1 Thursday, 26 April 2001

2 [Open session]

3 --- Upon commencing at 9.24 a.m.

4 [The accused entered court]

5 JUDGE RODRIGUES: [Interpretation] Good morning, please be seated.

6 Good morning ladies and gentlemen. Good morning to the technical booth,

7 the interpreters. Good morning representatives of the Registry, counsel.

8 I believe that we are ready to continue with the testimony of

9 Professor Aleksic.

10 Am I right, Mr. Stojanovic?

11 MR. STOJANOVIC: [Interpretation] Good morning, Your Honours.

12 You're quite right. However, I have a slight dilemma left out from

13 yesterday. The exhibit that we mentioned yesterday, should it be

14 discussed now or is it going to be discussed later on after the completion

15 of the testimony of Mr. Aleksic?

16 JUDGE RODRIGUES: [Interpretation] What is the exhibit you are

17 talking about, Mr. Stojanovic? I can't remember.

18 MR. STOJANOVIC: [Interpretation] D28/4, Your Honour, the findings.

19 JUDGE RODRIGUES: [Interpretation] I think we can address the

20 exhibits together after the testimony of Mr. Aleksic.

21 MR. STOJANOVIC: [Interpretation] Thank you very much, Your

22 Honour. Could I have the assistance of the usher, please. Could

23 Mr. Aleksic be brought into the courtroom once again.

24 [The witness takes the stand]

25 JUDGE RODRIGUES: [Interpretation] Good morning, Professor. You

1 may be seated now, but before you do that, let me remind you that you will

2 continue to testify under an oath. Please be seated.

3 THE WITNESS: [Interpretation] Well, I've been haunted by oaths

4 throughout my life.

5 WITNESS: ZIVOJIN ALEKSIC [Resumed]

6 [Witness answered through interpreter]

7 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic, your witness.

8 Examined by Mr. Stojanovic:

9 Q. Good morning, Mr. Aleksic, we will now continue with your

10 testimony in this case. However, this morning, we will discuss a somewhat

11 different matter. Yesterday, we heard a lot about your background and

12 your experience, and I should like to link those two, yesterday's

13 testimony, and remind the Court that the emphasis was on your expertise as

14 a grapholog, but you also told us that you are an expert in evidence law

15 as well.

16 A. Yes, you're right.

17 Q. You said that you obtained your masters degree and specialisation

18 in Lausanne, and that you obtained your Ph.D in Belgrade?

19 A. That's correct.

20 Q. Could you tell us about the subject of your Ph.D, of your thesis?

21 A. It was the application of scientific methods on personal sources

22 of evidence, that is, witnesses, expert witnesses, and the accused.

23 Q. You also mentioned that you had an opportunity to participate in

24 the work of the international legal community as a lawyer. Did you

25 undergo any special training for that purpose, did you take any special

1 courses?

2 A. Of course. In my field of expertise, one has to undergo permanent

3 education. I completed three degrees in comparative law in Pescara,

4 Strasbourg, and Exeter.

5 Q. I don't see the name of the Italian town in the record.

6 A. Pescara. Those were the sessions of the university for

7 comparative law and Solak Anizares [phoen] was once in charge of that

8 department.

9 Q. Did you have any involvement, any engagement with the organisation

10 of United Nations?

11 A. I did. I worked in the -- I was involved with the issue of drugs

12 and protection against drugs. At the time, this was a very new subject in

13 my country, and I warned about this problem in my country, I talked to the

14 relevant authorities. But this was at the time of communism, and I was

15 actually accused of trying to bring up a capitalist problem which was out

16 of place in my country. Unfortunately, such things happened in my country

17 as well.

18 Q. Are you now a member of any scientific association in Serbia?

19 A. Yes.

20 Q. Are you a member of the academy of science?

21 A. Yes, I am. I was elected a few years ago.

22 Q. As regards various professional associations, international

23 professional associations, are you a member of any of them?

24 A. I used to work with Professor Joe Hazard from Columbia. I was the

25 co-chairman of the World Association of Professors of Law, and that

1 association is part of the organisation World Peace Through Law. I was a

2 member of that organisation for eight years.

3 Q. Yesterday you told us that you published 29 books so far. Is that

4 correct?

5 A. Yes, that is correct. Ten of those books were written by myself

6 only, and the remaining 19 books, I wrote them with my colleagues and

7 co-authors and one particular colleague that I used to work with.

8 Q. For how many years have you been working in this field?

9 A. Once again, this is a very painful subject for me. I must say

10 that I've been working in this area for 45 years, since 1956.

11 MR. STOJANOVIC: [Interpretation] With the permission of the Court,

12 I should like to have the assistance of the usher and to show one

13 particular document to the witness. The document is entitled "The

14 Probative Value of Testimony in Criminal Proceedings." The author of the

15 text is Professor Zivojin Aleksic, which can be seen from the paper.

16 Can I have the number for this exhibit, Madam Registrar, please?

17 THE REGISTRAR: Yes. It is D29/4.

18 MR. STOJANOVIC: [Interpretation]

19 Q. Professor Aleksic, is this the expert analysis that you yourself

20 compiled?

21 A. Yes, it is. But with your permission, Your Honours, I should like

22 to draw your attention to the fact that in the French translation, instead

23 of Aleksic, the text reads Stojanovic. My mother-in-law wanted me to

24 change my surname, but I managed to resist her, so I should like this

25 error to be corrected in the French translation as well.

1 Q. As regards the remainder of the text, do you stand by it? Do you

2 stand by what it contains?

3 A. Yes. However, I have to say that in the original version, page 9,

4 I added two lines in handwriting. I will discuss those lines later on.

5 But I believe that it has been translated, so the Court will also have

6 that particular addendum, which was made because I was in a hurry. But

7 those were the two lines that I wanted to add to the text, and I wanted to

8 discuss them today.

9 Q. Speaking of the translation of the text, professional translators

10 of the Tribunal have translated the text from B/C/S into English; however,

11 certain remarks should be made. You're quoting Plautus; however, in the

12 English translation, on page 5, in the first paragraph of the translation,

13 it says that you are quoting Plautus, the penultimate sentence on page 5.

14 Is that a misunderstanding? Because Plautus is a classical writer. Are

15 you referring to him?

16 A. No, no, no. I'm not referring to him. Plautus was a very famous

17 scientist who lived at the end of 19th century. His name is actually

18 Plaut and all scholars who deal with that particular area know about him.

19 Q. I don't think the record has adequately reflected the name in

20 question. Yes. We can see it now. It's Plaut. Could you tell us

21 something in general terms about the objectives and the results of your

22 expert analysis?

23 A. Yes, I can do that.

24 Q. If you have finished your introductory part.

25 A. Yes, I have, for the time being. Thank you very much for having

1 spared me the trouble for having to enumerate a number of other titles

2 that I have, because every time I have to listen people speak about

3 myself, I have the feeling that I'm about to be awarded or decorated. An

4 honorable man, when he goes to court, he goes there to seek justice.

5 All laws, all codes of law of civilised countries, make mention,

6 usually in their preamble, first articles that the objective of the law,

7 the purpose of the law on criminal procedure, is to ensure that no

8 innocent man is convicted, and also to ensure that the guilty ones be

9 pronounced adequate sentence. In view of those sentences, later on in my

10 work I understood that it was rather easy to write such a sentence, but

11 you, Your Honours, in view of your experience, are aware of the

12 difficulties involved in the truth-seeking process and how difficult it is

13 to fulfil this honourable objective. I have been dealing with criminal

14 law for more than 45 years, and I was taught by my famous professors,

15 which I haven't had the pleasure to surpass, unlike my students, former

16 students here in this courtroom, who have surpassed myself, and I'm very

17 glad to be able to mention that. I always try to make sure that the

18 criminal science represents a hope for the innocent man and that it

19 constitutes a kind of sword for a guilty man.

20 With your permission, Your Honours, I should like to address a

21 matter that has been troubling me since yesterday. When I arrived here a

22 few days ago, I was shown a document by the Prosecution which contained an

23 objection to what I'm going to discuss today, and it is my fault for not

24 paying adequate attention to that particular objection, and I should be

25 grateful if this Honourable Court should help me to understand this

1 particular objection and not let me leave this Honourable Tribunal in a

2 rather bad mood.

3 In the objection that I have received from the Prosecution, and

4 maybe I haven't understood it adequately --

5 MS. SOMERS: Objection, Your Honour.

6 A. -- that my expert analysis and my testimony ...

7 JUDGE RODRIGUES: [Interpretation] Yes, Madam Somers.

8 MS. SOMERS: I'm sorry to interrupt the good professor; however, I

9 would like to point out that he is not here as an advocate, he is here as

10 a witness, and we would ask that any matters concerning our objections

11 remain soundly between Defence counsel, the Chamber, and the Prosecution.

12 I think it is an inappropriate area into which he is wandering now. We

13 ask that he just proceed with the testimony. Thank you very much. I

14 apologise. I am not handling the cross-examination, but I felt it my duty

15 as the lead counsel to enter this.

16 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic.

17 MR. STOJANOVIC: [Interpretation] Your Honour, I think that we

18 should let the expert continue with his testimony. His arguments concern

19 the objection which was made to this expert analysis by the other party,

20 and let me also remind my learned colleague that we only have 45 minutes

21 to examine this witness.

22 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic, you understand.

23 And Mr. Aleksic, you also understand that we have here certain rules which

24 are not identical to the rules that we are -- that we have in our legal

25 systems. You are here as a legal expert, legal expert witness, and the

1 witnesses here come to answer questions that are asked of them by the

2 parties.

3 You will have to answer questions also that will be asked of you

4 by the Judges. So you are here in order to answer questions that the

5 parties intend to ask of you. If there are any problems, if there are any

6 questions that you should like to address, you should do so in a proper

7 manner.

8 We are now going to continue hearing your testimony, but I think

9 that there is something in the report by Mr. Aleksic which he has

10 already -- I think that he has already mentioned regarding the stress of

11 the detainees, that is the sentence that he edited in handwriting. The

12 presence of the professor, if he is going to -- the professor is here to

13 talk about the probative value of testimony but also for the specific case

14 that we have to deal here, and not about such problems in general as they

15 are presented in his national legal system.

16 You are also aware of the time restrictions, and please bear in

17 mind that the professor is here, of course, in the interest of the justice

18 but also to guard the interests of the party that he has been called by.

19 A. Can I please address the Court with one sentence, because I have

20 been interrupted? I wrote in that objection that my contribution would

21 only be an insult to the Court.

22 JUDGE RODRIGUES: [Interpretation] Witness, Mr. Aleksic, you are

23 not a Court witness. You are a witness that has been called by the

24 Defence, although as regards the merits of the case and the substance of

25 the matter, I think that we have to disregard this difference. You are a

1 witness -- you are a witness that has been called by the Defence, but --

2 and you have to answer questions that will be put to you first of all by

3 the Defence, and then by the Prosecutor, and in the end by the Judges.

4 As you know, Professor, justice is something that follows from the

5 respect and -- of the rules which have been established so that justice

6 can be done, and that is why we have procedural rules. And we also have

7 the Rules of Procedure and Evidence in this Tribunal, and we are going to

8 respect them.

9 I am not going to give you, therefore, an opportunity to express

10 your views on this particular issue because it is not in accordance with

11 our rules. As the Presiding Judge of the Chamber, I am here to ensure

12 that such rules are respected. Mr. Stojanovic is going to ask questions

13 of you and then you will be asked questions by the Prosecutor and then in

14 the end by the Judges.

15 Mr. Stojanovic, please proceed.

16 MR. STOJANOVIC: [Interpretation] Thank you very much, Your

17 Honour. If I may assist the expert, I would like to tell him that the

18 Court has allowed this expert report regardless of the objections of the

19 other party.

20 Q. On page 6, I have another comment to make on the English

21 translation, the paragraph in the middle, the expression, rente

22 psychosis. Could you explain what this means?

23 A. It is obtaining rent or benefit or gain for something that

24 occurred. This is often found among the accused to use an unfortunate

25 event to turn it into a fortunate one to obtain gain from it.

1 Q. How do you categorize witnesses?

2 A. I shall be very brief in that respect because Their Honours know

3 that very well. The easiest division is the well-intentioned and the

4 lying ones and then among the first category, there are witnesses whose

5 senses do not allow for better quality testimony. What I have added here,

6 perhaps we'll come back to that later, is the danger of collective

7 testimony. But if Your Honours have an interest, I can come back to

8 that.

9 I fully appreciate the observation made by Your Honour, the

10 President, that you are confronted with vast difficulties, and I don't

11 wish to go into the details. It is very difficult to judge a murder

12 without a body, but as for witnesses who have only heard and haven't seen,

13 there are many problems. And I distinguish as literature does, that is,

14 the literature of leading textbooks, that there is a well-intentioned

15 witness and a lying witness, and there is also the victim as a witness

16 who, according to experiences of very famous men, aggravate their -- the

17 damage they have suffered or exaggerate it.

18 Then there are witnesses who have heard, but they have heard a

19 criminal act, moans, cries, cries for help, and then there are witnesses

20 who have heard from others and are only capable of reproducing what they

21 were told by others. Unfortunately, the human psyche is such and

22 contemporary development of court psychology and psychopathology as Your

23 Honours are well aware has been used increasingly for witnesses in court

24 because that goes beyond the knowledge of lawyers.

25 Anizares [phoen] said in his day, there is a witness who is an

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1 observer, an eye witness, who are most valuable to the court but there are

2 also witnesses who add their judgements and assessments to their testimony

3 and then, of course, the court has a great deal of effort to invest to

4 clear away all the additions and to establish the core truth.

5 It is my opinion that the testimony of a witness who heard

6 something from someone else, that is hearsay, is the lowest degree of

7 evidence of witnesses. Many authors in the world, both in America and in

8 Europe, write that such testimony is more an indication than a testimony,

9 than evidence. And then, we come to the question whether the accumulation

10 of indications can represent evidence. I am -- I think not.

11 Q. Can you tell us a little more about the victims as witnesses,

12 people who have been affected in any sense as a result of the crime that

13 is being tried?

14 A. The aggrieved or the victim as a witness, according to judicial

15 psychology and psychopathology is such that it is human essence to

16 increase the damage he suffered. When that desire is further exacerbated

17 because the person has lost somebody very dear to him or close to him or

18 because there is a high degree of revenge present, then such witnesses

19 need to be examined with the assistance of a psychologist who will be able

20 to separate this retaliatory part of the evidence from the actual facts.

21 Q. I could mention a couple of examples from our own practice here,

22 but perhaps you could tell me whether that fits into this account category

23 you have been talking about. For instance, in a related case, Sikirica

24 and others that is being tried in this Tribunal, in the opening statement

25 of the Prosecution which was based on witness testimony, transcript page

1 481 of that case, Sikirica and others, it says that in a room in Keraterm

2 that was 20 square metres in size, there were 570 men held or 28.5 men to

3 one square metre.

4 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Waidyaratne.

5 MR. WAIDYARATNE: I object to this question, Your Honour. This is

6 not a basis or any area which has been discussed in the report of this

7 professor, the witness.

8 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic, you can put the

9 question within the frameworks of the report and in a more general sense.

10 Otherwise, you will find yourself in a rather delicate situation for

11 yourself, and even for the professor in terms of deontology and ethics,

12 you realise where you are heading, Mr. Stojanovic, to oblige the professor

13 to comment on another case that is not being tried here. That is most

14 awkward. So put the question in general terms, Mr. Stojanovic; otherwise

15 you will find yourself in a very delicate situation.

16 MR. STOJANOVIC: [Interpretation] Your Honour, I think you're quite

17 right and I stand corrected. It was a procedural error on my part. I was

18 just prompted by a statement made by some witnesses. Perhaps I shouldn't

19 have mentioned the case in question.

20 Q. Anyway, in a statement by a witness to this effect, would you say

21 that this was a case of aggravating circumstances, or rather exaggerating

22 circumstances, in testimony?

23 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Waidyaratne.

24 MR. WAIDYARATNE: [Previous translation continues] ... Your

25 Honour, made under 94(C). This report is only subject to the -- the

1 examination should be subject to that report, and Mr. Stojanovic is now

2 using a situation from a different case for the witness, in the question

3 put to the witness. Thank you, Your Honour.

4 MR. STOJANOVIC: [Interpretation] Your Honour, I withdraw the

5 question. I will use another example from our own case.

