1 Wednesday, 27 April 2005

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.15 a.m.

5 JUDGE ORIE: Good morning to everyone.

6 Madam Registrar, would you please call the case.

7 THE REGISTRAR: Good morning, Your Honours. This is case number

8 IT-00-39-T, the Prosecutor versus Momcilo Krajisnik.

9 JUDGE ORIE: Thank you, Madam Registrar.

10 Ms. Loukas, are you ready to cross-examine the witness?

11 MS. LOUKAS: Yes, Your Honour, just prior to that, I might

12 indicate that again this morning we've been having the -- the laptop

13 issues.

14 JUDGE ORIE: Yes, I was informed about the laptop issue and I have

15 spoken personally to the technician who promised that where the problem

16 seems to be the copying of the files stored on the hard disk, copying to

17 the -- that he would do whatever he could to assist Mr. Krajisnik in

18 getting it there and it seems to be caused by the change of the laptop and

19 different systems of storing and writing on a CD-ROM.

20 MS. LOUKAS: Precisely, Your Honour, that's the -- that's the

21 current issue with the laptop.

22 JUDGE ORIE: Yes, it has our full attention. Anything else at

23 this moment?

24 MS. LOUKAS: No, Your Honour.

25 JUDGE ORIE: Yes. Madam Usher, could you escort the witness into

1 the courtroom. At the same time, I'd like to draw the attention of the

2 parties to the agenda we have for the housekeeping matters later on this

3 morning. I hope that it's clear that if we do not work efficiently we

4 might not finish with the housekeeping which would finally result in

5 having to deal with the remainder of the housekeeping matters tomorrow

6 morning. The more efficient we are, the smaller the chance that we would

7 have to come back tomorrow morning for that reason alone.

8 MS. LOUKAS: I must say from my perspective, Your Honour, I think

9 it's very unlikely that we would need to come back tomorrow morning. My

10 cross-examination won't take all that long and I'm sure we'll have an

11 ample opportunity to deal with the housekeeping matters.

12 JUDGE ORIE: The proof of the pudding is in the eating.

13 MS. LOUKAS: Quite, Your Honour.

14 [The witness entered court]

15 JUDGE ORIE: Mr. Mehinagic, please be seated.

16 WITNESS: IZET MEHINAGIC [Resumed]

17 [Witness answered through interpreter]

18 THE WITNESS: [Interpretation] Thank you.

19 JUDGE ORIE: Mr. Mehinagic, I'd like to remind you that you are

20 still bound by the solemn declaration you've given yesterday at the

21 beginning of your testimony.

22 THE WITNESS: [Interpretation] Yes.

23 JUDGE ORIE: Mr. Mehinagic, you will now be cross-examined by

24 Ms. Loukas who is counsel for the defence of Mr. Krajisnik.

25 Please proceed, Ms. Loukas.

1 MS. LOUKAS: Thank you, Your Honour.

2 Cross-examined by Ms. Loukas:

3 Q. Good morning, Mr. Mehinagic. Now, Mr. Mehinagic, you indicated in

4 your evidence that you met with Mr. Krajisnik twice in relation to this

5 very important Tuzla-Zvornik railway project; correct?

6 A. Yes, that's correct.

7 Q. And these are in fact I think the only two occasions on which

8 you've met with Mr. Krajisnik; correct?

9 A. Yes, that's correct.

10 Q. And they were both, of course, business meetings that did not

11 touch upon any political issues.

12 A. That's precisely true.

13 Q. Now, in relation to the duties of the speaker of the parliament or

14 president of the Assembly, do you have -- I see your microphones are just

15 being adjusted there. I think the microphones have now been adjusted.

16 Now, in relation to the duties of the speaker of the parliament or

17 the president of the Assembly of Bosnia-Herzegovina, I take it you have an

18 awareness of the basic functions of that position?

19 A. Yes. Yes, I do.

20 Q. Including, basically, firstly, that he presides over the Assembly

21 and allows various deputies to speak; correct?

22 A. Yes.

23 Q. And that matters are proposed for voting by the Assembly?

24 A. Yes, that's correct.

25 Q. And, of course, that Mr. Krajisnik only has one vote just like all

1 the other deputies; correct?

2 A. When the vote is cast, yes.

3 Q. Now -- and obviously, are you aware that he could not of course

4 control the agenda that went before the Assembly, that matters that were

5 proposed for the agenda by the various deputies' club whether it be SDA,

6 HDZ, SDS had to be put on the agenda whether he agreed with them or not;

7 correct?

8 A. Under the law, and under the procedure, the speaker of the

9 Assembly had significant impact on the items to be placed on the agenda

10 and he would be the one to sign off the agenda. And I disagree with what

11 you just stated about the agenda. Nothing could have been inserted into

12 the agenda that had not been approved by the speaker of the Assembly.

13 Q. Well, just getting back to that, Mr. Mehinagic, I'm sure we're not

14 in dispute at this point. The actual signing of a matter to go on the

15 agenda was basically a formality. I mean, he couldn't stop something

16 coming to the parliament, could he?

17 A. I wouldn't be able to tell you anything further about this other

18 than what I've just stated.

19 Q. Okay. So obviously you don't put yourself forward as some sort of

20 expert on the political structures and powers of the speaker or the

21 president of the Assembly of the former Bosnia-Herzegovina; correct?

22 A. I was a figure that was positioned quite highly in the period up

23 until 1990 in the leadership of Bosnia-Herzegovina and I was familiar with

24 the system by virtue of my position.

25 Q. But of course --

1 A. That is why in general terms, the matters stood as I've just

2 described them. Now, if you wanted any further information, you would

3 have to consult experts.

4 Q. Indeed, and that's the point, Mr. Mehinagic. Now, in relation to

5 one matter you've indicated in your statement, and that is Mr. Krajisnik

6 signing off on regulations and laws, again, would you -- I take it you'd

7 agree with me that that was of course a formality, the formal position of

8 the president of the Assembly meant that there was a signature there. Are

9 you able to offer anything in relation to that or, again, is this within

10 the limits of your knowledge?

11 A. In view of my current high position in the administration and --

12 of Bosnia-Herzegovina today, I would give you the following information:

13 The authority of Mr. Krajisnik to sign off any pieces of legislation or

14 other regulations that he was authorised to sign under the regulations,

15 his signature meant that all the previous legislative procedure had been

16 implemented and that only his signature now was needed in order to make a

17 given piece of legislation effective.

18 Q. Now again just in relation to that, Mr. Mehinagic, again I don't

19 think we're in dispute here but of course that is the formal position on

20 signing off from a matter from the Assembly; correct?

21 A. Yes, that's a formal procedure governed by law.

22 Q. Precisely. Now, you've mentioned that -- of course, currently

23 you're in a high position, but prior to, I think you mentioned in one of

24 your answers prior to 1990, of course that was the previous regime, that

25 was of course under the communist regime that you're referring to;

1 correct?

2 A. I was referring to the regime that was in power in the former SFRY

3 until 1990.

4 THE INTERPRETER: Interpreter's --

5 MS. LOUKAS: Sorry.

6 THE INTERPRETER: Everything's fine.

7 MS. LOUKAS: Okay.

8 Q. Now, of course, under the previous regime, it was extremely

9 important to have good contacts with high profile people in the hope of

10 exerting influence, that would be a correct assessment of the situation?

11 A. In my opinion, it is always important to have good contacts with

12 high-profile people in whatever regime.

13 Q. I think that's probably right, Mr. Mehinagic. Now, of course --

14 and of course in relation to your project, you wanted influential people

15 on the side of the project; correct?

16 A. That's correct. And I am, by nature, a person who favours

17 transparency and I was governed by this principle in my dealings with

18 highly positioned people.

19 Q. Indeed, Mr. Mehinagic, and that, of course, is important and

20 appropriate.

21 Now, in relation to your actual reporting in relation to the

22 project, I think you've mentioned here in paragraph 6 of your statement

23 that you regularly reported to the Prime Minister Jure Pelivan and to the

24 Minister of Finance in relation to the progress of the project but of

25 force you didn't formally or in any way report to Mr. Krajisnik; correct?

1 A. That's correct.

2 Q. And of course basically your business meetings with him were to

3 ensure that he, as a high-profile person, would support the project;

4 correct?

5 A. Yes, that's correct.

6 Q. And I think you knew that he had a good relationship with the

7 Croatian -- Bosnian Prime Minister; correct?

8 A. It was only natural for me that a speaker of the Assembly and a

9 Prime Minister should be on good terms but I did not really pay much

10 attention to that. I thought that the positions that they held were

11 relevant. I, as the person responsible for very a significant project,

12 had to have good contacts but with either of them -- with both of them,

13 that is.

14 Q. Now, in response to one of Mr. Margetts's questions yesterday,

15 that's at page 10 for the benefit of the Trial Chamber and the

16 Prosecution, you were asked by Mr. Margetts why was it important

17 specifically for support to be provided by Mr. Krajisnik? And included in

18 your answer was this: "By virtue of his position, Mr. Krajisnik was after

19 the president of the republic, the second ranking figure in the leadership

20 of Bosnia and Herzegovina. In view of his position, I thought it

21 important to regularly inform him thereof. And, secondly, he played an

22 important role in the adoption of a budget for the construction of the

23 railway because such a project was always tabled before the Assembly and

24 they decided upon it and Mr. Krajisnik was speaker of that Assembly."

25 Now, just in relation to the -- what you've indicated there about

1 the ranking, it would be true to say, would it not, Mr. Mehinagic, that

2 that was basically your perception of the ranking; correct?

3 A. According to an official hierarchy or a perception of a position

4 was that you would have -- the person number one would be the president of

5 the Presidency, then the speaker of the parliament, and the Prime

6 Minister, and that was a formal view of matters, not my own.

7 Q. But of course that view is very much a formal and symbolic view

8 rather than a view based on actual power; correct?

9 A. Throughout this time, and today, I always thought that this was

10 how the hierarchy was under the law and under the Constitution.

11 Q. But obviously, Mr. Mehinagic, as you've quite fairly conceded, you

12 don't put yourself forward as some sort of expert on political structures;

13 correct?

14 A. Yes.

15 Q. Now, I just want to move on to another topic and that is just in

16 relation to people in Zvornik prior to the outbreak of the war. It would

17 be true to say, would it not, that prior to the break-up of the war, many

18 residents left Zvornik, both Serbs and Muslims; that's correct, is it not?

19 A. Many residents of Zvornik left the town but those who were leaving

20 at that time were predominantly Serbs and I can testify to that.

21 Q. But of course you would agree with the statement that there were,

22 of course, Muslims and Bosniaks as well even though you indicate that you

23 say that they were predominantly Serbs leaving at that point.

24 JUDGE ORIE: Ms. Loukas, could we perhaps first clarify what the

25 witness exactly meant by "at that time"?

1 MS. LOUKAS: Yes, I'm happy to do that, Your Honour.

2 Q. You've heard His Honour indicate "at that time." What did you

3 mean in your answer when you gave that phrase "at that time"? Would you

4 like me to read your answer again to you or are you happy to respond to

5 that?

6 A. On my return from Belgrade on the 3rd of April in the afternoon

7 hours, I saw a column of Serbs leaving Zvornik and heading towards Loznica

8 in their own vehicles and with their families. At the same time, I

9 listened to Loznica and Valjevo radio broadcasts saying that the Serb

10 populace is in danger and that they should be mobilised in that respect.

11 This is something that I, myself, experienced. There were only

12 isolated cases of Croats and Muslims leaving, sometimes also with their

13 families.

14 Q. Now, you've indicated there that the radio was saying that the

15 Serb populace was in danger and that they -- when you say --

16 A. Yes, in precisely those terms.

17 Q. All right. That the Serb population was in danger, the radio was

18 saying that, and Serbs were leaving as a result; correct?

19 A. Yes. I was listening to Valjevo and Loznica radio stations and I

20 was shocked by what I was hearing because the people there could not

21 possibly have known what was going on in Zvornik. And this was a way of

22 them deceiving their listeners.

23 Q. In any event, you were aware of -- prior to the break-up of the

24 war, that there were families, both Serb and Muslim, who actually left

25 Zvornik to go to Serbia. You are aware of that, are you not?

1 A. Yes.

2 Q. Now, I want to take you back to another matter that you've

3 mentioned in your statement and that is in -- I think it's -- yes,

4 paragraph 90 of your statement, you don't need to have it before you.

