their truth, I would have

    24 disregarded them. I speak for myself, of course,

    25 entirely. I don't propose, unless anybody else wants

  41. 1 me to, to have the witness back for those matters to be

    2 put. He's given his evidence quite clearly about what

    3 has happened.

    4 MR. NICE: Thank you.

    5 JUDGE MAY: Do you, Mr. Stein, want to have

    6 the witness back to put those sort of things to him?

    7 MR. STEIN: No, sir. His testimony is quite

    8 clear. Your Honours are left with a choice. You can

    9 believe Dr. Mujezinovic or you can believe the

    10 witness. There are certainly inconsistencies between

    11 the two.

    12 JUDGE MAY: As you rightly say, those are

    13 entirely matters for the Trial Chamber to consider in

    14 due course. Yes?

    15 MR. NICE: Thank you. Then I'll ask for him

    16 to be further released from outside the room.

    17 JUDGE MAY: Very well. We are now going on

    18 to the argument, Mr. Smith, but before we do, there's

    19 one matter which I have in mind which I want to raise

    20 briefly.

    21 Mr. Nice, in your absence, a witness was

    22 called, and I made some comments to Mr. Scott which, no

    23 doubt, have been relayed to you, but I would wish them

    24 to be made again so that you could hear. Looking

    25 overall at the trial so far, we've had some 20

  42. 1 witnesses, five of them have dealt with events at

    2 Kaonik, and relying on the Rule 73 bis D, I think that

    3 there can be a reduction in evidence in relation

    4 thereto. Perhaps you could bear that in mind.

    5 MR. NICE: Certainly we will.

    6 JUDGE MAY: And no more at least, I hope,

    7 before the recess.

    8 MR. NICE: We will deal with that, and,

    9 indeed, Kaonik has yet to be discussed by us, save that

    10 I think I'm aware that we have to give some

    11 consideration to the places from which people were

    12 taken to Kaonik and dates, but that apart, there will

    13 be no resistance to Your Honour's observations, and

    14 thank you for making them again.

    15 JUDGE MAY: Yes, Mr. Smith?

    16 MR. SMITH: Thank you, Your Honour. I will

    17 give a brief introduction and deal with issues

    18 involving the law. My colleague, Mr. Stein, will deal

    19 with some of the practical issues raised by the

    20 Prosecutor's proposal and the specifics that you

    21 mentioned yesterday about fairness and this particular

    22 dossier.

    23 I think it is important at the outset to be

    24 clear about the issue before the Trial Chamber, and I

    25 believe my learned colleague has done that. The

  43. 1 question is can major elements of a case before the

    2 ICTY, and these village attacks are major elements as I

    3 discussed yesterday, be tried on paper with unsworn

    4 witness statements and investigators' summaries, or,

    5 alternatively, will testimonial evidence be tested by

    6 questioning by the Defence an evaluation by the Trial

    7 Chamber of live, oral testimony by percipient

    8 witnesses?

    9 It is a matter, as I indicated yesterday, of

    10 very great significance to the Defence. Indeed, as I

    11 said at an earlier session, should such witness

    12 statements or reports by investigators be placed in

    13 evidence without the opportunity for cross-examination

    14 by the Defence, we would, with all respect, be

    15 obligated, I think, professionally obligated to appeal

    16 the matter immediately --

    17 JUDGE MAY: Mr. Smith, that is not a point to

    18 make before a Trial Chamber, a trial of first

    19 instance. Whether you appeal or not is of no

    20 relevance.

    21 MR. SMITH: Thank you, Your Honour. I will

    22 pass on.

    23 Let me turn to the argument in chief on the

    24 law, and I will deal firstly with the question of the

    25 problem facing the Trial Chamber. The problem is, one,

  44. 1 the length of the trial and the scope of the material

    2 required by the indictment pled by the Prosecution. I

    3 suggest, as I did yesterday, that as this trial has

    4 gone on, there have been techniques developed and

    5 practices honed, and the Trial Chamber has exercised

    6 its own authority so that if the problem is not

    7 completely solved, it's largely solved, that is to say,

    8 the Trial Chamber, in our judgement, has the power and

    9 the ability to scope the trial as it needs to be done.

    10 I suggest that a major shift in procedures at

    11 this time would constitute changing horses in

    12 midstream. It would require a change, in our

    13 judgement, to both the Statute and the Rules and could

    14 not be done by the Trial Chamber alone. It would be

    15 disruptive. It would, in our judgement, not shorten

    16 the trial, and Mr. Stein will speak to this. It's

    17 risky. It shifts the Prosecutor's burden to the

    18 Defence. It is not the procedures that our client

    19 understood would be applied to him when he surrendered,

    20 when he chose counsel, and that is the reason that Rule

    21 6(C) alone would prohibit application in this trial,

    22 even if the Statute or the Rules were changed to allow

    23 it.

    24 Dossiers, in our judgement, can be useful

    25 collations of evidence about a particular set of

  45. 1 events, but the admission of witness statements or

    2 investigators' reports do not, in our judgement,

    3 further the search for truth, and this is true because

    4 the Judges themselves are prevented from probing,

    5 considering, and determining witness demeanour, witness

    6 credibility, witness background and potential bias, the

    7 nature and extent of witness observations, particularly

    8 the opportunity to observe percipient events, an event

    9 on a percipient basis, and this is particularly true

    10 where, I believe it has been demonstrated and Mr. Stein

    11 will discuss this, these witness statements are, I

    12 think, undeniably in some circumstances unreliable, and

    13 the investigator's report, as we have set out in our

    14 pleading on the Tulica dossier, is, in some regards,

    15 unreliable, and in any case, the witness statements

    16 proposed to be used by the Prosecutor are selective.

    17 She has selected one when there are many that she has

    18 omitted to use.

    19 As a result, it is our view that neither

    20 untested, unsworn witness statements, nor

    21 investigators' summaries are an acceptable substitute

    22 for testimonial evidence by a percipient witness. An

    23 admission of either would be a serious error.

    24 I turn first to the Statute and the Rules of

    25 the Tribunal. The Statute, fixed by the Security

  46. 1 Council, Article 21(4)(e), the opportunity "to examine

    2 or have examined witnesses against him." I mentioned

    3 Rule 90(A) requiring --

    4 JUDGE MAY: Just a moment. Rule --

    5 MR. SMITH: Rule 21(4)(e), Your Honour,

    6 "Rights of the Accused." It is that language, that

    7 exact language, "to examine or have examined the

    8 witnesses against him," that is used in the

    9 International Covenant and the European Convention, and

    10 that is the subject of the case law that I will discuss

    11 before the European Court of Human Rights.