6 Q. You made a similar analysis discussing the perceptions of

7 witnesses regarding dimensions: size, length, width. A room of 200 square

8 metres, can it accommodate 1.000 and more men, more than 5 men to a square

9 metre? Is that also a consequence of this kind of state of mind of the

10 witness?

11 A. I cannot tell, for the simple reason because I'm not familiar with

12 the case. But the experiment that I made with Professor Vodinelic and

13 that is mentioned in this report, in the experiment we got together 63

14 well-educated, well-known judicial personnel - judges, prosecutors, and

15 police officers - and we took a dimension - I don't want to recount the

16 whole experiment now. You can find it in the report - and the upshot was

17 that out of the 63, only 2 professionals, two judicial staff, roughly

18 correctly estimated the height, breadth, and length. So this was my

19 experiment, and I was included in it. Hardly anyone guessed the width

20 correctly. As for the height, there were some. You can find the

21 percentages in the report. And as for the length, the errors were

22 greatest. When the car moved 200 metres away from the location of the

23 experiment, these experienced judicial workers said that they had covered

24 one kilometre, so that these estimates are highly varied and they are also

25 affected by prior experience in life. Therefore, the example you have

1 given is one that can easily be calculated, but I'm not familiar with the

2 case, so I can't tell you.

3 Q. Can you assist us, on the basis of your knowledge and expertise,

4 regarding the identification of persons through witnesses?

5 A. In criminal law, recognition or identification must be done in a

6 group, that is, in a series.

7 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Waidyaratne.

8 MR. WAIDYARATNE: Your Honour, I'm extremely sorry to interrupt my

9 learned friend. This area too has not been dealt with in the report.

10 JUDGE WALD: Excuse me. I feel compelled to -- this is a general

11 witness. We have decided he will be allowed to talk about problems in

12 probative evidence. Certainly - I've read his report - it's in general

13 terms. It would make more sense to me if it's probed in terms of some

14 specific examples, and certainly the business of witness identification is

15 certainly within the ambit of the general testimony. I think that having

16 accepted it, you have to give a little bit of leeway or it will be useless

17 to us.

18 MR. WAIDYARATNE: Very well, Your Honour. Thank you.

19 THE WITNESS: [Interpretation] Your Honours, I am at your disposal

20 for any questions you may have. It is very difficult for me to select

21 from my own text. It's as if you were to ask me which of my children I

22 love most. But it will be a pleasure, and I find it an honour to have

23 this opportunity to present before you a part of what I know, a part of my

24 expertise and knowledge.

25 MR. STOJANOVIC: [Interpretation]

1 Q. So my question remains regarding the question of identification by

2 witnesses, if I have understood correctly the position of Her Honour Judge

3 Wald.

4 A. If the Court agrees, I can respond. It is quite a well-known

5 postulate, first, that it has to be done in a group and never

6 individually; secondly, it has to be done through a mirror, so that the

7 witness shouldn't feel afraid and in fear of the accused; and thirdly,

8 that the person that has to be identified by his clothing, behaviour,

9 hairstyle, should not stand apart from the others in the group. The worse

10 and least valuable identification, and I hope -- I will be very sorry if

11 you interpret this as any kind of criticism on my part, but I think all

12 judges will agree, is identification in a courtroom, where the accused is

13 sitting among the accused and then you ask the witness, "Do you recognise

14 that individual?" In a sense, that is guided identification. According

15 to criminal law, it has to be done within a group, so that a person has a

16 chance to choose one among several possibilities, and I think recognition

17 in the courtroom has no probative value.

18 Q. In your finding, report, you mentioned group testimony. Can you

19 elaborate a little on that, especially in connection with what is of

20 interest to us in this case? You are familiar with the general

21 characteristics of this case, I think.

22 A. Collective testimony can be described as follows: In the case

23 here, you have people from camps who have fortunately survived the horrors

24 that they were exposed to in those camps. When the actors, the

25 perpetrators, are brought to trial, as we had in Nuremberg and in Japan,

1 consciously or unconsciously the witnesses start to talk amongst

2 themselves, and this talk dates back to the time of their detention in

3 camp until they come to the courtroom. The court does not allow them to

4 do that, but that is inevitable, and as a result we have this phenomenon

5 of collective testimony, which is the most difficult for the court,

6 because testimony begins to overlap on the part of people who have been

7 called to testify for that particular case. Many indications, the host of

8 indications, begins to give the impression of evidence, and every court

9 shirks away from that, and I think in your case this Tribunal is working

10 under extremely difficult circumstances when it comes to witnesses.

11 I have had the pleasure, a month or so ago, to visit the Muslim

12 part of Sarajevo, and I was elected there as an honorary member of a

13 certain institution and I spoke about these problems. And I did not meet

14 with any opposition on the part of the Muslims, because, you see, my motto

15 is: A thief is a thief, regardless of what country he comes from.

16 Q. As my final question, would you please tell us: On the basis of

17 your overall scholarly studies and more than 40 years of experience in

18 your career, could you tell us what your position is, but also the

19 position, in theory and practice, that you are familiar with and that you

20 have studied and applied, whether a statement of a witness, of one or two

21 witnesses, can, in itself, be sufficient evidence for establishing the

22 existence of the most serious criminal offences?

23 A. I will answer your question by saying the old Latin said, "testis

24 unus testis nullus," "one witness is just as none." Our people in the

25 last century had a saying, and this was probably during the inquisition:

1 "Two without a soul, third without a head."

2 It is very difficult now to determine how many witnesses one

3 needs. If I may make a minor digression. In Persia, when they catch a

4 drug addict with drugs, they weigh the amount of drugs on him and then

5 they determine the penalty automatically. In the case of witnesses, that

6 is not possible, but one has to see to what extent the testimony of that

7 witness relies on material facts. So the judgement is made on the basis

8 of material facts and not any numbers. Otherwise it is very difficult to

9 say whether one witness is sufficient or not. That witness could be a

10 child, an eyewitness, whom you cannot prompt to say what you want.

11 Q. Just one further point of clarification. You said that it is

12 necessary to rely on material traces, as you said. What do you mean?

13 A. Whenever a witness speaks, he's saying something, as Your Honours

14 know full well better than I do, that from his testimony, one needs to

15 determine the means with which an act was committed, other persons, clues,

16 because, you see -- let us be more up to date. We had the Clinton case,

17 Monica Lewinsky's testimony would not have been worth anything if she had

18 not kept the dress and if the DNA had not been established on that dress.

19 So in that case, one witness was sufficient because she had this material

20 proof. So I cannot give you a fixed answer to your question.

21 MR. STOJANOVIC: [Interpretation] Thank you, Your Honours. I have

22 no further questions. I think I have respected the time limit as granted

23 by Your Honours.

24 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Stojanovic.

25 Mr. Waidyaratne, your witness for the cross-examination of this

1 witness.

2 MR. WAIDYARATNE: Thank you, Your Honour.

3 Cross-examined by Mr. Waidyaratne:

4 Q. Good morning, Professor.

5 A. Good morning. Can this be switched -- it is switched on, thank

6 you.

7 Q. Professor, in your report, you have included extracts of studies

8 made by other academics regarding the probative value of testimonies and

9 some elements of its evaluation.

10 A. Yes. Yes, I have.

11 Q. These studies and work has been done by different people and have

12 had different views; am I correct?

13 A. In individual cases, yes.

14 Q. Now, you, in fact, gave an example of a study done by some of your

15 colleagues including you, but that was a study done during a peaceful

16 time, and under normal circumstances.

17 A. Yes.

18 Q. Now, Professor, we have seen your curriculum vitae, have you ever

19 held a position of a judge or sat in judgement in a court of law?

20 A. It would have been far too much. I have accomplished what I have

21 accomplished with a lot of effort.

22 Q. Have you been a jurist -- a juror?

23 A. No. No, I have never been a member of the jury, but I was

24 involved in preparations for trials of terrorists who killed our

25 embassador in Sweden in 1970. I participated in the preparation of --

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1 preparations for the trial, and also for the case of the attack on the

2 military mission in Berlin, and the number of other similar cases but my

3 role finished when the prosecutor started his work. I was only an

4 assistance to the prosecutor in those cases. Unfortunately, now we are at

5 opposite sides.

6 Q. Professor, you spoke about your distinguished career and the

7 reading and the writing that you have done, and also you mentioned that

8 you also were involved with the United Nations and the organisation.

9 That's correct, isn't it?

10 A. [No audible response]

11 Q. Now, have you had a chance or are you aware of the Tribunal

12 Statute?

13 A. This is my third visit to The Hague, but so far, I have been

14 coming to The Hague as an expert on criminal law, criminal procedure and

15 this is the first time I have been invited to inform the Court about the

16 matters that I am much more familiar with, that is, the forensic science,

17 and I have been dealing with this type of scientific methods more with

18 purely legal matters.

19 Q. Yes. So I still didn't understand. Are you trying to say that

20 you have not read the Statute? You are not aware.

21 A. Yes. I am familiar with the status of a witness expert, and I was

22 just lectured by Their Honours a moment ago because of my temperament

23 because I had to react because you told me that my report was an insult to

24 the Court. I would never do such a thing. I have always tried to provide

25 adequate assistance to the Court in reaching their judgements.

1 Q. Professor, are you aware that there are certain articles, if I may

2 say, Article 15 and Article 20(1) that deals with Rules of Procedure and

3 Evidence. Are you aware of those Articles in the Statute?

4 A. I am not. When I came here, I heard the objection that the

5 Prosecutor had sent in advance, and I will be pleased to read the relevant

6 provisions once I have cooled off a little bit.

7 Q. If I may just follow up with another question. Are you aware that

8 there is Rules of Procedure and Evidence in the Tribunal? Are you aware

9 of that, and have you read them?

10 A. Yes. A moment ago, I told you about it all, but I would be

11 grateful to you if you should explain to me a little bit your question.

12 What is exactly the purpose of your question?

13 Q. Now, Professor, are you aware of the Rule 89(C) and (D) of the

14 Rules of Procedure and Evidence of the Tribunal which provides, "A Trial

15 Chamber which consists of professional judges with the discussion to admit

16 any relevant evidence that it deems to have a probative value."

17 Are you aware that there is such rules and regulations in this

18 Tribunal?

19 A. After a number of years, Your Honours, I am here in a position to

20 be examined, and I feel like a student who hasn't done his homework and I

21 must admit that I don't remember which particular provision you are

22 talking about.

23 Q. Which I said from the rules of the procedure from the Tribunal,

24 Rule 89(C) and (D).

25 Professor, do you agree if such rules and procedure exist, that

1 the Tribunal Statute properly recognises that the Tribunal consists of

2 experienced and professional judges who are capable of determining the

3 weight to be given to evidence and not to ignore the circumstances in

4 which it occurred?

5 A. Yes. I still don't see the purpose of your question, the

6 objective of your question.

7 Q. Do you agree that this Chamber and the Tribunal consists of

8 professional and experienced judges?

9 A. By all means.

10 Q. And do you agree that the Statute and the procedure gives the

11 jurisdiction to the Judges to evaluate the evidence and to admit any

12 relevant evidence that it deems to have a probative value?

13 A. I think it's a common procedure of all courts in the world,

14 especially this one which is a highly-respected and honorable court of

15 law.

16 Q. Now, you spoke about witnesses. You did not specifically outline

17 or give -- state any way of testing witnesses, how a witness could be

18 tested. You have not stated anything with regard to that aspect in your

19 report, am I correct?

20 A. Yes. Yes. Thank you for that question. It is indeed a very

21 important matter. Mendelhsson for example, and I didn't put this in my

22 report, in his famous work on victimology -- yes, I have just been warned

23 by the interpreters to slow down. Professor Mendelhsson in his work on

24 victimology states that the best possible test for verifying the

25 truthfulness of a witness, whether he's telling the truth or lying,

1 whether intentionally or unintentionally, is to see whether, in his

2 statement, he is mentioning the details which might incriminate him.

3 A number of other professors, famous victimologists, have other

4 types of tests to establish that. And if you should still remember me one

5 day, especially at the OTP, I should like you -- I should like to appeal

6 to you to invite more expert witnesses of that type, more court

7 psychologists and court psychopathologists and I will tell you why. I

8 didn't put this in my report but I have to mention it here. There is a

9 very common phenomenon which is known with especially young men and it is

10 called eidetism which is not a memory of certain events, but a visual

11 representation of events. This can lead to a confusion.

12 A person is able, for example, to remember 40 details from a

13 particular image, a picture, and he can seem to be very reliable to the

14 court. However, he is unable to describe exactly what it is that he saw.

15 And sometimes, it is enough for the court to hear that particular detail.

16 And that is why court psychologists often conduct the so-called eidetical

17 test in order to establish the being of his perception when it comes to

18 such details.

19 For example, an individual may remember the entrance door and a

20 mirror, but not the bed which he couldn't see which was behind the door.

21 And if it is the case involving sexual assault, it is very serious. And

22 the witness is not able to describe the bed, but he's able to describe the

23 mirror in a number of details because he was only at the door. He didn't

24 actually enter the room.

25 Sorry for this digression. But I hope you will understand, I am a

1 professor.

2 Q. Professor, you mentioned about an organisation in Sarajevo with

3 regard to Muslims where you were made a member of?

4 A. Yes.

5 Q. What is the association or organisation that you spoke of?

6 A. That whole event is a very pleasant one for myself. After the 5th

7 of October --

8 Q. [Previous translation continues] ...

9 A. Yes, yes, I will tell you. It is the faculty of criminal

10 sciences, and I was able to participate at one of the seminars organised

11 by that faculty. And I remember one particular detail from that seminar,

12 because they said that a man from whose books we use to learn has come to

13 honour us with his presence. It was a very pleasant event for myself. It

14 was a multi-national event, and my impression was that the culture and the

15 science have to win, have to overcome the differences between people.

16 Q. Now, Professor, if I may draw your attention to the report that

17 you -- the report, please turn to the last page. You very openly and very

18 clearly say, I'm sorry, page 8 if I may say, and also right at the end. I

19 quote from the report, "All these deliberations are not intended to reveal

20 any particular normal elements of testimony in criminal proceedings but

21 rather to remind us of all that is known from literature and day-to-day

22 practice of the courts."

23 So you have nothing new but it's a reminder of what is already in

24 existence. Am I correct?

25 A. Yes, you're correct, but I have to say the following. You're

1 younger than myself. Sometimes, once you dedicate your whole life to a

2 particular issue which is only a drop in the ocean, but you are, in the

3 end, satisfied for having discovered that particular drop. I have not

4 made any epochal [Realtime transcript read in error "applicable"]

5 discoveries, but I have accomplished something.

6 Q. Professor, concluding: Will you agree with me that the

7 Tribunal --

8 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic.

9 MR. STOJANOVIC: [Interpretation] Your Honours, with the

10 Interpretation Service I will probably have to have a meeting, but there

11 are several mistakes in the translation. Instead of "epochal," we have

12 the word "applicable" discoveries, which significantly alters the meaning

13 of what the professor has said. Perhaps the witness should slow down

14 because of the difficulties involved. However, there are several

15 mistakes, errors in this translation, but this particular one seriously

16 alters the meaning of what he has said, because one may think that his

17 discovery is not applicable at all, and he stated that he didn't make any

18 epochal discoveries.

19 JUDGE RODRIGUES: [Interpretation] Very well, then. We take note

20 of that. If indeed there are significant errors, please note them down.

21 You can, of course, always bring them up during your re-examination of the

22 witness.

23 Mr. Waidyaratne, please continue.

24 MR. WAIDYARATNE: Thank you, Your Honour.

25 Q. So, Professor, if I may summarise, you have never tried a case

1 during your long, distinguished career? You have not been a judge?

2 A. This was not part of my career.

3 Q. And you have not been a trial lawyer?

4 A. No.

5 Q. Have you interviewed victims and witnesses?

6 A. Of course.

7 Q. For trial, for a case?

8 A. For the purposes of the Prosecution, as part of the preparations

9 for the trial, which is always more difficult than during the trial

10 itself; at least, that is my opinion. When you have to prepare a case,

11 when you have to produce evidence for the Prosecutor, who will then call

12 that evidence before the Court, if that is done adequately, then the trial

13 doesn't last very long, and this is what happened in the cases of

14 terrorist acts that I was involved with. Those trials were indeed very

15 short, very efficient. There was no need to call any special witnesses,

16 and I was blackmailed by -- a price was put on my head by an Ustasha

17 organisation in the amount of a hundred thousand German marks, but I

18 didn't give them that pleasure.