5 It's just in relation to the -- perhaps I've misnumbered it. In any

6 event, you were aware of an incident whereby a JNA officer Mihajlo

7 Stojanovic was killed on April the 5th, 1992. You're aware of that

8 incident; correct?

9 A. It wasn't this officer Stojanovic but rather another person, a

10 warrant officer --

11 THE INTERPRETER: The interpreter missed the name.

12 A. -- but I'm familiar with the case, yes.

13 MS. LOUKAS:

14 Q. Yes. Just in relation to that, to your knowledge, who attacked

15 the officer that you're talking about?

16 A. If I may be allowed to explain this in several sentences, if we

17 have enough time for that.

18 Q. Well, I'm sure we do but we can take it step by step. To your

19 knowledge, who attacked the officer that you're talking about?

20 A. The officer was the one who opened fire first, so I can't really

21 say that he was attacked. I saw with my own eyes the document brought by

22 Captain Dragan Obrenovic. This was just a piece of paper torn from a

23 notebook. This was a handwritten statement by the JNA soldier who, at the

24 time, was in the Zvornik hospital.

25 Q. Yes. Now, you've indicated in your statement that there was this

1 incident and -- yes, you've indicated in your statement that to your

2 knowledge, it was subsequently -- well, quite directly it was subsequently

3 established that the first to shoot in this incident was the JNA Warrant

4 Officer Second Class Stojanovic. And you've indicated there that "I

5 stayed in the office of the chief of police and after a few hours,

6 Obrenovic returned to the station. At this time he brought a handwritten

7 statement of the soldier who was injured in the incident and this

8 statement recorded that Stojanovic had fired the first bullet."

9 So that's the matter that you're referring to now in your evidence

10 that's already in your statement.

11 Now, what I'd like to know is, leaving aside the fact that you say

12 your knowledge is that Stojanovic had fired the first bullet, who was on

13 the other side?

14 A. Could you please correct the statement if it does state that it's

15 Stojanovic, because his name was Stanojevic, Warrant Officer Stanojevic.

16 On that day, there was a fair at Stapna and there were many people

17 gathered there. Since an incident took place that very afternoon at

18 Kalesija, the JNA was tasked to pass through Stapna on their way to Tuzla

19 and not through Kalesija. The column found it hard to advance through the

20 multitude of people gathered there for the fair. I realised that at some

21 point, some of the people perceived the column passing through Stapna at

22 the time as a provocation and stopped the column from proceeding.

23 Q. What do you mean by "stopped the column"?

24 A. It is very difficult for me to say anything about this. I was in

25 Zvornik at the time and I'm just telling you what I heard. I wasn't

1 there. But the information I have is reliable because following this

2 event, I went to the Zvornik police station.

3 Q. Are you aware that -- just getting back to what you were saying

4 about Stanojevic, I think perhaps the confusion is my pronunciation of the

5 name. I think it's actually correct in this statement, it's just that my

6 pronunciation of B/C/S sometimes leaves something to be desired and makes

7 the names sound different.

8 Now, just in relation to this incident, are you aware, firstly,

9 that Stanojevic was killed?

10 A. Yes.

11 Q. And that a squad leader and lieutenant were wounded?

12 A. Yes.

13 Q. And that one soldier was captured and he was bound and kept as a

14 hostage?

15 A. Of course I don't remember all these details now, but that's what

16 the situation was. Others who were there fled and sought shelter or

17 refuge in the nearby woods.

18 Q. Mm-hm. Now, just in relation to that, you say that your

19 information is that Stanojevic had fired the first bullet. I understand

20 that. But who fired after that, to your knowledge?

21 A. To my knowledge, both sides fired.

22 Q. Okay. And when you say "both sides," on one side, you have the

23 JNA, who was on the other side?

24 A. Sapna, the place where the fair was organised is a Muslim place,

25 and obviously, some Muslims must have opened fire.

1 MS. LOUKAS: No further questions, Your Honours.

2 JUDGE ORIE: Thank you, Ms. Loukas.

3 JUDGE ORIE: Mr. Margetts, any questions arising from

4 cross-examination?

5 MR. MARGETTS: Yes, Your Honour, just a couple of questions.

6 Re-examined by Mr. Margetts:

7 Q. Mr. Mehinagic, counsel for the Defence took you to paragraph 29 of

8 your statement relating to the radio announcements you heard on the 3rd of

9 April, 1992, and the convoy of Serbs you saw leaving Zvornik in their

10 personal cars and you've indicated this morning that they were leaving for

11 Serbia. Did the Serbs that left on the 3rd of April, 1992, remain in

12 Serbia permanently?

13 A. It was on the 3rd of April in the afternoon between 5.00 and 6.00

14 p.m. because that was the time when I was coming back from Belgrade where

15 I had had lunch with a former Presidency member, Sreten Mijatovic. I was

16 flabbergasted when I saw that column because it was an indication that the

17 attack -- an attack of Zvornik was probably imminent. To my knowledge,

18 some of those people went back on Monday morning. Quite a few families,

19 on the other hand, stayed in Serbia.

20 Q. You were also referred to matters relating to this incident that

21 occurred in Sapna and that was a controversial incident when it occurred.

22 Did you take any steps to clarify the factual situation relating to what

23 occurred in that incident?

24 A. Yes, I was very much against any violence and I implement measures

25 in order to sort this out.

1 Q. Why did you consider it important to clarify the factual situation

2 relating to that event?

3 A. I was convinced that it was essential to establish who provoked

4 the incident in order to deal with the consequences in a legal way and it

5 would make it easier.

6 Q. Were you involved in discussions with Serb representatives and

7 other Muslim representatives in relation to this matter and --

8 MS. LOUKAS: I'll let you finish.

9 MR. MARGETTS: I'll finish my question there then if -- I see my

10 learned friend rising to her feet.

11 Q. I'll ask you this, were you involved in discussions with

12 representatives of Serbs and other Muslim representatives in relation to

13 the Sapna incident?

14 MS. LOUKAS: Just in relation to that, Your Honours, I do object

15 because this is not actually a matter that arises in re-examination. My

16 cross-examination was directed specifically to the events in question and

17 his knowledge of the events and not directed to the broader question of

18 negotiations.

19 JUDGE ORIE: The objection is denied. There was a clear

20 suggestion in your questions, Ms. Loukas, that this may have triggered

21 other matters and in that respect, it's relevant to hear whether any

22 negotiations specific on this matter took place.

23 MS. LOUKAS: If Your Honour please.

24 MR. MARGETTS:

25 Q. So Mr. Mehinagic, I'm just asking you whether negotiations --

1 well, in the course of the negotiations you've described, was the Sapna

2 incident a subject that was discussed?

3 A. Yes, prior to that, I had insisted and it was organised for

4 soldiers, arms, and vehicles to be gathered and brought back to Zvornik.

5 Secondly, following my insistence and my assistance, of course, the

6 president of the Assembly contacted the corps commander with regard to the

7 incident, and he apologised. And thirdly, at the People's Defence Council

8 meeting, we decided that proper light should be shed on incident at Sapna

9 and everybody agreed and they were all bound by that agreement.

10 Q. When you say "everybody agreed," was that everybody in attendance

11 at that meeting and, if I may refer you to your statement, I'm referring

12 to the list of attendees at paragraph 41 of your statement.

13 MS. LOUKAS: Your Honour, I do object to this form of

14 re-examination. The -- in re-examination just as in evidence in chief,

15 the Prosecution is prohibited from leading and when you say "'Everybody

16 agreed,' was that everybody in attendance at that meeting, and may I refer

17 you to your statement," Your Honours, I would submit that that's leading

18 in relation to that aspect.

19 JUDGE ORIE: Mr. Margetts.

20 MR. MARGETTS: Your Honour, the words "everybody agreed and they

21 were all bound by that agreement" are the words of the witness and this is

22 simply a clarifying question so that the witness can specifically refer to

23 the people by name.

24 JUDGE ORIE: It's clarifying and a bit leading. Yes, you are

25 drawing the attention to a certain group of people. But when you said

1 that "everybody agreed," could you tell us who you had in mind

2 with "everybody"?

3 THE WITNESS: [Interpretation] The JNA, the representatives of the

4 Crisis Staff of the SDS, the representatives of the legal authorities of

5 the municipality of Zvornik.

6 JUDGE ORIE: If you say JNA and the representatives, are you

7 referring to a specific occasion or -- because I take it that not the

8 whole of the JNA agreed with it.

9 THE WITNESS: [Interpretation] That was a conclusion which was

10 formally reached at the meeting of the People's Defence Council of the

11 municipality of Zvornik on the 6th of April. I did not have such a

12 conclusion to be approved previously in talks with people, I arranged for

13 it to be agreed to or also on behalf of General Jankovic and Colonel Tacic

14 who was in charge of the armoured and mechanised brigade so that was the

15 basis for all parties reaching that agreement.

16 JUDGE ORIE: Thank you.

17 Please proceed, Mr. Margetts.

18 MR. MARGETTS:

19 Q. What was the significance of the all of the parties being agreed

20 in relation to this incident?

21 A. When Captain Dragan Obrenovic got to the police station, he

22 threatened that he would destroy Sapna. When he came back and there was a

23 statement from the soldiers, he had already changed his mind. What was

24 significant to me was for the incident to be clarified in a fair and

25 honest way and for things to be patched up so as to avoid that being used

1 as an excuse to attack Zvornik.

2 MR. MARGETTS: Thank you, Your Honour, no further questions.

3 JUDGE ORIE: Yes. Judge Canivell has one or more questions for

4 you

5 Questioned by the Court:

6 JUDGE CANIVELL: Yes, Witness, please, you had said in Zvornik,

7 the previous social situation and ethnic situation before the times we are

8 relating to lately was of harmonious living together of all ethnicities.

9 Do you have the impression that that was only an exception in the whole of

10 Bosnia-Herzegovina or do you know of other municipalities in which this

11 situation was similar, that is, that Muslims and Serbs and Croats were

12 living together without problems one against the other?

13 A. Bosnia and Herzegovina as a whole was characterised by harmonious

14 interethnic relations. And things started to get worse, especially with

15 the rise in nationalism and the expansionist ambitions promoted by

16 Slobodan Milosevic's movement and following the elections whereby national

17 parties won in 1990.

18 JUDGE CANIVELL: Well, that leads me to another question which is:

19 How is said then that this kind of fighting against ethnicities started in

20 this very moment, something should have happened before then. Some

21 historical evolution was already underneath when this moment arrived, so

22 is it the case?

23 A. According to my opinion, it could not have happened earlier

24 because proper and harmonious national policies were in place. Apart from

25 that, cohesion forces of Yugoslavia were the dominant ones and it wasn't

1 possible for any major upset to happen.

2 JUDGE CANIVELL: So how is it that Zvornik became so different

3 from the other municipalities just in this very moment, because it's

4 plainly evident that in other opstinas, in other municipalities, the

5 situation of ethnic fronts fighting was very general and very common, how

6 was it that in Zvornik, you felt that it was different or -- can you

7 mention besides some other municipalities in which the situation could be

8 similar to that of Zvornik?

9 A. I could mention quite a few municipalities, first and foremost

10 Tuzla in our immediate vicinity, and then Brcko. And I think quite a few

11 other municipalities, for example Lukavac, Gracanica, Gradac. And I think

12 that generally speaking we've always had stability in terms of national

13 relations all the way up until 1990 in all municipalities.

14 JUDGE CANIVELL: Okay. Thank you.

15 JUDGE ORIE: Judge Hanoteau has one or more questions for you.

16 JUDGE HANOTEAU: [Interpretation] Just one question, please.

17 You've talked of the first session of the Council of National Defence, I

18 would like you to provide some explanation on the composition, the

19 membership of the Council for National Defence and its role. In the

20 general administration of the municipality, was it provided for or was it

21 an ad hoc creation?