    12 Rule 90(A) of the Tribunal's Rules deals with

    13 and requires direct oral presentation of testimony as

    14 the normal way of doing business. Rule 90(B) requires

    15 that testimony be sworn and thus subject to perjury

    16 provisions of the Tribunal's Rules.

    17 I don't propose to go on with all of the

    18 various sections of the Rules that bear on this

    19 question, Your Honour, on the grounds that, number one,

    20 many of them have been discussed before in the context

    21 of the Aleksovski case and its ruling, and also they

    22 are in our materials, and in the interests of time,

    23 unless Your Honours have specific questions, I will

    24 turn to the question of the inconsistency of what the

    25 Prosecutor proposes with the normal civil law

  47. 1 procedures.

    2 The key point with the civil law procedures,

    3 which the Prosecutor's proposal is designed to mimic

    4 and to adapt for purposes here, is one that I think we

    5 have pointed out, that is, testimony before an

    6 investigating judge at an early stage in a proceeding,

    7 while it can sometimes be used in a later trial before

    8 the judge of first instance, is normally sworn

    9 testimony taken by a judicial officer whose duty it is

    10 to be neutral, as opposed to unsworn testimony, not

    11 subject to the rules of perjury, but taken by a person

    12 whose duty it is to -- as the manual that we have cited

    13 in our brief clearly states, whose duty it is to

    14 prepare cases for the prosecuting attorney because they

    15 work for the prosecuting attorney.

    16 This is a very important set of distinctions,

    17 and it cannot be cured -- the difficulty, the issue

    18 cannot be cured by simply saying that this Court can

    19 sit as an investigating judge.

    20 First of all, the way that the civil law

    21 system would work, there would then be some other court

    22 of first instance in which the trial would take place,

    23 but this is the court in which the trial takes place.

    24 Secondly, the investigating judge himself

    25 listens to the oral testimony. The person that

  48. 1 receives the statement without the oral testimony is

    2 the subsequent judge at the proceeding, and there the

    3 reliance is on the fact that at some stage in the

    4 proceeding, that is to say, in the early stage before

    5 the investigating judge, the Defence has had the

    6 opportunity to test and challenge the testimonial

    7 evidence by questioning a live witness, or at least by

    8 having the statement taken, sworn under the rules of

    9 perjury, and before a judicial officer.

    10 That is simply not the situation the Trial

    11 Chamber faces. It could have been, it could have been

    12 if the Tribunal had started out at the outset and

    13 deputised, in effect, investigating judges who were not

    14 part of the Prosecutorial force, who took statements in

    15 locations in Bosnia or in Kosovo. That is simply not

    16 the way the Tribunal is organised at this point.

    17 Let me turn then to why it is that the

    18 Prosecutor's proposal --

    19 JUDGE ROBINSON: Let me just make sure I

    20 understand that. You're saying that in the civil-law

    21 system, evidence is taken before an investigating

    22 judge. That evidence is normally sworn evidence and

    23 there is opportunity for cross-examination. That

    24 testimony is used later.

    25 MR. SMITH: Your Honour, it is sworn

  49. 1 testimony. It is subject, as I understand it, to the

    2 rules of perjury. I think it does sometimes involve

    3 cross-examination by the defendant and sometimes may

    4 not.

    5 My colleague, Mr. Naumovski, and these other

    6 gentlemen are far greater experts. I'm not an expert

    7 indeed in the civil law. They know a great deal more

    8 about it. It may be used later before the trial judge,

    9 or it can be, in proper circumstances, generally

    10 extraordinary circumstances. The basic requirement and

    11 normal rule is the appearance of the witness, and these

    12 gentlemen can comment on that in more detail.

    13 The Prosecutor's proposal is also

    14 inconsistent, in our judgement, with the International

    15 Covenant on Civil and Political Rights that I've

    16 referred to and the European Convention on Human

    17 Rights, both of which use exactly or essentially the

    18 same language, "Examine or have examined witnesses

    19 against him."

    20 Let's turn to the case law involving the

    21 European Convention before the European Court of Human

    22 Rights, because it is the only case law at the

    23 international level which has construed these phrases.

    24 When you look at the case law, what you find

    25 is, and this is set out in our skeleton argument and in

  50. 1 the attachment to the Prosecutor's response to Judge

    2 Robinson's concern about these cases, filed on June

    3 17th, written by Mr. Stavros.

    4 There must be a witness to confront and

    5 question at some stage for a statement, written

    6 statement, of a witness not present at the trial itself

    7 to be taken into evidence, considered, and mainly,

    8 decisively, primarily, depends on the court, relied

    9 upon in making the judgement.

    10 Three cases were cited by the Prosecutor in

    11 its June 17th submission and response to Judge Robinson

    12 for the proposition that what they propose is

    13 permissible. All three cases were reversed for failure

    14 to have a witness attend the trial. The Barbera case,

    15 the Unterpertinger case, and the Bricmont case.

    16 Indeed most of the ECHR cases reverse for

    17 failure to have a life witness. Some of those do that

    18 even when there were questions asked by an

    19 investigating judge of a witness who later fails to

    20 show at trial. The Barbera case and the Kostovski case

    21 are examples.

    22 JUDGE MAY: I don't remember the facts of

    23 those cases, but certainly in some of the European

    24 cases the witness were absolutely crucial witnesses,

    25 witnesses who identified the accused and that sort of

  51. 1 thing. There is a distinction, isn't there, between a

    2 witness on such a central issue and a witness who may

    3 deal with more peripheral matters.

    4 MR. SMITH: I would articulate it this way,

    5 Your Honour: I think it goes to the issue of mainly,

    6 decisively, or primarily relying but in a complex case

    7 with many of the elements of the offence. I would

    8 argue that any witness -- that the witness is -- the

    9 importance of the witness must be determined as to each

    10 element of the offence. If there's a necessary link

    11 and a witness testifying to it, whose testimony is

    12 crucial to that necessary element, such as an attack on

    13 a village, that is not a peripheral witness. It is the

    14 witness crucial to a crucial link.

    15 If there was a witness that was completely

    16 peripheral to an necessary element, that would be a

    17 different question but that's not what we're dealing

    18 with in these cases. We are dealing with witnesses who

    19 are usually to a necessary element. That's the point

    20 that I made yesterday, that each one of these village

    21 attacks is a necessary element in the Prosecutor's

    22 case. She need not have chosen to try to prove her

    23 case in 15 villages, but she has done so and we are

    24 obligated to defend in those 15 cases.