19 Q. Sorry. You said Ustasha organisation.

20 A. Yes. Yes.

21 Q. If you can explain.

22 A. An Ustasha -- the Ustasha organisation exists for a long time. It

23 is the Croatian Ustasha Nationalism. During the Second World War, it

24 committed some very serious crimes against the Serb population. When

25 Croatia acquired its independence, the Ustasha movement was relegated to

1 the past and all of that was more or less forgotten. And I can tell you

2 that I often lecture in Croatian and Slovenia, because, as I have said,

3 science is science, and politics only veils things. But I don't want to

4 tire you. I was never a member of the Communist party in the days when

5 that was a profitable thing to be. At the faculty of law, out of the 150

6 teaching staff, only Professor Perovic and myself were not members.

7 Q. Professor, is it -- the word "Ustasha," it is an ethnic slur, as

8 something like what you call like Chetnik? Is it? Am I correct?

9 A. Well, you see, if somebody is an Ustasha and if somebody is a

10 Chetnik, he shows it with pride. He carries the insignia on his uniform,

11 on his hat. It's another matter how the community judges them. The

12 Ustashas, during the Second World War and afterwards, were among the

13 emigration, and in those days the Croats and Muslims were together. But

14 it was never my purpose to exterminate them. They killed an ambassador in

15 the middle of Europe and this disturbed the entire European public

16 opinion. So I went there not to deal with an ethnic problem.

17 JUDGE RODRIGUES: [Interpretation] Mr. Waidyaratne, I don't see

18 what that has to do with the report of the expert witness.

19 MR. WAIDYARATNE: I will move on, Your Honour.

20 Q. Professor, do you agree that these experienced Judges in the

21 Tribunal are more than capable of evaluating all evidence that has

22 potential vulnerabilities and give such evidence the weight which it is

23 entitled?

24 A. Of course.

25 Q. Thank you.

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1 A. Only you can ask the Judges in private how many books they read

2 and have read and discovered to further their work, to improve the quality

3 of their work.

4 MR. WAIDYARATNE: Please bear with me, Your Honour. Thank you.

5 [Prosecution counsel confer]

6 MR. WAIDYARATNE: Thank you, Your Honour. That concludes the

7 cross-examination. Thank you.

8 JUDGE RODRIGUES: [Interpretation] Thank you very much,

9 Mr. Waidyaratne.

10 Mr. Stojanovic, do you have any additional questions?

11 MR. STOJANOVIC: [Interpretation] No, Your Honours. Perhaps I

12 should correct this error in the translation through a question.

13 Re-examined by Mr. Stojanovic:

14 Q. So my question is: Did you say that your expert report was not

15 applicable or that it did not constitute an epochal discovery?

16 A. I said, and I think that is quite clear -- I would be conceited if

17 I were to claim that I had made an epochal discovery. One's whole life

18 consists of a series of conclusions and information. It would be nice for

19 the world community if such epochal discoveries were to be made every

20 second. There is nothing new under the sun. One just has to remember the

21 right things at the right time and seek the assistance of science.

22 May I just add one further point. I am against the division

23 between theory and practice. In my opinion, theory is a synthesis of

24 practice. Therefore, it is not possible to separate the two, because

25 practice is practice and theory doesn't fall from the sky; it is a

1 synthesis of everything that has happened up to now.

2 MR. STOJANOVIC: [Interpretation] Thank you very much. I have no

3 further questions.

4 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Stojanovic.

5 Judge Fouad Riad.

6 Questioned by the Court:

7 JUDGE RIAD: Professor Aleksic, good morning.

8 A. Good morning.

9 JUDGE RIAD: I would like to have the benefit of your great

10 scholarly and experienced opinion on a general issue which stemmed out

11 from your survey. You spoke about the value of individual testimony and

12 said that the testis unus has no value of itself; it depends on, you said,

13 material facts, and these material facts can give it its value or not

14 corroborate it. Now, would you apply this mutatis mutandis to what you

15 spoke about collective testimony? Would you consider also the collective

16 testimony would not have a real impact if it is not supported by also what

17 you called concrete traces?

18 A. Thank you very much for your question, and I have to tell you one

19 thing: Collective testimony does not have value in science or in practice

20 except if it reveals something that may be of use to the Court and if it

21 can be compared with the facts, at least to some extent, because

22 collective testimony goes round in a circle, round a story, and each of

23 the members of that collective body, depending on their individual

24 intelligence, life experience, profession, enriches that story and

25 embellishes it. So that would be my opinion.

1 JUDGE RIAD: What do you mean by it has to be compared --

2 THE INTERPRETER: Microphone, please. Mike, please, Your Honour.

3 JUDGE RIAD: Excuse me. What do you mean by it has to be compared

4 with the facts? Because the premise is that we don't have the concrete

5 traces.

6 A. That is a very difficult situation. We did not today discuss

7 another danger that exists in testimony, and that is that the witness,

8 unconsciously or consciously, makes a judgement of what has happened.

9 There is an opinion that a primitive man is the best witness. However,

10 even there in my report I have referred to that. If a primitive person is

11 a witness of a clash, of a killing, of a murder at a political gathering,

12 then he is very useful; but if he is an eyewitness of the stealing of

13 sheep and he is a shepherd, then you will have the testimony of an expert

14 witness, enriched by his own life experience and opinions. So this brings

15 me to the facts and to the question put to me by the Prosecutor. I have

16 not tried cases, but I have prepared the work of judges, and that means to

17 find the facts at all costs, because, Your Honour, there is no perfect

18 crime; there are only imperfect truths.

19 JUDGE RIAD: Thank you very much.

20 THE WITNESS: Thank you.

21 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic.

22 MR. STOJANOVIC: [Interpretation] I have to make a correction. I

23 think the witness said imperfect investigation.

24 THE INTERPRETER: The interpreter apologises. She misheard. Not

25 "imperfect truths"; "imperfect investigations." The interpreter

1 misheard.

2 JUDGE RODRIGUES: [Interpretation] Very well. Judge Wald.

3 JUDGE WALD: Professor, I read your report with great interest,

4 particularly since I started out my own career working for a famous judge

5 who spent a great deal of his time worrying about the fact-finding

6 processes in the American criminal system, Jerome Frank. I don't know

7 whether you've heard of him or not.

8 At any rate, you point out in your report the vulnerability of

9 eyewitness testimony, and I think we're all familiar with many of the

10 books that have been written about this. In other words, the famous

11 experiment which my judge used was to recreate a scene and then leave the

12 classroom - he was also a professor - and have everybody write down what

13 they saw of the scene, and everybody's account, even though they were all

14 there at the same scene, had wide variations as to what the person looked

15 like, what he wore, what went on. But still, am I correct in reading your

16 report to say that there is still, given all those vulnerabilities that we

17 know about, a priority, as it were, of eyewitness testimony over so-called

18 hearsay testimony? You sound quite strong in your criticisms of hearsay

19 testimony. Is that a fair evaluation? I found it a little bit

20 surprising, because I come from a system, as do many people, including

21 some of the Prosecutors here, where hearsay is much less used than in the

22 system here and than, I thought, in many of the civil law systems. We are

23 much more cautious about using hearsay testimony. But I would just like

24 your views, very concisely, on that: eyewitness versus so-called hearsay.

25 A. Thank you very much for your question. If I may, before I

1 respond, if I may say that yesterday, in connection with your comments as

2 to how stress affects signatures, I realised that you have a great deal of

3 knowledge in my field, and this impression is further heightened today.

4 Prima facie witness is an eyewitness on condition that his senses

5 are working which means that he can see well, hear well and, most

6 importantly, that he has an interest in what's going on. I know that in

7 America as I am familiar with the practice there, and I have been a

8 frequent visitor there, many witnesses when they see something going on

9 which may look like a crime move away so as not to be eyewitnesses because

10 then they can expect to have to make statements at least four times, and

11 as time passes, his memory fades and attorneys can't wait for a

12 discrepancy to be established between the various statements.

13 In the case of an eyewitness, it is much easier to work with such

14 a witness, and it is much easier to test him. A hearsay witness is a

15 problem of contemporary law because such witnesses introduce a great deal

16 themselves of their own personal impressions. If, for instance, if he has

17 lost a child in a traffic accident, then such a person can very easily

18 testify because he carries this revenge in him, and he is offering to

19 testify, and only in court will he admit that it is hearsay evidence that

20 he is providing.

21 That is why, Your Honour, I suggested today, and that has been

22 something I have advocated all my life, for a more extensive use of

23 psychologist and, if necessary, psychiatrists if we have a person who is

24 suffering from hallucinations to more closely define the psychological

25 profile of that individual and to remove all that court does not need at

1 that point in time.

2 JUDGE WALD: So if I understand your recommendation, and I won't

3 go into it extensively because of time, you're suggesting that if you have

4 witnesses, especially key witnesses, that they should be followed by a

5 psychologist who evaluates their testimony in light of any possible bias

6 from their life experience? That makes of the -- that would make of the

7 trial a very complicated process.

8 A. Justice is always complicated, but a psychologist using tests not

9 intelligence tests, that is the simple test, Rorschach perception tests,

10 can check and verify many things to establish what is fantasy and what is

11 reality. The path to justice, even if it is a longer one, is a good one

12 if it leads to the goal that we all share, and that is justice.

13 JUDGE WALD: I just have two short questions. One, as I'm sure

14 you're well aware, we live in an imperfect world, and the trial process is

15 an imperfect process inevitably, but yet we have to move ahead as it

16 were. I mean trials have to be held even though sometimes we don't have

17 all of the concrete material evidence. And I think -- I have no illusions

18 that because a judge puts on a robe, suddenly he or she becomes a better

19 evaluator of people. It's kind of like they say in the church, it's not

20 that a person becomes pope because he's infallible. It's he's infallible

21 because he's the pope.

22 So I take it that your suggestions to us, so far as I can tell

23 from the report and from your testimony, is given the imperfections and

24 given the fact that we may be to some degree like the blindfolded dart

25 thrower, I mean even if we have a lot of experience, we don't know whether

1 the experience turned out to be right, it doesn't help us to be fed into

2 our later actions. That the best we can do is take some of the caveats in

3 your report into account, is that right, and just be cautious in our

4 evaluation of certain kinds of testimony which, if by nodding, you mean

5 assent, I'll get to my third question and quit.

6 That is, I would be -- you gave an example of I think it was

7 Mendelhsson or somebody's work I was not familiar with, that sometimes you

8 test a witness by seeing how many self-incriminating details the witness

9 may give in their testimony. I'm wondering if you know whether there's

10 been any --

11 A. At his own experience.

12 JUDGE WALD: That's why I say self-incriminating. I wonder if

13 there's been any work on a phenomena which I think we're all familiar with

14 and which we see in witnesses on both sides of the equation, both

15 Prosecution and Defence witnesses not just in this trial, but in almost

16 all trials where one has the sense that the witness is, indeed, telling

17 the essence of truth. The witness has been there, he has something or she

18 has something to say. The experience is not a made-up experience, but yet

19 the witness cannot or will not many times recount any of the details,

20 clams up, as it were. "I don't remember. I don't remember. I don't

21 remember." Will not come forth with any of the details. I'm just

22 wondering whether there's anything in the literature or the science that

23 suggests how one evaluates that kind of witness.

24 A. Thank you for your questions. In literature, there is plenty to

25 be found, and also in legal provisions which encourage people who are

1 leaving an organisation to speak freely and that they will not be punished

2 if they are given the status of a protected witness. We, in Yugoslavia,

3 if I may say, following my suggestions, we are introducing into the new

4 law on criminal procedure the status of a protected witness.

5 As far as your observation about the imperfections of justice and

6 everything else, I would say that there is no single trial except for

7 court-martials under wartime conditions which do not have the several

8 levels of trials, several instances. And in that way, in a certain sense,

9 we are ensuring the path to justice.

10 You also mentioned religion so may I be permitted to say one

11 additional sentence which is not strictly in response to your question

12 though you did mention it. A long time ago, I read that monks and judges,

13 jurists, devote their entire lives to God and justice without knowing at

14 all what God looks like or what justice looks like.

15 Prompted or rather inspired by this thought, I wrote an article

16 the point of which was that a man who is fighting for faith, who is

17 working for God, and a person like you who is working for justice carries

18 an image of God and justice in his heart, and that is sufficient.

19 So as not to go back to that again, I do wish to express my

20 deepest respects because you are doing a great and difficult job under

21 very difficult conditions.

22 JUDGE WALD: Thank you.

23 JUDGE RODRIGUES: [Interpretation] Thank you very much, Judge

24 Wald.

25 Professor, I also have some questions for you. It's almost time

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1 for a break, but perhaps we can try and complete your testimony before the

2 break.

3 Professor Aleksic, I see that your report is basically based on

4 works and research conducted mostly in the 1950s and 1960s. Why did you

5 not go further, that is include works up to the present, made up to the

6 present?

7 A. Well, the experiment I did with Professor Vodinelic was done in

8 1968. I thought it would be immodest for us to mention the experiment of

9 1982 which was similar to the one I mentioned. During a lecture, a man

10 walks into the amphitheatre, oddly dressed, making a lot of noise and he

11 leaves me a letter. He leaves. I smile. And the following week at the

12 same time, I distribute to all the students this piece of paper to

13 describe ...

14 JUDGE RODRIGUES: [Interpretation] I apologise. We are aware of

15 many laboratory experiments of this kind, but why didn't you, for

16 instance, talk about 1979 to see Elizabeth Loftus who conducted a series

17 of investigations into this area of psychology of testimony. I am not

18 talking about Lodibostok [phoen] many others who have also conducted many

19 experiments of this kind and who have covered almost all the situations

20 that can occur in a courtroom.

21 A. Let me be very sincere in my answer as I have been throughout.

22 Personally, I believe that since the end of the 19th century until roughly

23 1960, the zenith, the peak, has been achieved. I wouldn't list the

24 French, Spanish and all the other authors. And I really think they have

25 reached a climax.

1 Since the 1960s, it is court psychology that has been gaining

2 prominence, especially in America, and it perfected what had already been

3 established and it developed a host of tests to examine the character,

4 capacities and everything else so that I thought that that would not be

5 interesting for you here to give you the parameters and to evaluate those

6 factors, because it is rather a complex method of statistical indicators

7 in psychological studies.

8 You have probably come across them. It's as if one was reading a

9 completely strange language with all those sigmas and things so I thought

10 we should limit ourselves to this classical area. A well-known

11 consultation of criminal lawyers in Edinburg under the heading, "What is

12 New in Criminal Law," ended with a conclusion, and I think it is valid to

13 the day, "There is nothing new." There's only something that is easier.

14 JUDGE RODRIGUES: [Interpretation] So that was your option. But

15 the topic of your doctorate was the application of scientific methods to

16 evidence. Why then did you not mention in your report names such as

17 Jeremy Benson or Wigmore, especially the first who was considered the

18 person to introduce science into the area of evidence. That was also your

19 option?

20 A. Wigmore, is a great scholar without any doubt but you must

21 understand when a young man is writing a doctoral thesis, he is running

22 forward. In those days, I thought that in that doctoral thesis, I should

23 settle accounts with a lie detector and the serum truth. I suffered some

24 bad consequences. For a year and a half, the commission did not wish to

25 review my thesis because again, they accused me of having capitalist

1 leanings and that it was incompatible with socialism.

2 It proved to be quite compatible and that dissertation was

3 translated into four languages.

4 JUDGE RODRIGUES: [Interpretation] I have to go more directly to my

5 questions so that we can have the break. I have a question for you. Do

6 you agree, Professor, that between the moment when a witness perceives a

7 fact, sees a fact and the moment when he comes here to the courtroom to

8 testify, that in the meantime, there can be at least three stages;

9 perception, memorisation, and recall. Would you agree with that?

10 A. Certainly. In this digest if you might call it that or this

11 summary, it's best to hear the witness as soon as possible, simply not to

12 let him fantasize about what he has seen.

13 JUDGE RODRIGUES: [Interpretation] You have also mentioned in your

14 report, there is a dichotomy or a necessary balance to be achieved between

15 subjectivity and objectivity, fabrication and fact, et cetera. Can you

16 give us an idea as to what is the place that the individual, as a person,

17 plays in each of those three stages, that is, in perception, what is the

18 influence of the human being, of the individual, in the process of

19 memorisation? What is the effect of being an individual and in the

20 process of recall, in the situation in the courtroom, what is the

21 influence of the individual characteristics? Because you spoke at length

22 about collective testimony. I wish to speak about individual testimony as

23 a person, as an individual, an indivisible individual.