22 A. It was a body which was -- the existence of which was enshrined in

23 law and it existed in all municipalities. It was headed always, according

24 to legal provisions, by the president of the Municipal Assembly and other

25 members were the president of the Executive Board of the Municipal

1 Assembly, the secretary of the Municipal Secretariat for National Defence,

2 the secretary of the Municipal Secretariat of the Interior, the Chief of

3 Staff of Civil Protection, the commander of the Territorial Defence, and

4 that's the basic structure of this council.

5 As to the duties and obligations, the council had the

6 decision-making powers when developing the defence plans for the

7 municipality in exceptional circumstances, including the threat of war.

8 JUDGE HANOTEAU: [Interpretation] Before the period that we're

9 mentioning, before 1991, 1992, was the National Council often in meetings?

10 Did it have any opportunities to meet?

11 A. That body never met very often. They used to meet once or twice a

12 year and the reason for the meeting being convened on the 6th of April,

13 2004 [sic] --

14 THE INTERPRETER: Says the witness.

15 THE WITNESS: -- was the fact that the representatives of SDS

16 boycotted the meetings of the General Assembly, Municipal Assembly, and

17 all the representatives of the SDS basically boycotted the Municipal

18 Assembly. And because of that and the barricades, having been set up

19 in -- on the territory of our municipality, the economy ground to a halt

20 and the business leaders, some of us, asked for things to be sorted out

21 and we wanted to resolve the situation. And the representatives of the

22 SDS accepted that it should be in the form that it should be done through

23 this council, the National Defence Council, that is.

24 JUDGE HANOTEAU: [Interpretation] In your answer, you indicate that

25 the council met regularly once or twice a year before the period. Why

1 would the council meet at the time when there was no climate of hostility,

2 why would the council meet and what would they do?

3 A. It would meet to agree on decisions, for example, military

4 exercises which tended to happen once every year or once every two years

5 in the area and where units from Zvornik would be participating. They

6 would meet to make some administrative decisions with regard to the entire

7 defence system. And they met on the basis of the orders coming from

8 higher up, from the level of the Republic to discuss matters of this sort.

9 JUDGE HANOTEAU: [Interpretation] Thank you, sir.

10 JUDGE ORIE: I'd like to put the following question to you,

11 Mr. Mehinagic: I understand from your testimony that you now feel

12 deceived that the JNA, who you expected to protect the population, took

13 part in what you called "the attack on Zvornik." This participation of

14 the JNA, could you tell us perhaps a bit in more detail what other groups,

15 entities, units, whatever you'd call it, were involved together with the

16 JNA in the attack on Zvornik?

17 A. The things I know for sure are that an armoured mechanised

18 battalion of Tacic's brigade participated in this attack and the commander

19 was Dragan Obrenovic and that there were also formations of the

20 Territorial Defence of the municipalities, Mali [Realtime transcript read

21 in error "mainly"] Zvornik and Loznica participating as well.

22 JUDGE ORIE: Were these Territorial Defence formations mono-ethnic

23 or were they multi-ethnic?

24 A. I really can't testify about that. On that morning when Zvornik

25 was attacked, at 5.30 I got a call from the president of the Municipal

1

2

3

4

5

6

7

8

9

10

11

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

13 English transcripts.

14

15

16

17

18

19

20

21

22

23

24

25

1 Assembly to come to SUP and to meet with three saboteurs who had been

2 arrested and that was a sure sign of an imminent attack and when I got

3 there, they showed me their military papers, their military IDs and those

4 were JNA IDs and their headquarters was at Pancevo.

5 At a later stage I saw a statement on the basis of which one of

6 these people was Vojin Vuckovic who later was tried for war crimes.

7 MR. MARGETTS: Your Honour, I'm sorry to rise to my feet and

8 interrupt the witness's answer but at page 20, line 23, the transcript

9 appears to record that -- what does record "the formations of the

10 Territorial Defence's, mainly Zvornik and Loznica," I think that may be an

11 error and if the witness --

12 JUDGE ORIE: It was "Mali," as far as I understood it.

13 MR. MARGETTS: Yes, that's exactly what I heard, understanding.

14 MS. LOUKAS: That's my understanding as well, Your Honour.

15 JUDGE ORIE: So there's no disagreement about "Mali" instead of

16 "mainly." There was a problem with the transcript.

17 THE WITNESS: [Interpretation] And on the basis of the tapes that

18 we saw yesterday, on the basis of many of the accounts, people in Serbia

19 ranging from Seselj to Arkan were giving you a list of all the units that

20 were participating there. And I did say yesterday that I left Zvornik

21 under fire at around 4.00 p.m. on the 8th of April, and there was a lot of

22 machine-gun and gun fire from Serbia.

23 JUDGE ORIE: Yes. Mali Zvornik and Loznica, were they --

24 A. Mali Zvornik and Loznica are municipalities in Serbia.

25 JUDGE ORIE: Yes. In -- then as far as paramilitaries are

1 concerned, apart from what you saw on the television report, did you

2 receive at that time any information about the involvement of paramilitary

3 units in the attack on Zvornik?

4 A. The so-called Serb Territorial Municipality Zvornik Units from my

5 point of view, legally speaking, were a paramilitary formation.

6 JUDGE ORIE: Could you tell us on what you base this opinion?

7 A. I base this opinion on documents that I had been shown here in

8 this court on the basis of which the Serb Democratic Party activated those

9 units and that was totally illegal.

10 JUDGE ORIE: Yes, do you know whether they were in one way or the

11 other under the command of any regular troops or forces?

12 A. The main reason why these activities of the Territorial Defence

13 were illegal was that there was an official order from the federal

14 minister, General Kadijevic, for the Territorial Defence not to be used

15 and not to be mobilised for any purpose whatsoever. So it was a totally

16 illegal activity.

17 JUDGE ORIE: Were there any police forces or units involved in the

18 attack on Zvornik, to your knowledge?

19 A. According to the reports I saw on television where Arkan and

20 Seselj were speaking, that was my source of information and there were

21 these units from Serbia.

22 JUDGE ORIE: You are talking about the attack on Zvornik and you

23 gave a specific time on when that started. All the units or forces you

24 just mentioned, did they become active at approximately that same moment?

25 A. At 8.30, the attack was launched in the direction of the village

1 of Lipovac and that part of the outskirts of Zvornik, so from Bijeljina

2 directed at Zvornik. Later on in the course of the day, fire was opened

3 from the direction of Serbia as well and those were the two lines of

4 attack from Bijeljina and from Serbia. Of course I can't judge what units

5 they were except that I recognised the artillery of the self-propelled

6 battalion of the JNA, and grenade launchers, 120 millimetres; the mortars,

7 that is to say.

8 JUDGE ORIE: Yes, you may have understood that I'm trying to find

9 out whether there was any coordination between those units that

10 participated in the attack on Zvornik. Could you give us any additional

11 facts which would either support or contradict a coordinated action

12 between these units? If you don't have any of these facts, please also

13 tell us.

14 A. Except from the general belief on the basis of all the facts that

15 I had at my disposal, yes, that there was coordination, but apart from

16 that, I have no other specific information to give you.

17 JUDGE ORIE: Thank you for those answers.

18 Finally, if you -- a question: If there is a dinner, who would

19 you place left and who would you place right of the one who presides over

20 that dinner? Is there any hierarchial order on who to place to your

21 right-hand side and who to place to your left-hand side?

22 A. There is a hierarchy. On the right-hand side, you would usually

23 place the person holding the highest rank. On the left-hand side would be

24 the person ranking next in order to the one seated on the right.

25 JUDGE ORIE: Yes. When you made the table order, if you did, or

1 if you were involved in any way, was this the underlying thought in

2 placing persons at the dinner where -- I think it was the opening or - let

3 me just find it - the lunch you had at the Hotel Drina on the 5th of

4 March, 1991. Was this in your mind or are you aware of this being in

5 anyone's mind when the seating at the table was prepared?

6 A. Naturally, I was the most responsible person for this particular

7 lunch and I was the one who composed the order of those to be seated at

8 the table. And of course I could not have missed placing the high-ranking

9 or the highest-ranking person to my right and the next in order to that

10 person to my left. Therefore yes, I was the one who organised that

11 particular detail and I kept these things in mind.

12 JUDGE ORIE: Then my last question is about the budget of the

13 project where you said that it was Mr. Krajisnik who would have to table

14 the budget in the Assembly. Did you have any reason at that time to

15 believe that if you would not have the specific assistance of

16 Mr. Krajisnik, that it would not be properly put on the agenda?

17 A. I think -- this warrants to be explained further. The Republican

18 Assembly passed the annual resolution which was, in actual fact, an agenda

19 of the most important activities to be undertaken in the course of that

20 year. I found it very important for that comprehensive project to be

21 included in the resolution.

22 Secondly, the Assembly adopted the Republic's budget and I thought

23 it important that a proposal where the project should be given due notice

24 be actually passed from the executive council to the parliament. This, of

25 course, regardless of the fact that the project had quite independent

1 funds, however, at this point in time, there was a plummeting inflation

2 and one had to take this into consideration.

3 Rumours circled that these -- that the budget could be used by

4 Serb nationalists, that the project could be used by Serb nationalists to

5 connect Serb Krajinas with Serbia. I did not wish to take these arguments

6 into account at all because I thought that the project itself had

7 overriding importance that goes beyond these interests. That is why I did

8 not fear that the Serb deputies might reject the proposal. But I did not

9 see the speaker of the Assembly as a Serb but rather as the speaker of the

10 Assembly of the Republic of Bosnia and Herzegovina.

11 JUDGE ORIE: From all what you tell us now, it appeared there was

12 no specific interest to speak with the speaker of the Assembly about it.

13 You say the project was important enough, one could not expect any

14 objection by Serb parties to it. Nevertheless, you spoke with

15 Mr. Krajisnik about the project. It's not entirely clear to me what the

16 importance then was.

17 A. The importance lay in the fact that the person number one in the

18 Republican Assembly should be fully informed about the project, and that

19 it be ensured that this particular person continues to support the

20 project.

21 JUDGE ORIE: But would his support be anything else than the

22 support of any of the other members of the Assembly, because you said it

23 would be on the agenda anyhow because it was an important project so it

24 was just one out of how many votes for support?

25 A. Matters are never as simple as they might seem when it comes to

1 important issues. The speaker of the Assembly is man number one in the

2 legislative branch of government. He presided over the body that was to

3 decide on the agenda of the activities to be carried out in the Republic

4 that particular year. He presided over the body that adopted the annual

5 budget of the Republic. This role is a very significant one and far from

6 ceremonious.

7 JUDGE ORIE: Let me see whether I understand your testimony well,

8 are you saying that he had this key position and therefore his opinion

9 could be of influence, or even would be of influence on the opinion of

10 others?

11 A. Precisely so.

12 JUDGE ORIE: Thank you for those answers.

13 Any need to put any additional questions to the witness in

14 relation to the questions raised by the Bench.

15 MR. MARGETTS: Yes, Your Honour.

16 JUDGE ORIE: Mr. Margetts.

17 Further re-examination by Mr. Margetts:

18 MR. MARGETTS:

19 Q. Mr. Mehinagic, you were questioned about the units present in

20 Zvornik, that is the military units. In paragraph 30 of your statement

21 you said that on the 4th of April, 1992, you learned that the Serbian

22 Territorial Defence of Zvornik had been mobilised and also Exhibit P647

23 dated the 5th of April, 1992 is, in fact, an order issued for the

24 mobilisation of the Territorial Defence. Do you know which units were

25 mobilised pursuant to this order?

1 A. I heard about this order on TV Belgrade on the 4th of April in the

2 evening at 10.40 p.m. I was very much shaken by it. On my arrival here,

3 a written order dated 5th of April was shown to me and it confirmed my

4 belief that this was, in fact, what took place. Full mobilisation of

5 units was carried out in secrecy so I am not, myself, aware, I was not

6 aware of units being mobilised. I do know, however, that units were

7 mobilised and I have a statement by a JNA lieutenant who talked of cases

8 where soldiers who refused to respond to a call-up were shot.

9 Q. Do you know whether those units that were mobilised were involved

10 in the events from the 8th of April, 1992, that is, the attack on Zvornik?

11 A. According to all the information I received --

12 MS. LOUKAS: I'm sorry to interrupt, but again, Mr. Margetts has

13 asked this question as a matter apparently arising from His Honour's

14 questions, he's asked: "Do you know which units were mobilised pursuant

15 to this order?" Again, Your Honour, the same question is asked, that is,

16 Your Honour, I object to the question that doesn't seem to me to take the

17 matter any further for the Trial Chamber.