    25 The cases reverse even where there were

  52. 1 investigators who took the statements available for

    2 cross-examination, and I cite the Delta case and the

    3 Kostovski case.

    4 One case made a particular point of saying

    5 unsworn testimony, unsworn statements are not

    6 appropriate. The cases reverse even when there is

    7 substantial corroborative evidence on occasion, such as

    8 the Unterpertinger case and Bricmont.

    9 Finally, the cases reverse even where there

    10 are countervailing, strong countervailing social policy

    11 considerations, such as, for example, the fight against

    12 organised crime and drugs, and I cite the Kostovski

    13 case and the Saidi case, or where terrorist activity is

    14 involved, and that's the Barbera case cited by the

    15 Prosecutors themselves.

    16 The few cases that do affirm have crucial

    17 facts that are not present here. So, for example, in

    18 the Isgro case and the Doorson case, adequate forms of

    19 confrontation at some stage, for example, an

    20 investigating judge with counsel present, with

    21 questions asked, some form critical of questions being

    22 asked, those facts are present. They have affirmed

    23 when there is a waiver by the defendant. The defendant

    24 simply doesn't raise the issue below.

    25 They have affirmed in some case where there

  53. 1 is very significant other corroborative evidence that

    2 is probably before the Tribunal, but not in a case,

    3 obviously, where all of the witnesses on a critical

    4 link, like an attack on a particular village, are done

    5 on paper.

    6 Here we are dealing with, as I indicated

    7 before, written witness statements of questionable

    8 reliability, unsworn, no perjury penalty, untested by

    9 questioning by the Defence of indeed an equal arms

    10 issue in and of itself, and selectively included.

    11 We're dealing with summaries of witness statements by

    12 non-recipient investigators, in this case one who did

    13 not even speak to most of the witnesses.

    14 Let me turn briefly to the British law

    15 because Your Honours have raised that subject. This is

    16 obviously not matter on which I am an expert.

    17 Indeed, the first question is the Criminal

    18 Justice Act of 1988 that I think Judge Robinson may

    19 have referred to yesterday, and one provision of which,

    20 I believe, is involved in the case which the Judge was

    21 concerned about and was handed out this morning, before

    22 we began, by the Prosecutor.

    23 That act has two sections dealing with

    24 documentary evidence. One is section 23, dealing with

    25 first-hand hearsay in documents and, secondly, a

  54. 1 section 26, much more relevant, dealing with statements

    2 prepared for criminal proceedings and involving, in the

    3 latter case, a presumption against admissibility, and

    4 investigators' reports that have statements by

    5 witnesses are clearly prepared in contemplation of

    6 criminal proceedings and maybe analogous to that

    7 provision where there is a presumption against their

    8 admission.

    9 There's another section that Your Honours, at

    10 least one of Your Honours will know far better than I

    11 as to its applicability, and that's the Criminal

    12 Justice Act 1967, section 9, which provides that a

    13 written statement by any person can be evidence but

    14 only if none of the parties objects within seven days

    15 of being served a copy.

    16 The case that Your Honour referred to

    17 yesterday, Judge Robinson, I've looked at. It seems to

    18 me that that case is helpful. It says that the

    19 Prosecutor, under English law, should have obtained a

    20 statement by the witness not present at the trial, "on

    21 commission," which I take is an English statement for

    22 letters rogatory or something of that sort, under

    23 section 3 of the 1980, I think, or '90 act, which would

    24 have allowed the Defence a right of cross-examination

    25 at the location, a foreign location, where that

  55. 1 statement was to be taken. As a result, there was no,

    2 I think it's dicta, but there was no violation of the

    3 European Convention on Human Rights and the opportunity

    4 to cross-examine.

    5 As it turns out, the Prosecutor was not

    6 diligent in that case, and under British law the

    7 statement couldn't be used because he had not been, but

    8 I think it underlines the fact that to be consistent

    9 with the European Convention, there has to be an

    10 opportunity to challenge at some stage, as I indicated

    11 earlier.

    12 I might add --

    13 JUDGE BENNOUNA: (Interpretation) Excuse me,

    14 Mr. Smith. I apologise for interrupting you but

    15 perhaps we can speed things up a little bit.

    16 If I understand you well, you would accept,

    17 according to this English jurisprudence, that the

    18 Prosecutor submits these statements on condition that

    19 you can call the witness to cross-examine him. Did I

    20 understand you right?

    21 MR. SMITH: No, Your Honour. I'm afraid that

    22 that was not what I was saying, and I'm afraid that I

    23 would not be prepared to concur in that procedure.

    24 That has the effect of shifting the burden of going

    25 forward, and arguably the burden of proof, to the

  56. 1 defendant, because the defendant must then call the

    2 witness.

    3 This is the Prosecutor's case. Our case will

    4 come later after the Prosecutor has rested, but we

    5 ought not have to bear burdens of putting the case on.

    6 That is the job of the Prosecutor.

    7 JUDGE BENNOUNA: (Interpretation) But what

    8 would be your conclusion from the English jurisprudence

    9 that you have quoted from? You are telling us that

    10 according to the Tribunal, the statements would be

    11 accepted on condition that the witnesses could be

    12 called, that is, the person who has made the statement

    13 would be called to cross-examine. Is that your

    14 conclusion or are you quoting that simply as a

    15 theoretical premise?

    16 MR. SMITH: I'm afraid I have not made myself

    17 clear about the procedure that, as I understand it, was

    18 used in that case. There was a crime in the UK against

    19 a gentleman who resided in the United States, and that

    20 gentleman chose not to appear in the proceeding in the

    21 UK. The Prosecution could have used the conventions in

    22 English law, based on conventions, for going to the

    23 United States and obtaining a statement by that

    24 victim -- by this potential witness.

    25 If they had done that, the defence would have

  57. 1 been entitled to go along and, under America law and

    2 law in many countries, would have been entitled to be

    3 present when the Prosecutor put the questions and to

    4 cross-examine the witness, just as he would have done

    5 if the witness would have appeared to trial.

    6 That was found to satisfy the obligation

    7 under the European Convention.

    8 What happened instead was that the

    9 Prosecution let that opportunity slip pass them and

    10 attempted to use at trial a written statement that they

    11 had obtained that had not gone through that procedure

    12 and to which the Defence had no opportunity to

    13 cross-examine, and that attempt, because they were

    14 negligent, was found, under English law alone, to be

    15 inapplicable, and that's why I said that the whole

    16 thing is simply dicta when it comes to the question of

    17 compliance with the European Convention.