24 A. I don't know whether I will be able to answer your question fully,

25 but there is one thing that there is no doubt about. An honest witness

1 horrified by the crime he has witnessed gets away, thinks about it,

2 suppresses it, and slowly prepares himself for what he is going to say.

3 Unfortunately, he is making a selection.

4 JUDGE RODRIGUES: [Interpretation] Yes, but Professor, that will

5 occur in the process of memorisation. I want to know if a person, after

6 seeing a fact he is going to think about it and isolate himself, then he

7 will memorize. But I'm talking about the first period, perception. What

8 is the effect on perception of the individual which can affect the colours

9 of the events he sees, the effect of him as a person, his training, his

10 experience, his feelings or his desire to see something? So if you could

11 now concentrate on perception, as such.

12 A. I said he perceives something, he withdraws and thinks about it,

13 and usually he shares it with members of his family or people close to him

14 and recounts it. And in the process of recounting, he receives

15 suggestions from others, those relatives, shall I call them, that he is

16 telling them about, the fact, and then it goes broader and gradually there

17 is a process of triage or selection. So criminal science tells you that

18 it is best to find a witness and to hear him as soon as possible after the

19 event.

20 There is something else that has just occurred to me that has been

21 studied by certain authors. There are witnesses whose mental attitude is

22 such that when he comes to testify in court, he dresses up nicely. For

23 him this is an important event, and he performs a monodrama, like an

24 actor. And then, confused by questions coming from all sides, he

25 gradually becomes a victim. And when he leaves the courtroom, and if you

1 were to ask him, he would say, "I'll never go to court again to testify."

2 JUDGE RODRIGUES: [Interpretation] Very well, Professor. Is it

3 possible for one and the same thing to be seen differently by different

4 people?

5 A. Of course. I had a situation recently in front of my law school.

6 A woman ran out of her house, dishevelled, and she was shouting, "He wants

7 to kill me," and there was indeed a man running after her with a knife in

8 his hand. A colleague of mine, whose specialty is civil law, he went

9 home, and you can imagine what his story was: He saw somebody being

10 slaughtered, and so on. But of course, my reaction was to run and help

11 the woman. But what happened was the following: She tripped up in the

12 park, on the root of a tree, and she fell down. As she fell, she hurt her

13 knees and blood started running. And when her husband approached, she

14 called him by his nickname and said, "Look what you've done." He threw

15 away the knife, they hugged each other and kissed, and went home in an

16 embrace. That day the story that my colleague told his people at home was

17 quite different from my story.

18 JUDGE RODRIGUES: [Interpretation] Professor, imagine now that

19 several people observed this and you are going to ask those people to tell

20 you what they saw. What do you expect? Do you expect different versions

21 of the story or always the same story?

22 A. Different ones. I think the famous movie Rashomon is a good

23 illustration of that. You know, everyone sometimes sees the truth that he

24 wants to see; however, it is unpredictable what a person will see. I can

25 go away from this trial convinced that --

1 JUDGE RODRIGUES: [Interpretation] But let me inverse the

2 question. You're here, as you know, to answer our questions. Imagine

3 that you have ten people who are telling you the story in the same way,

4 using the same words, the same structure, the same chronology of events.

5 What would you think?

6 A. Criminal science recommends transparency, which means you put a

7 statement on a window, and then the second, third, and fifth, and find

8 what they have in common, and then you make a triage and you check them

9 out; you verify them.

10 JUDGE RODRIGUES: [Interpretation] But if you note, applying your

11 method, that the statements are exactly the same, what would be your

12 conclusion from the point of view of your own expertise in psychology and

13 criminal science?

14 A. My conclusion would be that this is a case of what I have called

15 at the beginning collective testimony, and either myself or a psychologist

16 who is more capable of reaching an individual would try to check out to

17 what extent he has conferred with the other witnesses, to what extent the

18 attorneys have suggested their answers, and I would try to check to what

19 extent they influenced one another before coming to court and whether

20 their testimony remains unchanged from the beginning.

21 JUDGE RODRIGUES: [Interpretation] Professor, can one say that a

22 different story is the rule and identical stories are abnormal or an

23 exception?

24 A. I think that identity [as interpreted] of all stories would rather

25 point to consultation among themselves than to an actual recounting of

1 what they actually saw.

2 JUDGE RODRIGUES: [Interpretation] Yes. Yes. So your reply to my

3 question is that it's normal to have a different story; am I right in

4 saying that?

5 A. Absolutely, yes. That's only human.

6 JUDGE RODRIGUES: [Interpretation] And that means, Professor, that

7 when you say in your report, regarding witnesses wishing to present only

8 facts, a well-intentioned witness necessarily enriches those facts,

9 et cetera, et cetera, which means to have a witness in the courtroom who

10 tells us only facts, exclusively facts, that is quite impossible; would

11 you agree with that?

12 A. Yes. Yes. You would have to have a competition to find such a

13 witness someplace.

14 JUDGE RODRIGUES: [Interpretation] Would you agree with me that

15 work in the courtroom by the Defence, the Prosecution, and the Judges, is

16 to try and reconstruct this whole procedure - perception, memorisation -

17 and, through good communication, to bring out this story to see in the end

18 what the contribution of the witness is? Would you agree?

19 A. That is one of the possible paths of verifying the statement of a

20 witness. A second is to seek, even if that seems to be impossible,

21 certain details which would lead you to material evidence: letters, notes,

22 words written on the prison cell walls, or something like that. So you

23 can't apply just one method.

24 JUDGE RODRIGUES: [Interpretation] And to finish, because we really

25 do have to finish, in spite of these very interesting and important issues

1 that we are discussing: In your viewpoint, what is the influence of the

2 emotional type of situation in the perception of facts? What is the

3 influence of emotions on the perception of facts?

4 A. Yes, of course. If you have a very tall building and from one of

5 the floors a retired teacher is observing an aggressor raping a girl, and

6 the floor below, one of the company is living, he has broken a leg,

7 otherwise he would be with the aggressor, the two stories would become

8 quite different. The teacher would be scandalised and would describe the

9 horrifying scene she saw, whereas the one downstairs would describe it as

10 if he was describing a wartime situation: how he attacked her from the

11 left and from the right and pushed her into the yard.

12 JUDGE RODRIGUES: [Interpretation] I was just waiting for the end

13 of the translation. So Professor, I think we could stay all day

14 discussing these issues, but at least we can say that at the end every

15 witness perceives reality depending on the colour of his eyes or his

16 glasses, and he comes with a certain understanding of the truth which

17 needs to be tested here, and that is why we have an examination-in-chief,

18 cross-examination, re-examination, and Judges, and after all that, we hope

19 something will emerge. Do you share that opinion?

20 A. I am just wondering whether all that is sufficient without a

21 psychologist.

22 JUDGE RODRIGUES: [Interpretation] The question remains open. In

23 any event, you have come here to answer our questions. You have answered

24 our questions. We wish to thank you very much for having come here. And

25 I wish to underline: You mentioned at the meeting in Sarajevo that

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1 science and culture had won over intolerance, and I hope you will manage

2 to continue to be the spokesman for culture and science with that

3 objective in mind. So thank you very much, Professor, for coming here.

4 THE WITNESS: [Interpretation] May I just say that the situation in

5 Yugoslavia has changed dramatically, and we are embarking upon the road of

6 the rule of law, and that in the future we will be known by other things

7 rather than these horrors. And I can tell you that among Croatian and

8 Slovenian students, I came across eight doctors of law whose mentors I

9 was. Unfortunately for them, they were between 55 and 58, and I said to

10 them, "Children, we have to take a photo together, because one of us may

11 die soon."

12 JUDGE RODRIGUES: [Interpretation] Very well. Thank you,

13 Professor. I'm going to ask the usher to accompany you out.

14 [The witness withdrew]

15 JUDGE RODRIGUES: [Interpretation] We will have a break now, a

16 half-hour break, and then after the break we will address the issue of

17 documents. Half-hour break.

18 --- Recess taken at 11.15 a.m.

19 --- On resuming at 11.47 a.m.

20 JUDGE RODRIGUES: [Interpretation] You may be seated.

21 Mr. Stojanovic.

22 MR. STOJANOVIC: [Interpretation] Your Honours, this Defence team

23 would like to tender the following exhibits, D28/4 and D29/4.

24 JUDGE RODRIGUES: [Interpretation] Ms. Somers or Mr. Waidyaratne.

25 MR. WAIDYARATNE: Your Honour, we have no objection. Thank you.

1 JUDGE RODRIGUES: [Interpretation] Very well. The exhibits that

2 have just been mentioned will be admitted into evidence.

3 We are now ready to proceed with the next witness,

4 Mr. Stojanovic.

5 MR. STOJANOVIC: [Interpretation] You're right, Your Honour. Our

6 next witness is also an expert witness, Mr. Bora Cejovic. Could the usher

7 please bring him in.

8 [The witness entered court]

9 JUDGE RODRIGUES: [Interpretation] Good morning, Witness, can you

10 hear me?

11 THE WITNESS: [Interpretation] Yes, I can.

12 JUDGE RODRIGUES: [Interpretation] Will you please read the solemn

13 declaration that the usher is giving you.

14 THE WITNESS: I solemnly declare that I will speak the truth, the

15 whole truth, and nothing but the truth.

16 WITNESS: BORA CEJOVIC

17 [Witness answered through interpreter]

18 JUDGE RODRIGUES: [Interpretation] You may be seated now.

19 Thank you very much for coming to the Tribunal. You are probably

20 familiar with the procedure that is applicable here at the Tribunal, and

21 in accordance with that procedure, Mr. Stojanovic will be the first one to

22 ask questions of you, then you will be answering questions of the

23 Prosecutor and later on, questions by the Judges.

24 Let us begin with the examination by Mr. Stojanovic.

25 Mr. Stojanovic, your witness.

1 MR. STOJANOVIC: [Interpretation] Thank you Your Honours.

2 Examined by Mr. Stojanovic:

3 Q. For the purposes of the record, Witness, would you please state

4 your full name and surname?

5 A. My name is Bora Cejovic.

6 Q. Will you please tell us the year and the place of your birth?

7 A. I was born in 1941 on the 3rd of October in the place called

8 Berane.

9 Q. Where do you reside today?

10 A. I live in Kragujevac. I've lived there for 25 years.

11 Q. In the Republic of Serbia?

12 A. Yes, the Republic of Serbia.

13 Q. What is your marital status?

14 A. I am married. I have a 30-year-old son, and a 26-year-old

15 daughter.

16 Q. I assume that you have a degree in law?

17 A. Yes, which I obtained in Belgrade in 1964.

18 Q. Did you attend any post-graduate studies?

19 A. Yes, also at the faculty of law in Belgrade in 1970.

20 Q. Have you obtained a Ph.D?

21 A. Yes, I have, at the faculty of law in Belgrade in 1972.

22 Q. The credentials that you have just mentioned refer to what

23 particular area of law?

24 A. I am dealing with the criminal law exclusively. I am a professor

25 of criminal law.

1 Q. Do you have any international degrees?

2 A. Yes. In 1970, I was in Strasbourg where I completed the first

3 degree of the International School for Comparative Law.

4 Q. I assume that you have participated on a number of international

5 seminars; is that correct?

6 A. Yes, it is.

7 Q. Where are you employed today?

8 A. As I have already indicated, I work at the school of law in

9 Kragujevac as a professor of criminal law and the chief of department for

10 criminal law. I have a tenure there.

11 Q. How long have you been a professor of criminal law?

12 A. Well, I cannot exactly remember for how long, but I became a

13 docent for criminal law in 1974 on the 15th of October. After that, four

14 and a half years later, as provided by the rules and regulations of the

15 university, I was elected a part-time professor, and four years after

16 that, I became full-time professor of that university which would have

17 been sometime in 1982 then.

18 Q. How many students enroll in your university every year,

19 approximately?

20 A. Approximately 500 students at the faculty of law, so I think that

21 now there should be somewhere between two and three thousand students

22 attending the university, the school of law of the University of

23 Kragujevac, including postgraduate students as well.

24 Q. Did you have any other functions? Did you hold any offices at

25 that university?

1 A. I was a deputy dean at that university, and also I completed seven

2 mandates as a dean. One mandate lasts one year at our -- two years at our

3 university.

4 Q. Do you have any publications as a scientist?

5 A. Yes, I do. I published a manual for criminal law, general part,

6 and other part as well, which was in 1999 published in the sixth edition.

7 Q. Did you also publish anything regarding to the practice of

8 criminal law?

9 A. Yes. I wrote about the criminal law in the practice of the court,

10 how the law is actually applied in practice, also the general part and the

11 special part, in two editions. I also have my Ph.D. thesis on criminal

12 and judicial problems involved in the process of transplants of human

13 organs. It was published in 1974.

14 Q. The books that you have published on court practice, how

15 voluminous are those books?

16 A. The one that deals with the general part of the criminal law runs

17 on 670 pages, and the special part of the same book on the criminal law

18 was published on 1.150 pages.

19 Q. Your work relating to the court practice, was it published in the

20 former Yugoslavia? Did your work deal with the practice of the

21 then-state?

22 A. Yes.

23 Q. Professor, with the permission of the Court and with the

24 assistance of the usher, I should like to show to you a text which is

25 entitled "Meting Out Penalty in Yugoslav Criminal Law," with your name in

1 the heading of this document.

2 MR. STOJANOVIC: [Interpretation] Could the registrar please give

3 me the number for this Exhibit.

4 THE REGISTRAR: Yes, I can. It is D30/4.

5 MR. [Interpretation] Thank you.

6 Q. Professor, is this your expert analysis?

7 A. Yes, it is. However, unfortunately, I have to make an

8 observation. There have been two errors in the text, the first one on

9 page 3, second paragraph.

10 Q. Are you referring to the English version of the text?

11 A. Yes, I am. So in the second paragraph, the word "maximum,"

12 "general maximum" is written, whereas it should be "minimum," that is,

13 the general minimum of the punishment, and so on and so forth. And the

14 second mistake can be found on page 4, again in the English version of the

15 text, in the second paragraph, the penultimate line, where it says:

16 "Criminal offences that are not included in concurrence," whereas it

17 should state: "which are included in concurrence."

18 Q. Thank you very much, Professor. Does it mean that the rest of the

19 text is okay? Do you abide by the remainder of the text?

20 A. Yes, I do.

21 Q. What is the subject of your expert analysis, Professor? Could you

22 briefly tell us, in general terms, what are the issues that it addresses?

23 A. Your Honours, before I proceed with my expose of what is written

24 here, I should like to say a few sentences by way of introduction. At the

25 risk of sounding immodest, throughout my life and career I have had a

1 number of opportunities to address a most eminent audience; however, I

2 have never had an opportunity to speak before such a high judicial

3 instance as this Tribunal. I am very honoured for having been given such

4 an opportunity. It will only make my responsibility greater as an

5 expert. And I should like to thank you, Your Honours, and you,

6 Mr. President, for allowing me to be here today and for saying just a few

7 words about the issue of determination of sentences in Yugoslav criminal

8 law.

9 As regards this particular area, both in the criminal legislature

10 in the former Yugoslavia and today, the rules on determination of

11 sentences have not changed; they are the same. There are a number of

12 legal provisions dealing with the determination of sentences in our system

13 and in the systems throughout the world. There is the court determination

14 of sentences and also an administrative determination of sentences.

15 In this text, I endeavoured to describe the way in which sentences

16 are determined in the criminal law of the Federal Republic of Yugoslavia.

17 Later on, you will find certain observations which stem out from the court

18 practice and which I believe to be the most important for the purposes of

19 this expertise.

20 There is a general rule which is contained in Article 41 paragraph

21 1 of the criminal law of the Federal Republic of Yugoslavia which provides

22 for the determination of sentences. For purposes of authenticity, let me

23 read the said provision, it states as follows: "The court shall mete out

24 a penalty to a criminal offender within the limits determined for such an

25 offence by the law having in mind the purpose of punishment and

1 considering, or rather taking into consideration, all the circumstances

2 that indicate the lower or higher sentence, that is mitigating and

3 aggravating circumstances and, in particular, degree of criminal

4 liability, the motive for committing criminal offence, motivation for

5 criminal offence, the strength of threatening or the violation of the

6 protected property or rather protected values, circumstances in which the

7 offence was committed, former life of the offender, his personal

8 situation, his standing or his demeanour after the commission of the

9 criminal offence, as well as any other circumstances related to the

10 personality of the offender."