18 JUDGE ORIE: It's not the same question.

19 Please proceed, Mr. Margetts.

20 MR. MARGETTS:

21 Q. Mr. Mehinagic, do you know whether those units that were mobilised

22 were involved in the attack on Zvornik?

23 A. According to all the information I received, and according to all

24 the public information available about the event, yes.

25 MR. MARGETTS: Thank you.

1 Your Honour, no further questions.

2 JUDGE ORIE: Ms. Loukas, any further questions from the Defence?

3 MS. LOUKAS: Yes, Your Honour, just briefly.

4 Further cross-examination by Ms. Loukas:

5 Q. Mr. Mehinagic, just getting back to the events of the 8th of April

6 which you set out in your statement and you were asked some questions in

7 relation to that by Their Honours, it seems to me that on the 8th of April

8 you have this early morning meeting in relation to four of Arkan's men,

9 correct, that's the first thing that basically happens on that day; is

10 that right?

11 A. I did not have a meeting, I was called to come over to the SUP to

12 see the saboteurs that were captured.

13 Q. And then subsequently, you do attend a meeting with the

14 representatives of the SDS and then Arkan slaps the representatives of the

15 SDS in that meeting that's later on that day?

16 A. I did not have any meetings with the SDS that day because the

17 attack started as early as 8.30 a.m., and I only had intense contacts with

18 General Jankovic and Colonel Tacic.

19 Q. That was with Pasic where the SDS representatives were slapped.

20 MR. MARGETTS: Your Honour, sorry, I'm having difficulty

21 understanding how this arises from Your Honour's questions and if my

22 learned friend could give some indication at least of the topic.

23 JUDGE ORIE: Ms. Loukas.

24 MS. LOUKAS: Well, Your Honour specifically asked what occurred on

25 the 8th of April and I'm trying to ascertain, and Your Honour asked some

1 pointed questions in regard to coordination. And I'm trying to elicit the

2 specific factual evidence of what the witness was actually saying on the

3 day.

4 JUDGE ORIE: You may proceed.

5 MS. LOUKAS: Thank you.

6 JUDGE ORIE: I think that not the 8th of April as a whole was

7 triggered by questions of the Bench but certainly coordination between the

8 units or formations involved in the attack is an issue.

9 Please proceed.

10 MS. LOUKAS: Thank you, Your Honour.

11 Q. Now, Mr. Mehinagic, so -- and you very wisely, on that day, left

12 Zvornik with your family at 1600 as you indicate in the statement;

13 correct?

14 A. Correct. It wasn't very wisely that I did it. Actually, I am

15 ashamed, thinking about it now.

16 JUDGE ORIE: Witness, since you responded to it, Ms. Loukas

17 included some comments in her question which she should not have done and

18 you don't have to respond to those comments.

19 Please proceed, Ms. Loukas.

20 MS. LOUKAS: Yes, thank you, and I withdraw the comment.

21 Q. Now, Mr. Mehinagic, what I'm just trying to ascertain here is you

22 mentioned in your statement there that you saw that Zvornik was attacked

23 from Serbia and that you knew that the Territorial Defence from Loznica

24 and Mali Zvornik had been mobilised and were attacking, but in terms of

25 what you were actually able to observe, yourself, firsthand, on that day

1 as to what was occurring, that was pretty limited in terms of the time you

2 had outside being able to observe; that's correct, is it not?

3 A. Not quite. Mali Zvornik and Zvornik formed part of practically

4 one and the same community. It's just 100 metres across from the Drina.

5 And I was able to see it with my own eyes, it's a small town.

6 Secondly, I used to go to Mali Zvornik quite often. On the 6th of

7 April in the afternoon and I believe that this is stated in my statement,

8 I was at the headquarters of Dragan Obrenovic's command and I pleaded with

9 him that if Zvornik came under attack, that he protect my child, that he

10 take care of it. There was also Despotovic, commander of the TO in Mali

11 Zvornik there who was in full military gear and he told me that his units

12 had been mobilised.

13 I, myself, saw mortar batteries at the Vlaske Njive, as it is

14 called, across the Drina River, this could not be concealed, it was for

15 everyone to see. I saw the positions taken by these units in Mali Zvornik

16 and in Serbia, one could see it -- they were as if laid out on the palm of

17 one's hand. And these are the sources of my information.

18 MS. LOUKAS: Yes, thank you, Witness. No further questions.

19 JUDGE ORIE: Mr. Mehinagic, this concludes your testimony in this

20 court. The Chamber would like to thank you very much for coming to The

21 Hague, it's quite a distance. You have answered the questions of all

22 parties and of the Bench. It's important for the Chamber to hear the

23 witnesses who have been present at the time when the events occurred;

24 therefore, thank you, and we wish you a safe trip home again.

25 THE WITNESS: [Interpretation] Your Honours, it was an honour for

1 me to be able to contribute to the establishment of truth and justice.

2 JUDGE ORIE: Madam Usher, could you please escort Mr. Mehinagic

3 out of the courtroom.

4 [The witness withdrew]

5 JUDGE ORIE: Looking at the clock, the ...

6 [Trial Chamber and registrar confer]

7 JUDGE ORIE: Looking at the clock, we'd like to deal with the

8 exhibits at this moment but then stop and after the break deal with the

9 other housekeeping matters.

10 MR. STEWART: Your Honour, could I just mention something -- good

11 morning, Your Honours. May I just mention something immediately before

12 the break, which is: One of the items on the housekeeping list relates to

13 confidentiality in relation to certain passages connected with Mr. Mandic

14 whose evidence, of course, has generally been released and openly.

15 The -- Your Honour, we will -- we would have time, the issues have

16 been sufficiently considered by Mr. Tieger and myself, we don't agree,

17 Your Honour, that is the position. Mr. Tieger has narrowed it down to a

18 certain number of passages but I, in relation to those passages, I still

19 do not agree. Your Honour, there would be time and we'd suggest it's the

20 appropriate way of dealing with - it is why I mention it now so there's a

21 little bit of notice - but to deal with this today, Your Honour. There's

22 plenty of time likely to be in hand to deal with it and the most

23 convenient course would be to deal with it in a -- by oral submissions

24 today, that has the advantage, of course, that then the public knows what

25 the issues are and Mr. Krajisnik can hear what the issues are and we can

1 get it done today. And then of course it's for the Chamber to make its

2 decision.

3 JUDGE ORIE: Yes. Could your oral submissions be such that they

4 could be public?

5 MR. TIEGER: It strikes me that that would be a bit awkward,

6 Your Honour.

7 MR. STEWART: That's not entirely the point because whether the

8 submissions are in public or in private, they could still be dealt with

9 today. If it really becomes necessary to have submissions in private,

10 it's the same issue.

11 JUDGE ORIE: You just say it's good for the public to know what

12 the issues are, therefore my question was whether we could deal with them

13 in public.

14 MR. STEWART: Your Honour, some of them would be bound to be

15 capable of being dealt with in public as to the principles that we're

16 dealing with. If it were necessary for some of them to be dealt with in

17 private, that doesn't undermine the essential point. But it's also

18 important, Your Honour, that as far as possible we do not deal with these

19 things in -- in writing which means translation for Mr. Krajisnik to deal

20 with them and it's precisely the kind of issue which, without putting the

21 label of debate on it, it's precisely the kind of issue where an

22 intelligent tripartite exchange of questions and answers between the Trial

23 Chamber and the parties is likely to lead to a more satisfactory result

24 than doing it in a compartmentalised way by a written submission from one

25 party and a written submission from another party then the Trial Chamber

1 considering that. It is precisely the sort of issue which doesn't lend

2 itself and require, we submit, to be properly dealt with, and we do have

3 the opportunity to do it today, Your Honour. It's wasteful, in effect,

4 for us to go away and deal with it in writing when there's clearly going

5 to be enough time to deal with it today.

6 JUDGE ORIE: Mr. Tieger, do you oppose.

7 MR. TIEGER: I'll leave it to the Chamber. However, I have to

8 offer my view that I believe that the issues that are genuinely pertinent

9 to this conflict at the moment can be and, for the most part, have been

10 resolved and -- not resolved, but reduced in writing, lend themselves to

11 identification and clarification in written form, any oral submissions

12 that might be required beyond that I would imagine would be extremely

13 limited. So as a general matter, I don't share the enthusiasm for a

14 public debate, if that's what it was described at on this issue. I think

15 the issues are relatively simple and can be clarified and have been

16 clarified in writing.

17 MR. STEWART: I didn't say public debate. Mr. Tieger's

18 compressing two things. But Your Honour, let's -- may I say this, I have

19 been pressing Mr. Tieger for a long time. We don't agree about this,

20 that's -- and I, as advocate, as Mr. Krajisnik's representative, I'm not

21 prepared to agree with that. We don't agree but I have been pressing

22 Mr. Tieger for a long time to give me the reasons. I've had about ten

23 lines are from him months ago which don't really tell me the position.

24 Your Honour, this is the opportunity for Mr. Tieger to explain - the

25 matter's been on the table for ages - to explain very clearly to the Trial

1 Chamber and at the same time to me what the basis is for his saying that

2 these -- these matters should remain in private session and then I can

3 deal with them. This is the proper way of dealing with this matter.

4 JUDGE ORIE: Could we hear from the parties what parts are still

5 in dispute.

6 MR. TIEGER: Your Honour, they have been made available to the

7 Trial Chamber in an e-mail, the clarification was made to counsel in a

8 direct discussion several weeks ago conducted on the balcony which I'm

9 sure he will recall if he puts his mind to it.

10 JUDGE ORIE: Yes.

11 MR. STEWART: Precisely. It becomes, it becomes --

12 MR. STEWART: There was not a single line --

13 JUDGE ORIE: Gentlemen, we've --

14 MR. STEWART: -- of new information given to me on the balcony. I

15 was given the same reference I already had.

16 JUDGE ORIE: Mr. Stewart, before we come romantic with balcony

17 scenes, I must have overlooked the e-mail. So we can identify clearly how

18 much time would you need, Mr. Stewart, to explain why this -- these

19 specific aspects should be public?

20 MR. STEWART: Your Honour, may I say, it's the other way around,

21 Your Honour, this is precisely what I mean.

22 JUDGE ORIE: Mr. Tieger, Mr. Tieger, if you would have to explain

23 why you would keep them confidential, how much time would you need to

24 explain that?

25 MR. TIEGER: A very short time, Your Honour.

1 JUDGE ORIE: Could you give -- could you be more precise, 3

2 minutes would do.

3 MR. TIEGER: I'll take 3 minutes.

4 JUDGE ORIE: Then 3 minutes for the Prosecution to explain why it

5 should remain confidential, 5 minutes for the Defence to explain why it

6 should be made public.

7 Madam Registrar.

8 MR. STEWART: Your Honour, doesn't the 5 minutes rather depend on

9 the content of the 3 minutes, with respect. I accept the provisional

10 indication, but, Your Honour, until I know and until the Trial Chamber

11 knows how Mr. Tieger has put it in the 3 minutes, one can't say what is

12 needed to respond. I just simply put that down as a marker.

13 JUDGE ORIE: I granted provisionally 5 minutes. Of course, every

14 decision in this respect is provisional, that goes without saying. I

15 mean, if Mr. Tieger comes with a totally new legal theory on these matters

16 then of course you would get 7 minutes to contradict that.

17 Madam Registrar, exhibits.

18 THE REGISTRAR: Prosecution Exhibits P644 to P671.

19 JUDGE ORIE: Any objections?

20 MS. LOUKAS: There's no objection, Your Honours.

21 JUDGE ORIE: Then they are admitted into evidence and the precise

22 description is found on the list kept by Madam Registrar.

23 We will adjourn for half an hour. We resume at 11.15 and we'll

24 then deal with housekeeping matters.

25 --- Recess taken at 10.45 a.m.

1 --- On resuming at 11.20 a.m.

2 JUDGE ORIE: We now start with our housekeeping session.

3 We'll work on the basis of the agenda which means that you first

4 have to hear a few decisions and one explanation of the scheduling order

5 issued yesterday and we'll then move to other matters.