    18 JUDGE ROBINSON: I will add, Judge Bennouna

    19 of course speaks for himself, but I thought he was

    20 asking you where would be the unfairness if the written

    21 statements were admitted subject to a right of

    22 cross-examination?

    23 MR. SMITH: And I attempted to answer it and

    24 I've obviously not succeeded, but I attempted to answer

    25 it by saying that that has the effect of shifting into

  58. 1 the defendant's case, with the burden on the defendant,

    2 of calling witnesses, perhaps having to take them on

    3 direct-examination when they are likely to be adverse,

    4 since they are Prosecution witnesses, and for any

    5 number of reasons, and my colleague Mr. Stein will deal

    6 with this at length -- I'm almost finished.

    7 JUDGE ROBINSON: I don't understand how that

    8 will result in a shifting of the burden, because it

    9 would be rather like, as far as I see it, the procedure

    10 set out in the Rules for expert statements or

    11 depositions. Statements can be admitted, but if you

    12 want to cross-examine, then you have the right to

    13 cross-examine. I don't understand how that results

    14 until an unfairness or shifts the burden.

    15 MR. SMITH: Maybe I didn't understand Your

    16 Honour's question. If what you're saying is that --

    17 you're saying that the statement would be admitted as

    18 an expert report would be proffered for admission. The

    19 Defence would then say whether it chose to

    20 cross-examine, and if it chose to cross-examine, the

    21 Prosecutor would have to produce the witness in his

    22 case. That the hypothesis?

    23 JUDGE ROBINSON: That's what I had in mind.

    24 MR. SMITH: Well, I guess -- I think that

    25 works. That's essentially the way you treat an expert

  59. 1 report and the introduction of an expert.

    2 JUDGE MAY: Very well. Let's go one stage

    3 further. Suppose we, although, were added this

    4 condition: The statement is admitted or the transcript

    5 is admitted subject to cross-examination by the Defence

    6 but there is added, on leave being given by the Court

    7 on the Defence showing cause, I think you would say, as

    8 to the reason why the witness has to be

    9 cross-examined.

    10 You will no doubt say that that is shifting a

    11 burden. It's no burden of proof, of course, all it is

    12 is an indication as to what the issues you want to

    13 raise with the witness are.

    14 So the question really is is there something

    15 on which we want to cross-examine? Apart from

    16 enunciating some general principle, we should be able

    17 to cross-examine who we want when there is nothing to

    18 be cross-examined to. Of course, that applies

    19 particularly in the case of transcripts, where in a

    20 similar case to this, witnesses have given evidence and

    21 been cross-examined, as happened in Aleksovski.

    22 Perhaps you'd like to think about that. It's

    23 about time we had a break anyway. Quarter after hour,

    24 please.

    25 --- Recess taken at 4.08 p.m.

  60. 1 --- On resuming at 4.28 p.m.

    2 JUDGE MAY: We have to finish this afternoon

    3 at twenty-five past five. It would be helpful if we

    4 could finish this argument today, including

    5 Mr. Kovacic, if we can. I understand there is a matter

    6 you want to raise, Mr. Nice.

    7 MR. NICE: There are a few administrative

    8 matters, one or two of which I have to deal with today,

    9 and they won't, I think, take just five minutes. I

    10 think, in reality, they are likely to take ten or

    11 fifteen minutes. I've also got already a number of

    12 things I would want to be able to just mention in reply

    13 to what Mr. Smith has already said. As to the

    14 administrative matters, I really can't put them off

    15 because they are timetable matters, and they have to be

    16 dealt with.

    17 JUDGE MAY: So they should be dealt with at

    18 ten past five.

    19 MR. NICE: I would have thought that would be

    20 safer, myself.

    21 JUDGE MAY: Very well. We will see how we

    22 get on.

    23 MR. SMITH: Your Honour, let me go back for a

    24 moment to the question that Judge Robinson raised,

    25 because I want to be certain that there isn't a

  61. 1 misunderstanding. I assumed that what the Judge was

    2 saying was that there would be a procedure in which a

    3 witness would come, give his direct testimony, but a

    4 witness statement could be introduced as an exhibit, in

    5 effect, and I think my counsel tell me -- co-counsel

    6 tell me think that that is not what Judge Robinson had

    7 in mind, and I see him shaking his head. Let me do the

    8 following then, if I may: Make two -- yes?

    9 JUDGE ROBINSON: The procedure that I had in

    10 mind is modelled on the procedure for depositions and

    11 expert testimony. The witness statements would be

    12 admitted, subject to a right of cross-examination, but

    13 that latter part may be tailored, but that's my

    14 understanding of it, what I have in mind, that there

    15 would be a right of cross-examination.

    16 MR. SMITH: Let me then amend my answer and

    17 say that we do believe that would present

    18 difficulties. Let me make two very quick points to

    19 finish up the discussion of the law, and we are now

    20 very much into practical matters, and I will turn over

    21 to my co-counsel, Mr. Stein, who will deal directly

    22 with your question and yours, Your Honour.

    23 Two quick points: On Yugoslav law, civil law

    24 jurisdiction, unsworn statements simply cannot be used

    25 in criminal proceedings. Even sworn statements taken

  62. 1 before an investigative judge can only be used in

    2 exceptional circumstances and with the consent of both

    3 parties.

    4 Second point: The Kostovski case, and I

    5 would close on the law simply by quoting the judges of

    6 the European Court of Human Rights. This was a case

    7 involving organised crime, a case in which the witness

    8 did not appear and a witness statement was used, and it

    9 was reversed, even where the investigators were

    10 available to be cross-examined. The defendant had that

    11 opportunity, and I might read the language, Your

    12 Honours: "It is true that the Defence was able, both

    13 before the Utrecht District Court and the Amsterdam

    14 Court of Appeal, to question one of the police officers

    15 and both of the examining magistrates who had taken the

    16 declarations," and the language that I would like to

    17 leave you with on the law is where the judges of that

    18 European Court of Human Rights say: "The court does

    19 not underestimate the importance of the struggle

    20 against organised crime ... Although the growth in

    21 organised crime doubtless demands the introduction of

    22 appropriate measures, the government's submissions

    23 appear to the court to lay insufficient weight on what

    24 the applicant counsel described as 'the interest of

    25 everybody in a civilised society, in a controllable and

  63. 1 fair judicial procedure'. The right to a fair

    2 administration of justice holds so prominent a place in

    3 a democratic society that it cannot be sacrificed to

    4 expediency."