11 Two things are important in this regard as you have just heard.

12 The determination of punishment is always done within the purpose of the

13 sentence and punishment in general. Second, I try to emphasise the word

14 "in particular" or "especially" here in the text to indicate that this is

15 not an exhaustive provision. It only lists the most important

16 circumstances, either aggravating or mitigating circumstances, which the

17 court needs to take into account while determining adequate sentence to

18 the offender.

19 As far as the very purpose, general purpose of a sentence is

20 concerned, that purpose always has to be taken into account. First of

21 all, the general purpose of criminal sanctions which is provided for in

22 Article 5, paragraph 2 of the Criminal Code of the Federal Republic of

23 Yugoslavia where it is stated that the general purpose of determining and

24 executing criminal sanctions is to prevent socially threatening activity

25 which violates or endangers some social values, values that are protected

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1 by the criminal legislature in general.

2 In connection with that, there is also a provision which is

3 contained in Article 33 which talks about the general purpose of

4 punishment which is prevention, that is, preventing the offender to --

5 from committing the criminal offence, and his re-education, that is the

6 educational aspect of punishment. Also, influencing others or rather

7 encouraging others not to commit criminal offences, then strengthening the

8 morale and influencing a development of social responsibility of citizens

9 in general.

10 Let me read you of one general provision which stems from the

11 court practice. It is a general attitude, legal attitude where one of the

12 courts from the former Yugoslavia stated as follows: "While determining

13 adequate sentence, the Court should impartially assess all appropriate

14 circumstances, and because of that, the Court should not be allowed to act

15 arbitrarily and to dismiss arbitrarily mitigating circumstances which were

16 not taken into account."

17 In other words, any court must take into account any circumstances

18 which might be a significant point both in terms of mitigation and

19 aggravation of sentence. That would be my introductory part.

20 Q. Thank you very much, Professor. We have heard about your

21 publications. You told us that you published a number of books about the

22 practice of criminal courts. Is there anything you can tell us about the

23 court practice in the area of war crimes?

24 A. Unfortunately, not very much because there was -- there is not

25 much case law on the issue of war crimes save for the cases which took

1 place following the Second World War.

2 But let me just add something to what I have just previously

3 said. I was talking about a general rule, a general principle when it

4 comes to the issue of sentences of all criminal offences. There are no

5 specific provisions in terms of determining of sentences for specific

6 criminal offences so what I have said should be applied to criminal

7 offences in general.

8 But let me go back to your question. There is not much case law

9 on war crimes and one cannot really rely on those judgements because most

10 of the cases, they were politically motivated, and in most of the cases,

11 they were just foregone conclusions and the final judgement in most of the

12 cases was -- that is the final punishment was the capital punishment.

13 The whole work is rather deplorable. We can see it from the fact

14 that there have been a number of requests for revision of such cases, and

15 this has brought us into a rather strange situation when we have persons

16 who were considered to be as war criminals are seen, are perceived today

17 almost as national heroes. Unfortunately, I was not able to have access

18 to specific information regarding these cases which would provide us with

19 more quality case law.

20 Q. Were there any cases in connection with that when people were

21 executed for war crimes and later on rehabilitated?

22 A. Yes. There have been several such requests in respect of such

23 offenders lately.

24 Q. Could you tell us something more about the sentences which are

25 provided for criminal offences of physical assault, physical violence,

1 which resulted in death or severe bodily harm or injury? What is,

2 generally speaking, the practice of the courts in the former Yugoslavia in

3 that area?

4 A. I know that it might sound a little strange, but there is a number

5 of sentences provided for in -- for these offences, but there is a very

6 big difference between the sentences provided for and the sentences that

7 were actually meted out in terms of legally provided minimum of

8 punishment. There is a tendency to mete out very mild sentences, milder

9 than the ones they are provided for in the law.

10 We believe that our criminal legislature is rather severe in terms

11 of sentences and can perhaps rank among most serious criminal systems in

12 that regard. However, what actually happens in terms of practice, the

13 situation, the reality is not the same. I mentioned here a research, an

14 analysis which was focused on criminal offences of murder in the years

15 1960, 1964, and the average sentence is ten and a half years of

16 imprisonment.

17 I have a number of examples here as I will provide Their Honours

18 with these examples if it is necessary which speak about criminal offences

19 of murder, not offences which resulted in serious bodily harm, and in most

20 of these cases, the sentences that were determined were between 10 and 15

21 years of imprisonment.

22 In 1989, for example, the highest number of such sentences were

23 between 10 and 15 years for this type of criminal offences. So that would

24 have been before the year 1990. But we have the same situation in 1991

25 and later on. So the practice is actually different than what is provided

1 for by the legislature.

2 Q. Does that include the most serious cases of homicide, multiple

3 murders and similar criminal offences?

4 A. Yes. The analysis involves the most serious types of murders.

5 However, I must tell you that these type of statistics is not the best

6 one, because it deals with both serious and less serious cases of murder.

7 This information comes to us from the institute for statistics.

8 Q. Are you familiar what punishment an educational measure is or

9 disciplinary measure?

10 A. Yes. For minors, in our country, we don't have a separate

11 Criminal Code, but we have Chapter 6 of the Criminal Code of Yugoslavia,

12 which applies to minors only and which contains an introductory provision

13 saying that towards minors who are perpetrators of criminal acts, such

14 special provision should apply, whereas the general provisions of the

15 Criminal Code can apply only if they are not in contradiction with those,

16 so that the sanctions for minors include educational measures.

17 Q. A person who has been meted out such a punishment, is he

18 considered to have been convicted?

19 A. Minors who are given educational measures are not considered

20 convicted, because there is a special law about minors and a special

21 provision stipulating what is the purpose of penalties meted out to

22 minors, the purpose being different from the one in the case of adults,

23 and the justification is not to hinder the future development and

24 upbringing of that minor person who will later become an adult.

25 Q. According to our judicial practice, counting pre-war Yugoslavia

1 and present-day Yugoslavia, how was the fact most frequently treated that

2 in the commission of an act, the perpetrator was under the influence of

3 alcohol, intoxicated, or even drugged, and especially under conditions

4 when it was not possible to provide treatment or there were certain

5 extraordinary circumstances, such as wartime, natural calamities and the

6 like?

7 A. We have here a provision of the Criminal Code of Yugoslavia, dated

8 1947, which was the general provisions of that code. I wanted to read it

9 for the sake of authenticity: that as a mitigating circumstance, the

10 concurrence of unfortunate events for the perpetrator can be considered

11 mitigating. In those days, of course, it was not drugs, but alcohol. And

12 it was said that it could be considered a mitigating fact if somebody did

13 not intoxicate himself because he had already planned to commit a criminal

14 offence. And thinking about this, I found a provision in the Portuguese

15 Criminal Code, which I liked very much, if I understood it correctly. It

16 envisages the possibility of intoxication being a mitigating factor,

17 especially under conditions of war, when strange things happen. And if a

18 person may commit a crime under the influence of alcohol, in wartime, then

19 in judicial practice this could and was considered a mitigating factor,

20 but of course, that does not apply in the case of offences against public

21 traffic safety.

22 Q. Thank you. Related to that provision, and also with reference to

23 the general practice of courts, could also be considered such a mitigating

24 factor that the perpetrator was in a special state of mind, that he was

25 seriously hurt and suffered great pain?

1 A. Probably that would be considered as a coincidental circumstance,

2 in the case of a criminal offence, of course, could be taken into

3 consideration. I even have here a provision of the Criminal Code of

4 Italy, Rule 68, which says in paragraph 8 that it can be taken in

5 mitigation if a criminal offence was taken due to the concurrence of

6 difficult circumstances for the perpetrator.

7 Your Honour, I apologise for referring to foreign law, whereas my

8 task is to comment on Yugoslav criminal law, but allow me to say very

9 briefly that as someone who did not -- who was not an author of that

10 criminal code, I feel that it is a shame that some provisions of other

11 countries' laws were not taken into consideration when wording Article 41

12 of the Criminal Code of Yugoslavia, which I said was identical to that in

13 the previous law. There were some very good solutions in the code, and we

14 opted for a general provision regarding sentencing, feeling that the court

15 would have greater freedom and would be able to individualise offences

16 better.

17 So here it says: "Due to the concurrence of difficult conditions

18 for the perpetrator." So that could fit into your question that this

19 could be very difficult conditions, or unfortunate circumstances, I would

20 rather call them.

21 Q. Could you tell us: In present-day and in former Yugoslavia, from

22 the standpoint of the legislation and the practice, what kind of

23 punishment, if any, would be given to a person who addresses another

24 person with words such as "balija," "Turk," "Ustasha," "Chetnik"?

25 A. That could be the criminal act of insult, on condition that the

1 court establishes that there was an intention to insult another person.

2 Because in our vernacular, such words are not considered to have any great

3 weight, and if a court were to consider a criminal act, then it would

4 probably mete out a pecuniary penalty.

5 Q. Do you know, from judicial practice, that anyone was convicted in

6 criminal proceedings for using such language?

7 A. I have not come across any such judgement, if that was all, if it

8 didn't go further beyond verbal insults.

9 Q. Thank you. Could you now tell us a little more about sentencing

10 of a person who has already been convicted, according to the laws and

11 practice of the former Yugoslavia?

12 Just a moment, please. How is a penalty meted out to somebody who

13 already has a criminal record, who has been sentenced for an act committed

14 after the act for which he is currently being tried. To make myself

15 clearer, for instance, if a person has received an effective sentence for

16 an offence committed in 1993 and he is now being tried for an offence

17 committed in 1992, how would the courts of the former Yugoslavia react?

18 A. Is the person serving his penalty for the act committed in 1993

19 when he was being tried for the act committed in 1992?

20 Q. During the serving of his sentence?

21 A. Yes, while he was serving his sentence it was established that he

22 had committed an act prior to the act for which he was serving a sentence,

23 that is a criminal act in concurrence, Article 49 of the Criminal Code of

24 Yugoslavia. The court would act in such a way that it would first have to

25 mete out the penalty for the act committed in 1992 and attach to that

1 penalty the penalty for the criminal act committed in 1993, and then

2 pursuant to the provisions on criminal acts in concurrence, a unified

3 penalty would be pronounced. So that the part of the penalty served would

4 be counted or discounted from the whole penalty.

5 So he -- the court would first pass sentence on the offence

6 committed first, then for the second offence, and then the penalty would

7 be calculated together.

8 Q. Does that mean that Yugoslav courts during the new, the current

9 proceedings, would necessarily count the earlier penalty meted out by the

10 previous effective or final judgement?

11 A. [No interpretation]

12 MR. STOJANOVIC: [Interpretation] I thank the professor.

13 Your Honours, I have no further questions for this witness.

14 JUDGE RODRIGUES: [Interpretation] Very well, Mr. Stojanovic.

15 Yes, Mr. Stojanovic.

16 MR. STOJANOVIC: [Interpretation] It seems to me, Your Honour, that

17 the question is in the transcript, but not the answer to my last

18 question.

19 JUDGE RODRIGUES: [Interpretation] I had the French translation

20 which said "I have already said that." Maybe you can make sure by asking

21 the professor once again. I see there's no reply in the English

22 transcript. Put the question, please, in summary form.

23 MR. STOJANOVIC: [Interpretation] Yes, allow me to repeat the

24 question.

25 Q. Does that mean that Yugoslav courts during the new, current

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1 proceedings, would necessarily count the penalty meted out by the previous

2 effective or final judgement?

3 A. First, the court will pronounce judgement for the criminal offence

4 committed in 1992. Then, it would take into account the penalty for the

5 criminal offence committed in 1993.

6 Q. I think you've already given an answer.

7 A. And then they would pronounce a unified sentence, and then they

8 would detract from it the sentence meted out previously.

9 May I leave the courtroom for a moment, Mr. President? May I be

10 excused for a moment, please?

11 MR. STOJANOVIC: [Interpretation] I apologise, Your Honour, I just

12 needed the answer. This was my last question. So perhaps the usher could

13 accompany the witness out for a moment. He would like to be excused.

14 JUDGE RODRIGUES: [Interpretation] You really need to leave,

15 Professor?

16 THE WITNESS: [Interpretation] Yes.

17 JUDGE RODRIGUES: [Interpretation] So maybe we can now have our

18 lunch break.

19 THE WITNESS: [Interpretation] No. No. In that case, never mind.

20 Please proceed.

21 MR. STOJANOVIC: [Interpretation] That was my last question, but I

22 think you you've already given us an answer that it does, it is calculated

23 into the final penalty.

24 JUDGE RODRIGUES: [Interpretation] Professor, we normally work

25 until 1.00. If you need to go to the toilet, we'll have to break. Can

1 you stay until 1.00?

2 THE WITNESS: [Interpretation] Yes, I can. But I only need five

3 minutes. I don't want to disturb the proceeding.

4 JUDGE RODRIGUES: [Interpretation] No problem. No. No. We'll

5 have our lunch break now. So will the usher please accompany the witness

6 out, and then we'll have our break.

7 THE WITNESS: [Interpretation] Mr. President, I do apologise. I do

8 not wish to upset your order of proceedings. I only need -- I'll come

9 back immediately.

10 JUDGE RODRIGUES: [Interpretation] No. No. We can adjust.

11 We are going to have our 50-minute break now.

12 MR. STOJANOVIC: [Interpretation] May I give an explanation, the

13 professor has some kidney problems. He is suffering from kidney ailment.

14 --- Recess taken at 12.37 p.m.

15 --- On resuming at 1.28 p.m.

16 JUDGE RODRIGUES: [Interpretation] Please be seated.

17 Mr. Usher, will you have the witness brought in, please.

18 [The witness entered court]

19 JUDGE RODRIGUES: [Interpretation] Professor, I hope everything is

20 fine with you, and if you need a break at any time, please don't hesitate

21 to tell us, okay? Professor, you will now be answering questions that the

22 Prosecutor, I think in this case Mr. Saxon, is going to put to you.

23 MR. SAXON: Thank you, Your Honour.

24 Cross-examined by Mr. Saxon:

25 Q. Professor Cejovic, you testified that there is little case law

1 from the former Yugoslavia related to war crimes, except for the

2 post-World War II cases, but you said that you can't rely on those

3 judgements because those cases were what you called politically

4 motivated. My first question for you is: What criteria do you use to

5 evaluate those post-World War II cases as "politically motivated"?

6 A. First of all, Your Honours, please forgive me for requesting this

7 break. I had surgery quite recently and that's why I needed it.

8 To answer your question, on the basis of all the data that could

9 be collected for judgements passed in those days, a long time ago, and

10 viewed from this standpoint, one can see that those were proceedings on

11 which a decision was taken in advance as to the penalty that would be

12 meted out, so that the Court in fact didn't have much to do. Those were

13 rigged trials, because the penalty was more or less determined in advance,

14 so that it's not really reliable or acceptable in terms of criminal law.

15 Q. What were the crimes alleged in those post-World War II cases, in

16 general, if you can remember some of them?

17 A. Those were, yes, war crimes against the civilian population, and

18 some other war crimes.

19 Q. And do you recall what the sentences or penalties imposed were?

20 A. Yes. Yes. Mostly the death penalty.

21 Q. Professor Cejovic, nowhere in your expert report - and I've read

22 over your expert report several times now - nowhere in your expert report

23 do you use the word "war" or the phrases "armed conflict" or "war crime";

24 is that correct?

25 A. Yes.

1 Q. It would be true, wouldn't it, that your expert report focuses on

2 punishment imposed for crimes committed during peacetime in the former

3 Yugoslavia; wouldn't that be true?

4 A. Well, you see, I said in my introduction that we do not have

5 special provisions on the determination of penalties for war crimes, so

6 that the general provisions to sentencing apply to all crimes. So in

7 fact, trials for war crimes during this war haven't yet even begun, so I

8 couldn't discuss something that hasn't existed. There have been no trials

9 on war crimes, nor do I have any judgements that I could validly rely

10 upon.

11 Q. So then, just to be very clear, your expert report is based on

12 legislation and case law related to crimes committed during peacetime; is

13 that right?