6 First of all, I'd like to -- I wish to inform the parties that

7 yesterday, I signed, on behalf of this Chamber, a scheduling order to see

8 us through the end of the case. According to the order, the case is to

9 close by the end of April 2006 at the very latest. This includes the

10 delivery of the judgement. Any time savings along the way will most

11 probably translate into an earlier closing date, and an earlier judgement.

12 As you will see from the order, the Chamber has instructed the

13 Prosecution to close its case by Friday, the 22nd of --

14 MR. STEWART: Sorry, Your Honour, we just don't have it. I don't

15 know what's happened, but I -- I -- A, this was the first I was aware of

16 it and secondly, we simply do not have a copy so maybe it's for us to make

17 sure we get one but ...

18 JUDGE ORIE: It has been filed yesterday and ...

19 MR. STEWART: Well, so I understand, Your Honour, but I'm just

20 reporting the facts to -- to Your Honour. I wonder if anybody

21 conveniently has a copy or --

22 JUDGE ORIE: Is there any copy available.

23 MR. STEWART: -- down to our locker, or what.

24 JUDGE ORIE: We could provide you with a copy.

25 MR. STEWART: Thank you, Your Honour. Your Honour will appreciate

1 that we monitor and keep our eye on filings, of course, but we don't do it

2 and can't -- don't have the resources to do it minute by minute or even

3 hour by hour.

4 JUDGE ORIE: Perhaps, then, I'll move on to our next subject

5 awaiting the arrival of copies for the Defence. The Prosecution has

6 received the ...

7 MR. TIEGER: Yes, Your Honour.

8 JUDGE ORIE: Yes. I think it was filed yesterday in the

9 afternoon.

10 Then I move to the next subject which is the decision to be

11 delivered by the Chamber on the Prosecution's motion for protective

12 measures for 92 bis witnesses.

13 This is a decision on the Prosecution's motion for protective

14 measures for Rule 92 bis witnesses.

15 The motion which is partially confidential, was filed on the 31st

16 of January, 2005. Pursuant to Rule 75 of the Rules, the Prosecution

17 originally sought an order that the identities and identifying information

18 of 22 92 bis witnesses not be disclosed to the public. The Defence filed

19 its response on the 24th of February, 2005, opposing the motion in its

20 entirety. On the 10th of March, the Trial Chamber invited the Prosecution

21 to provide any supplementary information on the objective basis underlying

22 each application for protective measures. On the 22nd of March, the

23 Prosecution filed this supplementary information with respect to three

24 witnesses. It also notified the Chamber that it was withdrawing its

25 request for protective measures for seven witnesses. The Defence filed

1 its response to this supplementary information on the 8th of April, and

2 this decision therefore concerns the 15 92 bis witnesses for whom the

3 Prosecution still seeks protective measures.

4 The Prosecution, in the confidential annexes to its motion and its

5 notification of supplementary information, briefly sets out the reasons on

6 the basis of which protective measures are sought in respect of each

7 witness. It also incorporates by reference, its submissions, as set out

8 in a separate protective measures motion filed on the 11th of March, in

9 relation to a recent UNHCR report. That report describes the current

10 security situation affecting persons who have given or may give evidence

11 before the Tribunal.

12 The Defence, in its response to the motion and to the

13 supplementary information, notes generally that the subjective fears of a

14 witness are not the proper basis for a grant of protective measures unless

15 there is evidence showing a real risk to the security of the witness or

16 his or her family. The Defence makes specific submissions on the

17 inadequacy of the reasons provided by the Prosecution to justify

18 protective measures for ten of the witnesses. Further, the Defence argues

19 that it is incumbent on the Chamber to insist upon being provided with all

20 relevant information, and to be satisfied that all reasonable inquiries

21 have been made to obtain that information before making its ruling on the

22 motion. The Defence submits that these requirements have not been met in

23 the present case.

24 Turning to the applicable law, the Trial Chamber notes that in its

25 submissions, the Defence has consistently sought to apply to motions for

1 protective measures the higher standard required for temporary relief from

2 disclosure whereby disclosure of a witness's identity is delayed until a

3 set deadline. That standard is inapplicable here. The Chamber has stated

4 the correct standard for protective measures in a number of recent

5 decisions.

6 The parties seeking the measures must demonstrate the existence of

7 an objectively grounded risk to the security or welfare of the witness or

8 the witness's family should it become publicly known that the witness gave

9 evidence. It will usually be sufficient for a grant of protective

10 measures if a party can show that a threat was made against the witness

11 or, for example, that there exists a combination of the following three

12 factors: One, the expected testimony of the witness may antagonise

13 persons who reside in the territory where the crimes were committed, for

14 example, by implicating those persons in crimes; two, the witness or his

15 or her family live in that territory, have property in that territory, or

16 have concrete plans to return to live in the territory; and three, there

17 exists an unstable security situation, which is particularly unfavourable

18 to witnesses who appear before the Tribunal. In addition to questions of

19 security, where an application for protective measures concerns sexual

20 assault victims, there is a long line of authority, which is based on

21 considerations of privacy, providing that the identity of such victims

22 will be protected if those victims so request.

23 The Defence is correct in stating that the Chamber may, at its

24 discretion, make further inquiries in relation to an application for

25 protective measures. However, as set out in a decision of this Chamber

1 dated the 20th of September, 2004, the Chamber is not under any obligation

2 to inquire further. The Chamber will normally be satisfied once the

3 objective basis for a security risk that I have just described is

4 demonstrated. In the present case, the Chamber has requested, and has

5 obtained further information. Noting the problems associated with

6 contacting some witnesses, the Chamber is also satisfied that the

7 Prosecution has made all reasonable inquiries to obtain information

8 relevant to the motion.

9 I will now proceed to give the findings of the Chamber in respect

10 of each witness.

11 The fear expressed by Witnesses 3 and 122 is supported by the fact

12 that both have been subject to threats of a serious nature. Witness 3

13 received a threat directly related to giving evidence to the Tribunal

14 which has been reported to the police in his country of residence.

15 Witness 122 appeared in the media in Republika Srpska and

16 subsequently was repeatedly threatened by persons known and unknown to the

17 witness. The Chamber rejects the argument of the Defence that there is

18 insufficient information about the nature of those threats. The

19 Prosecution has shown that there is an objectively grounded risk to the

20 security of these witnesses or their families. The Chamber therefore

21 grants the requested protective measures in respect of these witnesses.

22 I now turn to the witnesses 128, 114, 12, 281, 428, and 588 who

23 have all expressed fear for their own safety or that of their families if

24 it becomes publicly known that they gave evidence to this the Tribunal.

25 Two of these witnesses live in or close to the area in

1

2

3

4

5

6

7

8

9

10

11

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

13 English transcripts.

14

15

16

17

18

19

20

21

22

23

24

25

1 Bosnia-Herzegovina where the crimes they describe in their evidence were

2 committed; one witness has family in that area; and three have described

3 concrete plans to return there. The evidence of these witnesses, all of

4 whom allege crimes committed by local Serbs, may antagonise the persons

5 implicated in those crimes, exposing each witness to a real risk of

6 retaliation. Moreover, Witness 128 implicates political and military

7 personnel in serious crimes, and some of the persons implicated in crimes

8 by Witness 428 remain in positions of authority in the relevant area.

9 Taking into account the general security situation in Bosnia-Herzegovina,

10 which remains unfavourable to those giving evidence to the Tribunal, the

11 Chamber considers that the Prosecution has established the existence of an

12 objectively-grounded risk to the security of all six witnesses or their

13 families. The Chamber therefore grants the requested protective measures

14 in respect of these witnesses.

15 A psychiatrist's letter has been submitted in respect of Witness

16 215, stating that she suffers from severe post traumatic stress disorder

17 as a result of her experiences during the war and that any "direct contact

18 with her traumatic memories" poses a serious threat to her very fragile

19 state of health. The Chamber is not prepared to accept even a small risk

20 that as a result of giving evidence, such a witness might be identified

21 and subsequently confronted in a way that is likely to revive her memories

22 and thus gravely to endanger her health. For this reason, the Chamber

23 grants the requested protective measures in respect of this witness.

24 Witness 133 has expressed fear for family who still reside in

25 Bosnia without providing any further information. The Chamber recognising

1 that in response to its request for supplementary information about this

2 witness, the Prosecution diligently attempted to contact him and was

3 unable to do so. However, the jurisprudence of the Tribunal, as set out

4 in a number of the Chamber's recent decisions clearly states that the

5 burden rests on the party seeking protective measures to justify the grant

6 of those measures. In the case of Witness 133, the Chamber considers that

7 the Prosecution has provided insufficient evidence of an objectively

8 grounded risk to the security of the witness or his family should it

9 become known that the witness gave evidence. The Chamber therefore denies

10 the requested protective measures in respect of Witness 133. In light of

11 this decision, the Prosecution may, of course, withdraw his statements

12 from evidence. Should it choose not to do so, and should it succeed in

13 contacting the witness at some future stage, the Chamber would consider

14 any renewed application for protective measures.

15 Witnesses 436, 141, 148, 086, and 109 are all victims of sexual

16 assault who give evidence about those assaults. The Chamber recalls that

17 there is a long line of authority in this Tribunal based on considerations

18 of privacy, which states that victims of sexual violence may be accorded

19 protective measures where they so request. The Chamber therefore rejects

20 the argument of the Defence that this, of itself, is an insufficient basis

21 for a grant of protective measures. Considering that there is a need to

22 show special consideration for persons testifying about sexual violence,

23 the Chamber grants the requested protective measures in respect of these

24 witnesses.

25 The Registrar is instructed to file the 92 bis statements of those

1 witnesses to whom protective measures have been granted confidentially.

2 I now turn to the next decision which is the decision on the

3 fourth batch of 92 bis witnesses. A handout is attached to this decision

4 and will be filed. I just gave to Madam Registrar a copy of that handout

5 which specifies a bit more in the heading what today's decision is so that

6 it becomes more understandable. The content, however, of the handout is

7 exactly the same as has been provided to the parties.

8 This is a decision on the fourth batch of 92 bis witnesses.

9 I briefly recall that the Chamber is seized of two Prosecution

10 motions for the admission of 92 bis evidence. The first was filed on the

11 6th of June, 2003, the so-called 7th motion, and the second was filed on

12 the 9th of January, 2004, the 8th motion. The Chamber is also seized of

13 the 13th motion, filed on the 24th of February, 2005, which also concerns

14 witnesses belonging to the fourth batch.

15 The parties should be assured that the Chamber considered their

16 submissions in every detail. The Chamber, as always, checked all the

17 material proposed for admission, even when the Defence did not raise any

18 objection to it. The Chamber has applied the legal standards set out in

19 the decision of the 7th of April, 2004.

20 Madam Registrar, could I ask you to hand out, if it has not been

21 done yet, to the parties a list showing the names of the 92 bis witnesses

22 who are not required to attend for cross-examination.

23 [Trial Chamber and registrar confer]

24 JUDGE ORIE: The Chamber was not prepared as it should have been.

25 Nevertheless, I think we can continue. Copies of the handout will be

1 given to you in a minute.

2 I will first deal with the witnesses in relation to whom there is

3 either no request for cross-examination, or there is a request for

4 cross-examination in the case that the redactions or additions requested

5 by the Defence are not granted.

6 In relation to the following 12 witnesses, their evidence is

7 admitted in accordance with the Defence's suggestions concerning

8 redactions.

9 These witnesses are: Witness 674, and the parties will find on

10 the handout exactly what is admitted into evidence. Witness Mehmed Agic,

11 Witness Mehmed Dobraca, Witness Elvir Pasic, Witness Safet Gagula, Witness

12 484, Witness Vlado Petrovic, Witness Mehmed Mulaosmanovic, Witness Ferid

13 Cutura, Witness Nedzad Hadzifendic, Witness 571, and Witness 654.

14 The evidence of these witnesses as shown in the handout, which is

15 now distributed to the parties.

16 MR. STEWART: Your Honour, is it possible to have two copies

17 because on these special occasions when we actually can manage to have

18 both counsel in court -- thank you very much.