    5 I will turn now to my co-counsel to deal with

    6 these more practical questions.

    7 MR. STEIN: May it please the Court. I've

    8 thought long and hard about this issue. I've thought

    9 about it from our American experience, from what I have

    10 heard is the British experience, and just the reality,

    11 however, of the common experience.

    12 Of course, we can't just graft a system from

    13 common experience because there are rules to guide us,

    14 but in this very courthouse, in this very courtroom, we

    15 have some guidance. We have witnesses whose statements

    16 have been given to us, whose summaries have been given

    17 to us by the Prosecution, and in half a dozen

    18 instances, their testimonies, in a leading fashion,

    19 have deviated substantially from not just their

    20 pre-trial statements but from also their summaries.

    21 The two best experts on the subject have found -- or

    22 the three best experts, Mr. Lopez-Terres and Mr. Scott,

    23 when their witnesses either collapsed or just did not

    24 say what they were supposed to say, Witness H,

    25 Dr. Mujezinovic, departed radically from what was in

  64. 1 their summary which, of course, was based on their

    2 statement and which was based on their proofing. When

    3 they departed radically from that, we made large

    4 argument about it, and that goes ultimately to the

    5 question you're asking.

    6 Also in this courtroom, we've had a witness

    7 who's denied he made a statement whatsoever,

    8 Mr. Surkovic. When I cross-examined him relative to

    9 Zenica and his appearance there based on the late

    10 delivery of that appearance, he said, "I wasn't even

    11 there. I don't remember anything about it." It could

    12 have been a pure failure of memory, as Judge Bennouna

    13 queried him, or alternatively, it could be something

    14 very different, I don't know the answer to that, but he

    15 didn't remember that 1994 court appearance before his

    16 friend who he said he has coffee with. That raises

    17 some suspicions.

    18 We've had in this very courtroom witnesses

    19 who, in their statements, say that Mr. Kordic is king,

    20 he is God in Busovaca, he did all manner of things,

    21 who, on inspection, on cross-examination, of course,

    22 say they have no basis for that.

    23 The essence of what I'm saying are the three

    24 Cs: Confrontation, cross-examination, and

    25 credibility.

  65. 1 We also have had witnesses in this courtroom

    2 who have testified maybe perfectly consistently with

    3 their pre-trial statements, consistent with what the

    4 Prosecution expects but who you don't have to believe,

    5 for whatever the reason, pure credibility. Three

    6 examples I can think of: Mr. Cicak, as he sat here

    7 with his demeanour and the way in which he wanted to run

    8 the courtroom, Mr. Zlotrg, who because of all the

    9 issues in his own personal life feels there's a major

    10 conspiracy between men, women, and children of the

    11 Croat nationality. You don't have to believe all or

    12 part of what they say. Pure credibility issues. A

    13 witness, I don't know his designation, I can't

    14 remember, whose witness statement was replete with the

    15 word "Ustasha." That raises an issue of his

    16 credibility as well.

    17 So if we keep the three Cs with us at all

    18 times, and you know that those three Cs came to us

    19 historically, then I think what I'm about to say

    20 hopefully will make sense. Let me answer directly why

    21 just putting the witness on the stand, having the

    22 witness statement, and then cross-examining would not

    23 be fair. It wouldn't be fair for the defendant,

    24 Defence counsel, or the Court, and it would not be fair

    25 because the Court would be deprived of the witness's

  66. 1 direct testimony as he gives it. You would not be able

    2 to hear and make a determination, as the Prosecution

    3 presents it, how the witness's demeanour and credibility

    4 is, whether or not he appears, as he is giving his

    5 narrative, to be credible to you.

    6 Moreover, the accused and Defence counsel

    7 would not have the then present ability to hear the

    8 accusation against the accused in a language the

    9 accused and Defence counsel can understand, to have the

    10 confrontation of the witness. Instead, we would be

    11 left, even if the Prosecution produced the witness,

    12 thereby not having the burden of a production problem,

    13 even if the Prosecution produced the witness, we would

    14 have to presume either that he has testified

    15 consistently with his witness statements and then

    16 examine, or alternatively, ask him, irrespective of the

    17 witness statements, what his version of the facts are.

    18 I don't think that's going to be faster, and we will

    19 have, therefore, the situation confounding us of we

    20 have to do the direct examination. We will pretend

    21 that that paper doesn't exist called the witness

    22 statement and say, "What did you see?"

    23 So I think I've answered your question

    24 directly, Judge Robinson. I'm trying to. If we always

    25 focus on those three things, then it's apparent. Now,

  67. 1 again, I've struggled with this because I'm saying who

    2 has a monopoly on truth? I do agree with Mr. Nice.

    3 Our system doesn't, nor does he. Frankly, if the

    4 process that Mr. Nice talked about yesterday, that is,

    5 engrafted into the English system, were grafted into

    6 our system, the Defence lawyer would be guilty not only

    7 of malpractice, he might be disbarred, but we don't

    8 have to win. We don't have to win the debate of which

    9 system is better or worse. The common experience of

    10 these statements is what's important.

    11 As they're generated, there are 150 or 200

    12 folks from the Prosecutor's office who take

    13 statements. That's part of the issue. They do the

    14 best they can. As two human beings in different

    15 languages sit there and try to communicate, the process

    16 of communication is different. There's a second

    17 statement, sometimes a third. There are also

    18 statements from Zenica. There are a compilation of

    19 statements, and each of the folks tries to get it

    20 right, but all of that out-of-court work, of course, is

    21 never presented to Your Honours. There is no videotape

    22 going. There is no audiotape going. It can't be. It

    23 is a summation as best as Mr. Bajwa and anyone else can

    24 do it, but nonetheless within the limits of time,

    25 within the limits of the collective knowledge of the

  68. 1 individuals who are taking the statement, within the

    2 limits of the circumstances. Sometimes that creates

    3 closer to the versions, sometimes not.

    4 We know in this very courtroom, based on two

    5 expert opinions, one being Mr. Scott and one being

    6 Mr. Nice, that that process has flaws. For instance,

    7 Mr. Scott the other day, in discussing the issue of a

    8 witness statement, a witness summary which had many new

    9 additions to it, raised the dilemma before Your Honour

    10 that every witness who is proofed, formed, interviewed

    11 pre-trial adds more. I don't doubt that for a minute.