14 A. All crimes. All crimes, mostly during peacetime.

15 Q. Would you agree that the determination of punishment for crimes

16 which are serious violations of international humanitarian law may invoke

17 different values and interests than punishments for domestic crimes

18 committed during peacetime?

19 A. I'm sorry. I don't think I quite understood your question. Could

20 you be kind enough to repeat it?

21 Q. Would you agree that the determination of a punishment for a

22 person convicted of crimes which are serious violations of international

23 humanitarian law, and those are the crimes that are being judged by this

24 Tribunal here in The Hague, may invoke or may involve different societal

25 values and interests than punishment for crimes committed during

1 peacetime?

2 A. Well, from the point of view of Yugoslav criminal law, the same

3 rules would apply as in the case of other crimes. The fact that a crime

4 was committed during wartime is a particular circumstance, but which has

5 already been included in the qualification of the war crime as a war crime

6 so that the rules regarding punishment are the same but, of course, these

7 are crimes of greater seriousness, and from the standpoint of the

8 determination of punishment, there shouldn't be any major difference.

9 Because you cannot pronounce stricter punishment than envisaged by law,

10 you cannot go beyond the maximum regardless of the circumstances.

11 Q. I want to make sure I understand your testimony. Are you saying

12 that these are crimes of greater seriousness; in other words, war crimes,

13 violations of international humanitarian law, but from the standpoint of

14 punishment, the determination of punishment, there shouldn't be any major

15 difference between the punishment for the offence of war crimes as opposed

16 to crimes committed in a national jurisdiction during peacetime; is that

17 your testimony?

18 A. Yes. Because for severe criminal acts, even if committed in

19 peacetime, a very severe sentence can be passed. Because when I spoke to

20 you about the circumstances that the court takes into consideration when

21 determining the sentence, one of the important circumstances is the extent

22 of the threat or injury. And war crimes are certainly crimes where such

23 violations are of a maximum degree. You also have very severe murders

24 which are very severe crimes. So in terms of the determination of

25 punishment, there shouldn't be any big difference.

1 Q. Can you cite to me a single judgement or sentence from a case from

2 the former Yugoslavia that addresses a crime even roughly equivalent to

3 the crimes committed on a massive scale that are addressed by this

4 Tribunal? Can you cite to me a single case?

5 A. I cannot give you any such example because in present-day

6 Yugoslavia, the question of war crimes hasn't really been raised. I can

7 give you other sentences for serious murders or similar crimes where the

8 penalty was between 10 and 15 years on an average, because as you know, in

9 our Criminal Code, there is an imbalance because the federal code has

10 abolished the death penalty and the republican code does provide for the

11 death penalty. So there can be a very severe crime that need not be a war

12 crime.

13 Q. Professor, throughout your expert report, you refer to the purpose

14 of punishment in the former Yugoslavia. And on page 7 of your report, you

15 emphasise that when determining a penalty in the former Yugoslavia, "the

16 court always has to consider the purpose of penalisation." And I believe

17 you spoke about this a bit in your direct testimony.

18 And you quote Article 5, paragraph 2, of the Criminal Code of the

19 Federal Republic of Yugoslavia. "The general purpose of ordering and

20 serving the penal sanctions is the suppression of the socially dangerous

21 actions that offend and endanger the social values protected by the

22 criminal legislation."

23 Professor, can you explain, in simple terms, what this provision

24 means? Does it mean that the general purpose of punishment in the former

25 Yugoslavia is the deterrence of crimes by other members of society, or

1 does it mean that the general purpose of punishment in the former

2 Yugoslavia is the suppression and control of the actions of the person who

3 has been convicted of a crime by means of imprisonment? Or does this

4 provision, this law, encompass both those goals? Can you explain that?

5 A. Actually, that is one and the same thing. Those who have already

6 committed a crime need to be prevented from committing any such crimes in

7 the future. That is one aspect. But they must also be -- but also those

8 who have not committed any crimes must be prevented from doing so. So in

9 one case, we are talking about general prevention, and in the second,

10 about specific prevention. But in the final analysis from the standpoint

11 of the criminal law and Article 5, that comes -- boils down to the same

12 thing.

13 Q. Professor, recently, the Appeals Chamber of this Tribunal

14 determined that, and I quote, "The governing criterion of sentencing is

15 that it must ..."

16 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic.

17 MR. STOJANOVIC: [Interpretation] Your Honour, I think a similar

18 objection was made to me when I was referring to specific aspects in the

19 practice of cases before this Tribunal.

20 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic, but there's a

21 difference. In your case, you were going to put the witness in a position

22 to pronounce himself on a case that is ongoing. Now we are talking about

23 a decision of the Appeals Chamber, a final decision. So I think there's a

24 difference.

25 Mr. Saxon, please continue.

1 MR. SAXON:

2 Q. Yes, and for the benefit of everyone here, I'm quoting from the

3 Appeals Chamber's judgement in the Celebici case, case number IT-96-21-A

4 of 20 February of this year, paragraph 769. And I will begin again. "The

5 governing criterion of sentencing is that it must accurately recognise the

6 gravity of the offences and must reflect the totality of the accused's

7 criminal conduct."

8 Professor, I notice that in the legislation that you describe in

9 your expert report, both in Article 5, Article 33, there's no mention of

10 the recognition of the gravity of the offence as one of the purposes of

11 punishment in the former Yugoslavia. Would it be correct to say then that

12 in the courts of the former Yugoslavia, the recognition of the gravity of

13 the offences committed is not considered to be one of the essential

14 purposes of punishment? Would that be correct?

15 A. Quite the opposite, Mr. Prosecutor. Because according to Article

16 24 of the Statute, paragraph 2 as you said, the Court, the Tribunal is

17 guided by the gravity of the offence and the specific circumstances of the

18 accused.

19 I said a moment ago, and I'm going to repeat, one of the main

20 circumstances when determining punishment according to Yugoslav criminal

21 law is the same only it's not called the gravity of the offence, but it

22 says the extent of the violation of a protected value. So it is identical

23 to what extent that value is threatened.

24 So in fact, it is the same Article 41, paragraph 1, of the

25 Criminal Code of the Federal Republic of Yugoslavia and Article 24,

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1 paragraph 2 of the Statute, the gravity of the offence certainly and the

2 specific conditions of the accused in simplest terms, one could describe

3 them as objective and subjective circumstances. So the gravity of the

4 Defence does indeed have a very important role in the determination of

5 punishment in the former Yugoslavia and in the present-day Yugoslavia.

6 That provision has not been changed.

7 Q. The article of the federal Criminal Code of the former Yugoslavia

8 that you just cited, Article 41, paragraph 1, that does not appear in your

9 expert report, does it?

10 A. No. It's mentioned on page 2 under 1, under the heading, "General

11 Rules on the Determination of Punishment," from the third paragraph

12 onwards. Let me remind you, mitigating and aggravating circumstances and

13 especially the degree of criminal responsibility, the motivation for the

14 criminal offence and what we are discussing both you and me, the strength

15 or extent of threatening or violating the protected value.

16 Q. So you could translate that phrase under your category of

17 aggravating circumstances as the gravity of the offence; is that correct?

18 A. Those are two different things after all. You have once the

19 violation, the strength of the violation of the protected value as a

20 characteristic of the crime, and in this case, it's a factor when

21 determining punishment. Maybe I will preempt your next question by saying

22 or referring to a judgement passed by the federal court from 1977 which

23 said that, "The federal court is of the opinion that in accordance with

24 the proper application of the law, an element of a criminal offence for

25 which the accused is found guilty cannot be considered as an aggravating

1 circumstance when determining punishment for another criminal offence for

2 which the accused has also been declared guilty because in that case, the

3 act of the accused would be taken into account twice at his expense."

4 Something else that is also important from a district court that I

5 could mention.

6 Q. That was not my next question, so can you please let me continue

7 asking you questions so we can go on.

8 A. I thought I answered your previous questions. These are

9 circumstances for the determination of punishment, not the circumstances

10 for the determination of the criminal act or criminal offence. I beg your

11 pardon. I'm at your service.

12 Q. Professor Cejovic, the Appeals Chamber of this Tribunal in the

13 Aleksovski appeals judgement has also recognised the importance of the

14 principle of retribution, that is, an expression of society's outrage at

15 these crimes, as a factor to be considered when imposing a criminal

16 punishment for offences judged by this Tribunal. In the legislation that

17 you describe in your report, there's no mention of the recognition of

18 retribution as one of the purposes of punishment in the former

19 Yugoslavia. Would it be correct to say that in the courts of the former

20 Yugoslavia, the interests of retribution is not considered to be one of

21 the essential purposes of punishment?

22 A. You have raised an old and difficult and well-known question:

23 Whether criminal punishment in present-day criminal law has as its purpose

24 retribution. It does, certainly, and that was the case in the former

25 Yugoslavia and today. You will find it hard to deny the retaliatory

1 character of punishment in a criminal code that recognises capital

2 punishment or a life sentence. Whether we wish to recognise it or not,

3 there always is this element of retaliation or revenge, yes.

4 Q. But you do not discuss the principle of retribution as applied in

5 the former Yugoslavia in your expert report, do you? Yes or no?

6 A. Maybe it can be inferred from the provisions I have referred to

7 regarding the purpose of criminal sanctions and the purpose of

8 punishment. How will you prevent somebody from committing another offence

9 unless you apply punishment, which is in a sense retribution? If you are

10 asking me for my personal opinion, I wouldn't agree with that, but the

11 fact is that that is so. I won't accept it, but punishment does have this

12 element of retribution indeed.

13 Q. Professor, your report discusses the use of concurrent sentences

14 in the former Yugoslavia when a person is convicted for more than one

15 crime. My question for you is: Will penalties for different crimes be

16 served concurrently in the former Yugoslavia if the gravity of the

17 offences are different?

18 A. You see, you cannot pass two sentences for two criminal acts.

19 They are pronounced, but gradually they are combined together into one. I

20 answered Mr. Stojanovic's question. Let me try and explain in simplified

21 terms.

22 If a person is convicted of a criminal act and is serving a

23 sentence for that act, and then it is discovered that he had previously

24 committed another criminal offence that was not known at the time the

25 punishment was meted out, then first a punishment must be pronounced for

1 the first act, and then the punishment for the act for which he is already

2 serving a sentence will be added, and then a single sentence by the system

3 of aspersion will be formed, but of course it cannot be greater than the

4 maximum envisaged. So the convicted person would continue serving his

5 sentence for the offence that he has started serving his sentence, then

6 the other punishment will be added, but the time he has served will be

7 detracted. So if he was given 12 and he has served 5, he will serve

8 another 7. So he cannot serve a sentence twice.

9 Q. Suppose the gravity of the two different offences are very

10 different. Suppose an offender is convicted in one case for trespassing

11 and in another case for a violent murder. Would the sentence

12 imposed -- let me start again. Would there still be, under Yugoslav law,

13 a concurrent sentence imposed for both offences?

14 A. Yes.

15 Q. Suppose a person is convicted of an offence based on his

16 individual responsibility as a perpetrator and convicted for another

17 offence based on his responsibility as a superior. Would the courts of

18 the former Yugoslavia take this distinction into account when determining

19 what overall punishment to impose?

20 A. For every criminal act, individual responsibility has to be

21 determined, and I was just going to say that. So we've come to the

22 question that I wanted to answer in advance. But the same circumstance

23 could not be taken twice as aggravating. So according to the general

24 rules for punishment, there would be a punishment for one act, then

25 punishment for another act, that is, whether it was performed by orders of

1 someone else, and then on the basis of individual responsibility, then the

2 punishment would be considered in concurrence. It would always be higher

3 than that envisaged for the more serious offence but not beyond the

4 maximum envisaged.

5 Q. Very well. Suppose a person is convicted of a single offence in

6 the former Yugoslavia both as an individual perpetrator and as a superior

7 who failed to prevent or punish the acts of his subordinates. Will the

8 sentence imposed by the Court reflect both of these theories of

9 punishment?

10 A. Yes. It would have to take into account both criminal offences to

11 determine an individual punishment for one crime, an individual punishment

12 for another, and then combine the two.

13 Q. You spoke a bit about aggravating and mitigating circumstances,

14 and you testified that under the law of the former Yugoslavia,

15 "Unfortunate events for the perpetrator can be a mitigating factor in

16 determining the sentence." And you mentioned that in the Portuguese

17 Criminal Code, intoxication is envisaged as a mitigating factor for

18 sentencing, especially for crimes committed under conditions of war, but

19 you also explained that intoxication would not be a mitigating factor in

20 cases of offences against public traffic safety. In your understanding of

21 Portuguese law, would intoxication as mitigation apply to offences

22 committed against persons detained in concentration camps?

23 A. Mr. Prosecutor, I'm afraid there must be a slight

24 misunderstanding. When I was saying how this is envisaged in the Criminal

25 Code of Portugal, I just recall the unfortunate circumstances for the

1 perpetrator. We are a most unfortunate people, let me say. My

2 grandfather lived through several wars, I have lived through several wars,

3 my son has already lived through several wars. I didn't say that we

4 participated, but we survived them. So I liked it, and I've taken this

5 Article 60 from the Criminal Code, the general provisions, dated 1947, and

6 I will read it out to you.

7 THE INTERPRETER: Could the witness slow down, please.

8 A. According to Article 60, mitigating circumstances, point 9, if a

9 criminal offence was committed due to accidental circumstances. In the

10 case of criminal offences, it is always such a case that -- so I said as

11 an assumption that those unfortunate circumstances may be when somebody

12 becomes drunk, this dreadful state of war that continues for so long, and

13 he doesn't intend to commit a criminal offence. So I wasn't thinking of

14 wartime circumstances, but rather that that provision of the Portuguese

15 code reflects a situation when somebody gets drunk and is not intending to

16 commit a crime. If he does have such an intent, that is something else.

17 And I think that these are most unfortunate circumstances. You see, there

18 is a saying in our country: A man always drinks because he has a reason,

19 and when he has no reason, he is drinking because he has no reason. So

20 these can be some unfortunate circumstances that can lead to a war crime,

21 and a war situation, in my view, is such a situation. That is my

22 opinion. It may not be correct.

23 MR. SAXON:

24 Q. Surely you're not suggesting that the state of Portugal or the law

25 of Portugal condones acts of violence committed in concentration camps by

1 persons who choose to come to those camps under the influence of alcohol

2 and abuse prisoners. You're not suggesting that, are you?

3 A. No, of course not.

4 Q. In cases of violent physical assault in the former Yugoslavia, is

5 the intoxication of the accused considered to be a mitigating factor?

6 A. It needn't be considered as a mitigating circumstance, but in

7 principle it might be.

8 But it's very rarely considered to be an aggravating

9 circumstance. If you should be interested, I can tell you about the

10 information that I have to the effect that about 13 per cent of murders in

11 the former Yugoslavia were committed in an inebriated stated, and I told

12 you about the sentences, the average of which was ten and a half years

13 although this would require a special research where you would only

14 analyse the factor of inebriation in the determination of sentence that

15 would be the real thing, but we do not dispose of such analysis. If the

16 sentence is ten and a half years, then this can lead you to conclude that

17 this particular factor was more often used in mitigation than in

18 aggravation.

19 Q. However, nowhere in your report do you mention inebriation or

20 intoxication as a mitigating factor; isn't that correct?

21 A. No. Mr. Stojanovic asked a question about that a moment ago. I

22 would not consider the state of intoxication as a special circumstance

23 taken out of the context of other circumstances when determining a

24 sentence. I wouldn't place it in a special category within the category

25 of personal circumstances of the accused. I don't think it would have any

1 lesser or higher significance than other circumstances.

2 Q. Professor, in the courts of the former Yugoslavia, would the fact

3 that the victim of a crime was a prisoner in a concentration camp be

4 considered to be one of those "unfortunate events" that you referred to in

5 your direct testimony but this time, perhaps, as an aggravating factor

6 when determining the punishment of the offender?

7 A. If we are talking about concentration camps in the former

8 Yugoslavia, you were probably referring to the island called Goli Otok and

9 the prison thereon. Those proceedings were politically motivated.

10 Unfortunately the individuals in question, most of the cases ended their

11 lives at that concentration camp and those were by all means unfortunate

12 events. I don't know what kind of concentration camps you had in mind.

13 The ones in the former Yugoslavia or --

14 Q. I'm referring to camps where people were detained, all

15 ethnicities, in parts of the former Yugoslavia during 1992?