19 JUDGE ORIE: The evidence of these witnesses as shown in the

20 handout, minus the redactions also shown in the handout, meets the 92 bis

21 admissibility requirements, and is therefore admitted. The Chamber does

22 not require the appearance of any of these witnesses.

23 In respect of Witness Gagula, the Chamber draws the attention of

24 the parties to the fact that it follows the Prosecution's suggestion to

25 delete the census figures listed at page 2 of the witness statement. The

1 Chamber also orders the redaction of one sentence, as shown in the

2 handout. Since the Defence has made no further submissions regarding the

3 book mentioned in the witness statement, which was provided to the Defence

4 on the 3rd of March, 2005, together with a 30-page summary in English, the

5 Chamber finds that that issue has been settled.

6 I now turn to the witnesses whom the Chamber has decided to call

7 for cross-examination. The names and associated material are not shown in

8 the handout. The documents relating to these witnesses shall be admitted

9 into evidence, subject to any further objections, at the time they are

10 heard in cross-examination.

11 The witnesses to be called are: Witness 12. The Chamber finds

12 that the proposed evidence of this witness meets the 92 bis admissibility

13 requirements, subject to cross-examination, despite the submissions of the

14 Defence that the 89(F) procedure would be more appropriate. The Chamber

15 finds that this witness held a key position at the time of the events,

16 such that it is in the interests of justice to give the Defence an

17 opportunity to cross-examine the witness. If, finally, the Defence would

18 decide to the to cross-examine the witness, the Defence should notify the

19 Chamber at least 3 days prior to the date on which the witness is due to

20 testify.

21 Just for clarification, this is in order to prevent that a witness

22 would's arrive and without giving any testimony, would leave again. If

23 therefore the witness would arrive more than 3 days prior to the date on

24 which he is due to testify, the Prosecution should inform the Defence so

25 that the purpose of this 3-day term would still be served.

1 I continue now with the decision. The second witness to be called

2 is Bilal Hasanovic. The Chamber is in favour of admitting the proposed

3 evidence subject to cross-examination, except for the seventh complete

4 paragraph on page 5 of the English version of the witness's 1997

5 statement. The witness was a municipality chief, and therefore possibly

6 of high importance to this case. I would again request the Defence,

7 should it denied not to cross-examine the witness, to notify the Chamber

8 at least 3 days prior to the date on which the witness is due to testify

9 such as to avoid arrival of a witness who finally will not testify.

10 I now turn to the last witness in the fourth batch, that is

11 Witness Fadil Banjanovic. The Defence has asked for this witness to give

12 viva voce testimony, because, in the Defence's view, the witness's most

13 recent statement is not suitable for admission under 92 bis.

14 The Chamber finds that the Defence has not established a

15 sufficient basis to justify viva voce testimony or, for that matter,

16 cross-examination for the witness. The Chamber admits the witness's

17 statement from 1998 on the condition that the documents attached to it

18 will either be removed or translated. The Chamber admits the statement

19 from 2001, subject to the Chamber's redactions, as explained in the

20 handout. The Chamber requests the Prosecutor to clarify one point in

21 relation to the addendum to the 2001 statement as explained in the

22 handout.

23 Lastly, the Chamber requests the Prosecution to submit the

24 material admitted through this decision, with the appropriate redactions

25 and clarifications, to Madam Registrar. In due course, Madam Registrar

1 will assign exhibit numbers to those items and inform the parties and the

2 Chamber.

3 I kindly ask Madam Registrar to file the handout under seal.

4 This concludes the Chamber's decision on the fourth batch of 92

5 bis witnesses.

6 We now turn to the next matter which is the deadline for Defence

7 response to 92 bis expert material.

8 [Trial Chamber and legal officer confer]

9 JUDGE ORIE: A handout will be distributed to the parties.

10 On the handout, you will find a few dates, deadlines set by the

11 Chamber, that is a deadline for Defence submissions Friday, the 27th of

12 May, 2005. A deadline for the OTP to reply, Friday, the 3rd of June,

13 2005. And it is scheduled that an informal meeting will take place with

14 the Presiding Judge to discuss the progress on Tuesday, the 10th of May,

15 2005.

16 One of the reasons to schedule such a meeting is that the 94 bis

17 expert reports have been dealt with under the old Defence team. There was

18 a -- I would say a flat "no" to all 92 bis -- 94 bis reports at that time,

19 apart from the report of -- on the destruction of cultural property in BH

20 where no response was received from the Defence within the 30 days as we

21 find it in Rule 94 bis.

22 There is one issue I would like to draw the attention of the

23 parties to, and that is that the OTP has not completed the 92 bis

24 formalities for six of the ten witnesses. So one of the issues is whether

25 the new Defence would consider, whether they would be willing to accept

1 these experts under Rule 94 bis, which is a possibility. If, however, the

2 new Defence would object, there might still be a way of avoiding the huge

3 expense of obtaining the formalities for the six witnesses, assuming that

4 under Rule 92 bis, they are not called for cross-examination in which

5 case, the formalities would not be required because they would then appear

6 and we could deal with it in a different way.

7 One of the options would be that the Defence might waive the

8 formalities, that's at least a possibility.

9 MR. STEWART: Your Honour, could I note straight away that the

10 Defence will certainly waive all these formalities and deal with the

11 substance of the matter provided that we are all looking at the substance

12 of the matter as to what actually should be given orally by the witness,

13 what cross-examination there should be. The Defence is not going to take

14 any point on formalities as between 92 bis and 94 -- Rule 94 bis and so

15 on.

16 JUDGE ORIE: It's appreciated by the Chamber that the Defence

17 takes a cooperative position in this respect.

18 Would the Prosecution take a similar informal position as far as

19 the no response of the Kaiser report is concerned?

20 MR. TIEGER: Yes, Your Honour.

21 JUDGE ORIE: Then one of the reasons why a meeting was scheduled

22 for Tuesday, the 10th of May, is in order to see what the parties would

23 seek in hearing viva voce, whether just in cross-examination or even

24 broader, what the parties would be seeking, especially in respect of in

25 the type of very technical reports. The Chamber has not at this moment

1 reviewed these reports, so when I say that one could wonder whether the

2 exhumation reports would have to be dealt with in full detail in a viva

3 voce testimony or in cross-examination or the same for autopsy reports or

4 forensic reports, or the pathologist's reports, that's the kind of matters

5 we'd like to raise during such a meeting. At the same time, the Chamber

6 would like to raise at that moment the question of whether the thousand

7 pages of the Donia's transcripts of testimony is compared to the 44 pages

8 of report, whether that would be excessive or not and whether that would

9 really add to what is in the report because it certainly will put a heavy

10 burden on the Defence. So therefore, if there would be any position in

11 that respect already prior to the 10th of May, of course the Prosecution

12 is invited to communicate that immediately with the Defence.

13 I remember that once, in this case, transcripts of approximately a

14 thousand pages was brought down to, I think, five or six. I'm not saying

15 that this Chamber expects a similar reduction but at least it may be clear

16 that a careful review of what that really adds might assist the Chamber.

17 Having dealt with the experts in that line for the moment to the

18 92 bis, I'll now move to the next item on the agenda which is a decision

19 on private session testimony of Witness 60.

20 This decision partially lifts the confidentiality of the testimony

21 of Witness 60.

22 On the 21st of March, 2005, the Chamber gave an oral direction to

23 the Prosecution to review the private session testimony of Witness 60 and

24 identify excerpts which may be released to the public. I refer to

25 transcript page 10.863.

1 On the 23rd of March, 2005, the OTP, by an e-mail, which was also

2 sent to the Defence, identified two such excerpts: (i) transcript page

3 10.873 line 1, to the start of the public session on transcript page

4 10.878; and (ii) transcript page 10.853 line 8 beginning, "The first

5 question is this ..." up to transcript page 10.863 line 20. The Defence

6 did not react.

7 The Chamber has reviewed the transcripts and finds that another

8 excerpt may cause the witness to be identified and the Chamber therefore

9 orders the lifting of the private session excerpts for the following

10 transcripts: First, transcript page 10.873, line 1 to transcript page

11 10.875, line 12, ending with the text "beaten up."

12 Second portion, transcript page 10.875, line 19 to the start of

13 the public session on transcript page 10.878; and, third portion,

14 transcript page 10.853 line 8, beginning with "The first question is this

15 ..." to transcript page 10.863, line 20.

16 Should the Defence believe that more testimony could be safely

17 released to the public, the Chamber will of course consider any

18 application in this respect.

19 Next item on the agenda would be the decision on the further

20 examination of Mr. Bjelobrk. The Chamber has not reached a final decision

21 on this so it cannot give a decision at this moment.

22 Then turning to the other matters, number seven on the agenda, in

23 view of the private session testimony of Witness 73, the parties are to

24 report to the Chamber on the sections of Witness 73's private session

25 evidence that can be made public.

1 Ms. Loukas.

2 MS. LOUKAS: Yes, Your Honour. In relation to that question, in

3 fact there are two witnesses in that position, that's 073 and I think also

4 Witness 239 that the Prosecution and the Defence were to come to some

5 agreement in relation to what could be released. I can indicate that in

6 relation to 073, Mr. Margetts and I have come to an agreement in relation

7 to those matters. In relation to 073, that's the witness that

8 Ms. Edgerton had, and that's -- I've -- Ms. Edgerton and I have not

9 actually completed our discussions in relation to that aspect, but --

10 JUDGE ORIE: Ms. Loukas, we are now -- you're referring two times

11 to 073. I take it that Ms. Edgerton's witness is not 073.

12 MR. MARGETTS: No, Your Honour.

13 JUDGE ORIE: It's 239.

14 MR. MARGETTS: 239 is the one that I was dealing with.

15 MS. LOUKAS: Yes, thank you, Your Honour. Thank you for that

16 correction. Yes, Witness 239 is the witness that Mr. Margetts and I had

17 in common and Witness 073 is the witness that Ms. Edgerton and I had in

18 common.

19 In relation to 073, the witness that Ms. Edgerton and I had in

20 common, we're still in discussions in relation to the particular portions.

21 In relation to 239, Mr. Margetts and I have actually completed our

22 discussions and they can be presented to the Trial Chamber.

23 JUDGE ORIE: Yes. Wouldn't it be the most practical way that the

24 parties just send an e-mail identifying those portions.

25 MS. LOUKAS: Precisely, Your Honour, I think that is the most

1 practical solution.

2 JUDGE ORIE: Otherwise we'll have to file submissions and it's

3 just a matter of something everyone is seeking, that is to make as much

4 public as possible.

5 MS. LOUKAS: Indeed, and Mr. Margetts has identified via e-mail

6 certain portions and I've e-mailed back and we can just do a joint e-mail

7 to the Trial Chamber in relation to the relevant portions.

8 MR. MARGETTS: Yes, if I forward the correspondence so far with

9 the conclusion.

10 JUDGE ORIE: Yes. That's fine. We'll then give a decision once

11 we have seen it.

12 As you may have noticed from the decision I delivered earlier, the

13 Chamber does not just look at what the parties say but we review the

14 transcript ourselves and see whether any risks in the suggestions made by

15 the parties.

16 So having dealt with -- could we know when, approximately, your

17 discussions with Ms. Edgerton will come to a conclusion?

18 MS. LOUKAS: Well, I would have thought later today, Your Honour.

19 We can e-mail the Trial Chamber on -- at the latest, Monday of next week.

20 JUDGE ORIE: Yes. Well, then --

21 MS. LOUKAS: In fact, possibly even tomorrow, I mean I don't --

22 there's not much left to be discussed.

23 JUDGE ORIE: No, the issue is that we will not be sitting next

24 week and some of the Judges are not there so if it could be filed --

25 MS. LOUKAS: Indeed.

1 JUDGE ORIE: -- not later than by close of business tomorrow.

2 MS. LOUKAS: If the e-mail could be sent. Yes, certainly,

3 Your Honour, there's no problem with that.

4 JUDGE ORIE: Thank you. Turning to the next issue is the

5 confidentiality of the private sessions' portions of Mr. Mandic. Prior to

6 the break, we heard that the parties could not reach an agreement on that.

7 Mr. Tieger, you are granted your three minutes to explain why, in

8 your view, the confidentiality cannot be listed.