    12 I jumped up and agreed with that. Every witness who I

    13 have prepared for trial adds more or deletes or

    14 clarifies or is inconsistent to whatever the party is,

    15 be it exculpatory or inculpatory. That's the real

    16 experience, the trial experience.

    17 Consequently, the Prosecution, and the

    18 reference to this is in day 39, July 8, pages 4482 to

    19 about 4484, I won't read them, the Prosecution was

    20 quite clear that it was in a dilemma as to how to

    21 proceed. Anyone who is put on as a witness is in that

    22 same dilemma. So if we just limit ourselves to witness

    23 statements, the Court will be deprived of truth. The

    24 Court will be deprived of the additional evidence that

    25 the witness has to give or the witness's recantation of

  69. 1 evidence he's already given by way of his statement.

    2 JUDGE ROBINSON: You would be able to extract

    3 that in cross-examination. You would still be able to

    4 cross-examine the witness as to previous statements and

    5 inconsistencies.

    6 MR. STEIN: Yes, that is correct. The

    7 process you describe would still allow us to look at

    8 inconsistencies, but in the real terms and the real

    9 world, the witness takes the stand and either, A,

    10 testifies completely consistent with his out-of-court

    11 declarations, in which case there is no inconsistency,

    12 B, testifies inconsistently helpful to the accused, in

    13 which case there's no cross-examination. There were

    14 instances in this very trial where the witness departed

    15 from his statement or recanted it in the direct, and so

    16 there was no need to cross.

    17 If I may go back to my point, and that is we

    18 know the witnesses here are very different than no

    19 matter how well they are proofed or formed, and I might

    20 say, in the civil system, as opposed to the criminal

    21 system, even where we take depositions, extensive

    22 pre-trial procedures, this happens. Surprise happens

    23 all the time in courtrooms, but in a criminal case, the

    24 surprise is more important. So it always has to go

    25 both ways.

  70. 1 The second expert, frankly, is Mr. Nice.

    2 Since he quotes from me, I'd like to quote from him.

    3 In a letter between us dated 24 June: "There may

    4 always be amplifications and some corrections, but the

    5 plain fact is that these statements were made at a time

    6 when memories were fresher than they now are and when

    7 the witness did not have the pressure of facing lawyers

    8 and defendants by whom they are sometimes affected in

    9 various ways."

    10 I agree with that. That's called a right to

    11 confront. You just can't say in civilised society,

    12 "You did this" and walk away. You have to come in

    13 here and look at the man you are potentially sending to

    14 gaol, on your evidence, for life and let him hear you

    15 say it, and when that confrontation exists, according

    16 to my expert, Mr. Nice, there are differences. The

    17 witnesses do break down.

    18 In the direct examination, the process of a

    19 witness statement just being introduced would eliminate

    20 that altogether.

    21 JUDGE MAY: Could you, at some stage, address

    22 these two points, Mr. Stein? 1) The examples you've

    23 given relate maybe to crucial witnesses who have given

    24 evidence about the direct involvement with your

    25 client. The other point I would wish you to address is

  71. 1 this, that there is a distinction between the written

    2 statement and a transcript of evidence which has been

    3 subject to cross-examination.

    4 MR. STEIN: Absolutely.

    5 JUDGE MAY: The witnesses whose statements,

    6 it's being suggested, should be introduced or whose

    7 transcript should be introduced are not those who deal

    8 directly with your client, and part of the process, I

    9 don't know whether you've directed your mind to this or

    10 not, part of the process is to try and see what is in

    11 issue and what isn't. But if at the end of the case we

    12 find that we've spent many weeks listening to evidence

    13 which wasn't in issue, it will be a considerable waste

    14 of public time and money, so the earlier we can clarify

    15 the issues, the better.

    16 MR. STEIN: That's actually three, and let me

    17 address them in reverse because my mind will work that

    18 way. There's no question that the current process, and

    19 this is my humble opinion --

    20 JUDGE MAY: By the way, I've got a fourth:

    21 It says, "Kindly slow down for the record."

    22 MR. STEIN: A dilemma, but be done by ten

    23 after five.

    24 JUDGE MAY: If you can't finish by then, we

    25 will simply have to adjourn the matter. It would be

  72. 1 useful if you could.

    2 MR. STEIN: I will do my best, Judge.

    3 JUDGE BENNOUNA: (Interpretation) Mr. Stein,

    4 if may I assist? Could we focus, in reality, on what

    5 affects us? Because we aren't about to deal with

    6 general problems, and I wish to assure Mr. Smith that

    7 we are working within the framework of the established

    8 rules. We're in the process of seeing, together with

    9 you and with your agreement, to what extent for

    10 questions that do not directly affect the accused,

    11 questions regarding the surroundings and regarding

    12 facts that occurred here and there and which normally

    13 are noted and fit within the regular system in the

    14 country, could we use the procedure in accordance with

    15 94 bis, referring to expert witnesses, or 93 ter

    16 because 93 ter has to do with depositions under oath.

    17 Perhaps we could ask for an oath to be taken for this

    18 or that statement. This is a statement that would

    19 corroborate testimony on this or that fact under the

    20 reservation that there is cross-examination.

    21 When we mentioned the example of an expert

    22 witness, Mr. Smith said, "Yes," but after the break, he

    23 retraced his position. So let us concentrate on this.

    24 When we are dealing with repetitive matters, for

    25 instance, for Kaonik, we have already had five, and

  73. 1 also for other villages, there have been several, you

    2 yourself have proposed that two witnesses per village

    3 would be sufficient.

    4 We could also have such a procedure with two

    5 witnesses if other witnesses corroborate what has been

    6 said by the first. Then we could provide these

    7 statements in a similar way as expert statements, which

    8 would corroborate what has already been said. If you

    9 have any trouble over those subsequent statements, you

    10 would inform the Chamber of this. If the Chamber is

    11 convinced of the fact that you are right about it, then

    12 we can look at it. This only applies to 12, 13, 14

    13 villages. Let us concentrate ourselves by trying to

    14 limit the number of witnesses per village.

    15 That is where we stand, and I think

    16 questions, theoretical questions regarding the civil

    17 law, the common law, nobody believes in this

    18 contradiction anyway, but we are an International

    19 Tribunal without a state behind us, as you know well.

    20 So that is where we stand. Let us try and

    21 focus on practical issues. Thank you.