16 A. I see. I see.

17 Q. Do you want me to repeat my question?

18 A. Yes, please.

19 Q. My question is: If the victim of a crime was a prisoner in such a

20 camp, would that be considered as an aggravating factor when determining

21 the punishment of the offender?

22 A. Of course.

23 Q. In the courts of the former Yugoslavia, what are the aggravating

24 circumstances considered by courts when imposing punishment on persons

25 convicted of rape?

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1 A. Those -- the aggravating circumstances, was that your question?

2 The aggravating circumstances for criminal offences of rape. You can have

3 a number of aggravating circumstances in such cases. I don't know which

4 particular circumstances you have in mind, probably the age, the position,

5 the health condition of the victim, her mental condition, whether the

6 victim was in detention or not. You can have a number of special

7 factors. I don't know if you have a specific circumstance in mind, and I

8 can tell you whether I consider it to be an aggravating factor or not.

9 There is a number of aggravating circumstances in cases of rape in

10 general.

11 Q. Let me just put a few to you and maybe you can just say yes or no

12 if these would be an aggravating circumstance for the crime of rape. How

13 about a rape committed with a motive that is related to the victim's

14 ethnicity. Would that be an aggravating factor?

15 A. Yes, it would.

16 Q. A rape committed against persons who are detained. Would that be

17 an aggravating factor?

18 A. Definitely.

19 Q. Rapes committed against persons who are physically weak and who

20 are not able to defend themselves. Would that be an aggravating factor?

21 A. Yes.

22 Q. Rapes of multiple victims by the same perpetrator.

23 A. That, yes, as well.

24 Q. Rapes including other forms of physical abuse such as beating

25 during, or before, or after the rape.

1 A. Yes, that would also be an aggravating factor.

2 Q. Rapes involving threats or coercions against members of the

3 victim's family. Would that be an aggravating factor?

4 A. It is already considered as an element of the criminal offence and

5 it could not be considered once again when determining punishment because

6 according to the Yugoslav criminal law, that could not be applicable

7 because we -- you would have -- you wouldn't have to have two such cases.

8 Q. How about rapes of civilians during wartime, would that be

9 considered an aggravating factor?

10 A. Of course, yes. If that should be a criminal offence of rape, and

11 not some other criminal offence. Because once again, one and the same

12 factor could not be taken into account twice. If you only have a case of

13 rape then not -- because if you have another criminal offence in which the

14 factor has already been taken into account, the same factor could not be

15 considered once again.

16 MR. SAXON: May I have the Court's indulgence for one moment,

17 please?

18 THE INTERPRETER: Microphone, please

19 [Prosecution counsel confer]

20 MR. SAXON: Your Honour, at this time, I have no further

21 questions. Thank you.

22 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Saxon.

23 Mr. Stojanovic, for additional questions, if you should have any.

24 MR. STOJANOVIC: [Interpretation] Yes, I do, Your Honour, just a

25 couple.

1 Re-examined by Mr. Stojanovic:

2 Q. Mr. Cejovic, let me follow up on the question which was asked by

3 my learned colleague, Mr. Saxon, when he asked you whether this or that

4 factor would be considered in aggravation but he did not exactly tell you

5 for which particular criminal offence the perpetrator would have been

6 judged, found guilty. So let me try and use an example.

7 If a perpetrator should be found guilty for war crimes, can the

8 fact -- if he's accused for war crimes, again, hypothetically speaking,

9 can the fact that the victim was detained in a concentration camp be

10 considered an aggravation?

11 A. I have already spoken about that. If one circumstance is a

12 qualifying circumstance, and if it is -- can be used in aggravation of a

13 criminal offence, a war crime in this case, which implies the use of

14 coercion, then you cannot take into account once again as an aggravating

15 factor when imposing punishment.

16 In Article 46 of the Criminal Code of Germany, the following

17 provision can be found in paragraph 3, "The circumstances which already

18 constitute one of the elements of the criminal offence cannot, must not be

19 taken into consideration."

20 So it is not an option on the court, on the judges, to use that

21 particular factor as they please. There is a specific provision which

22 says that such a factor must not be taken into account.

23 Q. Let me rephrase my question. If a person has been accused of war

24 crimes, is it possible for the circumstances which constitute the overall

25 wartime environment be taken into aggravation, as aggravated

1 circumstances?

2 A. No, because the very concept of war crime already contains all

3 such elements. The Prosecutor has asked a number of specific and isolated

4 questions of me, and in those cases, I have spoken of everything that can

5 be taken into consideration as aggravating circumstances.

6 But if a rape is part of a war crime, the element of coercion is

7 already present there. You cannot take it into consideration once again.

8 Let me read you the provision of the 68th paragraph of the Italian

9 Criminal Code. I do not wish my expert analysis to be interpreted as my

10 personal opinion. It is, to a certain extent, my personal opinion,

11 however --

12 JUDGE RODRIGUES: [Interpretation] Mr. Saxon.

13 MR. SAXON: My objection simply is that the Statute of this

14 Tribunal directs -- this is Article 24, paragraph 1, directs Trial

15 Chambers to have recourse to the general practice regarding prison

16 sentences in the courts of the former Yugoslavia. So I'm just not quite

17 sure what the relevance will be of cites to legislation from other

18 countries.

19 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Saxon. I think that

20 the professor is trying to give us the basis of -- for his answer.

21 Please continue, Professor.

22 A. Thank you, Mr. President. I merely wanted to explain to you the

23 following. You see in this Article 68, you can find the following

24 provision, if we are dealing with some of the -- both mitigating and

25 aggravating circumstances, the court shall take into consideration only

1 those mitigating or aggravating circumstances which entail the most severe

2 question or -- that is severe aggravation or mitigation of punishment.

3 If the most serious circumstance has already been taken into

4 account, you cannot take into account all other circumstances or factors

5 because this particular circumstance, the most serious one, already

6 comprises all other circumstances.

7 Thank you Your Honour, once again, for understanding my

8 intention.

9 MR. STOJANOVIC: [Interpretation]

10 Q. Thank you, Professor, I have only one more question and it regards

11 something that I think deserves a more expanded answer.

12 Speaking of the laws of the former Yugoslavia, does the relevant

13 law make a distinction between the purpose of the determination of

14 punishment and the circumstances which can be considered as mitigating or

15 aggravating?

16 A. Formally speaking, yes, because the application of such provisions

17 and the summary of mitigating and aggravating circumstances has to be

18 taken in with the overall objective of punishment in mind.

19 Q. Yes, but the matter has been described in several different

20 provisions of the law.

21 A. Yes, I believe I have already said that.

22 JUDGE RODRIGUES: [Interpretation] Thank you very much,

23 Mr. Stojanovic.

24 Judge Riad has the floor.

25 Questioned by the Court:

1 JUDGE RIAD: Professor Cejovic, good afternoon?

2 A. Good afternoon, Your Honour.

3 JUDGE RIAD: Can you hear me?

4 A. Yes, I can.

5 JUDGE RIAD: I would just like to have the benefit of your great

6 knowledge in that field to shed some light on two points or three points

7 I'd like to understand more from your testimony.

8 The first one was just related to what we have been discussing

9 with the Prosecutor, the cross-examination, and which you mentioned also

10 in the direct examination. It's concerning the effect of alcohol or

11 intoxication and how much it could be a mitigating circumstance. You said

12 in the examination-in-chief that it is categorically a mitigating

13 circumstance as long as it has not recurred to in order to commit the

14 crime, and you added afterwards, at the cross-examination, that, in

15 principle -- you reiterated that in principle it might be mitigating, and

16 anyhow, it can never be aggravating, mentioning Article 60, point 9. Now,

17 there is a certain hypothesis where you can knowingly use alcohol in the

18 awareness that it leads you to abuse. You can -- I mean, of course, and

19 applying this in a community. It can be applied, of course, just a

20 husband knowing that every time he takes alcohol, he will batter his wife,

21 and still does it; and then in a camp, where somebody in control knows

22 that whenever he takes it, he knows exactly what could happen, what abuse

23 could happen. So do you think this is still not an aggravating

24 circumstance or it's still what you call a mitigating circumstance?

25 A. Your Honour, of course I don't think that way. Each circumstance,

1 each factor that is provided for as such in the relevant law can be

2 considered as mitigating or aggravating. It always depends on the overall

3 context of the offence. I don't think that I have said categorically, nor

4 do I think that, that the state of intoxication can always be considered

5 as a mitigating circumstance. I said that it can be considered as such,

6 in principle, if it falls outside of the scope of the cases that you

7 mentioned, that is, when the individual was actually intending to commit a

8 crime and intentionally brought himself in such a state. Of course, in

9 that case it cannot be considered mitigation, but in other cases it might

10 be considered as a mitigating factor.

11 JUDGE RIAD: So excluding the fact that the knowledge that

12 intoxication would inevitably lead the person to abuse, this knowledge,

13 don't you think it almost equates intention?

14 A. It is a very blurred distinction. If someone intentionally brings

15 himself in the state of intoxication in order to commit a criminal

16 offence, that, of course, does not exclude his criminal responsibility.

17 JUDGE RIAD: No, it's not in order to commit; it is knowing that

18 it's an inevitable result, owing to his circumstances, to his temperament,

19 to his character.

20 A. It is a very difficult question indeed. If I take myself as an

21 example, I know that I should not drink at all if I intend to drive, but I

22 always drink a glass or two. I don't know whether you can consider it a

23 negligence or a set of unfortunate circumstances. I wouldn't

24 intentionally do it, and it is very difficult for me to firmly -- to

25 answer your question yes or no.

1 JUDGE RIAD: My other question concerns the general purpose of

2 punishment, which you also mentioned while talking in the direct

3 examination and then referred to in the cross-examination. You mentioned,

4 very interestingly, that one of the purposes of punishment is

5 strengthening the morale. You just mentioned these words and then you do

6 not develop it. What did you mean by "strengthening the morale"?

7 A. It is a very general problem involving the relationship between

8 law and morale. Those cases which are considered to be the most serious

9 ones are the most immoral cases. But that needn't be the case all the

10 time. The morals and ethics differ from group to group. But the

11 legislature's intention was to include the provision that the purpose of

12 punishment is the strengthening of the law and morality and furthering the

13 moral and social responsibility of the citizens. So that should be taken

14 into account when imposing punishment. The punishment, or rather the

15 sentence, should not be, so to speak, demoralising; it should encourage

16 the people who may have in accordance with a certain moral code, certain

17 ethics, which is a very complex question. If you should ask me what I

18 consider to be the morale, I should perhaps invoke the Ten Commandments,

19 but after that I think I would have to stop. That's all I could tell you

20 about the way I understand the motion of morale to mean.

21 JUDGE RIAD: You mentioned two things really. You said it should

22 not be demoralising. This has got a certain meaning. And then you spoke

23 of ethics. Well, let's face the two. Demoralising, applied, let's say,

24 to committing a crime towards someone from a certain ethnic group,

25 minority, which would be demoralising for this minority. You can feel

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1 it -- you can see it in any country. Now, don't you think the punishment

2 should envisage repairing this demoralisation, apart from the ethical

3 side, of course, which is justice in general. This demoralising, you have

4 a small community which is subject to abuse, and don't you think the

5 punishment -- do you think -- do you consider this -- the punishment

6 should envisage that?

7 A. Of course, yes. I think it should.

8 JUDGE RIAD: Would this be an aggravating circumstance?

9 A. If the sentence has a demoralising effect? You see --

10 JUDGE RIAD: If the aggression or the crime has a demoralising

11 effect, do you think it needs to compensate it, it has to be -- the

12 punishment has to be sufficiently severe?

13 A. Here we are talking about the purpose of punishing those who have

14 committed crimes and those who might in the future commit crimes. We're

15 not referring to victims in this context, although a victim might in the

16 future become the perpetrator of a criminal offence. So the effect should

17 be on both, because, theoretically speaking, you can never know who will

18 in the future act as a perpetrator of a criminal offence. The punishment,

19 the sentence, has to have an effect on both the victims and the

20 perpetrators, otherwise I think we are talking about the retribution

21 here. If the sentence is not a moral one, it might lead to retribution or

22 retaliation in the future.

23 JUDGE RIAD: You spoke of the effect on the victim. Do you

24 consider that the punishment has to take the victim into consideration?

25 A. It is considered to be one of the circumstances of the criminal

1 offence it has already envisaged. It has to be taken into account, of

2 course.

3 JUDGE RIAD: Thank you very much.

4 JUDGE RODRIGUES: [Interpretation] Thank you very much, Judge

5 Riad.

6 Madam Judge Wald has the floor.

7 JUDGE WALD: Professor, in your study of the sentences that were

8 meted out for serious crimes like murder, or maybe very serious beatings,

9 were there any such crimes that involved the police or prison guards

10 beating or killing people in their custody?

11 A. I do not have any concrete information about that.

12 JUDGE WALD: So you don't have any memory or impression of whether

13 or not the fact that it was the police or, say, guards in the prison, and

14 that they were perpetrating the crime against somebody in their custody,

15 whether or not that would be considered an aggravating circumstance and

16 what the punishment, the range of punishment, would be likely to be?

17 A. Yes. That would be a most serious criminal offence. According to

18 our criminal law, there is the criminal offence of illegal deprivation of

19 freedom which leads to the death of that person. That would be a

20 very -- a more serious form of the crime.

21 JUDGE WALD: Okay. My other question is: Does the law of the

22 former Yugoslavia have provisions which deal with participation in what we

23 call in some other systems criminal enterprises, where a group of people

24 operate some kind of a criminal enterprise and various people participate

25 in various ways, to differing degrees, in that criminal enterprise? I

1 mean, is that a recognised crime in Yugoslavian law?

2 A. Yes. It is the criminal act of criminal association. If several

3 persons get together to commit a criminal act, then it is a higher level

4 of a criminal offence.

5 JUDGE WALD: When you say "higher level of a criminal offence," do

6 you mean it's a more serious offence than if the person does it alone, or

7 you don't mean that? I just want to make sure I understand you.

8 A. Yes.

9 JUDGE WALD: Okay. Now, when the time would come that somebody

10 might be convicted of participating in an association which had a criminal

11 purpose on it, what kind of factors would the Court consider in

12 sentencing? Would it, for instance -- let me just give you examples and

13 then you can elaborate on them. Would it consider the degree of that

14 person's participation he was just, you know, a minor participant or he

15 was a major leader of the association? Would it consider that he might be

16 responsible for things done by the association because he knew about them

17 even if he didn't do them? What are the factors that the Court would look

18 at in sentencing somebody who was found to be a knowing participant in a

19 criminal enterprise?

20 A. Quite certainly, depending on the role in that association or in

21 that enterprise, the severity of the punishment depends on that. The

22 organiser of that association, the one who has the lead, would be punished

23 more severely than the other participants, but that of course depends on

24 the case itself. We have two criminal acts of that kind. One is

25 association for the purpose of hostile activity, and a second is

1 association for the commission of criminal acts against public law and

2 order. But in any event, the role of the leader or the organiser would

3 have greater significance.

4 JUDGE WALD: And my final question along these lines is: Suppose

5 the participant in this criminal enterprise, the act that that person did

6 was itself not illegal, suppose he just kept the books or something like

7 that for the criminal enterprise or he delivered food for everybody, but

8 knowing that it was to help support the criminal enterprise. Would he

9 still be found responsible for the activities of the criminal enterprise,

10 commensurate with, obviously, his role?

11 A. Yes. If he had contributed to the commission of that criminal

12 plan, he would be treated as a member of such an association.

13 JUDGE WALD: Thank you.

14 JUDGE RODRIGUES: [Interpretation] Thank you very much, Judge

15 Wald.

16 Professor, I have a privilege of being the last to speak, so I

17 have few questions, but I do have one for you. You spoke about the

18 accumulation of penalties in the Yugoslav system, but I think there is a

19 requirement, and that is if all that occurs within the same jurisdiction.

20 Let me ask you this: How does the Yugoslav system view the situation when

21 there are two different jurisdictions involved, two different countries,

22 and an international jurisdiction or so?

23 A. Mr. President, that would be a question more relevant to

24 international law rather than criminal law. The Yugoslav courts always

25 respect the decisions of foreign courts, but they try cases on the basis

1 of their own legislation so that a final decision of a foreign court would

2 have to be observed.

3 JUDGE RODRIGUES: [Interpretation] So if I tell you, for instance,

4 that the example put to you by Mr. Stojanovic, the offences of 1992 come

5 under international jurisdiction and the offences committed in 1993 become

6 the object of national jurisdiction, how would you view the situation?