9 MR. TIEGER: Thank you, Your Honour. The situation is essentially

10 this: First, I should note that this discussion does not concern

11 testimony by the witness but simply a procedural discussion between the

12 lawyers that took place and -- during the gap between examination-in-chief

13 and direct examination.

14 Subsequent to that, Mr. Stewart raised the question of lifting

15 confidentiality. We advised him that the reasons for confidentiality or

16 the private session in that case were cited as witness security and

17 investigative confidentiality, two of the most common bases for invoking

18 private session and that was precisely why we went into private session

19 and why the Court granted that. We felt -- and the discussion did

20 implicate, to some extent, as predicted, those issues, and we felt the

21 Court's decision was appropriate and there was no basis for overturning

22 it.

23 Subsequently, without going into all the discussions, the

24 Prosecution attempted limit to the greatest extent those portions of the

25 session that would remain confidential. As a general matter, I should

1 note we don't consider that either a productive or an advisable practice,

2 we don't think private session should be made provisional for a number of

3 reasons, but in this case in the interest of comity and the interests of

4 time we agreed to do so. And we submitted to Mr. Stewart enumerated items

5 consisting of the five separate portions of the transcript, four of which

6 consisted of one line, one of which consisted of, as I see, approximately

7 12 to 13 lines. And although there was some confusion initially,

8 apparently, about the specific reasons why the Prosecution felt those

9 portions should remain confidential, we had a discussion with counsel and

10 identified very specifically why we believed those portions should remain

11 confidential. That's the status of where we are now without burdening the

12 Court with any balcony discussions or anything, any other details that are

13 really not required at this moment.

14 If the Court requires me to identify the specific reasons why

15 those individual portions should remain confidential, we would need to be

16 in private session.

17 That's all, Your Honour, thank you.

18 JUDGE ORIE: Yes, and I take it that you would be willing to

19 provide, I would say, the list of the vital portions.

20 MR. TIEGER: Your Honour, it's been some time since we

21 submitted -- yes, that's quite correct, Your Honour, I have it here and I

22 misspoke and I apologise for that, although I don't think it changes the

23 nature of the submissions. The individual enumerated portions of the

24 transcript are identified and I can submit those to the Court today and

25 they have been submitted to the Defence, but they're not as -- they don't

1 consist of single lines, I was looking at the last portion of the e-mail.

2 In any event, we have them identified and we can submit them and the same

3 rationale applies.

4 JUDGE ORIE: Yes.

5 Mr. Stewart.

6 MR. STEWART: May I comment that the simple fact that Mr. Tieger,

7 up to that moment, was under the impression and was able to make a

8 submission to the Court that these passages consisted of single lines

9 makes it perfectly obvious that there hasn't been a sufficiently

10 conscientious examination of this material. How could Mr. Tieger, with

11 respect, come into court and makes submissions on this believing up to the

12 last minute that he's dealing with several passages of one line only when

13 it's quite clear for -- and has been quite clear for a long time that he's

14 dealing with a longer passage. Your Honour, I still don't have

15 submissions which I can answer.

16 JUDGE ORIE: Mr. Tieger.

17 MR. TIEGER: Your Honour. I guess I should be glad that was

18 raised, whether it was rhetorical or not. The reason I was no longer

19 quite as familiar with those passages as I once was is because of the

20 passage of time that has elapsed since our discussions and since I went

21 through those transcripts, along with Mr. Margetts and identified those

22 particular passages.

23 I will say that --

24 JUDGE ORIE: I do understand that time made it slip out of your

25 mind.

1 MR. TIEGER: That's all it was. What's more, following our last

2 discussion, I identified the specific passages to counsel. I identified

3 the reasons why the Prosecution felt those should remain confidential, and

4 the understanding was that he was to get back to us if he disputed those

5 portions and I have not heard from him until this day.

6 MR. STEWART: That is absolutely not a fair account of what

7 happened, Your Honour. I really do have to protest about this. Mt.

8 Tieger -- Your Honour, I must be entitled to put the record straight on

9 this. This is absolutely unfair, the description of how this procedure

10 has gone.

11 How this procedure has gone is that a long time ago, Mr. Tieger

12 gave me, in very shorthand form, in relation to much wider batch of

13 material which he wished to continue to have withheld as being private, a

14 very brief summary which contained, in essence, the two simple points,

15 witness protection and investigative confidentiality. He gave me on the

16 28th of February -- 25th of February, I beg your pardon, he gave me the

17 details of the five passages which are the longer-than-one-line passages

18 that he referred to a moment ago.

19 We had our very friendly and delightful meeting on the balcony

20 subsequently. I made it quite expressly clear to Mr. Tieger, it was

21 perfectly amicable, Your Honour, that what he was giving me on that

22 occasion was what I already had. And he already knew my position on that.

23 I made it quite clear that I did not see because I had fully considered

24 all that material and the material I was given on the balcony. I made it

25 quite clear to him that it was most unlikely that I would change my mind

1 because I had fully considered it. But I would look at it. I have looked

2 at it, Your Honour. I have considered the matter fully. And these -- in

3 relation to these five passages, I am inviting Mr. Tieger and have

4 consistently invited the Prosecution to hone in, which they're still not

5 doing this morning, to hone in as Your Honour suggested might be done in

6 private session, and tell the Trial Chamber and enable me to respond by

7 proper submissions what are the specific problems about these passages.

8 Because at the moment, Your Honour, the Defence is not prepared to agree

9 it to them because the Defence does not consider that there is a proper,

10 legitimate justification for withholding these passages from the public

11 transcript. And, Your Honour, I cannot make proper submissions until

12 somebody tells me what the supposed justification is for this continued

13 withholding.

14 JUDGE ORIE: Yes. Of course the Chamber was under the impression

15 that you would know about it but since you say you are not -- we turn it

16 to private session.

17 [Private session]

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

1

2

3

4

5

6

7

8

9

10

11 Pages 12742-12747 redacted. Private session.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 [Open session]

9 JUDGE ORIE: Is there anything to be added in open session to

10 these submissions?

11 MR. STEWART: Only this, Your Honour, that I would also suggest

12 that when one looks, whatever happens, that when one looks at the

13 transcript of the last 15 minutes, there's also a great deal of that which

14 wouldn't justify being treated as being in private session.

15 JUDGE ORIE: Yes, that would be a good subject for a new round of

16 negotiations between the parties on what ...

17 Mr. Stewart, of course there always was a possibility to turn into

18 open session, to request that. The Chamber, unfortunately, cannot

19 forecast what will be the next sentence of the party.

20 The Prosecution is invited to submit, under seal to the Chamber,

21 the parts of the Mandic transcript which it considers to be vital -- it

22 considers that it's vital to keep it confidential. The Prosecution may

23 add to what -- to that any specific reason on any of the parts all

24 together not more than one page. The Prosecution is invited to submit

25 this by next Monday.

1 The Defence has an opportunity to respond to that also one page

2 just identifying what the issues are until next Friday -- I mean next

3 Friday, the Friday after the Monday it has been filed. The Chamber will

4 then decide.

5 If there is any submission for making public the last 15 minutes,

6 it's Chamber will wait what the suggestion of the parties will be.

7 Then we move to point 9 of our agenda, that are the list of

8 sources of Ms. Hansen and I think it's up for the OTP to inform the

9 Chamber about the present status.

10 MR. TIEGER: Your Honour, I understand that that list has been

11 completed. We have not had a full opportunity, however, to determine --

12 to check those sources against the materials available on the EDS -- as to

13 the materials that were disclosed. But the sources are available and we

14 have them here.

15 JUDGE ORIE: So the list of sources are available and I think they

16 can be disclosed to Defence because I think that's what the Defence

17 wanted.

18 MR. TIEGER: Yes, Your Honour.

19 JUDGE ORIE: I don't think that at this moment, the Chamber should

20 be involved in the matter until the parties consider it appropriate.

21 Yes. So the openly thing the Chamber is now -- I wouldn't say

22 waiting for, but the only thing that could happen to this Chamber is that

23 the parties would address the Chamber with any disagreement on the

24 accessibility of this material.

25 Then we move on to item 10 on the agenda. There was an issue

1 about problems the Defence experienced with the copy of the tapes of the

2 interviews for Defence use, and I'm talking about the Radic interviews.

3 The parties are invited to report back to the Chamber on whether this

4 issue has been resolved, yes or no.

5 Mr. Stewart.

6 MR. STEWART: Well, Your Honour, the first practical issue has

7 been resolved because following the hearing on the 22nd of March, the

8 Prosecution did supply very quickly, in fact, after that hearing, new CDs

9 containing these interviews. So that was step number one, that practical,

10 technical glitch had gone, but step number 2, which is that the point of

11 that was to enable Ms. Cmeric on doing the work on listening to those and

12 looking at the transcripts, has not been done, Your Honour, and I do have

13 an up-to-date report on this because I spoke to Ms. Cmeric within the last

14 hour or so, anyway, shortly before we came to court. She, of course, is

15 safely in the vastness of Serbia now. Ms. Cmeric simply has not had, she

16 is not technically with the case anymore, Your Honour, but that -- I don't

17 think she would take that technical point, but before she left and now she

18 has simply not had the time to do that with her other responsibilities.

19 And that is what I can report and it's all I can report.

20 JUDGE ORIE: Yes. I think when the Defence will review these CDs

21 was not the problem -- the Chamber was involved in primarily. The problem

22 at that time was that there was no technically effective way of reviewing

23 the material. I do understand that that problem has been resolved and

24 that the Defence fights to find the time to deal with that material which

25 they consider appropriate to do. Therefore, I would say that the issue

1 is, at this moment at least, not one of the Chamber.

2 Let me move to item 11, that is any problems with the translation

3 of P252. The Defence was expected to provide details of the problems with

4 the translation by the 21st of March. What's the present status?

5 MR. STEWART: Well, in the same conversation with Ms. Cmeric,

6 Your Honour, I was informed that Ms. Cmeric had given -- I'm afraid I

7 don't know the exact date, but he will know, but had given such details or

8 comments to Mr. Margetts.

9 JUDGE ORIE: Yes.

10 MR. STEWART: That's all I can say, Your Honour, because I

11 sometimes stand on the sidelines when members of my team and Mr. Margetts

12 discuss issues and I'm trying to do that here as well, Your Honour.

13 JUDGE ORIE: Yes. With full appreciation for the time concerns,

14 the Defence has, the Chamber will strike the issue from the pending issues

15 list and anyone who wants to bring it back on the list could make a

16 request to do so.

17 So therefore, at this moment, P252, as far as translation problems

18 are concerned, is not on our list but let me just ...

19 MR. STEWART: Sorry, Your Honour's last comment seems to suggest

20 that our time concerns have prevented us from doing it. What I had

21 informed Your Honour, I thought, is that we have, in fact, done that.

22 JUDGE ORIE: Then I misunderstood you, Mr. Stewart. If this does

23 not happen more than three times a year, I would say, it would not be too

24 bad.

25 MR. STEWART: Yes, it's only April, Your Honour.

1 JUDGE ORIE: I might not have listened carefully enough.

2 MR. STEWART: The ball was in Mr. Margetts's court is what I was

3 saying, Your Honour.

4 JUDGE ORIE: Mr. Margetts.

5 MR. MARGETTS: Your Honour, I am aware that all translation issues

6 that Ms. Cmeric raised with me have been dealt with. I have no

7 recollection of the specific exhibit P252. So I cannot answer the Court

8 as to this specific matter. I wasn't aware that the ball was actually in

9 my court personally today. As it is, I will immediately look into the

10 matter after court and inform the Court and the Chamber of what it is that

11 I ascertain.

12 JUDGE ORIE: Yes.

13 MR. STEWART: I can tell Mr. Margetts what it is afterwards but he

14 can find it easily enough but it's a -- it's a video dated the 1st of

15 July, 1992, if that helps.

16 MR. MARGETTS: Yes, and my case manager has just been helpful and

17 identified the specific witness that that relates to and I do recall the

18 video and I will take steps to ascertain precisely what that issue was,

19 but I did understand that all of the translation issues with that witness

20 had been dealt with some time ago.