    22 MR. STEIN: Well, I'll try. Consistent with

    23 the Rules, Your Honours, of course, can limit the

    24 Prosecution or the Defence to the number of witnesses.

    25 You can limit the length of the examination.

  74. 1 Now, that raises the issue, quite candidly,

    2 of jurisprudence that we don't need to address of how

    3 much involved the Tribunal wants to get in the

    4 presentation of evidence. Under the current rules, the

    5 Judges tremendously involved. Tremendously involved.

    6 So that's a given and it's within your right. The

    7 short answer to your question, of course, is that you

    8 can exercise your control that way, consistent with the

    9 Rules, without anyone being allowed to complain.

    10 In this particular case, sure, if you want to

    11 put on a witness familiar with the terrain, the

    12 population, these are percipient witnesses, he's been

    13 there, but when he incorporates by whole cloth the

    14 witness statement that's a different departure.

    15 Let me point out, while I'm standing and

    16 before I forget, this dossier, and I'd like to have the

    17 usher pass this out, contains half a dozen or so --

    18 seven witnesses who have given a variety of

    19 statements. Those statements -- what we're handing up

    20 now is self-created by us. It's what the OTP has not

    21 included in the dossier. It's the other dates of the

    22 witness statements, the other statements given to

    23 various investigators and Tribunals.

    24 Those statements, when put together, look

    25 like this, about three-quarters of an inch of

  75. 1 material. As you can see, some are much closer in time

    2 to the events.

    3 So I just wanted to, before I forgot and got

    4 off track again, that the dossier, as presently

    5 constituted, is incomplete, and the point Mr. Smith

    6 made but what I wanted to graphically show you.

    7 Judge, with regard to important versus

    8 non-important witnesses, to be sure that distinction

    9 can be made, at first blush it seems very real, and as

    10 I was thinking about that yesterday, my response has to

    11 be twofold.

    12 The Prosecution's case of conspiracy,

    13 criminal association, aiding and abetting is so broad

    14 that it literally encompasses all of the actors in the

    15 drama that we've been talking about. You've heard

    16 that, that Mr. Scott wanted to bring in great evidence

    17 about Mr. Sliskovic and other individuals because it is

    18 their contention that they were under Mr. Kordic's

    19 control.

    20 So what appears at first blush sometimes to

    21 be a non-important issue on a non-important fact with a

    22 non-important player may, in the grand scheme of

    23 things, become important. I must say that as we unfold

    24 this case, that which appeared unimportant to me and to

    25 us at the beginning becomes more important as we go on

  76. 1 and vice verse, as the evidence unfolds.

    2 A lot of what I'm saying in response to your

    3 question may well be resolved with a rule change

    4 relative to discovery, and large amounts of discovery

    5 pre-trial and well in advance of trial. I can think of

    6 all kinds of systems in which discovery is brought in

    7 the criminal context, with the goal to shorten trials,

    8 but those aren't the rules that we have now.

    9 There are jurisdictions where you can take

    10 depositions in criminal cases, and that than might be a

    11 way. That might lead to some of the shortening issues

    12 that we are here talking about, but under the rules as

    13 constituted now, that doesn't happen.

    14 Your Honour also -- well, I think that was

    15 two of the three. I think I missed one. Yes,

    16 transcripts. Transcripts, of course, are a much closer

    17 case, because -- and pre-Aleksovski, I would have

    18 acknowledged they were a closer case as long as the

    19 issues are relatively close, and the same under

    20 Aleksoviski were left with that holding which I know

    21 Your Honour is familiar with. So that's the rule

    22 relative to transcripts.

    23 In this dossier, the transcripts aren't

    24 necessary because they're cumulative. We've already

    25 heard one of the witnesses, the other is unavailable,

  77. 1 and then you get into the unavailability issue, which

    2 brings me to another point.

    3 I make all these nice notes, I have an order

    4 to these things, but they never come out that way.

    5 We reject out of hand any implication by the

    6 Prosecution that when a witness is unavailable it's of

    7 because anything the accused did. Witnesses are

    8 unavailable for a host of reasons. Their stated desire

    9 not to come being not necessarily any fault of the

    10 accused, being instead --

    11 JUDGE ROBINSON: That allegation has not been

    12 made.

    13 MR. STEIN: No, it hasn't been made directly,

    14 and if it's made inferentially I want to stop it now,

    15 but they don't come, and why, I don't know. It may

    16 well be that, on reflection, they don't want to

    17 confront the accused or they don't want to live up to

    18 the story that they told. The Prosecution would take

    19 advantage of that and use evidence that historically is

    20 less satisfactory and furthers the search for truth

    21 less.

    22 Let me make an argument that is a pure

    23 argument but I think it has some persuasive effect.

    24 You could theoretically construct -- I guess this goes

    25 to Judge Bennouna's question. You could construct a

  78. 1 situation in which the complete trial is trial by

    2 dossier-type witnesses. You could construct it through

    3 villages. Theoretically you could just have the

    4 Prosecution stand up and give a summary of the case and

    5 we could cross-examine somehow that. Theoretically you

    6 could have a system where the indictment is proof that

    7 there's a crime and the burden shifts to the Defence.

    8 You could do all that. That would be, of course,

    9 violation of statutory rules in this Tribunal and

    10 fundamental rights under International Law, and it

    11 wouldn't be a better system. It may be more

    12 expeditious but it wouldn't be better, because you who

    13 have to make a decision about a man's future would not

    14 have the benefit of seeing the persons who are making

    15 the accusations. You would be getting the story twice,

    16 third time, fourth, fifth-hand removed.

    17 So we can craft all manner of things and do

    18 all things but it wouldn't make our system better. We

    19 are constrained by the rules as they exist and by the

    20 Statutes on human rights.

    21 Parenthetically -- I was thrown off track --

    22 there are, in this very situation, instances in which

    23 the Defence and the Prosecution have indeed

    24 cooperated. I don't want to stand up here any more and

    25 hear that we haven't in some ways cooperated. We have,

  79. 1 for instance gone over the core documents. There's an

    2 ongoing discussion about what will be admitted without

    3 any problem, and if we can resolve our issues relative

    4 to objections, we'll do so. We're going to be meeting

    5 with the Prosecution shortly to resolve issues of

    6 exhibits.

    7 It's in everyone's interests along those

    8 lines, but we are limited by what's fair, what's right,

    9 and what our client's expectation of our role is. We

    10 are here -- the Defence role is to scrutinise, and it

    11 may make it slower at times. Our Defence role is to

    12 view with a jaundiced eye, and that's my last point,

    13 view with a jaundiced eye what the witnesses say.