7 A. If the Yugoslav court were to try a criminal act committed earlier

8 on abroad, he would take that punishment as being final. So he would

9 respect the decision of the court of the foreign country. And then it

10 would add the punishment for the criminal act that he had already

11 pronounced. He would apply the system of accumulation and combine the

12 sentences into a single sentence.

13 JUDGE RODRIGUES: [Interpretation] Thank you very much, Professor

14 Cejovic. I don't think that we have any more questions for you. Thank

15 you very much for coming. Thank you for clarifying matters and for

16 answering our questions and we wish you every success in your work and

17 success in your teaching.

18 THE WITNESS: [Interpretation] According to our legal system, the

19 accused always has the last word. I felt here like a student being

20 examined, and I have become accustomed to me posing the questions, and you

21 can imagine that I didn't feel too comfortable, but if this time you were

22 not pleased with my answers, perhaps you will give me another chance to

23 correct myself in accordance with these provisions regarding the purpose

24 of punishment.

25 JUDGE RODRIGUES: [Interpretation] But Professor, it's always good

1 to change roles from time to time, because one understand better the

2 position of the other side.

3 THE WITNESS: [Interpretation] Yes, it's wonderful. Thank you very

4 much.

5 JUDGE RODRIGUES: [Interpretation] Thank you. The usher will

6 accompany Professor Cejovic out.

7 [The witness withdrew]

8 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic, I think you have

9 no more witnesses for today.

10 MR. STOJANOVIC: [Interpretation] No, Your Honour. With your

11 permission, we would like to tender this Exhibit 30/4 into evidence, of

12 course so long as the Prosecution has no objection and pursuant to your

13 own decision.

14 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Saxon. Any

15 objections.

16 MR. SAXON: The Prosecution has no objection, thank you, Your

17 Honour.

18 JUDGE RODRIGUES: [Interpretation] Very well then. Exhibit 30/4 is

19 admitted into evidence.

20 Mr. Stojanovic, have we finished your case, your Defence case?

21 MR. STOJANOVIC: [Interpretation] Your Honours, I don't think I can

22 be so definite about it. Just now, at this stage, we have no more

23 witnesses, but I think it would be a pity if our file were not to be

24 enriched by the contribution of expert Norbert Neropil and Paul Hoff.

25 Representatives of the Registry have informed me that this week they are

1 unable to come. I have a suggestion and that is that on some other date,

2 I think colleague Jovan Simic will give me about an hour of his time for

3 him to -- for them to be called and heard in this courtroom.

4 I should like to remind those present that the Defence will not

5 examine those witnesses, but the Prosecution would like to avail itself of

6 its right to cross-examine and you have ruled that that should take some

7 20 minutes. We would just like to reserve the right after that

8 cross-examination to possibly have some questions in the re-examination.

9 So that is all that we still have left as part of our wishes for our

10 case.

11 We would also like to mention three other witnesses that are in

12 our list, Enes Bursic, Jasmin Bursic, and Sebahudin Merzinovic. We were

13 not able to reach these witnesses. We failed to do so even with your

14 assistance. We still abide by the position that the Defence would like

15 them to be heard. All that we could do was to ask from the authorities in

16 Prijedor and Republika Srpska, that is, rather the authorities of -- in

17 the area where they used to reside to obtain documents from them telling

18 us that their place of residence now is unknown.

19 And a further important point for our case that remains

20 outstanding is the question of the exhibits which have not been admitted,

21 and I would ask Your Honours to give us instructions in that regard.

22 Actually, during our opening statement already, I mentioned several

23 documents that I would like to be admitted, and then I was told that this

24 might be done subsequently and that is what we would like to do.

25 In any event, we do not have any more witnesses at this stage.

1 Thank you.

2 JUDGE RODRIGUES: [Interpretation] Very well. As you mentioned,

3 the Chamber has already decided with respect to expert witness Neropil and

4 Paul Hoff that you should contact them to find out whether they could come

5 here at the end of the Defence case. I am referring to all the Defence

6 cases now.

7 You probably remember that that was the suggestion of Ms. Susan

8 Somers. I'm not going to hear her now, because she has already conveyed

9 her position regarding this point. I think it would be opportune now and

10 I wish to address Mr. Jovan Simic with two questions. The first,

11 following this decision of the Chamber and the mention made by

12 Mr. Stojanovic of your willingness to give him an hour to comment on that

13 and second point, to see how we stand with respect to the Defence case for

14 Mr. Prcac bearing in mind the timetable that we have already established.

15 MR. J. SIMIC: [Interpretation] Good afternoon, Your Honours. As

16 far as the first question is concerned, the Defence of Mr. Prcac has

17 nothing against lending this hour, but in view of the order of the

18 witnesses and the arrangements we have already made with the Victims and

19 Witness Unit, that this take place at the end of our case. We had some

20 problems with room reservation so we have made a plan for the presentation

21 of evidence and I fear that that hour could mean something to us.

22 As for the other question, Your Honours, we have a minor problem

23 and it is not our mistake. To the Registry of this Tribunal, we have

24 given documents, two or two and a half months ago, and the last group of

25 documents and witness statements were filed 20 days ago. According to

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1 what the Registry has told us, tomorrow at 3.00, I may receive the

2 translations of those documents and witness statements which it is my duty

3 to distribute in time prior to the beginning of the case.

4 So I am afraid that we might be late. We have our own

5 translations of some of those documents, but as you know, we are

6 constantly rushing against time, and we haven't managed to have everything

7 translated on time.

8 So I appeal to Your Honours for understanding in the event that

9 the Registry does not provide the translations tomorrow, that we file them

10 on Monday. I have the submissions ready, the photocopies of what I have,

11 and my hands are tied by the work of the Registry as regards that

12 particular portion.

13 As for the Defence case itself, we have prepared or rather called

14 16 witnesses who will be appearing before this Honorable Tribunal, but I

15 do wish to underline that our case begins on the 8th of May because

16 Monday, the 7th has been envisaged for the cross-examination of

17 Mr. Radic. And we hoped, as we have promised, that we will be able to

18 complete our Defence case within the time limit envisaged on the condition

19 that everything runs smoothly, maybe even before the time limit expires.

20 JUDGE RODRIGUES: [Interpretation] So you talk about, you mean the

21 18th of May. By the 18th of May, is that what you mean, that you will

22 complete your case?

23 MR. J. SIMIC: [Interpretation] Certainly, Your Honour.

24 JUDGE RODRIGUES: [Interpretation] Very well. Anything else?

25 MR. J. SIMIC: [Interpretation] Only with regard to these documents

1 and their translations. I do hope that they will be ready, but just in

2 case, if I could have your indulgence.

3 JUDGE RODRIGUES: [Interpretation] I'm going to give the floor to

4 Ms. Susan Somers now so that she can comment on this question of

5 documents, please, and then I'll ask the Registry what the -- how the

6 situation stands.

7 Ms. Susan Somers, you have the floor regarding the documents and

8 anything else you may wish to convey to us.

9 MS. SOMERS: Thank you very much, Your Honour.

10 Working backward from Mr. Simic's comments about the documents, we

11 do understand, we've been in a similar situation with translation issues.

12 However, if there were any way which would allow us to have some of the

13 documents in whatever form, even with their translations now, and we would

14 await, as urgently as possible, the official translations, that will

15 assist us inasmuch as we have the coming week in which to prepare for

16 cross of their case. I would ask that that -- and that should be between

17 us but I do ask that there be some cooperation in which to give us

18 something in which to work now.

19 Now, our question about their witness order has just arisen

20 because Mr. Simic indicated 16 witnesses. The original 65 ter list had

21 some 15 and of those, one of the confidential witnesses from the Zigic

22 case also covered one of Mr. Simic's witnesses, and then the accused

23 himself who apparently will not be coming forward could also be stricken

24 from that list and that will still leave us with only 13. So we'd like to

25 make sure we understand exactly who is on the list and, again, I think we

1 will be able to discuss that but I wanted to let the Chamber know there

2 may be a -- some confusion that needs to be ironed out.

3 I'd like to ask also for some expression of witness order as we

4 have not had it other than a 65 ter listing. And if that is going to be

5 the order, then if the Chamber might ask counsel to so confirm for us,

6 that would be helpful. Because we've had no witness listing in accordance

7 with the seven-day rule that has been in effect in this Chamber.

8 There was an issue on a matter for the Zigic Defence that was

9 raised by the Chamber, and particularly Judge Wald asked if there were, in

10 the course of the searches, any particularly significant identifying

11 information about some of the Zigic criminal background and I, in fact,

12 have a declaration from the investigative official involved in that search

13 which I would like to give to the Chamber, and it would be Exhibit 3/267.

14 It may be D, it may have a letter attached to it, possibly D, and I would

15 ask the Registry representative to distribute it. We have copies also for

16 Defence counsel.

17 Then the last issue, just to put it all in front of the Chamber

18 and then to discuss as the Chamber wishes, for the Radic case, because

19 Radic's cross-examination will go first as Mr. Simic has confirmed, the

20 exhibit numbers for the two experts, the Defence expert Nenad Kecmanovic

21 and the Prosecution's expert, Robert Donia, I've been informed by Registry

22 would have the following numbers, and I would ask the Chamber to admit

23 them so that they can be part of the record now, and this is pursuant to

24 the direction to have written responses and the agreement between

25 counsel.

1 I've been told by Madam Registrar that the Defence Exhibit for

2 Kecmanovic's report, Professor Kecmanovic's report, is D34/3. And the

3 Prosecution Exhibit number for Professor Donia's report, Dr. Donia's

4 report is 3/266. I spoke to Mr. Fila prior to his departure and he

5 conveyed to Mr. Jovanovic as well that by agreement they should go into

6 evidence.

7 Thank you, Your Honour, I think I've covered the issues raised

8 and I've added one.

9 JUDGE RODRIGUES: [Interpretation] Thank you very much, Ms. Susan

10 Somers.

11 We have several matters to address here, as we have some other

12 matters and some other obligations, that the question of documents be

13 addressed in writing, in contact with the Registry. In other words,

14 Mr. Stojanovic said that there were documents that were mentioned in their

15 opening statement. Yes, that is true. I know. Ms. Susan Somers is now

16 mentioning several documents too. So I think it would be better for each

17 party, in contact with the Registry, to review things and communicate to

18 the Chamber in writing, and the Chamber will decide very quickly. Perhaps

19 that's better than going on with this discussion here in the courtroom,

20 when it is simpler to deal with the matter with the Registry, who will

21 give you the numbers and a brief memo. A brief motion addressed to the

22 Chamber would suffice.

23 Now I would like to give the floor to Mr. Jovan Simic regarding

24 this question of documents that Ms. Susan Somers has just raised, that is,

25 whether you can give her something already, and also the question of the

1 list of witnesses. Regarding the document of the Pre-Trial, I count

2 in -- the brief, I see 14. You said 16. Where do we stand with respect

3 to these documents that Ms. Susan Somers has raised and the question of

4 the list of witnesses, the number of witnesses, please?

5 MR. J. SIMIC: [Interpretation] Your Honours, as far as this

6 Defence team can remember, you gave us permission, since we joined the

7 case later, to amend the list, and if we find relevant witnesses, to call

8 them, and that is how we have changed some of the witnesses. And tomorrow

9 or today, whichever the Prosecution prefers, I have a ready list of

10 witnesses. I don't have the translations, and that is what I was waiting

11 for. I have to mention that on our original list, four or five of the

12 witnesses from that list have already appeared in the Defence cases of

13 other accused, so that we were forced to seek some additional witnesses.

14 In the meantime, some other facts have been revealed which we consider to

15 be important, and that is why we decided to call some witnesses that we

16 had not planned, which means that the list has been revised, the number of

17 witnesses will not affect the time factor, and the Prosecution will be

18 informed in due time. I can give them that list immediately. I have it

19 ready.

20 As for the written documents, evidence, we gave all those to the

21 Prosecution two months ago. Only one or two documents are still awaiting

22 translation. Everything else has been given to the Prosecution.

23 As for the affidavits, we will give them in time, and since we

24 have a very good working relationship with the Prosecution, I would like

25 to do that before I go to Belgrade, because I need to see the witnesses

1 once again. That is the reason why I can't give the documents tomorrow,

2 because I have to go down there to see the witnesses to organise things

3 properly. So we do have 16 witnesses for our case.

4 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers.

5 MS. SOMERS: Thank you, Your Honour. Mr. Simic did, in fact, at

6 the beginning of my time here, or as early as possible, give us a list of

7 statements. I'd have to review it to see if the documents were included.

8 We have a Rule 66(B), 66(7) relationship, and so we have been certainly

9 exchanging. I am not clear whether documents in fact were there, so I

10 must have an opportunity to let counsel know what I have in my

11 possession. I think Mr. Simic has just indicated that we have not been

12 served with a final revised list of witnesses, and that would be terribly

13 important for us to have before we all break, and particularly given the

14 fact that he will not be here. So if that could be done perhaps before

15 the close of business today, that would be very much appreciated.

16 Any new names, any substitution names, although perhaps from the

17 standpoint of number of witnesses in the Defence's perspective it may not

18 matter too much, it matters for us so that we can get background

19 information for cross-examination, which is why it is terribly critical

20 that we have it as quickly as possible. I thank you for allowing us to

21 clarify that. It was a bit of a concern, because we just didn't have the

22 numbers straight.

23 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers, you have some

24 priority for the first week; that is, you need the list of witnesses, but

25 especially for the first week, so that you can prepare. Is my

1 understanding correct?

2 MS. SOMERS: Correct, Your Honour. And in particular, I'd like

3 confirmation of the witness order, the actual -- the true order, and if

4 there are substituted witnesses on that original list whose names we were

5 not given because of substituting their status.

6 JUDGE RODRIGUES: [Interpretation] Mr. Jovan Simic, are you able to

7 meet this wish and request?

8 MR. J. SIMIC: [Interpretation] Your Honour, as soon as we have

9 finished business today, I will give the Prosecution the list. It's

10 ready. I just wanted to say that knowing what the situation is, and the

11 Prosecution placed us in an identical situation several times, we have

12 planned some new witnesses for the second half of our case so as to give

13 enough time to the Prosecution.

14 JUDGE RODRIGUES: [Interpretation] Very well. I would now like to

15 address Ms. Krystal, for two points. Do you have any indications as to

16 the translation question mentioned by Mr. Jovan Simic? That is my first

17 question. My second question: Are you prepared to cooperate with the

18 parties to review the situation regarding the exhibits which seem to have

19 got lost in the meantime?

20 THE REGISTRAR: Mr. President, I am currently trying to find out

21 the status on the translations, and I feel that after this session this

22 afternoon, I will be able to have more information to see how soon we can

23 get them. As to the second question, yes, I am prepared to deal with the

24 exhibit; in fact, we've been talking about the numbers and getting things

25 organised, so I don't think that it will take too much time, and I will

1 prepare a memo once everything is completed and submit it to the Chamber.

2 JUDGE RODRIGUES: [Interpretation] Can I, as the President of this

3 Chamber, conclude that by leaving things in your hands, we can put our

4 minds at rest; I can be optimistic?

5 THE REGISTRAR: Yes, Mr. President. You can always be optimistic.

6 JUDGE RODRIGUES: [Interpretation] Very well, then. With this

7 optimism and tranquility, we must adjourn for today, and the next time

8 that we will be meeting will be on the 7th of May, for the

9 cross-examination of Mr. Radic. With that, I wish you success in your

10 work and a good weekend, on condition you have time.

11 I apologise. I'm sorry. We need to go, but there is this other

12 question.

13 Mr. Stojanovic, this exhibit, this statement presented by the

14 Prosecutor, 3/267D, the statement of authenticity, do you have any

15 objections?

16 MR. STOJANOVIC: [Interpretation] Your Honour, I thought we would

17 deal with that through your instructions regarding contacts with the

18 Prosecution through the Registry. There really was very little time for

19 this.

20 JUDGE RODRIGUES: [Interpretation] That's fine. Thank you. That's

21 sufficient. If you have no objection, you are right; that can be left in

22 the hands of the parties and the Registry. So the hearing is adjourned.

23 --- Whereupon the hearing adjourned at 3.05 p.m.,

24 to be reconvened on Monday, the 7th day of May,

25 2001, at 9.20 a.m.