21 MR. STEWART: I think it's Mr. Edgaric [phoen], isn't it?

22 MR. STEWART: Correct.

23 MR. MARGETTS: Yes.

24 JUDGE ORIE: Then let's do the following ...

25 [Trial Chamber and legal officer confer]

1 JUDGE ORIE: The -- Mr. Margetts, you are invited to send before

2 tomorrow, 5.00 in the afternoon, an e-mail to the Defence indicating,

3 first of all, what, at least approximately, the problem was. Second,

4 whether you, in your view, resolved the problem with Ms. Cmeric; yes or

5 no. If yes, the issue is struck from the list of pending issues unless

6 the Defence disagrees and requests it to be put on that list again.

7 If your answer is that you did not resolve the problem, you are

8 invited to indicate on how you will resolve the problem and preferably

9 within the next ten days. Of course, we do not know exactly what the

10 problem is and we know that time for translations et cetera is not easy to

11 be found. And you may send a copy of this to the legal staff of the

12 Chamber so we are informed about where we stand.

13 So either it remains on the list and we have your indication on

14 how the matter will be resolved, or we get the message that it has been

15 resolved then it's struck from the list. And whoever wants to put it back

16 on the list is invited to do so.

17 MR. MARGETTS: Thank you, Your Honour.

18 MR. STEWART: Yes, Your Honour and the transcript reference is

19 4.813 where all this comes up initially.

20 JUDGE ORIE: Yes. Then finally, we have one issue remaining on my

21 list and I'm also looking at the clock -- no, we are not running out of

22 tape yet. We went through all the 11 agenda items apart from one that is

23 number six, I explained why. One of the things I did not finish is to

24 finish the oral statement on the Scheduling Order that was filed

25 yesterday.

1 Has the Defence now received a copy of that order?

2 MR. STEWART: Yes, we have, Your Honour. I think the problem

3 about not getting is that Mr. Karganovic, we're still waiting formal

4 approval from the registry and he doesn't have full access to our locker

5 which is a problem so I apologise for the fact, I don't know what time of

6 day it was filed. But yes, we have, Your Honours.

7 You don't want me to say any more than that at this moment?

8 JUDGE ORIE: No, I think you adequately protested against giving a

9 short oral explanation of a decision which you had not yet received. You

10 have now received it so I'll now give the brief oral statement concerning

11 the final Scheduling Order.

12 I now did inform the parties that yesterday, I signed, on behalf

13 of the Chamber, a Scheduling Order to see us through to the end of the

14 case. According to the order, the case is to close by the end of April

15 2006 at the very latest. This includes the delivery of the judgement.

16 Any time savings along the way will most probably translate into an

17 earlier closing date, and an earlier judgement.

18 As you will see from the order, the Chamber has instructed the

19 Prosecution to close its case by Friday, the 22nd of July, 2005. The

20 Chamber is aware that this deadline might be tight. However, although

21 tight, it is far from unreasonable. It is merely a matter of minimising

22 wastage by improving the focus of the case and making the questioning of

23 witnesses more relevant and accurate. These are improvements that both

24 parties must address.

25 In particular, the Prosecution is again advised to further improve

1 the presentation of its evidence and the focus of its

2 examination-in-chief. The Prosecution has been asked to do so already on

3 several occasions by the Chamber. The Prosecution, to its credit, has

4 always responded positively. However, greater efficiency and focus are

5 required in order to meet the 22nd of July deadline. I emphasise that

6 greater efficiency is not the same as greater speed. It is important for

7 the sake of clarity and everybody's comprehension that the core of the

8 Prosecution's evidence is heard and understood in the courtroom, and not

9 buried in the masses of documents admitted into evidence holus-bolus and

10 left to the Judges to make sense of. As for the general tendency of

11 prosecutorial practice, to move into evidence mountains of materials just

12 to be on the safe side, that tendency does not assist the mission of this

13 Tribunal and creates an unnecessary burden on the Defence.

14 Lastly, the evidence of a witness should be appropriately

15 contextualised at the time the witness gives testimony, should address the

16 issues in contention, and should remain within those limits.

17 The Defence, too, is encouraged to proceed more efficiently by

18 using its cross-examination time more incisively and by economising in its

19 interventions. The Chamber will continue to be active in reducing wastage

20 of courtroom time.

21 Nothing I've said about the need for greater efficiency should be

22 taken as a criticism of either party. The Chamber holds the parties in

23 high esteem as regards their professionalism and cooperation. The

24 cooperation could be further improved in such areas as protective measure

25 and material admitted through Rule 92 bis.

1 This concludes my additional remarks in relation to the decision

2 filed yesterday. Is there any other procedural issue that should be

3 raised at this point, because we'll not be in court for more than ten

4 days, for almost two weeks.

5 MR. STEWART: Well, Your Honour, I have a couple -- I do have a

6 couple of small points and then -- well small in terms of time.

7 JUDGE ORIE: Yes.

8 MR. STEWART: And then something that I would like to address to

9 the Tribunal on scheduling.

10 May I say, by the way, it's a long time I've heard the phrase

11 "holus-bolus," but I congratulate Your Honour. It's the perfect phrase

12 for that particular passage, with respect.

13 JUDGE ORIE: Yes, as a non-native speaker, I did not invent it

14 myself.

15 MR. STEWART: Well, none of us did that, Your Honour.

16 JUDGE ORIE: But I inquired as to the meaning of it, yes.

17 MR. STEWART: As I say, I don't -- with complete respect,

18 Your Honour, it's the perfect phrase there.

19 Your Honour, the -- I'm concerned about this: We have received no

20 indication that I'm aware of, I have to make that qualification in the

21 circumstances, no indication that I'm aware of as to what witnesses are

22 coming up apart from General Wilson on the 17th of May. Your Honour,

23 we're back in court in 12 days' time, I think it is. I have no idea who

24 the witnesses are. This is not satisfactory, Your Honour. We find it

25 difficult enough, anyway, without being in this position.

1 JUDGE ORIE: Yes. Mr. Tieger.

2 MR. TIEGER: I understand Mr. Stewart's point. We'll attempt to

3 rectify that as soon as we possibly can. The Court is aware that in the

4 recent past, there's been a great deal of fluidity with witnesses because

5 of any number of problems which we've enumerated; nevertheless, we are

6 attending to that problem at this moment and will get the information to

7 counsel as soon as humanly possible.

8 JUDGE ORIE: Yes. The Chamber would highly appreciate if at least

9 some communication would take place at least today, even if not with the

10 final programme, then at least with the options and the problems.

11 If the assistance of the Chamber would be needed, of course,

12 Friday is a UN holiday, but until Friday, the Chamber would be available

13 for any further assistance.

14 MR. STEWART: Your Honour, I will accept humanly possible as the

15 most that we can expect from the Prosecution.

16 The -- Your Honour, a tiny point but one which I would like to

17 mention. We do get, not necessarily always holus-bolus, but we do get

18 enormous quantities of paper, of course, and Your Honour has seen this of

19 course in relation to 92 bis. We continue to get massive quantities of

20 paper supplied single-sided and, Your Honour, with my green robe on this

21 morning and also from a practical point of view, may we please invite the

22 Prosecution and anybody else concerned to see whether we can be provided

23 with such material double-sided. I'm talking about thousands of pages of

24 stuff.

25 JUDGE ORIE: Mr. Tieger, it serves several purposes, takes less

1 place and takes less trees as well. To the extent you are in a position

2 to do anything about it, you are invited to do so.

3 MR. TIEGER: This is probably my opportunity to speak up for my

4 green bona fides as well, but we take the suggestion on board.

5 JUDGE ORIE: I think.

6 MR. STEWART: I knew Mr. Tieger couldn't possibly resist that one,

7 Your Honour.

8 JUDGE ORIE: I've never heard anyone who was not in favour of the

9 environment, but I met a few people who did not always do what was most

10 favourable to the environment.

11 Next point, Mr. Stewart.

12 MR. STEWART: Your Honour, on the question of scheduling, first of

13 all, Your Honour, may I say the Defence would have appreciated if the

14 Scheduling Order, leave aside the fact that we didn't see it until had

15 this morning, if the Scheduling Order had been issued after some

16 consultation with the parties. There's no more to be said than that,

17 Your Honour. We were not invited, certainly not for some very

18 considerable time, we were not invited to have any input in relation to

19 the Scheduling Order at all and we do, Your Honour, say that that is

20 unsatisfactory.

21 Your Honour, I was in any case, although I had two unwelcome

22 surprises, maybe not total surprises, but I come to Court and receive the

23 Scheduling Order and also while I've been in Court, the dismissal of our

24 appeal against the refusal of an adjournment so those -- that double

25 whammy makes it very clear to us what we are facing now over the immediate

1 future. But even though I didn't know those were coming this morning, I

2 was going to raise the short-term scheduling problem because, Your Honour,

3 I have duties, I have duties to the Tribunal and to the Trial Chamber

4 specifically. I have of course my duties to Mr. Krajisnik which have to

5 be reconciled with those duties. I also have duties to my team which

6 indirectly involves my discharging my duties to the Trial Chamber and

7 Mr. Krajisnik.

8 Because this is a marathon not a sprint, this case and it

9 certainly is a marathon, I have expressed considerable concerns to the

10 Trial Chamber before about the inordinate pressures brought to bear on the

11 Defence team and I express those concerns very clearly today. There is,

12 in my submission, Your Honour, no way anybody in New York, anybody in The

13 Hague, anybody in this courtroom should fairly expect to continue to

14 impose the pressures which you are imposing on the Defence team in order

15 to meet the budgetary and targeting and deadline requirements from

16 wherever they come. It is just not fair.

17 Your Honour, I can elaborate but I can simply tell you and to some

18 extent, Your Honour, I do respectfully expect a Trial Chamber to accept an

19 assertion from me, a professional assertion that this is simply too much.

20 Even the list of things we see this morning should enable anybody to do a

21 checklist and to see that this is impossible. Short-term scheduling needs

22 the most desperately careful attention.

23 I would then like to mention another point, Your Honour, which

24 relates to the longer-term scheduling. We had some debate in meetings

25 with the Trial Chamber of which all the parties were attending -- which

1 all the parties were present last year, when the Trial Chamber at first

2 consistently counted, in all the time available to do various tasks,

3 consistently was counting the three weeks of the recess.

4 I consistently protested about that and in the end, Your Honour

5 did specifically acknowledge that that period should not be counted and

6 that there should be a proper opportunity for the parties and their

7 representatives -- for their representatives - I apologise, "the parties"

8 is rather a different position - for the legal representatives to actually

9 have some time off.

10 But, Your Honour, this schedule, without any consultation with us,

11 has the Prosecution case finishing on the last hearing date before the

12 three-week recess and has the 98 bis submissions, either on the first or

13 the second day, I'm not sure which day it is, maybe it's the second day

14 back at the end of that recess. I ask the question, Your Honour: Where

15 does that recess go? What does happen to the members of the Defence team?

16 What does happen to their families? What do the people in New York and

17 the people in this building in The Hague, what do they think is happening

18 in this case? Do they think that the Defence team are machines and

19 automatons? Are we to be processed and programmed to reach this deadline

20 of April 2006? Or are we to be treated with some human concern?

21 I put that question on the table and I invite an answer.

22 JUDGE ORIE: Thank you, Mr. Stewart. Any further issue?

23 Mr. Tieger.

24 MR. TIEGER: No, Your Honour.

25 [Trial Chamber confers]

1 JUDGE ORIE: Mr. Stewart, the Chamber will carefully consider the

2 observations you have made. Where you asked for an answer, of course the

3 Chamber will consider to give that answer and not to wait that long but

4 will not give that answer right away.

5 MR. STEWART: Thank you, Your Honour.

6 JUDGE ORIE: We will then adjourn until Monday the -- I think

7 it's the 9th, Madam Registrar. Monday, the 9th of May at 9.00 in the

8 morning. As far as my recollection goes, same courtroom ...

9 [Trial Chamber and registrar confer]

10 JUDGE ORIE: I remember that it is in the morning, the courtroom

11 to be found by the parties at the appropriate time, that is 9.00 in the

12 morning and we are not in courtroom II but in courtroom III. We adjourn.

13 --- Whereupon the hearing adjourned at 12.58 p.m.,

14 to be reconvened on Monday, the 9th day of May,

15 2005, at 9.00 a.m.

16

17

18

19

20

21

22

23

24

25