    14 When we read a witness statement, it's with

    15 the defence in the back of my mind and it's with where

    16 we want to go. With respect, when we read a witness

    17 statement, we read it differently than when the Court

    18 does.

    19 JUDGE ROBINSON: Mr. Stein, I think the

    20 comment was unfortunate that you are limited by the

    21 expectations of your -- of your client's expectations

    22 of what your role should be. I don't think the Chamber

    23 is so limited. I think what your role is independent

    24 of your client's expectations. That's dictated by a

    25 professional Court.

  80. 1 MR. STEIN: No question about it. There are

    2 limits to the client's expectation and there are realms

    3 in which we operate independently. I painted, as I am

    4 sometimes wont to do, with too broad a brush, but the

    5 client, to echo what Mr. Smith said, voluntarily

    6 surrendered himself to this Tribunal based on its rules

    7 and it's process. He could have very well chosen

    8 different lawyers more familiar with the continental

    9 system or a different set of rules. He chose not to.

    10 I again caution, and I want to say this in a

    11 non-controversial way, the Court from anything that you

    12 decide, involving in a way that appears, even though it

    13 isn't, to favour one side or the other. I know,

    14 without any doubt, that to a moral certainty the Court

    15 is going to be fair to all sides. I don't doubt that

    16 for a second. But the appearance, of course, of what

    17 you do is also important, and it might appear that in

    18 the rush to avoid a two and half year trial we're

    19 forgetting things. It might appear that preliminary

    20 judgements have been made for us or against us, for the

    21 Prosecution or against the Prosecution, and in the rush

    22 to move forward we are forgetting process.

    23 I, again, to a moral certainty, do not

    24 believe you have made your choices and made your

    25 decisions. You have not. But since Mr. Nice alluded

  81. 1 to it, the rest of the world, of course, watches and is

    2 watching how we proceed here, and it is an honour to

    3 proceed with that. I was going to start with that but

    4 I always get thrown off by my own thoughts. It's an

    5 honour to proceed here. It's an honour to be among men

    6 and women who are struggling to create a system that is

    7 fair given the realities of the issues on the ground.

    8 It truly is. It's an honour even to do battle with

    9 Mr. Nice, even though he may not like some of my

    10 invective.

    11 But I suggest the last American homily which

    12 I hopefully think will help the Court, and that is that

    13 the grist of justice grinds slowly but exceedingly fine

    14 and sometimes the search for truth just takes time.

    15 JUDGE MAY: Mr. Kovacic, we're looking at the

    16 clock. How long do you think you're going to be? I

    17 don't want to put you under pressure of time.

    18 MR. KOVACIC: Your Honour, it's difficult to

    19 say because we did not, unfortunately, coordinate our

    20 efforts. However, we were thinking more or less on the

    21 same lines, and now I have to omit some parts because

    22 certainly I will not repeat what my distinguished

    23 colleague says.

    24 If I may suggest, perhaps I could be finished

    25 in say 10 minutes or something, I guess, and then if

  82. 1 there is a lot which I was not able to tell, perhaps

    2 you will give me tomorrow another 10 minutes or

    3 15 minutes. Not more than, that I'm sure. Or

    4 simply --

    5 JUDGE MAY: We're not here tomorrow.

    6 Mr. Nice, how long are you going want to reply?

    7 MR. NICE: Reply will be at least 15 minutes

    8 but it will be more compact if I --

    9 THE INTERPRETER: Microphone, please, Mr.

    10 Nice.

    11 MR. NICE: I'm very sorry. Ten to fifteen

    12 minutes. Fifteen minutes probably. It will be more

    13 compact if prepared, typed, and reduced to a skeleton.

    14 JUDGE MAY: Very well. Mr. Kovacic, we'll

    15 adjourn --

    16 MR. KOVACIC: Fine with me, Your Honour.

    17 JUDGE MAY: -- until next week to give a

    18 chance to complete your argument.

    19 Mr. Nice, if you would put yours in a

    20 skeleton. We'll have to find suitable time.

    21 MR. NICE: Yes. The administrative matters

    22 that I'm sorry I have to trouble you with can start off

    23 with something that is very simple.

    24 Can we distribute the expert summaries?

    25 To assist the Chamber and my learned friends

  83. 1 for the defendants, I have prepared succinct overviews

    2 for the two witnesses. They aren't summaries in the

    3 sense that they don't follow what have been described

    4 as proofing sessions, so they are without-prejudice

    5 overviews by us of the critical passages for the

    6 Prosecution of those two reports, and they are, as the

    7 Chamber will see, indeed succinct. I hope they will

    8 help.

    9 JUDGE MAY: Are you going to apply to ask any

    10 questions in chief of these witnesses?

    11 MR. NICE: With your leave and given the

    12 brevity with which I have presented their material in

    13 this synopsis, I will seek probably to ask them a few

    14 questions in chief but I wouldn't forecast being very

    15 long, particularly given the way I'm focusing their

    16 material through these documents. There may be some

    17 other points of focus that will occur between now and

    18 Monday, but given the focus that we've presented. I

    19 would hope that I may be allowed at least to touch on

    20 the points of particular concern with them if I seek to

    21 do so.

    22 Now, the next matter concerns witnesses for

    23 the following week. That witness is a witness who was

    24 subject to a ten-day disclosure order and, therefore, I

    25 must disclose such material as I have about that

  84. 1 witness today.

    2 JUDGE MAY: This is the week after next.

    3 MR. NICE: That's right. Now, that witness

    4 is subject to an order of protection, a particularly

    5 tight order of protection by the court, and it's the

    6 first time that this order of protection has come into

    7 play, because although it may have been an order

    8 expressed to be effective for other witnesses, in those

    9 earlier cases the material about the witnesses had been

    10 distributed already and, therefore, the particularly

    11 tight terms of the protective order could not apply.

    12 So point number one, and without naming the

    13 witnesses because we're still in open session --

    14 there's perhaps no reason why we shouldn't go into

    15 private session. I think these all are matters that

    16 would be safer dealt with in private session because of

    17 the risk of naming people who should otherwise not be

    18 named.

    19 (Private session)

    20 (redacted)

    21 (redacted)

    22 (redacted)

    23 (redacted)

    24 (redacted)

    25 (redacted)

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    2 (redacted)

    3 (redacted)

    4 --- Whereupon the hearing adjourned at

    5 5.20 p.m., to be reconvened on Monday,

    6 the 19th day of June, 1999, at 2.30 p.m.




















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